Turn on the telly at 3am and you may have watched a handful of noble Lords debating the 2008 Counter Terrorism Bill. Their Lordships have maintained a steady to-and-fro of erudite arguments about the rights and wrongs of detention for 42 days without charge. Scant attention has been paid to the problems this Bill creates for photographers, and its implicit and substantial threats to press coverage. As the Bill has been batted back and forth between the Commons, Lords and Committee it has mutated somewhat from the draft discussed here back in March.

In the latest post-committee version, the Part 1 powers of seizure of any 'document', for up to 96hrs during a s.43 search remain intact. As before, this specifically includes electronic documents such as memory cards, laptops, PDA's and mobile phones. However the earlier version contained no recognition of legal privilege. Now seizure of legally privileged documents is prohibited.

In theory this should mean that bona fide journaliists will be able to avoid having their material seized. Press material is privileged as 'special procedure' under PACE 1984. That is, police are only allowed access once a court order has been made. This should alleviate fears of police using s.34 search and confiscation as a means to suppress inconvenient reporting.

However Special Procedure provisions have proved flimsy in the past, it being easy for police to claim they were unaware of seized material having special procedure status. It is commonplace for police to dispute or dismiss the credentials of freelances especially. Recognition of the National Press Card is frequently subject to the operational priorities or mood of the police, a problem that the ACPO guidelines have failed to resolve. Refusal to recognise the status of the bearer as a professional journalist will mean PACE inhibitions may be disregarded.

In practice then, and in the heat of the moment, this protection may be swept aside. Or arrest on some other pretext may be threatened. Unfortunately the draft legislation now supplies a new offence which will fit the bill admirably, which we will come to in a moment.

Aside from the special case of professional press photography, there are no protections for citizens and citizen journalists, whose rights to photograph in public places are equal to professionals, and - as this and other sites document with tedious regularity - are also exposed to interference with their legitimate photography. Such is the fuss that has been made that Home Secretary Jacqui Smith last month announced that further guidance would be offered to police forces during November.

Those who believed that PhotoRights previous discussion of this Bill was paranoid nonsense and hoped that Smith might use this opportunity to inject a soothing measure of sanity, or a clear instruction to implement the ACPO guidelines, look like being disappointed. Marc Vallée's blog publishes the draft instruction that the Home Secretary will issue to police:

On Thursday 20th November the Home Office will publish new operational guidance to the police on the use of stop and search powers under section 44 of the Terrorism Act 2000 of those taking photographs in public places.The draft guidance says:
“There is no power under the Terrorism Act 2000 to prohibit people from taking photographs or digital images in an area where an authority under section 44 is in place."
"If officers reasonably suspect that photographs are being taken as part of hostile terrorist reconnaissance then they should act appropriately, by searching the person under Section 43 of the Terrorism Act or making an arrest. Cameras, film and memory cards may be seized as evidence but there is no power for images to be deleted or film to be destroyed by officers.”

Smith's draft is neither accurate nor honest, since seizure for evidence has always been possible and inevitable where an arrestable offence has been committed. What CTA2008 adds to the mix is the abillity to seize memory cards for no reason except a vague suspicion, to see whether there is any evidence of an offence or intelligence on the card. This can happen with no offence committed and no requirement for police to arrest, so in most cases the 'suspected terrorist' photographer will be allowed to go after a quick frisk, but minus their photographs. Only an idiot would expect suspected terrorists to be safe once disarmed of their camera, which just goes to show what a work of disingenuous theatre this all is.

What this boils down to is that pointless and unpopular scattergun s44 harassment of photographers is clearly pissing off voters, so from Government's point of view it would be better for police to embark on targeted s.43 harassment instead, accompanied by groundless seizure of memory cards for up to 96hrs. This has clear news management advantage both for government and police and is not even slightly reassuring.

As we said, and as Vallée says, the widespread abuse of s.44 for the purpose of interfering with photography is a strong indication that we can expect s.43 to now be misapplied and abused. Police won't have to imagine any offence has been committed, they'll just need to have a 'reasonable suspicion' that a photographer might be a terrorist, for long enough to search them and confiscate their equipment until deadlines have passed.

In case 'reasonable suspicion' might be difficult to arrange, the draft Bill helpfully creates a new offence:

s.75:Offences relating to information about members of armed forces etc
After section 58 of the Terrorism Act 2000 (collection of information) insert—
“58A Eliciting, publishing or communicating information about members of armed forces etc
(1) A person commits an offence who—
(a) elicits or attempts to elicit information about an individual who is or has been—
(i) a member of Her Majesty’s forces,
(ii) a member of any of the intelligence services, or
(iii) a constable,
which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or publishes or communicates any such information.
It is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action.
A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine, or to both;
....
In this section “the intelligence services” means the Security Service, the secret Intelligence Service and GCHQ (within the meaning of section 3 of the Intelligence Services Act 1994 (c. 13)).

Almost certainly this will be interpreted to mean that anyone photographing a constable - the legal term for any police officer - in the wrong circumstances may risk being arrested. Should the police wish to interdict photography they will now have power to do so, despite it otherwise being legal as Smith concedes. Moreover they will have those powers in circumstances where both government and police often find coverage inconvenient.

For sure this would be unlikely to happen where an ordinary policeman is helping old ladies across the road, but in sensitive situations such as protests, public order events, demos, and areas where security is a particular concern such as the 1km exclusion zone around Westminster, this could well be an issue. Anyone who police believe to be hostile and taking photos of them will be a potential candidate.

Similarly photographing SO19 firearms officers may be argued to be the sort of thing only a terrorist would do, or FIT officers. FITwatch's tactic of photographing and naming individual officers on their site looks particularly ill-advised. Appendix 7 contains a whole raft of provisions aimed at web hosting and service provider companies who display 'elicited' material.

And the first action of police who wish to decide whether a s.75 offence may have been committed will be, of course, to perform a s.43 stop and search, and confiscate equipment for 3 days, just as Smith plans to instruct them to do. You really have to marvel at the ingenuity of the lawmakers and their determination to control photographic coverage, all in the name of freedom of course.