Kent Police set a new legal precedent last week, as they arrested a photographer on the unusual grounds of "being too tall".
This follows a year of increasingly unhappy incidents, in which continued reassurances from on high appear to have had little impact on how Police Forces deal with photographers – and reinforces a growing concern that the breakdown in trust and cooperation with the Police warned of in respect of demonstrations could soon transfer to photography too.
According to his blog, our over-tall photographer Alex Turner was taking snaps in Chatham High St last Thursday, when he was approached by two unidentified men. They did not identify themselves, but demanded that he show them some ID and warned that if he failed to comply, they would summon police officers to deal with him.
This they did, and a PCSO and WPC quickly joined the fray. Turner took a photo of the pair, and was promptly arrested. It is unclear from his own account precisely what he was being arrested for. However, he does record that the WPC stated she had felt threatened by him when he took her picture, referring to his size - 5' 11" and about 12 stone - and implying that she found it intimidating.
Turner claims he was handcuffed, held in a police van for around 20 minutes, and forced to provide ID before they would release him. He was then searched in public by plain clothes officers who failed to provide any ID before they did so.
Following his release, he further claims that the police confirmed he was at liberty to take photographs, so long as - according to the PCSO - he did not take any photographs of the police.
This is just the latest in a long line of PR disasters that have dogged police forces over the last 12 months, with tourists, schoolboys and passers-by all subject to arrest for the heinous offence of pursuing their hobby. Each incident is followed by much police hand-wringing, and statements to the effect that these are one-offs: the fault of over-zealous individual officers.
The Home Office has issued numerous statements reaffirming the public’s right to take photographs. Last week, the Met issued its own guidelines, which may go some way to explaining why the Police so persistently get it wrong.
At the heart of the present controversy is the question of when behaviour becomes suspicious. Advice we have received suggests that the police may arrest an individual under PACE s.1 or the Terrorism Act s.44 where they have reasonable suspicion that an illegal act is being carried out.
In other words, photography on its own is not suspicious behaviour: police suspicions need to be grounded in other evidence, and it is not reasonable to throw a blanket suspicion over the activities of all photographers.
Yet here is the Met guidance in respect of s.44: "Officers have the power to view digital images contained in mobile telephones or cameras... provided that the viewing is to determine whether the images... are of a kind, which could be used in connection with terrorism."
Not quite. The Met guidelines make no mention of reasonable suspicion: in effect, they duck the single issue that is at the heart of so much grief.
We asked the Met to explain this omission, but at time of writing, they have not come back to us.
In the case reported above, a spokesman for Chatham Police was prepared to confirm only the arrest and de-arrest, and that it was in respect of suspicious conduct under the Terrorism Act 2000. He added that Kent Police have voluntarily referred the complaint to the Independent Police Complaints Commission.
On the issues of what a citizen may lawfully do in the High St – whether ID must be supplied on demand, and whether photographing a police officer, or even being too tall, was grounds for arrest – neither Chatham nor Kent would provide any further comment. Kent police appeared especially unhappy at providing the public with any guidance as to what constituted an offence.
However, as debate in parliament a couple of months back revealed, MPs on all sides of the House are beginning to notice a pattern: and the demand for police to act lawfully in respect of their policing of photography is growing. Even Home Office Under-Secretary Shahid Malik, who responded in this debate, was forced to concede that the events now being brought before Parliament were regrettable, and that counter-terror legislation was not intended to be used in this way.
Despite this, the message still does not appear to be getting through to police at the sharp end. This raises the final concern that continued failure by the police to address this issue and to ensure that their officers are interacting lawfully with the public is likely to lead to a breakdown in relations.
Following the G20 earlier this year, Her Majesty’s Inspectorate of Constabulary issued a report (pdf) warning that unless police responded to public concerns, public support for the policing of demonstrations was likely to break down. Comedian Mark Thomas has already gained headlines for his campaign against unnecessary police stops, with its slogan: "If the police choose to waste my time, I will certainly waste theirs."
More seriously, lawyer Anna Mazzola observed in last week’s Guardian: "If the police truly want to convince journalists that they are committed to allowing freedom of expression and to enabling members of the press to do their jobs, then they should engage with these issues rather than issuing guidance which is likely to hamper them."
Kent police has supplied us with the following statement, giving its take on the incident:
Assistant Chief Constable Allyn Thomas said: "Our officers are extremely vigilant and their primary concern is always the safety of the public.
"At the time of this incident, a police officer responded to a report concerning a man who was taking photographs of buildings and people in Chatham town centre. When challenged by the police officer the man refused to give any personal details which it was thought was suspicious.
"As a result, he was arrested and asked to wait in a police vehicle while his details were checked. He was released a short time later after these details had been properly verified, and no further action has been taken.
"A formal complaint has subsequently be made in relation to this incident which has been recorded and an investigation has commenced."