Police Scotland has been ordered to pay £10,000 compensation buy the Investigatory Powers Tribunal for illegally obtaining the phone records of a journalist.
It is the first time a police force has been penalised for overstepping its powers against journalists under the Regulation of Investigatory Powers Act.
Earlier this year the IPT ruled the Met Police acted unlawfully when it obtained the phone records of a Sun journalist, but no compensation was awarded.
Police Scotland launched its mole hunt after three articles were published in April 2015 by the Sunday Mail examining the failed murder inquiry into the death of 27-year-old Emma Caldwell in 2005.
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The force accessed the call records of former police officer Gerard Gallacher (now a journalist), his wife, another former police officer and his wife and two serving police officers.
The data grabs breached a law which came into force on 25 March 2015 after the Press Gazette Save Our Sources campaign which required that police requests to view telecoms records made to identify a journalistic source must be approved by a judge.
The IPT said that Detective Superintendent Donaldson, who authorised three of the grabs, “had been made fully aware of the relevant content of the [new] Code as recently as 7 April 2015”.
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The judgment states that Police Scotland began its criminal investigation into the source of the Sunday Mail story also on 7 April 2015, two days after the first report appeared.
This sought to “identify any of its current or former officers who might have been involved in the disclosure of the information that had appeared in the press about the Emma Caldwell matter”.
Police Scotland’s Counter Corruption United began a covert criminal investigation to find out which officers may have given information to Gallacher. This led them to secretly obtain 32 days of communications data relating to the six complainants.
This data would have revealed who they called, when and where (but not the content of the calls and text messages).
Following publication of the Sunday Mail articles the Scottish Crown Office instructed Police Scotland to re-open the Caldwell murder inquiry.
According to the IPT, Police Scotland launched its sources investigation despite having “no coherent view as to what, if any, crime might have been committed by any person”.
The complainants in this case found out their call records had been illegally accessed when watchdog the Interception of Communications Commissioner contacted them. It has previously condemned Police Scotland’s actions in this case as “reckless”.
Gallacher’s investigation into the Caldwell case revealed the existence of a Scottish man who had been interviewed by Strathclyde Police (now part of Police Scotland) six times. According to Gallacher, detectives interviewing this man believed he was the murderer.
Gallacher’s research prompted a series of articles in the Sunday Mail revealing this “Forgotten Suspect” published on 5, 12 and 19 April.
Gallacher was awarded £10,000 in compensation to reflect “invasion of privacy, familial strife, personal stress and strain and loss of long-standing friendships” which he said resulted from the Police Scotland “unlawful acts”.
The other complainants received no financial remedy.
Police Scotland deputy chief constable Iain Livingstone said: “Police Scotland has fully accepted that standards fell below those required in this case.
“Following the breach, a full review was immediately conducted to ensure there could be no repeat of the circumstances which led to the IOCCO determination, which Police Scotland accepted.”
Sunday Mail editor Jim Wilson previously told Press Gazette: “It is hard to think of a story that demanded a more straightforward response from Police Scotland.
“They could and should have reopened their investigation into the murder of Emma Caldwell after reading our reports. Instead, they launched a hunt for our sources using – and abusing – powers meant to combat terrorism and other serious crime.
“The family of Emma Caldwell deserved far better.”
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