Image © Marina Scukina/BJP.
28 Jan 2011
Section 44: A wasted opportunity
A year after the European Court of Human Rights found Britain's stop-and-search powers to be illegal, and six months after the Home Office ordered a review of the controversial anti-terrorism laws, the proposals unveiled this week fall short of photographers' expectation
A wasted opportunity. That was my reaction a few hours after Home Secretary Theresa May appeared in the House of Commons to announce her recommendations to make Britain's anti-terrorism legislation fairer.
Of course, while a large majority of the media's coverage centred around control orders, photographers - professionals and amateurs - were waiting for news of Section 44's fate. The controversial stop-and-search powers allowed, until last year, police officers to stop and search anyone to verify whether they are terrorists or not.
But, rightly so, the European Court of Human Rights found that these powers infringed on the right for private life and created humiliation and embarrassment. While the previous government refused to scrap the unlawful powers, the Coalition, elected in May 2010, argued that there was a need to "bring back the freedom and civil liberties lost in the past decade." To do so, the government intended to reform the unpopular anti-terrorism laws that have constantly been used against photographers.
On Wednesday, it finally announced what that reform would be [read our report here]. But, a close look at the Home Office's recommendations is sure to disappoint photographers.
i. The test for authorisation should be where a senior police officer reasonably suspects that an act of terrorism will take place. An authorisation should only be made where the powers are considered "necessary", (rather than the current requirement of merely "expedient") to prevent such an act.
Let's take London, for example. Its size, landmarks and strategic importance make the capital a likely target. A senior police officer, thus, can easily argue that the stop-and-search powers are "necessary" to prevent such an attack.
ii. The maximum period of an authorisation should be reduced from the current maximum of 28 days to 14 days.
In the past, a chief constable looking to use stop-and-search in his area had to request the powers every 28 days (except in London, where the powers were automatically renewed). Now, senior police officers will have to request the powers every 14 days - and since that request can be automated, nothing has really changed.
iii. It should be made clear in primary legislation that the authorisation may only last for as long as is necessary and may only cover a geographical area as wide as necessary to address the threat. The duration of the authorisation and the extent of the police force area that is covered by it must be justified by the need to prevent a suspected act of terrorism.
This recommendation is a smoke-screen. Considering the fact that chief constable won't disclose sensitive or classified information on the likelihood of a terrorist attack, how can anyone contest whether an authorisation is "necessary". Again, in London's case, its appeal to terrorists will ensure that the new powers will automatically be granted to police officers.
iv. The purposes for which the search may be conducted should be narrowed to looking for evidence that the individual is a terrorist or that the vehicle is being used for purposes of terrorism rather than for articles which may be used in connection with terrorism.
Here's the recommendation that will most likely impact photographers, first and foremost. Routinely, police officers argue that photographers could may well be potential terrorists gathering strategic information on how to destroy their targets. The argument was that a photographers' images could "be used in connection with terrorism." However, the Home Office now recommends that any search should only be conducted to determine whether the individual is a terrorist. For photographers, nothing will change. Police officers will continue to ask to see a photographers' images - some might even continue to argue that the photographer could very well be a terrorist as we've seen in the past.
v. The Secretary of State should be able to narrow the geographical extent of the authorisation (as well being able to shorten the period or to cancel or refuse to confirm it as at present).
For this particular recommendation, we won't be able to judge its potential impact on photographers until it's put into place. But even then, the Home Office is unlikely to reveal any details of which authorisations have been curbed, amended or denied.
vi. Robust statutory guidance on the use of the powers should be developed to circumscribe further the discretion available to the police and to provide further safeguards on the use of the power.
That's when I realise that the Home Office hasn't learn the lessons of the past. For the last three years, we - with the great help of Amateur Photographer, have constantly reported on cases of police officers abusing their powers to stop photographers from working in public places. In these three years, the Prime Minister, the Home Office, the Association of Chief Constables and the Metropolitan Police have all issued new guidance on the legality of street photography. But, as our reporting has shown, despite these reassurances and detailed guidance, over-zealous police officers have continued to stop, search and disrupt the work of amateur and professional photographers.
Are we to believe, today, that the Home Office's "robust statutory guidance" will be different? As our Freedom of Information Act requests have shown in the past, such guidance is often ignored by local chief constables. In fact, some constabularies never received any documents from any of the organisation quoted above.
So, what has this review achieved? For photographers, nothing at all. On the other hand, the government has succeeded in keeping the powers it said it needed while ensuring it abides by the European Union's rules.
In short, Section 44 lives.
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