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  1. Media Law
November 30, 2015

Police Scotland grabbed call records to find sources of Sunday Mail coverage about unsolved murder

By Dominic Ponsford and William Turvill

Police Scotland appeared to break the law when it seized phone records in order to find the source of a newspaper story about a notorious unsolved murder, it has emerged.

Last week the Interception of Communications Commissioner’s Office revealed that the force was one of two to breach the ‘Save Our Sources’ law passed in March to better control police grabs of phone records to find journalists’ sources. IOCCO has not yet decided whether the other force will be identified.

IOCCO revealed that the force was "reckless" in making five applications for telecoms data, under the Regulation of Investigatory Powers Act, without the approval of a judge.

The Sunday Mail told yesterday how the applications were made in April as part of a bid to identify the source of coverage about the unsolved murder of 27-year-old Emma Caldwell in 2005.

It was first suggested Police Scotland's breach of the new RIPA rules related to the Caldwell case in August. Then, BBC journalist Eamon O'Connor, who had investigated Police Scotland's "screwed up" investigation, said a "very dependable source" had told him the force was attempting to find his sources.

IOCCO said that Police Scotland had targeted four individuals “in order to determine either a journalist’s source or the communications of those suspected to have been acting as intermediaries between a journalist and a suspected source”.

The Sunday Mail revealed that one of the four whose records were secretly viewed was Gerry Gallacher, a former police officer, who raised concerns about the failed murder inquiry and has spent 18 months reinvestigating the case.

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He told the Sunday Mail: “On a personal level, I am furious that my privacy has been breached without justification.

“On a professional level, I will never understand how officers, presumably some of the most senior in Police Scotland, decided this was the right thing to do. What they did was the opposite of the right thing.

“Anyone reading those reports that Sunday morning would have thought the police had a very a simple decision to take.

“But instead of ordering an immediate review of the new information, they launched a hunt to find the source of that information. That is, I’m afraid, a dereliction of duty, a shameful decision.”

Jim Wilson, editor of the Sunday Mail, said: "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."

Gallacher is now set to pursue a complaint through the Investigatory Powers Tribunal, the court which judges whether or not state surveillance is justified.

A serving officer, who was also targeted, is expected to complain to the tribunal, the Sunday Mail reports.

While conducting its molehunt, Police Scotland did not apparently take action on the apparent failings in the initial murder investigation highlighted by the Sunday Mail.

It did not re-open the investigation until six weeks ago, when it was ordered by the Lord Advocate of Scotland.

Police Scotland has so far declined to apologise over its actions.

A Sunday Mail leader said yesterday: "Their decision to hunt down the whistle-blowers was fully intentional, wholly deliberate and completely disgraceful."

Earlier this month a  former detective chief superintendent of the Metropolitan Police was cleared nearly four years after he was arrested on suspicion of giving information to a journalist.

He disclosed information relating to the notorious unsolved murder of Daniel Morgan, who was killed with an axe in South London in 1987.

Police Scotland has issued a statement clarifying that no journalists' records were targeted.

ACC Ruaraidh Nicolson, who has overseen the response to the IOCCO inspection, said last week: “Police Scotland can confirm that it did not adhere to the new guidelines covering access to communications data during a recent investigation into alleged serious breaches of information security.

“An inspection by the Interception of Communications Commissioner’s Office (IOCCO) in June 2015 found that five applications for data, which were all directly connected to one investigation into the alleged unauthorised release of sensitive police information in early April 2015, were not in accordance with the terms of the new Code of Practice covering the acquisition of communications data which came into effect on 25 March 2015. 

"We also acknowledge the deficiencies in the applications themselves, which have been highlighted by IOCCO.

“For the purposes of clarification, none of the applications concerned a journalist.

“IOCCO has noted that there was no evidence of an intentional act by Police Scotland to avoid the requirements of the Code. A detailed action plan was put in place as soon as the issue was highlighted by IOCCO and no further recommendations have been made to Police Scotland. 

"IOCCO has also commented on the robust and rigorous steps Police Scotland has taken to ensure processes for all applications for communications data are fully compliant with the Code of Practice and all legislative requirements.

“Police Scotland is aware that IOCCO intends to notify those individuals considered to have been affected. In consequence of that ongoing process, it would be inappropriate to comment further.”

In Scotland, Labour is demanding that justice minister Michael Matheson makes a statement to Parliament, setting out what he knew, while the Scottish Liberal Democrats want the issue to be raised in a debate at Holyrood this week.

Graeme Pearon, Labour's justice spokesman, said: "Michael Matheson has said he knew nothing about this case but he has been SNP Justice Secretary for more than a year now, and has been invisible during the biggest crisis of confidence in Scottish policing in generations. This cannot be another policing scandal where he goes missing."

He stated: "Policing in Scotland once had a world class reputation, but it has been dragged through the mud by a series of scandals this year.

"Now we see that the police service in Scotland had carried out illegal surveillance on five separate occasions.

"Serious questions must be asked why police time and resources were used to hunt the source of a story rather than the potentially crucial information that story presented. It suggests a force more concerned with public relations than keeping people safe."

Liberal Democrat justice spokeswoman Alison McInnes said: "The creation of Police Scotland was the biggest shake up of policing in Scotland for a generation and the consequences for people in communities across the country have been enormous.

"In recent weeks, Police Scotland officers were found to have illegally spied in an effort to uncover journalistic sources. We have seen hugely critical reports on call handling services that say staff are under enormous pressure. The first Police Scotland staff report found one third of officers say they are planning on leaving the force. The list goes on.

"It beggars belief that at no point since the creation of Police Scotland have SNP ministers scheduled no debates on the operations and administration of the police in government time."

She insisted: "It is time that the SNP stepped up to the plate and were held accountable for their record on policing. We need to have a full debate on the operations of Police Scotland in government time.

"Given recent events, if the Justice Secretary put down a motion there is a real chance that the Government would lose the vote. The suspicion is that SNP ministers are running scared of their own record on policing."

A Scottish Government spokeswoman said: "Policing in Scotland is subject to greater levels of political, public and media scrutiny than ever before including through the dedicated parliamentary sub committee who will next meet on December 3.

"The Justice Secretary has updated the Scottish Parliament on policing matters twice since September and police budgets for the coming year will be scrutinised in detail by MSPs in the coming weeks."

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