Press photographers are fairly clued-up nowadays on how the law protects our right to do our job. One of those protections is that the police can’t seize our equipment or photos. But what happens when the police really want to seize them? It turns out that they have a nasty trick up their sleeve.
On an unusually warm morning last December I’d just finished covering a trial at the local sheriff court when there was an altercation between people involved in the trial. I photographed the incident. Minutes later my phone rang. It was a police officer, asking me to surrender the photos to the police to use as evidence against one of those involved.
Doing so would have set a dangerous precedent and would compromise the impartiality of myself and the other press photographers who work at the court. It’s quite foreseeable that one photographer handing over photos would endanger all other photographers at the court as we may be perceived as informers or allies of the police.
I took advice from the National Union of Journalists, who advised that there is a standard procedure in such cases: The police issue what is known as a production order, then the photographer either co-operates or the union contests the order. We told the police that the photos wouldn’t be handed over voluntarily. The only copy of the photos was placed in a secure off-site location.
It was at this point that events took an unexpected turn. The police chose not to issue a production order. Instead, the Procurator Fiscal (the Scottish equivalent of the Crown Prosecution Service in England, or the District Attorney in the United States) applied for a warrant to raid my home and seize “if necessary by force” all of my electronic equipment.
The scope of the warrant was unlimited. They could take everything: Computers, cameras, memory cards, phones, tablets, television, games console, etc.
One thing the Fiscal didn’t request was for me to hand over the photos.
The application for the warrant quickly made its way through the court. The NUJ brought in various solicitors and advisers from around the UK. We were working on the assumption that the court would grant the Fiscal’s warrant but it was something that we had to resist on principle.
I securely erased my computers and memory cards. I couldn’t risk the police being able to identify sources from other stories, or finding passwords to access my email and instant messaging accounts which could compromise other people’s sources.
On 28 December I attended the final hearing at the sheriff court. The NUJ representative, who had travelled for three hours, was denied entry. I wasn’t allowed entry by default and had to get special permission, although only to observe. The sheriff listened intently to the Fiscal’s case, nodding along. When my solicitor began talking the sheriff was visibly uninterested.
The sheriff put questions about journalism ethics to my solicitor, whose response to each question was that he didn’t have an answer. I wasn’t allowed to answer.
More specific questions were asked, such as would I have surrendered the photos if they showed other crimes such as shoplifting or a murder. My solicitor couldn’t answer the questions. I wasn’t allowed to.
Finally my solicitor raised the issue that the warrant was extraordinarily far-reaching and wouldn’t achieve the goal of obtaining the photos as I didn’t have them. He pointed out that seizing my cameras served no purpose and would prevent me from working, which the Fiscal accepted. My solicitor asked for the cameras to be excluded from the warrant.
After some brief consideration, the sheriff granted the warrant in full. My solicitor asked if that included seizing my cameras. The sheriff replied “yes” and that was the end of it.
Things then had to move quickly. We expected the police to execute the warrant immediately, before we could lodge an appeal. I’d already arranged for another press photographer to come to my home to photograph the raid. I felt it was important to document a scene of British police raiding a British journalist’s home to seize cameras and computers etc.
But that isn’t what happened. The Fiscal had a different plan. He advised the NUJ that if I handed over the photos within 24 hours then the warrant wouldn’t be executed.
That’s what it had all been about. I don’t believe the Fiscal had ever wanted to seize my cameras or computer, he just wanted the threat of it to use as a bartering tool: The police couldn’t legally force me to hand over the photos but if I didn’t do so then they would execute the warrant and put me out of business.
Again I took advice from the NUJ and they advised me to hand over the photos. We could appeal the warrant, but the police could simply execute it before the appeal was heard. I’d lose all of my equipment for possibly a year or more, and a 15-year career would be over.
Being pragmatic about it, I have a family to provide for. I had to choose very quickly between failing my family or failing my ethics. I took the NUJ’s advice. They returned the photos to me, and I allowed the police to seize them. I regret my decision. Everyone on this side of the case has reassured me that it was the right thing to do, but it wasn’t.
As for the warrant, it remains active, with no time limit. I now conduct my work knowing that the police could raid my home at any time, without warning, and take everything.
Two weeks ago a senior police officer at a road accident ordered me to stop recording audio and delete any video that I’d already shot. I didn’t delete the video so the officer took my press ID card, recorded my details, and told me that my camera would be seized.
UPDATE: 13 March 2017. The NUJ’s understanding is that the warrant is no longer active, since the photos were seized by the police.