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Section numbers from the book are used where relevant. The book should be read. It has more content and context.
35.1 False imprisonment
Case study: In January 2021 freelance journalist and photographer Andy Aitchison took and shared photographs of activists protesting against conditions in the official and controversial accommodation for asylum seekers at Napier Barracks, Folkestone, during the coronavirus pandemic ‘lockdown’. The activists threw buckets of fake blood at the gates of the site. Mr Aitchison’s photos were used in local press reports. Shortly after the protest, Kent police arrested him at his family home in Folkestone, which they searched. They were investigating ‘criminal damage’ at the barracks site. Officers seized his mobile phone and his camera’s memory card. He was detained in a police cell for more than five hours before being released on police bail, with conditions which banned him from going near the barracks. A week later that case against him was dropped. The police said that an examination of CCTV footage showed there was no evidence against him. But shortly afterwards the police issued him with a fixed penalty notice (FPN) for alleged breach of the coronavirus lockdown health regulations. The FPN was withdrawn after his lawyers threatened the police with legal action. The police said the FPN was withdrawn because it had become clear that there was no breach because at the relevant time Mr Aitchison was working in his capacity as a photo-journalist. His lawyers sent the police a pre-action letter of claim for damages. Subsequently Mr Aitchison, who had support from the National Union of Journalists, received a full apology in a letter from Kent’s Chief Constable Alan Pughsley, who admitted in it that the arrest, the search, the imposition of bail conditions and FPN were all unlawful. Mr Pughsley said in the letter: ‘Further to the damages received by Mr Aitchison in compensation, I apologise unreservedly to him for his unlawful arrest, false imprisonment and breach of his human rights. I expressly acknowledge there was no culpability on the part of Mr Aitchison who was performing an important function publicising the protest in the public interest. I recognise the fundamental importance of free speech and the independence of journalists; I accept they should not be at risk of arrest and of having their equipment seized when acting lawfully in reporting matters of public interest.’ The letter said of the FPN: ‘There were no grounds for suspecting breach of public health regulations in force… given that Mr Aitchison was properly engaged in journalistic activity’ (The Independent, 21 October 2021; press release issued by the NUJ, 21 October 2021; press releases issued by Bindmans (Mr Aitchison’s solicitors) and Doughty Street Chambers, 22 October 2021; Kent Online, 22 October 2021)
35.2 Public order and ‘obstruction’ offences
If police threaten a photographer or video-journalist with arrest, or arrest her or him, it may be for an alleged public order or ‘obstruction’ offence. See 35.2.3 in McNae’s. An arrest may not lead to a charge, or the person may be acquitted.
Case study: A freelance photographer was arrested in 2007 as he tried to take pictures of a man threatening to jump from the Tyne Bridge in Newcastle. The photographer was later charged with obstructing the police. A district judge at the city’s magistrates’ courts acquitted him, saying he had acted ‘professionally’ (Media Lawyer, 15 October 2007).
35.3 Trespass and by-laws
As stated in 35.3 in McNae’s, trespass is not a criminal offence in most locations. But it could be prosecuted as a criminal offence if the trespass is at a place listed as a ‘protected site’ in statutory instruments supplementing the Serious Organised Crime and Police Act 2005, which created this offence. See Useful Websites, below, for the lists.
This law was primarily created to counter trespass by terrorists. Such sites include the Palace of Westminster (therefore, the House of Commons and House of Lords); the Scottish Parliamentary Building in Edinburgh; the National Assembly for Wales in Cardiff; 10 - 12 Downing Street and 70 Whitehall; the Chequers estate, Buckinghamshire; Buckingham Palace and some other Royal sites; Ministry of Defence locations, including RAF bases; GCHQ in Cheltenham; and nuclear sites, including nuclear power stations.
For official secrets law on ‘prohibited places’, see 32.3 in McNae’s.
35.4 Aggravated trespass
Section 68 of the Criminal Justice and Public Order Act 1994 created the offence of aggravated trespass. It has been used against protesters such as those who, demonstrating over alleged tax evasion by the rich, occupied the Fortnum and Mason store in London in 2011. A journalist covering an ‘occupation’ or trespass which is protest could be accused of the offence. A person commits aggravated trespass if he/she trespasses and, in relation to any lawful activity which other persons are engaged in on that or adjoining property, does anything intended to have the effect of:
- intimidating any of them so as to deter them from engaging in that activity; or
- obstructing that activity; or
- disrupting that activity.
The penalty for aggravated trespass is up to three months’ imprisonment or a fine.
Section 69 of the Act says a senior police officer present at the scene has power to order any person believed to be involved in aggravated trespass to leave the property. Failure to leave, or returning within three months, is an offence. A journalist who fails to leave may have a defence under the Act that he/she had ‘a reasonable excuse’ to stay.
Useful Websites
www.cps.gov.uk/legal-guidance/trespass-and-nuisance-land
Crown Prosecution Service legal guidance on the aggravated trespass offence
www.gov.uk/government/publications/sites-under-the-serious-organised-crime-and-police-act-2005
Government information on what are ‘protected sites’ under sections 128-131 of the Serious Organised Crime and Police Act 2005