The government’s own anti-terror advisor, Lord Carlile of Berriew, believes that the police are over-using and misusing anti-terror laws to crack down on photographers.
Speaking to the Independent this week, he warned that officers who make use of Section 44 powers to stop and search anyone in a designated "authorisation zone" without giving a reason need to be aware that the simple act of taking a photograph is not a good enough reason to detain the photographer.
"The police have to be very careful about stopping people who are taking what I would call leisure photographs, and indeed professional photographers," he said. "The fact that someone is taking photographs is not prima facie a good reason for stop and search and is very far from raising suspicion. It is a matter of concern and the police will know that they have to look at this very carefully."
Lord Carlile’s comments follow a number of high profile incidents in which police powers in this respect appear to have been used excessively. Most recently, it was reported that two police community support officers stopped and searched BBC stills photographer Jeff Overs as he took photographs of St Paul's Cathedral.
Craig Mackey, speaking for the Association of Chief Police Officers on this issue, blamed lack of awareness by officers as to how best to use "complex" legislation. He said: "It goes back to the issue of briefing and training of staff and making sure they are clear around the legislation we are asking them to use."
"It is difficult to imagine a scenario where someone taking pictures of Christmas lights would be something we should be dealing with."
It is possible that ACPO is not as up to date on this issue as it should be. Two years ago, Suffolk police apologised to an amateur photographer stopped from taking photographs at the town's Christmas lights switch-on by two special constables who told him he needed a licence to take pictures at the public event.
Yet earlier this week, it was reported that amateur photographer Andrew White, was questioned by police under anti-terror laws for taking pictures of Christmas lights. According to police, he was stopped for "taking too many photographs in a busy shopping area".
The fear, expressed within the ranks of senior police officers, is that a backlash against perceived heavy-handedness could lead to members of the public becoming more aware of their rights, less co-operative, and ultimately far more difficult to police.
Although the focus of public debate is currently on photographers being stopped and searched under terror legislation, the issue goes far wider and highlights a growing confusion both on the part of police and public as to what police may do – and when they may do it.
The police have always had wide powers (pdf) enabling them to stop and search individuals in cases where they have reasonable suspicion of some offence being committed: for instance, drugs, offensive weapons and stolen property are all catered for under various bits of legislation – most notably, Section 1 of the Police and Criminal Evidence Act 1994 (pdf).
Section 60 is more contentious, allowing police to search “without reasonable suspicion” inside designated areas. This same division of powers exists in anti-terror legislation, as s.43 of the Terrorism Act 2000 allows a search where there is reasonable suspicion of terrorism – while Section 44 allows a search without reasonable grounds in "authorised areas".
Matters are further complicated by the fact that the authorities are unwilling to disclose which areas are authorised.
Recent legislation has introduced the notion that it should be an offence to photograph police officers for terrorist purposes – and police as far afield as North Wales and Chatham now interpret this as a general prohibition on photographing police officers.
There are local by-laws requiring a licence to take photographs: police powers to "stop and talk to". Forms that encourage police to collect data on who they have spoken to, introduced originally as a means to prevent ethnic bias in use of stop powers, are now regarded as a sinister form of surveillance.
Some police officers have been known to threaten individuals who exercise their legal right to withhold their name and address with other offences such as obstruction.
It is hard enough for the public to keep abreast of this maze of legislation – and therefore not at all surprising if some police forces are also unable to keep their officers fully trained in the nuances of the law. ®