A court is set to order an independent investigation into the unlawful spying on journalists’ sources by Police Scotland.

The Investigatory Powers Tribunal (IPT) said on Friday that it may task a police force outside Scotland with probing the breaches after the single force admitted culpability.

A police source told the Sunday Herald: “This is a massive humiliation.”

Since March 2015, police forces have required judicial approval before using the Regulation of Investigatory Powers Act (RIPA) to flush out confidential media sources.

As revealed by this newspaper, Police Scotland last year flouted the rules by trying to find out how a tabloid newspaper got its information on the unsolved murder of sex worker Emma Caldwell.

The force illegally used the RIPA to determine whether two serving and two retired officers had played a role in the leak.

However, Police Scotland’s failure to seek judicial approval for the mole hunt triggered parliamentary hearings and months of negative publicity.

The Interception of Communications Commissioner’s Office (IOCCO), which confirmed the breaches, determined the activity had been “reckless”.

The IOCCO also informed the four affected individuals, who did not leak any information, that they could take their cases to the IPT, which examines RIPA breaches.


In a ground-breaking tribunal last week – the first IPT case ever to be heard in Scotland – lawyers discussed an “effective remedy” for the victims.

The tribunal was comprised of three senior legal figures: IPT President Sir Michael Burton; former high court judge Sir Richard McLaughlin; and Susan O’Brien QC.

Picture: O'Brien QC

Three of the four individuals who had been targeted – serving officers David Moran and Steven Adams, as well as a retired policeman known as Mr O – were represented by QC Craig Sandison.

The fourth man, former detective Gerard Gallacher, represented himself, while Police Scotland hired Jeremy Johnson QC.

The one-day hearing was not an evidence session, as Police Scotland did not contest the IOCCO’s findings.

Johnson said: “Police Scotland concedes that the authorisations were unlawful, that they were incompatible with the complainants’ rights.”

He added: “We [the force] absolutely concede illegality.”

However, Sandison’s clients believed the breaches were “wilful” rather than reckless and wanted to revisit the circumstances of the unlawful actions.

Sandison told the tribunal they wanted an “independent" investigation "into the facts”.

The complainants are awaiting a final determination from the IPT, but panel members strongly indicated a preference for tasking a non-Scottish law enforcement body with examining the breaches.

Sir Michael said: “I think it has got to be someone from outside Scotland.”

He continued: “It ought to be a senior officer from outside a Scottish force.”

O’Brien added: “And who had never previously worked in Scotland.”

Moran said on Friday: “I hope that they [Police Scotland] will apologise, which they have never done up to now. This is about restoring my reputation."

Gallacher said: "I'm very pleased the IPT has recognised that the behaviour of Police Scotland, in illegally pursuing myself and others, including two serving police officers, should be investigated. The IPT have also recognised that neither Police Scotland, nor PIRC (Police Investigations & Review Commissioner), are suitably placed to conduct an independent or impartial investigation, and intend to recommend that an outside police force be appointed to carry out the investigation.”

Calum Steele, the general secretary of the Scottish Police Federation, said: “Whilst we await the full written judgement, the Scottish Police Federation is delighted with the outcome of this tribunal. Our members deserve the full protection of the law and we will always fight to make sure they receive it. In this case they were directly affected by the unlawful actions of the [Police Scotland] towards them and we are delighted this was recognised by the tribunal.”

Police Scotland Deputy Chief Constable Iain Livingstone said: "We await the findings of the IPT and will, of course, comply with any directions given. 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 on place to ensure such a breach could not occur again. IOCCO has 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.

"As a result of the HMICS Assurance Review of the Counter Corruption Unit, I have instructed a root-and-branch review of Police Scotland's response to dealing with corruption."