Section 44 of the Terrorism Act 2000 gave police officers certain additional powers of ‘stop and search’, which have since lead to complaints of mistreatment by both press and citizen journalists.
What powers does section 44 give to police officers?
Firstly, for the powers to come into effect, the area in question must first have been designated by a police force as being at potential risk of terrorist attack. Areas designated in this way under the 2000 Act can be very large – one good example is that section 44 applies to the whole of the London metropolitan police district. If this is the case then a police officer has the authority to stop and search any person, even if there is no reasonable suspicion that the person is a potential terrorist. Section 44 also states that it is an offence to intentionally obstruct a police officer who is carrying out such a search.
Furthermore, the search may be ‘for articles of a kind which could be used in connection with terrorism’ and the police officer is empowered to confiscate any articles is he/she reasonably suspects that there is an intention to use it for to aid or carry out acts of terrorism. The rights of citizens are that the police officer may not require them to remove any clothing in public except for any headgear they may be wearing, footwear, outerwear such as jackets and coats, or gloves.
In 2006, the House of Lords rejected the argument that section 44’s provision for ‘random stopping and searching’ by police officers is in breach of the European Convention on Human Rights.
When have police officers used section 44 in relation to photographers?
In 2008, the use of section 44 to question a man in Portsmouth led to criticism of the police abusing their new powers. The man had taken a photo with his mobile phone of a police car parked at a bus stop, which he thought to be illegal parking. The police officers to whom the car belonged had been dealing with a nearby incident but when they observed this man taking photos, they questioned him claiming they had the right to do so under the Terrorism Act 2000. A police spokesman later stated that the two officers had acted reasonably as suspicion was aroused by the man taking photos of their car.
Also in 2008, a freelance photographer took some pictures of a wedding close to London City Airport and as a result was detained for questioning for 45 minutes. The police officers in this case also claimed that she was being stopped under section 44 powers and this incident prompted a complaint by the National Union of Journalists.
What advice has been issued to the police regarding section 44 and photographers?
The National Policing Improvement Agency, on behalf of the Association of Chief Police Officers, felt it necessary in 2008 to issue advice to police about section 44 powers. It was made clear within these guidelines that section 44 does not prohibit photography in areas designated to be at risk of a potential terrorist attack.
However, section 43 of the Terrorism Act 2000 allows an officer to search a person who is taking photographs that the officer suspects are being taken to aid ‘hostile terrorist reconnaissance’. The crucial difference between section 44 and 43 is that the latter does require the police officer to reasonably suspect the person to be a potential terrorist.
As above, the police officer may seize articles from the person during the search and the guidelines state that this includes film and memory cards. However ‘officers do not any legal powers to delete images or destroy film’.
What does the Police and Criminal Evidence Act 1984 mean for photographers?
The advice issued in 2008 from the National Policing Improvement Agency, stated that all stop and searches carried out under the Terrorism Act 2000 must comply with the Police and Criminal Evidence Act 1984. Under this Act, journalistic material (defined as ‘material acquired and created for the purposes of journalism’) is protected from seizure by ‘special procedures’.
Under the 1984 Act, police must apply to a High Court judge, a recorder (assistant judge at Crown court) or a circuit judge if they wish to obtain any journalistic material; gain access to documents or search premises for evidence of serious offences. If they succeed and the judge sees reasonable grounds for the police officer’s case then the judge will make a ‘production order’ for the journalistic material in question. The Act did therefore appear to provide useful protection to journalists but they have often expressed concern that not all lower-ranking officers were either aware of this or paid any attention.