Home Secretary Theresa May has announced that she will ask the government to replace the controversial Section 44 stop-and-search powers with more limited rules "to prevent the misuse of these powers against photographers"
In a statement made in the House of Commons, May said: "The government proposes to replace section 44 stop and search powers with a more tightly defined power allowing a senior police officer to make an authorisation for stop and search powers where they have reason to suspect a terrorist attack will take place and searches are necessary to prevent it."
However, BJP believes, the changes will only be minimal. The review recommendations are as follow:
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.
ii. The maximum period of an authorisation should be reduced from the current maximum of 28 days to 14 days.
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.
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.
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).
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.
In essence, the changes will still authorise chief constables to request stop-and-search powers for 14 days at a time, instead of 28 days, covering "geographical area as wide as necessary to address the threat". The new powers will let police officers stop-and-search a member of the public they suspect of being a terrorist. But, that search will be limited to finding proof "that the individual is a terrorist."
Reacting to the news, photojournalist Marc Vallée tells BJP: "The devil is always in the detail, and after reading the Home Office review it is clear that the coalition government is planning to give the police new stop-and-search powers to get around the European Court of Human Rights' ruling. I do not think for one minute that these new powers will protect photographers from harassment and abuse from the police on the streets of Britain, far from it."
Amateur Photographer magazine, which, along with BJP, has championed photographers' rights and was consulted as part of the Home Office's review, has also urged prudence. "We cautiously welcome the review's findings and the large swathe of the review that was devoted to photography," says Chris Cheesman, news editor of Amateur Photographer. "However, as always, the devil will lie in the way the proposals - and any new laws - are applied on the ground by police officers. Though the Home Secretary highlighted past concerns raised by photographers and the repeal of Section 44, she said that - where there is a 'credible' and 'specific' terror threat - the law would continue to allow police stops without reasonable grounds for suspicion."
European Court decision
The changes come after the Home Office reviewed counter-terrorism legislation following the European Court of Human Rights' ruling that the controversial Section 44 powers were illegal.
Shadow Home Secretary Yvette Cooper asked May to confirm whether or not the changes to stop-and-search powers were in line with the changes the police have made over the past few months.
May answered: "The changes were not introduced by the police, what happened is that I changed the guidance," following the European Court's decision. She added that the police have been operating, over the past few months, under these new rules and that she believes new powers will be able to replace Section 44 without infringing on people's individual rights.
The review was first ordered by the Home Secretary in July 2010. In a statement, May said at the time that "national security is the first duty of government but we are also committed to reversing the substantial erosion of civil liberties. I want a counter-terrorism regime that is proportionate, focused and transparent."
She added: "We must ensure that in protecting public safety, the powers which we need to deal with terrorism are in keeping with Britain's traditions of freedom and fairness."
The review panel was tasked with looking at what counter-terrorism powers and measures could be rolled back "in order to restore the balance of civil liberties and counter-terrorism powers." It was led by the Home Office with "independent oversight by Lord Ken Macdonald QC, the former director of public prosecutions."
The review focused on six areas, one of them being "stop and search powers in section 44 of the Terrorism Act 2000 and the use of terrorism legislation in relation to photography," said the Home Secretary.
In that matter, the review "noted the widespread concern, notably amongst photographers and journalists, that counter-terrorism powers are being used to stop people legitimately taking photographs. While statistics are not available to show which of the offences/powers listed above have created most concern, anecdotal evidence and submissions to this review suggest that section 44 stop and searches of people taking photographs are the key issue."
As a consequence, the review proposed several options to allay photographers' fears, including the curtailment of Section 44 and the issuance of new guidance. "The review judged that over the last two years the guidance available to the police had improved significantly - it is now clear, publicly available and had been promoted within police forces," claims the Home Office. "The consultation with representatives from photography groups on the guidance had also been helpful. The guidance appears to have reduced, though not eliminated, concerns about the alleged misuse of counter-terrorism powers by the police. There is scope for the guidance to be improved further to reflect the proposed changes on section 44 and to reduce the risk of misuse yet further."
It adds: "The review also received submissions relating to ‘over-zealous' security guards taking action against photographers. While not directly related to counter-terrorism powers, the review considered that the guidance and training for the security guards could also be strengthened to reflect better photographers' rights."
However, the Home Office's review does not recommend the repeal of Section 58A of the Terrorism Act, which makes it a potential crime to collect information on and take photos of police officers and soldiers engaged in anti-terrorism activities.
It says: "The review considered the case for repealing section 58A given it is a relatively new and therefore unused offence but accepted the arguments about the deterrent effect of the provision and the concern that its repeal would cause to security forces in the current threat environment. For these reasons, the review recommends keeping Section 58A under close review but not repealing it."
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