Police spying investigation delayed due to commissioner not being appointed

A report into whether police used spying powers to identify journalists' sources has been delayed as a result of the official surveillance watchdog being without a commissioner, Holyrood can reveal.

The Interception of Communications Commissioner’s Office (IOCCO) started an inquiry into two unnamed UK forces - one of which is claimed to be Police Scotland -​ for “serious contraventions” of its code of conduct in July.

Interception of Communications Commissioner, Rt Hon. Sir Anthony May, stepped down later that month with the Prime Minister yet to appoint a successor over two months on.

It has now emerged that failure to do so has left IOCCO, which has completed its investigations and prepared conclusions, unable to publish its findings, with the watchdog’s head admitting to MSPs its “hands are tied”.

Independent MSP John Finnie, who sits on the Scottish Parliament’s Justice Committee, said the revelations were “astonishing”.

The Sunday Herald has claimed Police Scotland is one of the forces, allegedly failing to get judicial approval before using the Regulation of Investigatory Powers Act to identify a journalist’s source.

The allegations led to calls for Holyrood’s Justice Committee to conduct its own probe.

In a letter sent to MSPs on the committee last week, Head of IOCCO Jo Cavan said their inquiry has been “prioritised as a matter of urgency” from the outset, though had come to a standstill in the absence of a commissioner.  

“I can inform you in confidence that we have now completed our investigations and the conclusions have been prepared for the Commissioner to consider and make a determination,” she wrote.

“As you know unfortunately we do not currently have a Commissioner in post and therefore we are unable to progress matters further at this time which is incredibly frustrating for all concerned.

“The Rt Hon. Sir Anthony May wrote to the Prime Minister on 31st July 2015 to express his concern that his replacement had not yet been identified or appointed. We do expect this to be resolved very shortly - within a matter of weeks.

“At present however our hands are tied as until we have a determination from the Commissioner we cannot complete the inquiry.”

IOCCO had cancelled a number of inspection commitments in order to complete the investigations “expediently”, Cavan added.

Justice Secretary Michael Matheson has previously called for IOCCO to be left to complete its work “free from interference”, while Police Scotland has repeatedly refused to confirm or deny it is under investigation, saying it is “inappropriate” to comment.

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

Holyrood understands that committee members were unsatisfied with the initial response, leading to a second letter being sent last week in an attempt to force a more detailed reply.

Holyrood was initially told that IOCCO’s response, sent to MSPs last Friday, would not be made publiclly available, though committee members have since requested that it be aired with IOCCO saying it is up to the parliamentary committee whether to do so. 

Finnie said: “It is gratifying that IOCCO ‘understand fully the public interest in these matters’ and also gratifying to know the priority they’ve given it by cancelling other inspections.

“However, it is astonishing to understand that that matter comes to a halt due to the failure to have in place a commissioner, a matter drawn to the attention of the Prime Minister a number of months ago.

“The public interest isn’t being served by this state of affairs and I hope for a speedy resolution in order that we can have the necessary public exposure of their findings.”