DavidHoffman asks:

I'm a professional press photographer and an NUJ member. Under the Police and Criminal Evidence Act 1984 my memory cards or film are protected as "special procedure material" and cannot be taken from me by a police officer on the street.

Under section 43 of the Terrorism Act 2000 they can be seized and retained for examination by a police officer.

What is the position if an officer demands my memory cards and I do not wish to hand them over?

We picked this question from last week's Q&A because it required a longer answer than we could manage during the live session. We also promised to answer JelMist's question about taking photographs of criminal activities, but I'm afraid, space constraints mean we will have to answer JelMist's question in the future, with apologies.

Power of search and seizure

Under section 43 of the Terrorism Act 2000, a constable may stop and search a person whom he reasonably suspects to be a terrorist, and may seize and retain anything that he discovers and that he reasonably suspects may constitute evidence that the person is a terrorist.

Other stop-and-search powers also enable a constable to seize prohibited items discovered in the course of a search. Under the most common non-terrorist stop-and-search powers (section one of the Police and Criminal Evidence Act 1984 (PACE) and section 60 of the Criminal Justice and Public Order Act 1994), the items that can be seized are more carefully circumscribed. Only articles that the officer has reasonable grounds for suspecting to be stolen or prohibited, knives, dangerous instruments, offensive weapons, face coverings worn to conceal identity and prohibited fireworks may be seized.

Generally items that constitute "evidence" only may not be seized from a person in a non-terrorist stop and search, but may be seized on that person's arrest.

Special procedure material

There are some classes of material that are subject to additional protection from seizure. These include legally privileged material (communications between a lawyer and client); journalistic material and certain types of material held in confidence. "Special procedure material" is defined in section 14 of PACE and includes journalistic material and material acquired in the course of a trade, profession or similar and which is held subject to a duty of confidence. "Journalistic material" means material acquired or created by the person possessing it for the purposes of journalism: so a professional press photographer's film and memory stick would be covered but the same photograph published in a newspaper would not.

Conditions for seizure of special procedure material

Schedule one of the Police and Criminal Evidence Act 1984 sets down conditions for the police to apply to court for a warrant to compel a person to hand over (or to seize) special procedure material, if certain conditions are met. Similar provisions are contained in schedule five to the Terrorism Act 2000. Broadly, in terrorist cases, the court can order the production or seizure of special procedure material where the order is sought for the purposes of a terrorist investigation; there are reasonable grounds for believing that the material is likely to be of substantial value to that investigation; and there are reasonable grounds for believing that it is in the public interest for the material to be disclosed, having regard to the benefit likely to accrue to the investigation, and the circumstances under which the person had the material in his or her possession. These conditions are reasonably similar to those under PACE, albeit slightly less stringent.

Where the case is one of "great emergency" and "immediate action is necessary", a police officer of at least the rank of superintendent may issue a search warrant under the Terrorism Act, without the need to apply to court, but must notify the use of the power to the secretary of state as soon as reasonably practicable. There is no such power for non-terrorist cases, but the police can apply to court for a warrant under PACE without notifying the person they wish to search, again if certain conditions are met (for example if the investigation would be seriously prejudiced).

Stop and search and seizure

The power to seize during a search under section 43 of the Terrorism Act 2000, and the power to seize on arrest (but not stop and search) under the Police and Criminal Evidence Act 1984 are both also subject to an additional power of seizure from the person, contained in section 51 of the Criminal Justice and Police Act 2001. This provides that where a lawful search is carried out, and it is not reasonably practicable to for it to be determined, at the time and place of the search

(i) whether what the constable has found is something he is entitled to seize; or

(ii) the extent to which he has found something that he is entitled to seize, the constable can seize the property to enable those questions to be determined.

If the police use the section 51 power to seize material, the person searched should be given a notice under section 52 specifying information such as what has been seized; the grounds on which the power has been exercised; the right to apply to court for return of the material; and the right to apply to be allowed to attend the initial examination of the material. Under section 53, the material should be examined as soon as reasonably practicable (bearing in mind the desirability of having the person searched present if he chooses) and if it is material that the police had no power to seize, should be returned.


So the answer to DavidHoffman's question is that special procedure material is protected under schedule five of the Terrorism Act in a very similar way to the protections in PACE.

The police could potentially seize your memory stick and film under section 43 (taken with section 51 CJPA 2001) if it cannot immediately be determined whether or not the memory stick and film does indeed constitute special procedure material. The same applies to all search powers under PACE (such as search on arrest) except the stop-and-search power. The existence of your press credentials ought to be enough to establish that the contents of your camera are special procedure material, but you cannot rule out that you may be stopped by an officer who will not be persuaded. If that happens, you should insist on being given a notice under section 52 CJPA 2001, and ask to be present (with your legal representative if you wish) at the examination of the material. Property kept under these powers should be kept securely and separately from any material seized under other powers (see the code B under PACE, paragraph seven).

The risk of refusing to hand over your camera is arrest, in which case although you may well have a subsequent remedy (or several), it is likely that your memory stick and film would have already been taken. Worse is to come, since the Counter Terrorism Act 2008, part one contains broad powers (not yet in force) to remove documents (including information stored in electronic form) for examination in suspected terrorist cases and contains even fewer safeguards than the CJPA 2001 provisions.

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