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Photography: Yes, you have rights

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Comment Government claims to uphold the right of good upstanding Englishmen with cameras to snap whenever and wherever they please took a knock last week, with the publication of a letter from the Home Office setting out when these rights might be curtailed.

Vernon Coaker, the Minister for Security, Counter-terrorism, Crime and Policing wrote to Jeremy Dear, general secretary of the National Union of Journalists. His letter, dated 3 December 2008 confirms that photography can be "limited" in public places in "special circumstances":

He wrote: "This may be on the grounds of national security or there may be situations in which the taking of photographs may cause or lead to public order situations or inflame an already tense situation or raise security considerations.

"Additionally, the police may require a person to move on in order to prevent a breach of the peace or to avoid a public order situation or for the person’s own safety and welfare or for the safety and welfare of others".

Government apologists will argue that this merely restates the law as it stands. Although there is no general prohibition on taking photographs, the law already gives the police powers to stop individuals taking photographs of "prohibited places" under the Official Secrets Act 1989.

Police may also stop individuals and ask why they are taking photographs if they have grounds for suspecting some Terrorist motive (s.43-44, Terrorism Act 2000). Photographers may not obstruct – nor may they use the act of taking photographs as a means to harass or intimidate. The latter issue has arisen, as police claim that some photographers accompanying demonstrations go out of their way to ‘wind up’ individual police offices by aggressive use of their cameras.

There are two reasons for suspecting deeper implications to this statement. Over the last year, when asked to state categorically that individuals have a right to photograph, Home Office Ministers, from the Home Secretary on down, have signally failed to do so. Virtually every acknowledgment of that right has been qualified, as it is here, by a rather longer catalogue of circumstances where that right may be overruled.

It is the equivalent of not quite expressing wholehearted support for a political colleague when challenged to do so by journalists.

The second and far more worrying aspect of this statement is the introduction of references to public order and breach of the peace. Again, if used in exceptional circumstances, this changes little. However – Scottish readers please note – the use of breach of the peace in England and Wales is at present far more limited than north of the border.

In Scotland, Police may – and frequently do – arrest individuals for breach of the peace, defined as conduct that causes any individual, including a Police officer, to feel alarmed or disturbed. Campaigners against the use of this power argue that it is based on Common Law rather than statute and is too broadly defined and too subjective.

Typical of this wide use of breach of the peace was a recent incident, in which a man was arrested and fined for his "unchivalrous" conduct in taking a photograph of a woman who was feeling "unwell" outside a bar in the centre of Edinburgh.

This incident contrasts sharply with one that took place earlier in the year in England, where police admitted that they had been wrong to cite possible breach of the peace as a reaon for preventing a photographer taking photographs of someone threatening to commit suicide.

As it is Christmas, we shall be charitable and assume that Vernon Coaker has no ulterior motive for responding in the way he does – and that his words should be taken at face value. Certainly, it could have nothing to do with a Home Office attempt to prevent photographers publicising incidents of the sort recorded here. ®

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