Stop and search - under what power?

HOW SHOULD journalists deal with police stops and searches - and with luck still file the story? Solicitor Shamik Dutta of law firm Fisher Meredith had sound guidance for June's LFB meeting.

Shamik's recent clients include comedian and journalist Mark Thomas, who won a £1200 settlement for a 12-minute detention. While Mark Thomas' case "sets a helpful precedent for the less famous," Shamik says it is rare for the police to offer compensation before proceedings are issued at court, so in that sense the brief was "atypical". He specialises in civil litigation cases against the police, the Home Office, "anyone with the power to detain," and cases involving race discrimination or Data Protection Act and Human Rights Act breaches. Many of Shamik's clients are young, but they have come from all walks of life.

Shamik is dynamic
Shamik is dynamic

Unfortunately, "nothing will guarantee you will not get arrested... if a police officer is intent on arresting you they probably will," Shamik warns. But if the police seem to be unlawfully preventing you from covering an event, and you as a journalist can "persuade them you are acting lawfully... you may be able to get them to desist."

If you are stopped

Politely ask questions, like "Excuse me officer, can I ask under what power?" The Police and Criminal Evidence Act 1984, (PACE, code A, paragraph 3.8,) outlines the "reasonable steps" a police officer must take before making any "request" of you. These include identifying themselves, identifying which powers they are using, and informing you of the purpose of any search. When using an Act that doesn't require "reasonable suspicion," the officer still has to name the Act and the search power relied upon.

The words used by the officer are important for bringing a possible action later. If they are abusive, or if they haven't fulfilled PACE conditions before searching you, make notes, record or film the exchange. Under PACE you are entitled to a "chit" from police recording your stop.

The most troublesome police powers, especially for photographers, are found in the Terrorism Act 2000, whose Section 44 (and to a lesser extent, Section 43) have been widely used for random stops and searches, as they afforded wide discretion to officers without the need for providing "reasonable suspicion" to justify a search.

Litigation against the police - including Branch member Pennie Quinton taking the UK to the European Court of Human Rights - and pressure from Parliament has triggered numerous "clarifications" and "guidance" by the Home Office and the Metropolitan Police, narrowing the scope of the Terrorism Act. Home Office policy circular 012/2009 from August 2009 says: "the powers should be used proportionately and not specifically target photographers". You should ask officers on what basis they have a reasonable suspicion you're engaging in reconnaissance for terrorism. "If you persist in polite question on these lines, they may begin to wonder if what they're doing is lawful," says Shamik. The Home Office has also declared that the Terrorism Act does not authorise officers on the street to access text messages or emails on mobile devices.

Guidelines issued to Metropolitan Police officers say that most typical Terrorism Act 2000 stops and searches should be under Section 43 powers, not Section 44 - and that this Section specifically "does not prohibit the taking of photographs". A police stop for "hostile reconnaissance" should be under the Section 43 power - which needs reasonable suspicion that there is a real terrorist act that you're scouting for. Ask them, politely, what exactly their reasonable suspicion is.

[Since the meeting, the Home Secretary has announced that Section 44 should no longer be used to stop anyone on foot.]

Shamik is dynamic
Shamik Dutta advises us

The circular also gives guidance on the use of the Act's Section 58A, covering "eliciting information" on police or members of the armed forces. This "does not criminalise the taking of photographs of police," according to the guidelines.

There is also guidance that despite Section 58 (1) (a) of the Terrorism Act 2000 - which outlaws making "a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism," - you're legally allowed to film images - which can be assumed to cover sound recordings as well. The House of Lords has also decided that there needs to be a reasonable suspicion that there is an actual terrorist outrage about to happen, and that there is an actual person you are assisting, not a hypothetical terrorist threat.

Special procedure material

The threshold for justifying a seizure is higher than that needed to justify a search. While the Criminal Justice and Police Act 2001 (Section 19) empowers officers to "seize under lawful search" your memory stick and camera, PACE rules that police can only seize "special procedure material" of a journalistic nature when they have a warrant. Shamik warns that police are entitled to seize (some) items while they ascertain whether or not they're "special procedure material." Shamik recommends labelling your camera, voice recorder and notebooks as "special procedure material under PACE 1984".

Police have no power to delete or destroy memory card images or films. What recourse do you have if they do? You could make a complaint against police, which would lead to the officer being interviewed under criminal caution. You could bring a civil action for damages, but that would take up to five years and you're unlikely to get much, as "establishing loss" - the cash value of the harm to you - is difficult.

There's more...

Other police powers you could find yourself facing include Section 50 of the Police Reform Act 2002: while you don't normally have to provide your name and address, Section 50 forces you to do so if police suspect you of "anti-social behaviour". Though there is little caselaw on section 50, Shamik suggests that there are likely to be few circumstances where the mere taking of photographs could be construed as "anti-social" such that officers would be empowered to require name and address details from photographers and journalists.

On occasion the police have tried to restrict the press pack under Section 14 of the Public Order Act 1986, by declaring that they constitute a "public assembly," but this power can only be used for an "assembly" that may result in serious public order or violence and appears designed to assist in policing demonstrations, not policing those people who are reporting on or photographing demonstrations. Shamik suggests you could persuade an officer to "radio his supervising officer" in this case: they may provide an accurate interpretation of Section 14.

In summary

"Be assertive and polite, ask questions", concludes Shamik. Ask for the basis for the stop and search. Make a detailed note of what you said and what they said. Remind them of the police codes of conduct, and of Metropolitan Police and Home Office policy. Warn them that you will make a complaint.

Shamik's extensive Frequently Asked Questions list on police searches, photography, "special procedure material" and making a complaint is here.

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