POLICE Scotland is refusing to deny that it is one of the forces which has breached a new law designed to clampdown on officers spying on journalists.

A watchdog criticised two unnamed forces last week for failing to get judicial approval before obtaining “communications data” such as phone records to flush out journalists’ sources.

Asked if Police Scotland was behind one of the breaches, a spokesman repeatedly declined to answer the question.

Under the Regulation of Investigatory Powers Act (RIPA), senior police officers can grant colleagues power to access the ‘who, where and when’ of phone calls, text messages and emails, but not the content of the communications.

It emerged last year that police had used the surveillance powers as a way of identifying the sources behind newspaper investigations involving former Cabinet Ministers Andrew Mitchell and Chris Huhne.

This controversial use of the powers prompted the Interception of Communications Commissioner - appointed by the Prime Minister to monitor the use of RIPA - to launch a probe into police surveillance on journalists.

All forces across the UK, including Police Scotland, were directed to provide details of cases where RIPA was used to investigate the leak of information to the media.

The probe uncovered 34 investigations which sought communications data in the last three years, which focused on the relationship between 105 journalists and 242 sources.

The findings alarmed campaigners who believed this use of RIPA breached Article 10 of the European Convention on Human Rights, which safeguards confidential journalistic sources.

The Commissioner concluded that the majority of the applications, which require internal approval by a superintendent, did not justify the “principles of necessity and proportionality”.

No police force was named but the watchdog recommended that judicial approval should be obtained where the intention is to unmask a journalist’s source.

A stop-gap law was passed in March on judicial approval.

However, on Thursday, the Commissioner revealed that since March two forces had seized communications data on journalists without seeking a judge’s permission.

The Commissioner noted that the cases were “serious contraventions” and Prime Minister David Cameron described the situation as a “serious error”.

In the first case, a police force acquired data for a journalist and a known associate who was also a source.

The crime under investigation related to attempting to pervert the course of justice in the midst of an ongoing criminal trial.

The second case related to a suspected source working inside the police and a former force employee believed to be acting as an intermediary.

According to the Commissioner, the two examples were only “very recently identified” and are now being investigated.

Asked if Police Scotland was one of the two forces referred to in the Commissioner’s report, a spokesman said on Friday: "We are inspected every year by the Interception Commissioner and we note the six monthly review."

Asked a second time, the spokesman added: “Communications data can and does form an important element of police investigations ranging from tackling serious and organised crime to tracing missing people.

“We recognise that community confidence in our use of powers around communications data is an important factor in how we deliver policing.

"We will continue to access and use comms data in the most ethical and accountable ways possible in order to support our focus of keeping people safe.”

After issuing these statements, Police Scotland provided this newspaper with a response to a historic freedom of information request on whether the force had used RIPA to identify journalists’ sources between 2013 and 2015.

The force stated that a series of exemptions prevented the question from being answered, such as “national security and defence”.

Scottish Liberal Democrat leader Willie Rennie MSP said: "Free speech is fundamental to an open society and the press must be able to operate without fear that their communications data can be accessed by police without any good reason.

"The Police need to be transparent about their use of communications data. That is what the protections Liberal Democrats helped introduce will deliver. Flouting these rules is an attack on freedom of speech and Police Scotland need to be open over whether they are the force which breached the code."

Scottish Conservative chief whip John Lamont said: “The ability for journalists to protect their sources is key to the news cycle, which is in-turn crucial for a modern, democratic country.

“That’s why Police Scotland should really be more transparent about this particular case, as it is very much in the public interest.”