CCTV, s76 of the Counter-Terrorism Act and private prosecutions

As various people have noted (not least Septic Isle), s76 of the Counter-Terrorism Act is somewhere between barmy and 1984. The relevant section reads

58A Eliciting, publishing or communicating information about members of armed forces etc

(1) A person commits an offence who—

(a) elicits or attempts to elicit information about an individual who is or has been—

(i) a member of Her Majesty’s forces,

(ii) a member of any of the intelligence services, or

(iii) a constable,

which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or

(b) publishes or communicates any such information.

In fairness, the following paragraph says that “It is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action”; as ever, our laws are ‘laboriously built about a mythical figure – the figure of the reasonable man‘¹. What is not clear is what is ‘reasonable’. Is CCTV reasonable, as, presumably, the primary intention is not to take pictures of the police. I rather doubt that would apply to tourists; if a photo showing where the police stand outside (say) the Palace of Westminster were posted on Flickr, it could conceivably be of use to terrorists.

This rather unfortunate law, amongst other things, will sour things for tourists. The distinctive uniforms and headgear mean people want to take photos of themselves with the British bobby. Making it harder – in reality or in perception – to photograph and to see photographs of constables will widen the gap between the police and the public. It could be argued that the ‘reasonable’ clause is an effective catch-all as it is clearly reasonable for (say) a family to want to take a photograph with a police officer, perhaps with one of the children wearing the custodian helmet. There is also the issue of taking photographs and video footage at demonstrations. In this and many other instances, it is easy to see how an individual constable² could act in a manner that is not in accordance with the spirit of the law. I expect that the Home Office will issue guidance in due course.

One wonders what would happen if we started having a little bit of fun with this law by taking out private prosecutions against, say, the BBC (because video footage of Central Lobby or Scotland Yard that shows where the police do or don’t stand could be of use), CCTV companies or tourists.

xD.

1 – With apologies to A.P. Herbert
2 – A constable is not just someone with the rank of Police Constable, but anyone who has been sworn as a constable; in other words, a police sergeant (or whatever) is also a constable.