- Officer who signed off RIPA applications 'misinterpreted' law
- Force warned 'these kind of applications, potentially, could breach the code'
- Justice Committee MSP accuses previous Police Scotland representative of not being 'frank'
- Force criticised for not allowing four officers involved to appear
The officer who signed off Police Scotland’s applications to find journalistic sources "misinterpreted" the Save Our Sources change to the Regulation of Investigatory Powers Act, the force has said.
Appearing before the Scottish Parliament’s Justice Committee, assistant chief constable Ruaraidh Nicolson (pictured) said the officer knew "that area of business inside-out and unfortunately he’s misinterpreted what the change means".
He also disclosed that a senior responsible officer had expressed "concern" about RIPA applications to find journalists' sources. This came after the Sunday Mail reported a source as saying senior officers were warned by a detective superintendent their "molehunt" was illegal before the applications were made.
Nicolson said: "I am aware that the SRO (senior responsible officer) did provide advice that these kind of applications, potentially, could breach the code.
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"It's not as straightforward as: the SRO provides advice and the officer has advice but dismisses that completely.
"The DP (designated person) that signed this off knew that the codes were in place, considered them, misinterpreted what the code meant and authorised it."
He added: "This individual is highly-trained with huge integrity. Unfortunately, one of the best officers in this area of business in the whole country – and I don't just mean Scotland, I mean the whole of the United Kingdom – has misinterpreted this.
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"That is what makes this even worse from our perspective."
He continued: "The actual release from IOCCO [RIPA watchdog the Interception of Communications Commissioner's Office] suggests to us that it was reckless but that it wasn't wilful.
"I take some comfort that someone hasn't acted deliberately, but very little comfort I would add.
"I don't think that anybody, from what I have seen and I might be straying into the IPT determination, acted deliberately and in fact had an honestly-held belief that what they were doing was correct."
Since March last year, police forces have been required to obtain judicial approval before using RIPA to obtain communications data to find journalistic sources. This law change followed Press Gazette’s six-month Save Our Sources campaign.
In June, it emerged that two forces had breached this new law. Police Scotland was named as one of them by the press in Scotland over the summer and this was confirmed by IOCCO in November. The other force has not been identified.
It later emerged that Police Scotland were seeking to find sources in relation to Sunday Mail coverage of the failed Emma Caldwell murder inquiry.
In December, Holyrood’s Justice Committee heard evidence from deputy chief constable Neil Richardson, but Nicolson was called to give more evidence today. Police Scotland refused to allow four officers involved in the application process to appear before the committee, putting Nicolson forward instead.
The force was criticised at this morning’s committee meeting both for the previous performance of Richardson, who a member accused of not being “frank”, and for not allowing the four officers to appear.
John Finnie MSP said: “One of the challenges we have, Mr Nicholson, is the growing perception that the reason that you’re sitting there rather than other officers sitting there is because chief officers in Police Scotland want to frustrate the presence of these officers here because they will come and tell us that rather than some ‘misinterpretation’, that this was a conscious decision. And it reflect very poorly on the judgment of the CCU [Counter Corruption Unit] and chief officers. Is that not the case?”
Nicolson said: “No, that’s not the case at all.” He added that he would be happy for the officers to appear before the committee but said it would undermine future tribunal proceedings. “We’ve got legal advice on that,” he said.
“And the second element of this is we’ve got individuals here who are actually at the heart of our response in terms of serious organised crime, and very, very serious criminality.
“Now, obviously their names, we already know their names, but what we don’t want to have is their identities out there, so that people know who they are and their addresses and whatever else there happens to be and the risks that raises. So that’s our concern.”
Finnie: “Why would their addresses be out there, Mr Nicolson?”
Nicolson: “Well, because they come here they’re going to be seen on TV by everybody and a whole range of people will recognise them.”
Finnie said it was not the intention of the committee to “compromise” the safety of the officers, adding: “But we can’t deal with this prevarication. You would probably not be here if Mr Richardson had been frank with us.”
Alison McInnes MSP quizzed Nicolson on the suggestion the force were warned of the illegality of the applications: "Did the senior responsible officer at any time warn that the planned monitoring was against the rules?”
Nicolson said: “The senior responsible officer on a number of occasions will have spoken about the new change, and has had dialogue in relation to particular applications.
"Did she express concern about the applications?
"Well… she wouldn’t have seen the applications."
He explained that the senior responsible officer did not authorise the application. Her job, he said, is "to make sure processes are in place to make sure that the codes are adhered to. The person who signed off the authorisations was a completely different, separate individual altogether."
McInnes asked: "Nevertheless, did the senior responsible officer express concerns about using this power to investigate?"
He responded: “In more general terms, she expressed concern round about applications for journalistic material.”
McInnes: “Was she therefore overruled?”
Nicolson: "No."
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