Thanks for your input. I’m not a lawyer so my comments on this were just the ones expressed on the show. In any case, I tend to agree with you and if this “information”, as stated on the Section 58, includes photography, then it seems clear. Again, just a personal opinion.

Thanks for the comment.

I don’t know if you are deliberately taking a simplistic view and interpretation of the discussed amendments, but let me amke it clear to you.

If you read section 1 part (b) of the amendments you get…
(1) A person commits an offence who (b) publishes or communicates any such information.

Information being: about an individual who is or has been—

(iii) a constable,

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

Maybe now you can see what the problem is.

Gari Sullivan

Section 58 of the Terrorism Act 2000 reads as follows:

58 Collection of information

(1) A person commits an offence if—

(a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or

(b) he possesses a document or record containing information of that kind.

(2) In this section “record” includes a photographic or electronic record.

(3) It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession.

(4) …

Section 76 of the Counter Terrorism Act 2008 adds a new section 58A to the Terrorism Act 2000, which means that the earlier Act is the context in which the new section has to be read. It 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.

(2) 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.

(3) …

Now Section 58 quite clearly includes photographs in the list of ‘records’ which may be useful for a would-be terrorist, but Section 58A refers not to collecting or making records, but to eliciting information, which is in my view a wholly different thing. The new section 58A could have referred to making or collecting a record e.g. photographing someone in the list of people in subsection 1, but it does not. Indeed, there would be no point as the general wording of Section 58 already covers the taking of photographs of such people for nefarious purposes.

Instead, Section 58A uses the word ‘Elicit’. So then, as a matter of normal construction, elicit must be intended to mean something else. And, of course, it does. If you look up ‘elicit’ in a dictionary, then it has the meaning of drawing out information which would otherwise remain latent or hidden. It implies that the information is not there on the surface, but has to be found out in some way. A photograph is quite correctly referred to in Section 58 as a record of information. It is not a means of finding it out. It is not eliciting. Section 58A (1) (a) has nothing to do with taking photographs as such.

If this is right, then it seems to me that the publication or communication of any such photograph does not come within the ambit of Section 58A either, The natural interpretation of S 58A (1) (b) (publishing or communicating ’such information’) is that ’such information’ is elicited information. This is, however, almost irrelevant as, if it were held to refer to any information which comes within the original Section 58, i.e. if it were ‘information of a kind likely to be useful to a person committing or preparing an act of terrorism’, then an offence would already have been committed anyway under Section 58 by the taking of the photograph. It should be borne in mind, in any event, that the mere taking of a photograph does not constitute publication or communication.

Of course, if you tracked a police officer from the police station to his house and then took his photograph outside his house so that both he and his house were easily identified, then the fact that you had taken the trouble to take that photo would be prima facie evidence that you were committing an offence both under section 58 and section 58A. You would be eliciting information (his address) by following the officer (offence under Sec. S58A) and recording it by making the photograph (offence under Sec. 58).

I am not in this comment intending to give anyone legal or other advice on which they should act. It is up to each reader to come to his or her own conclusion as to the meaning of the legislation and/or take advice from a suitably qualified lawyer.

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