Police Scotland breached spying rules on multiple occasions, reveals watchdog

Police Scotland breached rules on the use of spying powers on five occasions in order to identify journalists’ sources, the official surveillance watchdog has confirmed.

The Interception of Communications Commissioner’s Office (IOCCO) started an inquiry into two unnamed UK forces for “serious contraventions” of its code of conduct in July.

The watchdog has now confirmed that Police Scotland was one of the forces, with five applications for communications data relating to one investigation breaching the code.

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Four individuals were “adversely affected”, Interception of Communications Commissioner Sir Stanley Burnton said, labelling the breaches “reckless”. 

The findings have led to renewed calls from MSPs for an inquiry into the single force, with the Scottish Liberal Democrats urging the Justice Committee to “summon” the Justice Secretary and chief constable of Police Scotland.

The Scottish Police Authority (SPA) has asked HM Inspectorate of Constabulary in Scotland (HMICS) to conduct a review into the “effectiveness and efficiency” of Police Scotland’s counter corruption practices, a step endorsed by the Scottish Government.

Burnton, who took over as Interception of Communications Commissioner earlier this month, said: “It is evident from these applications that Police Scotland sought communications data in order to determine either a journalist’s source or the communications of those suspected to have been acting as intermediaries between a journalist and a suspected source.”

Judicial approval was not obtained to acquire this communications data, thereby breaching the code, he said. None of the applications “concerned a journalist”, Police Scotland added.

The five applications “failed to satisfy adequately the requirements of necessity and proportionality” and did not properly consider the European Convention on Human Rights, added Burnton. Two were approved by a ‘designated person’ who was not independent of the investigation in question.

“I am satisfied that four individuals were adversely affected by these contraventions and that the failures identified can properly be viewed as reckless,” he added.

“I have written to those individuals and provided them with sufficient information to enable them to engage the Investigatory Powers Tribunal (“the Tribunal”) effectively should they wish to do so.”

The single service has put in place “significant measures in order to prevent any recurrence of such contraventions”, said Burnton.

Police Scotland, which has repeatedly refused to confirm or deny it was under investigation, confirmed it did not adhere to guidelines introduced this March during an investigation into “alleged serious breaches of information security”.

“For the purposes of clarification, none of the applications concerned a journalist,” said Assistant Chief Constable Ruaraidh Nicolson.

“IOCCO has noted that there was no evidence of an intentional act by Police Scotland to avoid the requirements of the code. A detailed action plan was put in place as soon as the issue was highlighted by IOCCO and no further recommendations have been made to Police Scotland.”

Justice Secretary Michael Matheson said any breach of the code of practice is “unacceptable”, though stressed that Police Scotland has taken steps to prevent a repeat.

“However, it is clear Police Scotland’s actions in accessing communications data have fallen short of the standards expected and I welcome today’s announcement by the Scottish Police Authority that they have asked HMICS to review the robustness of procedures around Police Scotland’s counter corruption practices,” he added

Matheson had previously called for IOCCO to be left to complete its work “free from interference”, while Police Scotland said it was “inappropriate” to comment.

But the allegations led MSPs on Holyrood’s Justice Committee to write to IOCCO in September seeking an “indicative timescale” for their investigation in order to allow any subsequent parliamentary probe to be scheduled.

It later emerged that failure to appoint a successor to Sir Anthony May, who stepped down as Interception of Communications Commissioner in July, had left the watchdog unable to publish its findings.

Scottish Liberal Democrat justice spokeswoman Alison McInnes said: “It is not just reckless, it is outrageous that police officers thought they were above the law and simply reinforces the need for a wider inquiry into the workings of Police Scotland.”

McInnes said she will be “pressing” for the Justice Secretary as well as the chief constable of Police Scotland to appear before the Justice Committee “to account for their actions”.

SPA chief executive John Foley said an HMICS report on Police Scotland’s handling of counter corruption issues would be expected in the spring.

“It will be for HMICS to agree the detailed terms of reference, however SPA would look for that to include operational effectiveness and efficiency, the independence of the internal investigation function, its governance and accountability, and training and guidance for officers and staff,” he added.