Police Scotland Counter Corruption chief was aware of journalist spying concerns

From March 2015, police forces wanting to use the Regulation of Investigatory Powers Act (RIPA) to uncover a journalist’s source had to obtain judicial approval.

As revealed by the Sunday Herald in August, Police Scotland breached the new rules in an illegal mole hunt four months earlier.

The CCU used its RIPA powers to establish if two serving and two retired officers leaked information to the media after a newspaper investigation into the unsolved murder of prostitute Emma Caldwell.

The Interceptions of Communications Commissioner’s Office (IOCCO) – a watchdog that oversees the use of the RIPA – revealed multiple breaches of the rules.

A requirement for the force’s Designated Persons (DP) – who authorise spying applications – to be independent of the investigation was also flouted.

MSPs hauled in chief officers to explain the mess, but were rebuffed in their attempts at hearing oral evidence from the CCU officers who had knowledge of the applications.

The retired and serving officers who were unlawfully targeted have also taken their case to the Investigatory Powers Tribunal.

An IOCCO memo to Police Scotland, which has been obtained by this newspaper, makes clear the RIPA applications in the journalist source case were “deficient” on a number of fronts.

The watchdog also laid bare the involvement of senior CCU figures and provided commentary on their actions.

CLARK CUZEN

Chief Superintendent Cuzen is the head of the CCU, which was set up to root out corrupt police officers.

According to the IOCCO memo, Cuzen was copied in to an email on February 24 last year flagging up the looming changes on judicial authorisation for journalistic material.

On April 16, he received an email from a senior police officer who suggested judicial approval would be required for “traffic data” on a journalist’s phone relating to the Caldwell row.

He responded: “I am still waiting for the full intelligence case before we ask Davie [Det Supt Donaldson] to consider and your advice on progression.”

Applications relating to suspected sources were subsequently approved, although not by Cuzen.

He later declined to give oral evidence to the Parliament’s Justice Committee.

DAVID DONALDSON

Detective Superintendent Donaldson was one of two DPs who authorised RIPA applications in this matter.

The IOCCO memo contains an email Donaldson was sent on one application: “Hi Sir, I think in all the circumstances this would be construed as determining a Journalistic source, in fact in this set of circumstances it ticks all three boxes.”

The watchdog added that it was “extremely significant” Donaldson had been given “clear and accurate advice” which “identified the issue of determining journalistic sources and the consequences”.

“Despite receiving that advice it was not referred to in any of the three subsequent applications considered by Det Supt Donaldson, nor is it apparent that he sought to follow that advice.”

The IOCCO concluded: “Det Supt Donaldson is a knowledgeable and experienced officer yet he failed to identify the obvious and apparent risks in each of these applications.”

“Based on the material I have considered the conduct amounts to a reckless failure.”

Donaldson declined to give oral evidence to the Justice Committee and is now retired.

JO GRANT

Detective Inspector Jo Grant was the DP on two of the RIPA applications.

However, the IOCCO memo to the single force stated:

“The purpose of these applications was clearly to determine either a journalist’s source or the communications of those suspected to have been acting as intermediaries between the journalist and the suspected source.

“Det Insp Grant failed to identify these matters in her consideration of the applications and her recorded considerations when approving the applications were wholly inadequate.”

“Importantly Det Insp Grant also failed to understand that she needed to be independent of the investigation to authorise the activity in question.”

The IOCCO concluded: “Based on the material I have considered the conduct amounts to a reckless failure.”

Grant declined to give oral evidence to the Justice Committee.

BRENDA SMITH

During the Justice Committee hearings, MSPs heard how Detective Superintendent Brenda Smith sounded the alarm over applications relating to journalistic material.

The IOCCO documents back up the view that Smith was diligent at all times.

On February 24, weeks before the journalistic applications, she emailed colleagues to flag up the impending requirement on judicial authorisation.

On April 16, she emailed Cuzen and another individual about a RIPA application relating to a journalist: “I understand from my comms sergeant some discussions have taken place with Davie Donaldson re an ongoing enquiry where you intend to seek traffic data on a journalist’s phone even though you know the identity of the source? I would suggest this falls into the category of requiring judicial authorisation.”

She declined to give oral evidence to MSPs.

A Police Scotland spokesman said: “Proceedings in relation to an investigatory powers tribunal are pending and therefore we cannot comment further at this time.

“Police Scotland fully accepted that it did not adhere to the new guidelines and that there were deficiencies in the applications themselves.

“Immediate steps were put in place to ensure such a breach could not occur again and IOCCO was made fully aware of that course of action. IOCCO has also commented on the robust and rigorous steps taken to ensure processes for all applications for communications data are fully compliant with the Code of Practice and all legislative requirements.”