Police Scotland’s deputy chief constable today refused to tell Holyrood MSPs whether his force has accessed the phone records of journalists to find sources.
Neil Richardson (pictured above) appeared before the Scottish parliament’s justice committee after it emerged his force had breached the Save Our Sources law – preventing police from accessing phone records to find journalists’ sources without judicial approval – after it came into force in March.
It has emerged that Police Scotland obtained the phone records of non-journalists in order to find out whether they were sources of press coverage aboit the failed Emma Caldwell murder investigation. Richardson told the committee he could not comment on whether a source had been found.
The unlawful breach was described as “reckless” by the Interception of Communications Commissioner’s Office (IOCCO), which oversees use of the Regulation of Investigatory Powers Act (RIPA).
Appearing in Holyrood today, Richardson:
Blamed his force’s unlawful breach on the “pace” at which the Save Our Sources law was brought into force this year
Said the officer who approved the applications had “misinterpreted” the new law having not been offered training at the time of the application
Revealed no police staff are facing misconduct charges over the breach
Criticised media coverage of the force’s unlawful RIPA use
Said IOCCO’s definition of “reckless” – which he was not able to share – is less “extreme” than the general definition
And said: “The suggestion that we’ve not been careful is not accurate.”
Asked by John Finnie MSP whether Police Scotland has ever used RIPA to obtain journalists’ phone records, Richardson said: "Again, the important part here is that we are subjected to rigorous and detailed investigation and scrutiny by the appropriate –"
Told that a "yes or no" answer would suffice, he said: "Well, as ever, it's never quite as simple as that when we're giving the answer. What has been highlighted is that in every instance where an authorisation has been sought, the inspector has confirmed that that is appropriate and lines with our obligations. There are five instances where that has not been the case and again they all relate to the same circumstances that, again, have led to me being asked to come along here today.
"So beyond that I think what I'm trying to say to you is that compliance is assured by a very detailed and rigorous inspection regime, and that is an ongoing process. So the public and yourselves should take confidence from that process that our compliance is at a high level and where errors are made that is immediately acted upon and surfaced in a public way to enable the public to have confidence that these very important and sensitive areas of authorisation are appropriately discharged."
On the speed at which the Save Our Sources law came into force, he said: "I think it's on public record that the pace that the guidance came into being was very aggressive and as a consequence there is no doubt that that did lead to a more pressured introduction of these guidelines.
"And as a consequence it perhaps has played a factor in the error that undoubtedly was subsequently made."
He said the Home Office sent a PowerPoint presentation to the force and guidance was circulated, but added that training was not provided until after the five applications were made for source phone data.
Richardson said: “The suggestion that we’ve not been careful is not accurate. What I’ve described to you is a very rigorous and robust set of arrangements and they were applied in this instance.
“It just so happens that the officer concerned has misinterpreted brand new legislation that at the point he was asked to do this was 22 days old and there had been only a very rapid introduction with limited opportunity for training.
“And he himself had had documentation to read but had not received the actual training course associated with the new guidelines and the change…
“A mistake was made, but the context of the mistake was really important. This was an officer that was trying his best to do his professional duty and has made an error of judgment.”
On the code breach, Richardson said: "To give the inference as I know some of the headlines have done that this was a complete and utter neglect of the rules that are set out is not an accurate description of what's happened."
When Elaine Murray MSP highlighted that IOCCO had described the law breach as “reckless”, Richardson said: "There's an important context associated with that language. There is a necessity, which is again set out in the guidelines, that if there is adverse consequences for anybody because of the activity that's been authorised it can be determined in one of only two ways: it can be termed as wilful or it can be termed as reckless.
“The inspector was clear that there is no evidence to suggest any wilful element to this and therefore it only leaves the definition of reckless.
“Now that is something that, for you and I, the word reckless is quite an extreme word. And for any member of the public that would read that it does have a level of concern rightly that would be associated with it.
“But it’s important to understand that in the circumstances here, reckless is effectively defined by something that has failed to be done or has not happened, and it was the only consequence that could be reached, or the only term that could be used other than ‘wilful’.
“I think that’s really important for people to understand because, again, the general intuitive understanding of reckless is more extreme.”
Christine Grahame MSP asked him where his definition of “reckless” came from and suggested the code breach might be considered “wilful”.
He said: “The inspector is the person who has gone through the detail of the evidence, they have determined very clearly there was no wilful element to this and they have defined it as ‘reckless’.
“And in the discussions that have taken place… it is clear within that that whilst there’s no set definition there is an interpretation that’s been placed on that by the inspector to help us understand what he means by reckless.
“But that’s information that is not in the public domain and therefore it leaves us in a difficult position.”
Grahame asked: “I’m sorry, the inspector’s given you a definition of reckless that’s not in the public domain? Have I heard you properly there?”
Richardson said: “There is a document that I am in receipt of that is not in the public domain that gives more clarity on that.”
He added that “unfortunately I’m not in a position to share that” and IOCCO would have to be the body to do so.
He said: “It contains information that would potentially compromise subsequent proceedings and as a result it would be inappropriate to have that [in the public domain].”
The proceedings referred to were the potential for those whose records were illegally obtained to sue Police Scotland through the Investigatory Powers Tribunal.
The moment MSPs were told Police Scotland is unable to share IOCCO's definition of "reckless":