Sir Iain Livingstone: It would have been a grotesque neglect of my duty if I hadn't pursued Operation Branchform

Sometimes it is just the pointlessness of a tragedy that breaks you. And so it is, reading back the findings of a fatal accident inquiry into the death of Russell Moffat, who was just 12 years old when he was killed by falling masonry in Bread Street Lane, Edinburgh, on Hogmanay 1994.

Russell and his pal Rory had been playing the adventure game Laser Quest in a building in the city’s West End with some school friends before going to sit on a nearby chain which was attached to a wall barring the entrance to a private car park. As they chatted, Rory felt the links of the chain give way and rolled backwards.

Luckily, he landed safely, but his young pal was crushed by the falling stone. One can only imagine the horror that Rory felt as he ran back to the building they had just left, shouting for help. The wall fell roughly along the lines of a previous patch repair. And in what he described as a “tragic case’’, Sheriff Stoddart concluded during the FAI, that the accident that killed Russell was “clearly avoidable” – a young life snuffed out by an accident that should never have happened.

Had he lived, Russell would be in his 40s today, and in reflecting, as he prepares to stand down, on his 31 years as a police officer, it is that young lad that plays on the mind of Sir Iain Livingstone. 

Livingstone took over as chief constable in 2018, having served as interim chief for a year following the abrupt departures of Police Scotland’s first two chief constables. He has been involved in some of Scotland biggest police operations, some harrowing cases, but it is that needless loss of a young boy’s life, and not the massive challenges of Covid, or COP26, or the police investigation into SNP finances, or his role in the arrest of not one but two former first ministers, or the current inquiry into the death of Sheku Bayoh, or indeed the huge policing operation that went into the security surrounding the Queen’s death in Scotland, that weighs heavy in Sir Iain’s thoughts when I ask him who he carries in his head as he leaves office. 

His reaction to the question is unexpected. Indeed, he surprises himself and checks his emotions before revealing that it is that completely avoidable death 29 years ago which he remembers with such clarity and in minute detail – one suspects as a coping strategy – because it was, he says, a seminal moment in his then incipient career – having joined the police less than two years earlier. It was also a memory he thought he had buried deeper than the powerful response of the moment suggests.

“I was working in the West End, at the police station at Haymarket at the time. It was Hogmanay, and I was on back shift with my partner, who is now retired. It was relatively early, maybe about four o’clock in the afternoon and we were actually hoping to try to finish quite sharp, get a flier, because we were also both working New Year’s Day and so we were saying, at least we are going to be able to see the family before the bells. A call then came in about an accident up in Bread Street Lane, and in essence, a little boy had been bouncing on one of those chains that go between a wall in a car park and dislodged the coping stone. The falling stone basically took off the top of his head.

"Officers had first attended and then we went up and there had been a bank card, or a bus pass, or something, that established who the boy was and basically, we went down to speak to the parents…to break the news. We got to the house and there was the mother and father, a lovely young couple, I think they had another child, and I think the boy who had died was the oldest, and as we walked in, I realised it was his birthday, New Year’s Day, and he was going to turn 13.

"I remember the mother was actually the calmest and my partner had to get details from her about the poor lad and of the family and various other things that you need for the whole process to go on, and the dad was standing in the kitchen, and I was kind of wrestling with him, physically holding him, to try and comfort and calm him. It was just terrible. We got the information we needed, and we left.

"We were working very late, over into the early hours, and we came back the next morning at seven o’clock, and we went up to the scene and there were all these cards and flowers laid out in front and his gran was there. It was horrendous. The guy I was working with, he’d fought in the Falklands as a marine and whatnot, and as officers, we were just trying to deal with this situation as best we could.

"And I remember, later, going to the fatal accident inquiry and seeing his parents at the front, and there’s really no answer to what happened that could help them. So, yes, that is the case that I can see, the one that has stayed in my head, and you know, that lad would be a man in his 40s now, had he lived.

"Just a terrible tragic accident but as the police, we went to the site of the accident, we were the agency that had to go and tell the family, we were the ones that had to comfort them, we were the ones that had to investigate what happened, we had to make sure that there hadn’t been any violence or anything untoward, and so on.

"All of it monumentally upsetting and unfair, but that is the police service’s role, to provide as much support to that family and at the same time, to make sure that the death is investigated and registered properly and ensure all the things that are required to be done in a civilised society are done, and done properly.

“I think what I took from that at the time, and then carried with me throughout my career, was just how important being a police officer is and how important treating people with respect and dignity is, and that other people won’t necessarily do it. And in truth, it’s not our critics who are there at three o’clock in the morning when events can inevitably happen.

"And with all due respect, it’s not the justice committee of the Scottish Parliament which is there at three o’clock in the morning. And things are harder at three o’clock in the morning, decisions are harder to make at three o’clock in the morning. You don’t always have all the information at three in the morning, and so very often, decisions are made on partial information, and decisions are made by people who have got other demands coming in upon them at three in the morning. And that’s why I have such respect for people, like police officers, like nurses, and other people who are operating in the eye of public scrutiny, who are having to take difficult decisions at difficult times. 

“The analogy is a sport analogy, in that it is always much harder on the pitch than it is in the stand. On the pitch the wind blows, the ball is moving quicker, people are cheating, people are pulling at you, and it doesn’t always feel fair. And sometimes I think that people looking in on things can be very judgemental about the actions of the police and the consequences that might follow, but my experience is that the vast majority of police officers act with the very best of intentions and are trying their best, in often very, very, difficult circumstances.

"And that’s how I was in that particular set of tragic circumstances. Could we have done more to support the family, could we have broken the news better, could we have done more later? You reproach yourself all the time about these things, they stay with you, and things evolve, even our own approach to families or family engagement develops, but at that time in 1994, that was our responsibility and we had to go in and deal with an extraordinarily difficult and tragic event.

"I think it is that sense of police officers stepping forward to do things that are really difficult that stays with me, but thank goodness they do, because that’s what a civilised society should be about.”

Integrity, honour, compassion; these are words that often prefix descriptions of Sir Iain. He’s a thinking man. A learned man. He originally graduated in law and practised as a solicitor before joining the police service in 1992. He was awarded a prestigious Fulbright Scholarship while a detective sergeant and later graduated with a master’s degree from John Jay College of Criminal Justice at City University in New York.

As a police officer, he led on a number of major investigations and operations while with Lothian police, playing a key role in the security operations around the G8 meeting in 2005 and headed the murder investigation into the double shooting at the notorious Marmion Bar in Edinburgh in 2006.

An experienced and respected police officer, he took over as head of Police Scotland at a critical time, having served as the interim for the previous year. The new single service was still under enormous public and political scrutiny, two chief constables had left abruptly and within short order — one after the M9 scandal, when officers took three days to find the car of two young people which had plunged off the motorway, and the other following allegations of bullying within the force.

The force’s finances were in turmoil, and Livingstone knew he was taking on the job with huge leadership problems, demoralised staff and an expectation that he would cut £200m from his own budget,  which he did.

I spent time with Sir Iain on a fact-finding trip to Bosnia in June 2018 as he wrestled with the decision about whether to consider becoming Police Scotland’s third chief constable in its first five years. Already the interim, he had made it clear that that was out of a sense of duty, and he was likely to retire, as planned, rather than step up.

The trip, organised by the Remembering Srebrenica charity, was an emotional one on many levels and there was a sense, as a group, – of politicians, journalists and police officers – as we shared a drink in the bar after difficult days learning more about the genocide, mass rapes, and man’s inhumanity to man that had taken place during the Bosnian war, that Livingstone needed time away from Scotland, even in such intense circumstances, to decompress and reach his decision. Two months later in August 2018, he was officially appointed chief constable. I ask him if that Bosnian experience was pivotal.

“I hadn’t decided about the job before we went on that trip and the impact on my family was a big part of that, because I am married to somebody who I met in high school in Dunfermline and so we have known each other many, many years, our children are grown adults, three daughters, and now five grandchildren, so the impact on the family was really quite significant and I needed to think that through.

"And you’ve raised the trip to Bosnia, and bluntly, you saw, as I did, the importance of justice and the importance of the rule of law and of democratic processes and things like that, in the raw there. So, whether that was a direct influence or not, it was certainly a deeply moving trip and one I was deeply privileged to be part of, and it was a really diverse group which added to the stimulation around it. But you know, I’ve always felt that policing can bring calm where there is chaos, it can bring discipline, it can bring compassion, it can bring care, and if anything, that trip only cemented those thoughts.

“I’ve always seen policing as a caring service. And I fundamentally state to new recruits that I am not the chief constable of the law enforcement service of Scotland, I am the chief constable of the police service of Scotland, and that police role, about protection, prevention, social cohesion, social justice, that is, has always been, I think, the traditional role of the police and even that language around law enforcement is quite an Americanism that’s crept in over the last number of years. 

“Of course, enforcing the law and holding offenders to justice is important for visible justice for communities. And I’ve spent more of my time in the police as a detective than not, and I’ve been part of that commitment, but I genuinely do see the police role as being one of an enabler of social cohesion, protecting the rights of the most vulnerable, ensuring that the civic society can exist, and economic activity can take place, that people can be protected, people can be valued for all their differences. And I genuinely think that. 

“You saw how we approached Covid, we said we would enforce the law, but that was always at the far end. There was encouragement, there was engagement, and I think we do need to just remember that broader mandate about policing than being more than simply enforcing the law. And that’s actually reflected in our legislation. Go look at the 2012 [Police and Fire Reform Scotland] Act where it talks about the wellbeing of people, places and communities, as well as, you know, keeping the peace and bringing offenders to justice.

"So that broader police mission means we are there to serve our fellow citizens, to care for our fellow citizens, to keep them safe.”

Within days of being appointed, Livingstone faced potentially one of the biggest challenges of his career.

“I was appointed in August of 2018 and almost within days, one of the first referrals I got from the then Crown Agent was information regarding allegations against Alex Salmond. I was four days in and to be honest, I wondered if it was still part of the selection process! I mean, how do you react to this?

"And I remember reading an article, and it may have been by you, Mandy, but I remember somebody had said in a column that this will be an early and important test for a new chief constable and not for the first time, somebody had hit the nail on the head. They were right, but basically, while I think people have had a lot to say about the circumstances, and on some of the early work the Scottish Government did, in terms of how the complainers were treated and how that evidence was gathered, actually, I think people do recognise that the police service and the police investigation had integrity and we discharged our duties around that in the interests of everyone including Mr Salmond.”

The investigation resulted in Salmond being charged and later cleared in court of sexually assaulting nine women while he was Scotland’s first minister. A further charge of sexually assaulting a 10th woman had previously been dropped by prosecutors. The case inevitably rocked Scottish politics, attracted enormous public interest, and the reverberations are still felt today.

For Livingstone, the Salmond trial was quickly followed by the pandemic when the police force had to walk a very fine line between enforcing the law and curtailing freedoms whilst sensitively controlling a very frightened population. Then in 2021, just as the country came out of a series of lockdowns and with Covid still posing a risk, COP26 in Glasgow brought together the largest gathering of global leaders ever seen in one place in Scotland, and had protesters threatening to disrupt proceedings.

Twelve months later, with the death of the Queen in Scotland, Livingstone was charged with overseeing Operation Unicorn and preparations for her funeral. And now, just as he demits office, Livingstone has sparked outrage by speaking about the force he has led for the last six years as being “institutionally racist”, done, in part, he claims, to allow for a robust discussion about discrimination of all kinds within the police and wider society.

That accusation may have stunned his colleagues, but it is the ongoing police investigation into SNP finances, Operation Branchform, which has already seen the arrest of Nicola Sturgeon, her husband, Peter Murrell, the party’s former chief executive, and the MSP Colin Beattie, the party’s former treasurer, all released without charge pending further inquiries, that continues to dominate headlines and public interest. 

Operation Branchform has, he admits, “moved beyond” the initial inquiries into the whereabouts of £600,000 raised for an independence campaign, and brought a level of public scrutiny and opprobrium from some quarters that Livingstone has previously not endured. He has had elected members publicly criticising the police investigation, the pro-independence newspaper, The National, has questioned the cost of the investigation balanced against the amount of ‘missing’ money, and the former head of SNP communications and now the new SNP CEO has declared that he believes no charges will follow from Operation Branchform. I ask him how he has dealt with the very public commentary. 

“We just have to get on and do the job and that is the truth. A number of referrals come in and we, as a service, will always assess them and look for evidence, because how can you make or take a position on something until you find out more information? And then, as you find out more information, that takes you on to further steps and then you start to say, well, is that related to that, and so on. And as an investigative team, we need to continue to make those steps.

"My test on it is: if I hadn’t been pursuing Operation Branchform, if we didn’t have the detectives investigating the matters that we are now looking at, it would be a grotesque neglect of my duty, not only legally, but morally. Now, I don’t know how the matter will ultimately be resolved, that will probably be outwith the hands of the police service, but it will go into the independent prosecution service and if need be, it will go into the hands of the court system. But the police responsibility is to investigate thoroughly, to look for evidence and if there is sufficiency of evidence that suggests criminality, we would then report that matter to the Crown.

"And in a case such as this, as is often the case in Scotland, we would involve the prosecutors at a relatively early stage so that we make sure that as matters progressed, that sense of necessity and proportionality has always been followed.

“I’ve said before that uninformed speculation, assertions that I know to be factually inaccurate, a level of language used about the action that we’ve taken that is not based on the facts, is wrong.

"We’ve craved, and sought, judicially independent search warrants for specific items and other relevant matters, like banking information. That’s all been sought, and again, has been lawfully granted. That’s all because it’s done in a stage by stage, methodical, and very thorough manner. And I ultimately think that the rigour and thoroughness of the investigation will protect the interests of justice.

"And the other thing about the speculation and the commentary that’s not based on fact is that it is very damaging to the principle of the rule of law, but it’s also potentially damaging to the rights of individuals who are entitled to the presumption of innocence and are entitled to avoid any speculation. So, when opinion gets polarised like that, it doesn’t assist the administration of justice.

"We, as the police service, continue to do what we need to do and there’s checks and balances. I know the rigour that has gone into this investigation, because, you know, I’ve kept a very close eye on it since the outset.”

On the specific criticism about the optics that were generated by the erection of a forensic tent in Nicola Sturgeon and Peter Murrell’s front garden, Livingstone says: “The tent was there, as were all the other measures, to protect the interests of justice and to protect the individuals involved, so it was a proportionate and necessary step.”

Given he has said that he can’t put a timeframe on the investigation concluding, I wonder if it has overshadowed his departure?

“I don’t think it has because it’s an important investigation. But the nature of policing means there’s always going to be some event happening. Yes, this is a big one, but so was Covid, so was the death of Her Majesty the Queen, so was COP26. And we have had the tragedy of having to shoot dead a black asylum seeker [in 2020, during lockdown after Badreddin Abdalla Adam Bosh attacked three other asylum seekers, two members of staff and a police officer at the Park Inn Hotel in Glasgow] because he was looking to cause greater harm to others.

"I’ve had to go to the High Court and accept, rightly, responsibility for health and safety failures for the death of the couple on the M9. This is the very nature of policing, and through the National Police Service, the level of scrutiny and focus is truly relentless.

"Now, in this instance [Operation Branchform], this is a criminal investigation and I have said from the outset, there’s no artificial dates need to be set. So, this process needs to take its course and that due course will continue. But I know that the action that has so far been taken has been lawful and it has been necessary, in the interest of justice. And that must continue regardless of the commentary that goes on.

“I think it’s true that, generally, things have become more polarised in Scotland. And people speak with a certainty that I always get really concerned about. I tend to say to new officers, ‘I don’t know’, or ‘I’m not sure, what do you think?’ – these are good leadership behaviours – and at times, maybe more of our civic leaders should use some of those phrases because issues are complex.

"And I’ve said a number of times that I get frustrated when decisions I’ve taken as a chief or actions police have taken are seen through the lens of a particular constitutional focus or a particular narrative where that is not the case at all. It’s public safety, the rule of law, justice, that’s the criteria that we act upon whether we’re policing a protest, or whether we’re dealing with a pandemic, or whether we’re pursuing criminal investigations, we have duties that we need to fulfil, and we’ll do them against those criteria.

"And I’m not saying my period in office as chief constable has been perfect. I’m sure people will look back and say, you could have done more of this, you could have done more of that earlier, you could have done less of that, you could have secured better funding through the government, you could have devolved more down to local policing, taken our ICT forward, all of these things I would consider and discuss, but I don’t think anyone can say I’ve been anything other than operationally independent. I’ve never acted with a political intent or motive.

"And I’ve got, I think, a very strong, respectful relationship with politicians of all parties. I’ve got a strong and respectful relationship with politicians in all chambers, local government, Scottish Government and UK Government. And I’d like to think we can all recognise that independence, and while some might not always agree with what I do, they know I do it on the basis of operating against those criteria of the rule of law and public safety.”

On that note, I ask Sir Iain about his stance on police officers dealing with people with mental health issues. Unlike his colleagues in England, Livingstone has said his officers will continue to respond to emergency mental health calls.

“Look, I am not prepared as chief constable, at this stage, to say we will stop coming to a call. One of the common characteristics of mental health issues, and distressed cases, is how unpredictable they are, and how volatile they are. And the thought of making some objective, arm’s length assessment, and then, five or 10 minutes later the circumstances change, would not be right.

"We do need to be better at handing over people in need to the people who can help them best, and while we hear about the demands on the public sector, the demands on policing, these are community needs, these are the needs of individuals, and our responsibility as a police service.

"However, as a wider society, as a country, we must make sure that we’ve got the agencies and we’ve got the mechanisms to provide people with the help that they need, and I don’t think we do at the moment in terms of issues about mental health and distress. But until there is either an agency or a capability to address that, I don’t think it would be right and proper for the police to step away from it. 

“I say to the new recruits that their job as a police officer is to treat their fellow citizens the way they would want their loved ones to be treated, even if they are being unreasonable, even if they’re acting out of character, even if they are being aggressive towards you, because they are intoxicated or they are in some other way distressed.

"Now, at times, you might need to use force for their own protection or those of others, but you always do it in a way that respects the dignity of that individual and actually, I still am optimistic about human nature and human manifestations because I know that so many people’s behaviours are situational, as much as anything else, and there are a lot of people who are suffering from levels of addiction or levels of mental health crisis and they are not getting the assistance that they need.”

I ask Sir Iain if he can always find some justification for someone’s illegality?

“No, I mean, part of the reason I’m in the police service, or part of the reason I believe in the value of the police service, is that the rule of law is such a firm foundation of democracy that you cannot allow it to have a level of subjectivity. Now, there may be some laws that I think could be better than they are…”

Which are?

“Well, the Misuse of Drugs Act 1971 is a long-running act that has been unreformed for many years. I actually ended up writing my very dull dissertation on the Misuse of Drugs Act in the 1980s when I was a law student. It was titled Cannabis and Scots law: a realistic assessment of the Misuse of Drugs Act 1971, it was the type of pompous title that you gave when you were a law student and had all the answers.

"It was obviously very focused on cannabis and at the time, my overall conclusion was that the Misuse of Drugs Act was ripe for reform, and I graduated in 1988, so it wasn’t written yesterday.

"And I do think that the act is now in dire need of reform. However, I would be really reluctant to decriminalise all drugs because I’ve seen the harm that it does. I’ve seen how closely it is aligned to serious and organised crime. And I’ve seen the dangers and harms that come with that. And in some ways, while it’s a legitimate debate to have, and it’s an interesting debate to have, what I think is actually more important, in day-to-day assistance and support for people with drug addiction, is actually having the legitimate support services in place.

"Now, this police service, the prosecution service, the courts for many years have not been criminalising those with addiction problems, users, if you like; we’ve been hard on those who peddle and sell drugs because they have got their own selfish commercial interest to make as much money and to cause as much harm at the same time, and that is right and proper for drug dealers, and drug suppliers, but actually, users, for a long time, have been diverted away, we have sought to do mediacy, if you like, in a the police station. 

“I don’t think [decriminalisation] is a panacea [to the problem] because I genuinely think those who supply heroin, cocaine, other dangerous narcotics and substances into communities require the full force of the law and we continue to bring that to them. So, I think one would need to be very specific about what one meant by decriminalisation.

"And I actually think at the moment, the operational practice in Scotland doesn’t criminalise users. And I personally feel what is a more important debate is whether we have enough support services in place for those suffering from addiction that you can properly refer people to – and that needs to be timeous.

"You can’t say to somebody who’s got a chaotic lifestyle, and got serious addiction, there’s an appointment in two weeks on Thursday, here’s the time to go, it is on the other side of the city, and can you get yourself there – it needs to be immediate.”

As he steps down, I wonder what Livingstone has learnt about himself.

“I don’t think there is a single job I’ve done where I don’t, on reflection, think I could have done that a little bit better. And I was joking earlier when I was talking about the certainty that I would have written my university essays and expressed myself at the time and, you know, as one gets older, perhaps you have the confidence to allow more doubt to creep in than perhaps previously.

"And I do think, as we were discussing earlier about the public discourse around certain issues at the moment, having a little bit of self-doubt about the position you assert is, I think, the key. I don’t think questioning your position is a sign of weakness, it’s a sign of actual intellectual depth, because you can actually see alternate arguments, you can see some of the weaknesses of your own position, you realise it can be difficult for people to accept a position rather than you banging a table demanding that others see how right you are.

"So, as the chief constable, you know, days from retirement, I think I’ve continued to listen, question, develop, and hopefully become a better police officer and become a better man over the course of my career.”