Well that's sorted then, the police may not confiscate an image without a court order unless they want to, then it's ok.
Just two weeks since they clarified their position on the law regarding photography, the Association of Chief Police Officers last night issued a short note further clarifying its clarification. This follows the recent exposure by The Register of a widening gulf between ACPO and local police forces over the question of when it …
They can confiscate it but not delete it without a court order. So you would have to be able to prove that the image was recorded in the first place and then deleted. I suppose you could do this with undelete software (as I don't think they would be clever enough to shred the image) but then you would have to prove that the police deleted it and not you.
The problem is there is a real need for the police to have this power and more so than ever. It relates to happy-slapping instances. If they go down the street beating up people and nicking cars and capturing it all for posterity on a camera or mobile phone then the police need the right to confiscate the equipment to check for evidence of a crime as they feel the images might be deleted - they could also expect to do this at a station rather than do it by the roadside. However, like many laws this can equally be abused as they can just suspect that anyone might have recorded a crime and use it to hassle photographers and remove their equipment - abusing their power.
Hardly a red herring. The police very rarely witness a happy slapping incident (or almost any incident for that matter). Even the moronic youths aren't stupid enough to do it in front of the local nick. They would be acting on a complaint that someone was beaten up while others stood around filming on their mobile phones.
The film would be needed for evidence and to suggest, as others have, that the youths should forward a copy within 48 hours to their nearest police station is laughable!
once it's seized as evidence*, it suddenly becomes a very real item, subject to all the finest bureaucracy the police have to offer.
The police have to give you a receipt, reasons for seizing it etc. All of this can be held onto and can potentially come back to haunt them if it's frivolous, or if it mysteriously disappears.
*actually seized by the police as evidence, not "voluntarily" handed over to aid in their enquiries.
As someone who works in schools and has, in the past, been required to analyse a pupil's confiscated phone for video footage of happy slapping (with a supervising police officer looking over my shoulder because they required a quick ID), I can tell you that it's a growing problem.
Police can only act on evidence and "he hit me" isn't evidence, even when that occurs in a secure area. The school in question had DOZENS of CCTV cameras, dozens of staff, thousands of pupils, two teachers in the classroom and still "nothing" was seen of quite a serious incident. A phone confiscation was the only way to get those images and instantly the culprit was identified. There may be problems with the way the evidence was gathered (via a phone confiscation) but the alternative was to let someone who was clearly fingered for the offence get away because "nobody" had seen him slap a kid in the face (right on the temple / ear) so hard that he flew off his chair while the class laughed and the teacher was looking the other way.
In the end, the child in question was interviewed by the police (damn right, too) and when it came to the "I didn't do it" part and they told him they had a phone from one of his friends, it was an instant outright confession, apology, sanctions etc. The parents involved did not take criminal action but -hell - that policeman as far as I was concerned did what he could to protect the kids in that school. Without that phone confiscation, he could have done nothing but give them a ticking off.
I agree that confiscating any phone that's pointed at a police officer is doing them no good at all, and that once you're in public you can take a photo of whatever the hell you like so long as it's not harassment. But at some point you have to gather evidence, because that's all that the police can actually act on when something serious does happen. So long as they have to go through a lengthy paperwork process to seize that property, recording, logging and preserving evidence as they go, providing a receipt or other official confiscation notice, and that the vast proportion of confiscations do actually lead to evidence rather than just the police harassing photographers, I think it's fine.
You have to think of it the same way as CCTV. If you have a home CCTV camera and the police notice that it may have recorded a crime, they are quite within their rights to seize your recordings (and maybe even equipment) so long as they do it properly and officially. But you don't want to see your police force confiscating every camera that's outside a police station "just because". As with everything, it's about having a good reason, they don't even need to prove to have found evidence in every device they confiscate - that would be stupid. And if the courts start noticing tons of photographers complaining about lots of confiscations where nothing happen but the seizure, then they will start to clamp down on such things.
Very good post, sums it up well... I would make one point - The reason that the camera in question (or its memory card, I can't recall off hand) was seized as evidence was because it had allegedly filmed an assault of a Police Officer, rather than just because it was pointed at a stroppy Police Officer. That assault was something along the lines of having his foot run over by a mobility scooter, which on the face of it sounds quite comical, however could represent quite a serious assault. Mobility scooters have killed several people who they've run over and the larger ones could easily break your foot due to their weight.
This kind of thing has been happening since before the imprisonment of the Birmingham 6 and the Guildford 4 waaaay back before the miner's strike.
The problem always occurs when you put someone in power and expect them to act responsibly without keeping a very close eye on their actions. There'll always be someone who believes they're able to do wtf they want because they are the law. The problem's unlikely to stop until there's some kind of Watchman <-> Policeman feedback loop established. Maybe the loop would involve cabling. Maybe not. That's not important right now.
The Police can and do what they like, when they like. They commit crimes and get and get away with it. You just try to report a policeman and watch how many hoops and arses you have to lick to even see anyone in power. They will ignore or bury any evidence you have against them, then they will tell you that the 'crime' is too old to investigate. So PC plod lives on another day. Personal experience.
Since 1986 and Public Order Act.
Since 1973 and Outraging Public Decency
Since 1974 and Protection of Children Act
Since any other piece of poorly defined catch all legislation.
The definition of all of the above can by summarised as "If we don't like it, or we think that somebody else might not like it, you are guilty." I exaggerate only a little in order to make a point.
NB Protection of Children Act, indecent photographs, is not about child pornography, it is "Anything that we think people will not like".
So, if I understand it rightly...if I'm videoing something (which isn't criminal activity) and a plod who doesn't understand the law comes up to me and demands my camera, and then attempts to seize it, then said plod is committing a criminal activity which means that if the video is still running it now contains evidence of criminal activity which means the plod CAN now seize the camera, but that in itself means that the plod is now acting legally which means that there is no evidence in the camera of anything illegal which means that the plod is now acting illegally again...
...this could go on all day.
Simple solution. Amend PACE so that seizing of cameras or request to delete images is illegal - but if plod has reason to believe that camera contains material that could materially assist in the investigation of a serious crime then plod can present a written request (with details of alleged crime) to owner of camera to provide access to the material to the plods within say 48hrs to allow them to make certified copies. If request is refused then plods ask for court order to make a forcible copy - and the original and any equipment must be returned within 6hrs.
Or they could just ask nicely...
That's the trick isn't it. I can't see many people refusing if they got a "look we think there's evidence on that, can we borrow if for a few hours to make a copy?" You'll always get the odd tog who will instantly pipe up about their rights etc but most of us would oblige I suspect.
Totally agree that asking nicely is the best course of action and I've known times when this has happened. Where footage can't be or isn't volunteered, your PACE amendment idea is excellent and would provide much-needed clarity for all parties involved, hopefully reducing the feelings of mistrust some photographers clearly have.
There's still a risk issue around material being "amended, lost, deleted, etc." in that time period - purposefully or more likely inadvertently (see my previous post re: seizure not equating to police thinking footage will be purposefully changed) - resulting in the chain of custody and integrity of the footage being challenged in court, but perhaps a note on the request form reminding the owner of the importance of this would suffice.
PACE amendments are not unheard of. With a sensible idea like this that would be welcomed by photographers and, in my personal view, provide clarity for police forces too, I wonder how successful joint lobbying by police and media for this to happen would be?
"...hopefully reducing the feelings of mistrust some photographers clearly have."
I very much doubt it, since few of the mistrust engendering issues photographers have involve PACE. The majority of incidents do not involve the recording of an offence, but the taking of pictures of a building or place a PCSO, copper or security guard finds inappropriate and which said copper then tries to stop. Usually some spurious general reference is made to "anti-terror" legislation, but if all else fails a quick on the spot fantasy law or "we don't need a law" (in the case Jules Mattsson) provide popular alternatives.
Forget PACE and stop kidding yourself. Deal with the endless parade of unnecessary, bullying and humiliating incidents - 99.9 percent of which don't involve PACE - and you'll probably find a lot less mistrust all round, making the rare cases that do involve securing evidence from a photographer a great deal easier to deal with and explain.
Try searching El Reg, Amateur photographer, the British Journal of Photography and the BBC and come back and tell us if you still think an amendment to PACE will restore the respect and goodwill the police have lost within the photographic community in the last 5 years.
I think it came up in the previous thread that PACE only gives plod the right to seize a camera if they would not be able to recover it on request at a later date, so the plod's first course of action should always be to politely approach the photographer/filmer, explain the situation and ask for their cooperation and contact details. The fact that sussex police didn't do this in the reported case is what makes their actions illegal and the 'new' advice from ACPO irrelevant.
Of course, rational, clear and fair application of the law would be too much for the british police nowadays so I guess we shouldn't get our hopes up...
Mines the one with the SLR in the pocket...
The trouble is, the police need to maintain a trail of the evidence from the moment it comes into existence to the moment it is used in Court. If they give the photographer 48 hours with the evidence before it is presented to them its value is considerably diminished - to the point of uselessness - by the lack of an evidence-standard audit trail. If they seize the camera at the scene, they can document it correctly and then make appropriately audited copies of the evidence in the device.
They should in my view endeavour to return the device intact and with nothing deleted within 24 hours of seizure; they have their evidence trail, photographer has his photos and camera back.
" If they give the photographer 48 hours with the evidence before it is presented to them its value is considerably diminished - to the point of uselessness - by the lack of an evidence-standard audit trail"
I don't buy this. The video and photos that showed the events in which a newspaper vendor met his death after being struck by a policeman at a demonstration in London were not retrieved within 48 hours. Some of the evidence turned up considerably later but was significant in the events that followed.
For any professional or amateur journalist, having your coverage of a newsworthy event confiscated for 24 hours would mean you have nothing to sell. When attending demonstrations and similar events, why don't the police carry some devices with which to copy a wide range of storage media? Their confiscation would then only last minutes rather than hours.
I'm not sure how police could ever be supposed to know who might be reluctant to provide evidence at a later time against a particular person, whether from friendship or fear.
At least where a suspected offence is one where the suspect isn't a police officer (which presumably is the case most of the time), it seems like the average person would be rather better off if the police *could* demand the pictures (or at least a copy of them) immediately.
If, after having been seen to have been chatted to by the police, the citizen is temporarily left holding the only copy, they could potentially be open to intimidation, as well as the temptation to help a mate by deleting some or all of the images.
If the citizen has to agree to handing over the pictures, they could also potentially be more open to retaliation than a situation where they didn't have any choice.
Personally, while admittedly not having a journalist's potentially quite different set of motives, unless the situation was one where the police were the apparent aggressors, I think in many situations I might prefer to /not/ have a choice about handing the information over if asked, as long as there was a reliable and timely way of getting back copies of any non-relevant images from the storage devices, and being compensated with replacement storage if the confiscation was likely to be be lengthy.
As for having copies of any crime-relevant images, even if giving me copies pretty much immediately didn't prejudice any investigation, I could well be better off without them (though, again, a journalist could very easily be in a different situation).
"But then, why is the ACPO issuing 'guidance' anyway?"
Probably for the same reason that in your company the IP department issue guidance notes and processes for copyright and patents; the finance department issues processes and guidance for expenses; the legal department issues processes on blah blah blah.
The reason is that if they asked every plod to read every act of parliament, firstly they'd have no time to do anything else. Secondly they would all go (more) mad. Thirdly they would all interpret it differently...
However, there does seem to be some contention as to how teh SCPO interprets the laws, but that is a different issue.
That sounds very much as though the Police need only be aware of the general principals of law, but don't to know the details. So for the Police, ignorance of the law is an excuse.
It also means that they can interpret virtually as they like - you only get to be assumed innocent when you get to court. If the Police arrest you under their interpretation of the law, that means they can interpret in a very detrimental way, meaning you may well choose to admit to a lesser crime rather then trust your interpretation of the law against the polices. So, you rely on having legal advice. But that too is flawed.
Case in point - my son was arrested (hence the AC psoting so as not to incriminate him further!),. We had legal advice. He admited the offence but with mitigating circumstances and received a caution. But when it came to writing out the caution, neither the arresting officer nor the solictor could accurately state exactly which clause of the act has been broken. It was left to me, because I had downloaded the act in question and actually read it - cover to goddamn cover. The only one who had read the act was the senior evidence officer, and he was seriously worried when he realised I had as well, he really did expect me to show them why their due process was flawed.
I think it is really scary that our law enforcement officers not only don't know the details of the law that they are appointed to uphold, but can interpret it anyway they like until proven to be wrong.
Many years ago, I got busted with 2 teeny-tiny amounts of mary-joo-anna (of different types) and was charged with both "Possession of Cannabis Resin" and "Possession of Cannabis Leaf". Happily the *magistrate* was actually clued up enough to realise the Law only criminalises "Cannabis". Result : one of the charges dismissed on the spot. >Result !<
Mine's the one with...err...nothing in the pockets, ociffer
The constable may seize anything which is on the premises if he has reasonable grounds for believing-
(a) that it is evidence in relation to an offence which he is
investigating or any other offence ; and,
(b) that it is necessary to seize it in order to prevent the
evidence being concealed, lost, altered or destroyed.
So the evidence is the recording not the device its recorded on. So how about we just send you a copy over bluetooth rather than you nicking off with my phone. Or is that too technologically advanced for you to process?
>>"So the evidence is the recording not the device its recorded on. So how about we just send you a copy over bluetooth rather than you nicking off with my phone. Or is that too technologically advanced for you to process?"
I'd have thought it may well be rather poorer as evidence. There could be information on a memory card which is forensically useful, but which wouldn't persist if merely copying files off the card.
For example, if there are breaks in a sequence of sequential filenames, there would presumably be zero chance of trying to work out from bluetooth copies when 'missing' files may have been deleted.
(ie did you delete the last few pictures you took at lunch, and then shoot your pictures of a later altercation without deleting any of those pictures, or could the missing pictures be ones of the start of the altercation that you deleted because they showed something you'd rather you hadn't photographed.)
If multiple explanations are possible, various lawyers may well choose the ones they like best and suggest that that's what /really/ happened.
Imagine you'd taken pictures of someone apparently rouging up your mate, but there were 'missing' images from your sequence.
Then later on, it turns out that someone else had pictures which showed your mate started the fight. How do you show that you hadn't done a quick bit of editing?
The original memory card might hold enough information to show which explanation is actually what happened.
Also, if you give copies of files, and some are missing from a sequence, how do you later prove that you actually gave all the files you had at the time?
From copies, it's not even possible to be sure that missing files were actually already deleted at the time of the copying.
I dare say there are various other reasons why an original is better than a copy, but even one or two reasons could be enough for the original to be considered as the only thing worth having.
Would at least make a helmet useful.
May I borrow your camera and record the pictures you have taken, in case they are useful in an enquiry?
Yes officer, of course and if you give it back swiftly, I may record some more useful evidence, like the guy behind you that is stealing your car.
Take the camera = overzealous application of a law, just because the copper thinks it's right.
It used to be that the police were (a) courteous (b) right much more often (c) working for us (d) respected.
Not much of any of those nowadays, save perhaps a glimmer of respect, but that's only ever from us to them nowadays, sadly.
What was that they said about 'we wont misuse these laws"
Did the have their fingers crossed when they said that, again?
"It used to be that the police were (a) courteous (b) right much more often (c) working for us (d) respected."
Really? When? Before PACE? You do KNOW why that was created, right?
I think the public probably used to trust Dixon of Dock Green, but he was a fictional character. And many people probably trusted the police when they were children, and learned better as they grew up.
Other than that, I'm coming up blank.
In most countries governments not only write the rules, but they also direct the police most having some independence.
The courts interpret the legislation to set precedents for other courts AND the police to follow.
So why is this biased bunch of senior Plods allowed to usurp the function of government?
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