A POLICE Scotland unit is believed to have intentionally broken new rules on spying on journalists’ sources up to five times, the Sunday Herald can reveal.

Insiders close to the force have said the behaviour of the Counter Corruption Unit (CCU) – which is under the control of Deputy Chief Constable Neil Richardson, who is a candidate to succeed Sir Stephen House as head of Police Scotland – was not an isolated, one-off incident.

New figures also show that the cash-strapped force has launched 23 internal investigations into suspected media leaks since 2013.

Since March this year, police forces have been required to get judicial approval before using spying legislation to determine a journalist’s source.

The reform was pushed through after it emerged that hundreds of applications had previously been approved internally by police forces across the UK to establish contact between reporters and their sources.

The practice was deemed to be a human rights breach as defending the identity of a confidential source is a cornerstone of freedom of expression.

However, the Interception of Communications Commissioner’s Office (IOCCO) reported in July that two unnamed forces had broken the new rules on judicial approval.

The Sunday Herald disclosed that Police Scotland’s CCU was one of the culprits, but the force and the Scottish Government have maintained a position of not confirming or denying the behaviour.

It can now be revealed that the IOCCO may have identified as many as five examples of the CCU flouting the judicial approval requirement.

If any journalistic sources are judged to have been “adversely affected” by the force, they will be contacted and informed about the presence of the Investigatory Powers Tribunal, which can award compensation.

The Government is known to have concerns about the CCU and may task a watchdog with reviewing the unit - which was set up to weed out corrupt police officers.

However, it is unclear which individuals have been affected, but fears have been expressed that one of the breaches relates to a newspaper investigation into the unsolved murder of prostitute Emma Caldwell.

The Sunday Mail published a series of articles in April into the failings of the original police investigation in the Caldwell case.

Retired detective Gerry Gallacher, who helped the newspaper expose the shortcomings, was paid a visit by the CCU after the stories were published.

Gallacher was not at home at the time of the police visit and he was left a police calling card.

Separately, a former officer who worked on the Caldwell case has contacted the IOCCO about whether any of the breaches relate to him.


Picture: Neil Richardson (left) wants to take over from House

Holyrood’s Justice Committee is considering launching an inquiry into the issue of police spying and the media, but is awaiting confirmation from the IOCCO that the single force is guilty of wrongdoing.

IOCCO's Jo Cavan told MSPs recently that no final determination could be made until a new Commissioner was appointed, but Sir Stanley Burnton filled the vacant post last week.

MSPs on the Committee are hopeful the IOCCO report will be published within two weeks.

It is understood that one of Police Scotland’s most senior officers – not Richardson - was summoned to a meeting at the Home Office to explain the breaches. In a letter to Burnton, Liberal Democrat MSP Alison McInnes stepped up her demands for the immediate release of the findings.

“You will be aware that media reports have named Police Scotland as one of the forces involved in the probe. This has not been confirmed, however, due to the delay in your appointment. Police Scotland and the Scottish Government have refused to confirm or deny whether the national force was one of those under investigation.

“I urge you to instruct your officials to release the findings of this investigation without delay. This would provide clarity on this important issue, maintain public confidence and, if necessary, ensure that those forces involved are held to account.”

Richardson has portfolio responsibility for the CCU, but there is no suggestion he had any personal involvement in the breaches.

He is one of three short-listed candidates, along with DCC Iain Livingstone and National Crime Agency deputy director general Phil Gormley, to succeed House in the top job.

Meanwhile, the force has confirmed using its scarce resources to pursue internal mole hunts to establish whether information has been leaked to journalists.

In the first year of Police Scotland, nine inquiries were launched into suspected media leaks, followed by five more in 2014/15.

Since April this year – a period that covers the new rules on judicial approval – nine additional probes have been embarked upon.

Highlands and Islands MSP John Finnie, a former police officer, said: “Press scrutiny is an important part of any liberal democracy. It has been a source of deep frustration to many that this report has taken so long to be made public. Now the real test will be how we respond to what I understand may be several of instances of malpractice.

“I continue to press for the Parliament’s Justice Committee to examine the issue and call for robust action against those who have been cavalier with journalists’ and citizens’ right to privacy.”

On the mole hunts, he said: “The public will ultimately judge whether the police have acted properly and proportionately deploying valuable resources on the hunt for in-house critics.”

MSP Graeme Pearson, Labour’s Justice spokesman and former Director General of the Scottish Crime and Drug Enforcement Agency, said: “I am concerned at how these surveillance authorisations were obtained because the rules are strict and the bar is high. Police Scotland and the IOCCO could have dealt with this matter properly on day one. I know there is a convention about not commenting while an investigation is ongoing, but given the nature of the allegations there should have been transparency from the beginning.”

Picture: Graeme Pearson

IOCCO's Jo Cavan said: “The Commissioner is aware of the public interest in these matters and will be prioritising all cases where individuals may have been adversely affected through the exercise of powers contained under chapter two of part one of RIPA. If the Commissioner determines that individuals have been so affected he will notify them of the existence and role of the Investigatory Powers Tribunal and provide them with sufficient information to enable them to engage the tribunal effectively.”

A Scottish Government spokesperson said: “Following Sir Stanley Burnton’s appointment as Interception of Communications Commissioner we hope IOCCO will shortly be able to make a final determination on their investigations and bring them to a formal conclusion. In the meantime it would not be appropriate to comment further.”

A Police Scotland spokesperson said: “IOCCO has not identified any organisation currently under investigation and therefore it would be inappropriate to comment further." On the leak probes, the spokesperson said: “Members of the public have the right to expect their personal information and protectively marked documents to be treated appropriately, so Police Scotland investigates any unauthorised release of such information thoroughly.”