 Y Llywyddyn yng Nghymru i'r ysgrifennu yma yng Nghymru 2016. Mae yw'r ddim yn dweud y cyd-dwylo? Mae'r ddod yn ei cyd-dwylo'r ddefnyddio'r ddefnyddio, a oedd ydych chi'n droi gyda'r ysgoleth. Mae'r ddod yn ddechrau Grystian Graeme, bod yn yn gwybod nad oedd y gallai ddod yn ei ddod yn ôl. will be recovering and be with us soon. Item 1 is consideration of items in private. The committee is invited to agree to consider items 3, 4 and 5 in private. Item 3 is consideration of a draft report on our scrutiny of the Scottish Government's draft budget. Item 4 is consideration of a draft stage 1 report on the abusive behaviour and sexual harm Scotland bill. Item 5 is consideration of our work programme. Do members agree to take items in private? Item 2 is the interception of communications by Police Scotland. Our main item of business today is an evidence session on the interception of communications by Police Scotland, as members are aware. This session is focusing on Police Scotland's governance arrangements, specifically in relation to the implementation of revised rules on the interception and acquisition of communications data that revised rules came into force in March 2015. Before I go on, can I express the disappointment of the Justice Committee that the four officers we invited to come before us today were prevented from coming in that Police Scotland would not pass the invitation on to those officers? We will be discussing that issue when we consider our work programme. We are also disappointed not to have received answers to all of the 16 questions. We are clearly grateful to those who were answered, but we are disappointed that we did not receive answers to all 16 questions that we issued. I now start by welcoming Assistant Chief Constable Rurie Nicholson to the meeting, and I will go straight to questions from members. I can have an indication of who I would like to ask. When did Police Scotland receive the codes of practice? The starting point for that was the Sir Paul Kennedy report. Fairly, that was published and came into the force on 4 February, as it did to every other organisation in the United Kingdom. That was the first point at which Police Scotland understood that there was going to be a change in the codes of practice in terms of how we dealt with journalistic material. Were Police Scotland consulted in the development of the codes? There was some consultation. You will see a timeline that we have provided to you. That came from Brenda Smith, who is the senior responsible officer in the force in relation to the material. She was responsible for making sure that individuals in the organisation knew and understood that. You can see that there was consultation in terms of ourselves and the Government in terms of that. When would it be fair to say that Police Scotland was aware of the change that required judicial approval? The starting point, as I said, was already on 4 February. There were various iterations of that and material came into the force in terms of understanding that we would have a change of code of practice. Fairly, we understood that the code of practice came into being on 25 March, and we understood that it was in place at that time. There was an awareness that there was that fundamental safe-taking case? Yes, absolutely. It was an awareness. Prior to the incident that has really given Rice to us being here, and 22 days after the new code came into effect, was anyone told in writing that it required judicial approval? In terms of the actual applications themselves, there was discussion in relation to the fact that that kind of application may indeed require judicial approval. That was in writing? There is communication in terms of that, but not specifically for the applications that we are talking about. More generally, correspondence would indicate that that type of application would require judicial approval. Has that been shared with the committee? No, I do not think so. Would it be possible for it to be shared with the committee? We can certainly consider that. Thank you very much indeed. Who requested the specific authorisation? The specific authorisation is requested by the counter-corruption unit. What prompted them to initiate that? What prompted them was what were perceived to be sensitive material going out into the press. Is it a matter of routine that the counter-corruption unit would monitor the press? Sorry, monitor press coverage is what I mean by that. Every organisation will monitor press coverage, no doubt. We are interested in what the press coverage is. Fairly obviously, the kind of investigation that was carried out here is far from routine. It is something that we do not carry out on a very regular basis. In fact, in Sir Paul Kennedy's report, he stated that right across the country it was about 0.1 per cent of the whole business of what we do collectively and what we do in this area of business and what we use these powers for. Could you help us to understand how we get from the situation where there is the hard copy of this in the press to this request for authorisation being made? What is the chain of events between these two? I would need to be a bit careful here because HMICS is going to carry out a full review of that. In general terms, what would happen is that someone would notify the counter-corruption unit. They would begin an inquiry into that. Depending on where that inquiry was, they would decide what the investigative strategy was for that kind of inquiry. At some stage there would be consideration for this kind of material. Do they require communications data? If they do, they need to seek authorisation for that. Depending on what level of information they are seeking, it would depend on what level of individual would approve that. If it was an itemised billing, so we are trying to identify the individual for the phone number, that would be an inspector or above. If it is traffic data, so we want to understand who it is that the calls are being made to and when, then that would be superintendent or above. Were you concerned about the press coverage? I saw the press coverage. We see press coverage every single day of the week. Yes and no. It is one of those things. There are reports on the press every day. If I was to be concerned about every single article that is in the press, then I would do nothing but worry every single day of the week. The press are absolutely entitled to investigate and understand what is going on and put that out into the public domain. That is what happened here. The main purpose of the meeting is to discuss Police Scotland's governance arrangements specifically in relation to the implementation of revised rules on the interception and acquisition of communications data that came into force. That is why I am trying to understand. I understood that. I may be wrong. My understanding from Mr Richardson was that there was general concern at senior level about that particular press coverage, but there is also a suggestion that the concern originates from the murder inquiry. Who prompts something that leads to that question? Anybody could prompt it. But who did? An individual from within the homicide review and investigation. Right. Was that a live murder inquiry? I appreciate that all unsolved murders remain open. That absolutely is something that HMICS are going to consider. That is part of their review. They published the reference yesterday in terms of all that element of it. I do not think that that is something that I would want to go into the detail off at this moment in time. It is the governance and it does relate to that particular incident. I am trying to understand if that is initiated from within the counter-corruption unit or from someone external that makes a request to the... Someone external makes a request. Who is that person? I say that I will be part of the HMICS's review in terms of all of this. That will report, I believe, to Parliament in due course. Forgive me, I should have rephrased that. What is the post or position that made the request rather than the original? I think that what we need to do is wait for the HMICS to have a look at the entirety of how this came about. That is what is in their terms of reference. That is what they will do and they will report back to Parliament in due course in terms of that without me at this moment in time undermining that investigation of that review. It is a general clarification and maybe not specific to this, but if a murderer has not been adequately investigated, his thoughts have not been properly investigated from some years ago and a police officer possibly involved with it, possibly not involved with it, speaks to a journalist, is that a matter for concern to Police Scotland? Ultimately it is not. That element of it is not. The fact, though, that sensitive material would get out into the public domain, is a sensitive material about a murder inquiry that continues, then fairly obviously that is. I think that the public would expect us to make sure that their details and their data, because these inquiries carry the information of a huge number of witnesses who have got no other purpose in terms of this apart from the fact that they are a witness to a murder inquiry. I think that the public would rightly expect us to protect that as much as we can, but I absolutely understand the balance that there is to be struck between that and this is what this is about. The balance to be struck between article 8 in terms of privacy and article 10 in terms of freedom of expression. We are absolutely concerned about the fact that sensitive information would get out into the public domain, but equally we understand the rights of a free press and the fact that we need a free press and we need to be challenged by a free press, and that is absolutely right. Just two or three more, if I may, convener, please. Thank you. Would you say there was uncertainty about the arrangements about that time then, Mr Nickerson? Would that be a fair summary of it? Uncertainty about the level of authorisation and what would be required? Well, absolutely is, and Sir Anthony May comments on that in terms of his half-yearly report, and I hope that it's helpful to pick that out. What are you looking for? If there was that, would it not be the norm, given the low number of occasions in which this is required to be acted upon, to have all matters referred to senior officers? Yes. Did that happen? That's part of my action plan. Sorry, I'm not mean about after the event. My action plan is to deal with the issues, as I saw them in terms of what went wrong and why we did what we did. I make no excuses for what we did, and I don't want to come across as I am making any excuses. I'll give you explanations for why we've ended up where we are, and fairly obviously there is an action plan there. You have seen my action plan, I think, and that was, as a result of what I thought, where the things that needed to be changed to make sure that we never found ourselves in the same position again. Were Police Scotland involved in determining the terms of reference, which I understand by just a grade yesterday of HMCI, this is a student's review? I've been no part of that whatsoever. Were Police Scotland part of it? Well, I don't know. You're not aware of that. Okay. Just a couple of final ones, if I may, then please. I understand that Police Scotland confirmed that RIPPA had been used on seven other occasions for journalistic purposes, and that the force said that none of the seven applications concerned journalists directly. Is that correct? Yes, so none of them concerned journalists. So the applications themselves didn't concern journalists. They were about journalist sources. And you are privy to that information? In terms of? You can say that with some assurance, because it's been suggested to me at least one of the seven applications did concern a journalist, rather than simply, I suspect, a journalistic source. All of them referred to journalists. There's no question about that. And so we've said that. But in terms of the applications themselves, then the applications themselves were focused and concerned about a journalistic source. Not a journalist? Not a journalist. So if the information I have is that one related to a journalist, that's incorrect? Well, what I'm saying to you is that fairly obviously it refers to journals. There's no question about that. But what we were trying to get to was the journalistic source. Well, clearly all of them involve journalistic sources. But did one in particular involve a journalist, Mr Nicholson? Well, I don't know. Okay, thank you very much indeed. Thank you. I will just follow-up on the timeline again. I asked Deputy Chief Constable Richardson on the 15th whether he was investigating what they thought was a leak after or prior to lawd advocates' instructions that resources be put into the case. Now, he couldn't tell me directly at the time and he said he would come back to us on that. Are you able to give me that information? So sorry, Mr, can you repeat that probably? So were you investigating what you thought was a leak prior to the lawd advocates' instruction? Yes. Yes. How early prior to that? Well, my understanding is, and again, this is part of what HMICS will review in terms of the work, but it was early in April that we were carrying out investigations into the material that was out into the press. So there wasn't at that time an active murder inquiry. It was in a review case situation at that time. Yes, it was in a review case situation at that time. Yes, in general terms. But as I say, the detail of that will be examined by HMICS. Thank you. I'll come back later. Police Scotland has emphasised that the breaches were a result of inadequate internal communication and a misunderstanding of the legislative process. Communication does seem to be a feature of the new Police Scotland and, most recently in the staff survey, it's been problematic. Could you, ACC Nicholson, expand on the communication process surrounding the guidance of the code of practice, a kind of A to Z on exactly what was done? So what happened is that our SRO circulated the material roundabout, so we've got single points of contact, so we had at that stage four single points of contact, so a single point of contact can have a number of individuals, so accredited officers. So we have three single points of contact across the country, and we had one in the counter-corruption unit. So the SRO circulated the material to all the Spocks and a number of different other individuals, including to the counter-corruption unit, but that material didn't get to the Spocks or the Spock within the counter-corruption unit. To the Spock, the single point of contact. And why was that? Because it wasn't circulated to them. So what fell down? What didn't happen that should have? Well, so between the management in the counter-corruption unit and the SRO, we both believed that the material had been circulated to the Spock within the counter-corruption unit, and quite clearly from my review it hadn't happened. And what kind of checks and balances would normally be to ensure that information is as important as that was circulated? Well, so there ought to have been checks carried out, but as you'll see from my action plan, one of the actions that I've taken is to remove that single point of contact from the counter-corruption unit completely. That is to prevent that breakdown from ever happening again. So there was no one person with responsibility for it, so they all assumed someone else had done it? In a nutshell. And you're confident then that in your action plan you've addressed that now? I'm confident that there is no single point of contact within the counter-corruption unit. So any enquiries of this nature that would be carried out by the counter-corruption unit in the future would have to come out to an independent, completely independent unit. So would you agree then that what did happen, as described by DCC Richardson, left the force a little vulnerable in terms of completeness, I think, was his grace? Well, I think that left us very vulnerable, to be honest. Okay, okay. Just to go back, ACC Nicholson 2, something that Alison McHill has raised, he stated that the Lord Advocate's instruction to reopen the case of the murder of Emma Caldwell was subsequent to the investigation to journalist sources. Do you think that the Lord Advocate was prompted by the press coverage of the investigation to reopening the case? I couldn't answer for the Lord Advocate. No, indeed, but it does seem likely that the... I don't know, to be honest. And I suppose one of the questions will be as well would the press coverage have accelerated our enquiries into that, and I think that that is something that we would have to take on board. And fairly obviously, when new material comes into either the public domain or comes to us confidentially, then we would take that forward. So on the face of it, new material came in in terms of the press coverage. So they're not mutually exclusive. Again, I'm no doubt now in the territory that I ought to be in because of the HMICS review, but these two are not mutually exclusive, so we could have the inquiry into the sensitive material that's released, and we could also be cutting on with a murder inquiry. And that's actually what we ought to be doing. Okay, Roderick. Thank you. Good morning. I'm just trying to understand what was happening in terms of training following the revised code of practice coming into effect on 25th of March. We know that a Home Office PowerPoint training documentation covering journalistic sources was uploaded on the 30th of March. I gather from what you were suggesting earlier on that there may have been difficulties communicating that internally to everyone concerned, but by the 6th of May there was a teleconference. Are we able to say that by the 6th of May, at the very latest, all relevant people would have been aware of the changes and of the importance of understanding what journalistic sources meant? By the 6th of May, definitely. And there would be some interpretation in terms of what that understanding was intended to be. So, yeah, there are a number of stages to this, so at some stage people would have had the actual code, but fairly obviously the crux of this is the misunderstanding of actually what that code meant. So, that's why we find ourselves in the position that we find ourselves in. And I suppose that if I take you to the half-yearly report in terms of Sir Anthony May and page 9 of that, when it speaks of identifying a journalistic source, and that what he says, the use of the text which is made in order to identify a journalistic source, is even clearer. It appears to indicate of the sources already known to the police the restrictions on the use of RIPID does not apply where is the text, and then he goes on to talk about determinants. So, that is, without me going into the detail of what might come out of an IPT at the later stage, the Investigators Powers Tribunal, that is unfortunately what's at the heart of what's happened here. And in terms of any further kind of training opportunities between the 6th of May and the ICOCO kind of visit between the 15th and 17th of June, was there any further training going on or what further discussions were there taking place about this issue? So, in general terms, what happened was we became aware that there was a breach of the code and we had the inspection between the 15th and 17th of June. And then I was asked by DCC Livingston to carry out a full review of what had happened, why it had happened, to make recommendations about what we would do to prevent that from happening again and to report to ICOCO. So, in terms of that, my action plan is there in terms of making sure that everybody in the organisation had all the material that was required of them, along with a whole range of other points in terms of what I covered in my review. What I was trying to get at was what further training or consideration of the issue in general terms was taking place between the 6th of May and the 15th of June. Well, so everybody, on the 6th of May, yes, so that's when everybody got the actual overview in terms of what was meant in terms of the code. So that was the training that was available to them. The material was available on the Force Internet and other media in terms of, but that would mean people actually going in and reviewing the material themselves. OK, but from the 10th of June, Constable Richardson's evidence on 15 December, his evidence was to the effect that the problems arose because of the misinterpretation of the code and that he accepted there had been a confusion in the 22 days after the publication of the code of practice about what was involved. Is it a training issue or is it a misinterpretation issue? Which is it? It's a misinterpretation. Well, it potentially is both. So it's a misinterpretation issue in terms of what the designated person understood at that stage. If he had had the training that he got on the 6th of May, I'm guessing that he might have a different determination. But again, I'm now stringing into what might be discussed at an investigative power tribunal. But there wasn't any following the 6th of May. We've got this request some further looking at the training. Nothing was happening between the 6th of May and 15th of June. Is that your case? So the 6th of May was when the detail came out in terms of how to interpret and then fairly obviously, Sir Anthony May's report came out in July and that gave more detail of the interpretation and how it should be interpreted. And it goes into a fair bit of detail just about exactly what is required. I'll leave that there for the members. The other members. Yeah, Christian. Yeah, thanks very much, convener. Good morning, Mr Nicolson. Just for a point of clarity, if everything would have happened 22 days earlier, we would not be here. There would be no case then. We would hope not. So if people had had the understanding, they had read the various reports, they had understood what was in the training material on the 6th, then I would hope that we would not be in this position. Because the breach is only on the modification made at the last minute. Well, yes. At the last minute in terms of that we understood it from February, so there wasn't a wide-ranging consultation and there wasn't a huge amount of time to circulate material and better understand exactly what was required from the code. I've made the same application a month earlier, two months earlier, it would have been fine. So if the same application had been made two months earlier, it would not have required initial approval? So the only difference is the scope of procedures which have not been followed. Now, if it is a way, because we are saying that they didn't know about it, but could they have known about it? Is it possible that a person who made the application could have known about it? The difference between we believe he didn't know, as the session was, could he have known about it? The important individual in all of this at the end of the day is the person who authorises. That person, and again I'm straying into the investigatory power tribunal piece, but that person will say that they knew and understood that there was the code in place. They misinterpreted that code. The individual is highly trained, huge integrity, one of the best officers 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, and he's misinterpreted this. That's what makes this even worse from our perspective. Thank you. Remind me of the date that the annual inspection by OCO took place when we were inspected? 15 to 17 June. Right. The information that we've been given by Duncan Campbell suggests that informal confirmation of the inspection by OCO was given to Police Scotland on 6 March 2015, and the official information was made to us that is Police Scotland on 23 March. I'm slightly puzzled that having known that OCO was going to inspect Police Scotland, that Police Scotland hadn't checked that it was fulfilling the requirements of the code that hadn't been changed. I thought the fact that an inspection had been flagged up in March might have suggested to people that they ought to be making sure that they were following the correct procedures. That's what we do every single year. We get really positive feedback every single year. There's recommendations. There's no question about that. Yeah. We know that we're going to get inspected every year, so we get inspected once a year by this commissioner and we get inspected once a year by the surveillance commissioner. We do know that they're going to come inspect us. That's why we try to set high standards and we adhere to them. Unfortunately, on this occasion, we didn't. Because what's puzzling me is that given that there had been consultation with Police Scotland about the changes that people, presumably pretty senior people in Police Scotland would have been aware that there was a change of a code of practice and knowing that an inspection was to... an annual inspection would be coming up would have seen it part of their responsibilities to make sure that others who would be exercising duties would know that there were changes. I find that slightly confusing why that didn't happen. That seems to me to be poor management. Well, I don't think anybody's suggesting that, in the case of the main DP here, that that individual didn't know that the code had changed. I don't think that there was a responsibility for senior management Police Scotland to ensure that this was being adhered to? Well, in general terms... As far as the senior management of Police Scotland would be concerned, then this had been circulated. Difficult for us is it depends on how you interpret it. I've already said about the breakdown in communication in terms of the single point of contact into the kind of corruption unit. We accept that. That should have been better managed. There's no question about that. The rest of it, though, is we have... I've already said that this individual knows this area of business inside out. Unfortunately, he's misinterpreted what the change meant. Did the senior responsible officer at any time warn that the planned monitoring was against the rules? That the planned monitoring, the requested monitoring, was against the rules. 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, again I was straying into that, but she wouldn't have seen the applications. She wouldn't have seen them? How can she then authorise them if she hasn't seen them? The senior responsible officer didn't authorise the applications. The senior responsible officer responsibility is not to authorise the senior responsible officer's responsibility is to make sure processes are in place, to make sure that the codes are adhered to. The person who signed off the authorisations is a completely different, separate individual altogether. Nevertheless, did the senior responsible officer express concerns about using this power to investigate the particular? In more general terms she expressed concern about applications for journalistic material. Was she there for overruled? No. What kind of checks and balances are in the system if someone says I'm not entirely sure that this fits with the new code of conduct? Is there an opportunity for someone else to review the application? The single person, the authorising officer, the designated person would review the material. The way that they do that is that fairly obviously they would get advice on the legislation. They could get advice on a whole range of different things from whoever it would be. In this case, the person who potentially knows most about it would be the senior responsible officer. But when they go to focus on the application itself and authorise that, they will look at what's contained in the authorisation and make their judgments based on what they know about the law, what they know about human rights, whether it's necessary, whether it's and that is a singular judgment for them to make. I clearly wasn't proportionate or legal. We know that now after we've heard the IOCOL investigation. Can you remind me when you were instructed to review and produce the action plan? Yes, on the 8th of July. That was in July. You said earlier in response to my colleague Mr Finlay that you were aware of all the press coverage around about this particular case. There was speculation in the press for a very long time that journalist sources were being spied on. You didn't respond to that particular piece of the press coverage within Police Scotland, not you personally, but within Police Scotland. There was no concern about that speculation in the way that there had been concern earlier about the other speculation about the murder inquiry. If I understand your question correctly, do we look at all speculation? Were you aware of the regular speculation within the press that spying on journalist sources was on-going within Police Scotland ahead of your action plan in July? I'm not sure that that's either correct. I know from Sir Paul Kennedy's report on review that there's not widespread review of journalists or journalist sources. This was a one-off case and so this is not we don't do this every single day. No, but this one-off case led to a fairly regular piece of journalism in the Scottish press. As the story unfolded, part of the story was well ahead of IOCOR coming to a view that the police were spying on journalist sources. Police Scotland didn't respond in any way internally to those allegations. They didn't review what they were doing. We always review what we're doing and the purpose of the legislation on the code of practice is to make sure that there are safeguards in place to prevent us acting in a disproportionate manner, acting illegally or acting outwith what the code suggests. Each case would be taken on its own merits in terms of what we would do. This is not a case of that we would look at every single journalist's report. We were concerned about the sensitivity of the material that was actually going out into the press and the fact that potentially if a murder inquiry came to a court process at a later stage that that would cause problems for the court and for us in terms of what we do. We might undermine the case at that stage. Quite rightly we were concerned about that. However, being concerned about that there's nobody suggesting that we shouldn't do this. We're suggesting that we follow the right processes and quite clearly we didn't follow the right processes. Are you aware that whether or not the senior responsible officer raised concerns following the press coverage? Perhaps increased her briefings on what was appropriate? No, I don't think so. I think that a lot of this came together in terms of you'll see from my action plan that every single request of this nature will in the future go through the senior responsible officer not only for journalists but other certain professions as well. So making sure that we don't any longer have a separate single point of contact with every single request that comes in will go through the senior responsible officer. So all of that is part of what I put into place in consultation with the senior responsible officer and with other people. In terms of what we felt we needed to do to make sure that we raised that bar back up to where we thought we had the bar previously which was that we were getting significant support in terms of the work that we had done. On any level, this is not good from the organisations perspective. We heard on the 15th of December that there were five of these authorisations, two of them were internal to the CCU. Can you talk a little bit about how those were granted and the processes in there? So this takes us directly to independence of the individual and so at some stage and the codes take us through all of this and the material takes us through all of this that if the individual had no understanding wasn't responsible for had nothing to do with an investigation then they could independently sign off in terms of the authorisation. So for itemised billing which I already said was understanding whose phone number it is so you're looking for the account holder of that number. Then inspector could undertake that work in the past quite clearly when you look at independence. So they were in the same unit but they weren't involved in the investigation so on the old code they could independently review the authorisation and on the old code an inspector could sign off in terms of a subscriber check. We have removed that from the counter-corruption unit so counter-corruption unit can no longer undertake that kind of authorisation so it is completely independent completely separate. When the counter-corruption unit was set up I'm trying to work out how these authorisations would have been put in place in the first place were the things that were inherited from legacy forces or was this a new set of arrangements? So some of the investigations no doubt would have been so some would be and they would try and amalgamate all the previous legacy forces and the SCDA in terms of pulling together processes for that. There's no doubt that that's what would have happened. So you spoke earlier about raising the bar back to where you thought it should have been. Something slipped in that setting off of that organisation to that particular unit? Well so I personally think that because we had a separate single point of contact then there was potential and so I've basically in my action plan I've removed that when the organisations agreed we've removed that from there to make sure that that never happens again. You know there would have been argument and debate beforehand no doubt that it wouldn't happen and that people had the training so the people who are in these units the single points of contact have really intensive training so they have six weeks training before they go on an official training course at the College of Policing so they ought to be at the same standard but when we look at what's happened here then I've decided that in terms of putting that bar back we thought we had the bar before that we ought to do this. So you seem to have intensive training six weeks of training and yet there's still a misinterpret really straightforward guidelines that come out from? So they have six weeks internal training so they are accredited officers so each single point of contact has accredited officers and so they have six weeks internal training and then they have a two week period of intense training at the College of Policing which is a pass or fail so yes they have significant training so our expectation fairly obviously is that that they are the gatekeepers that they ought to prevent that from happening but again so back to what's already been said in terms of this, a new code and we find ourselves in the position that we find ourselves in Thank you John and Martin I asked this earlier Mr Nicholls and it relates to the assurance review by the inspectorate Previously there's been inspections done in relation to stop and search and armed policing and throughout that period this Parliament continued to monitor both these issues intensively Is it your view that somehow the existence of that assurance review fetters what you can say to us today? I don't think so but what I don't want to do is they've been specifically asked to carry out a review into these elements of it they'll go into much more detail than I can and by doing that they may find other things that I haven't looked at in terms of what my part of the review was so I don't think I'm arguing that but I'm suggesting that where you'll get the best information in terms of this will be from the HMICS when they look at the entirety of what happened and what they've been asked to do in the terms of reference Of course it may yet be that we have Mr Penman sitting there but at the moment it's you it's sitting there so we want the best from you so if there's anything you felt better from saying please feel free to say it now I hope I'm giving you my best Are you able to tell me what the ranks and positions are of the officers who overruled the detective superintendent who warned that plan monitoring was against the rules? Who overruled? I don't accept that that an individual was overruled in terms of this Who took a differing view to the advice given from the different detective superintendent? So what you're talking about is the SRO and the SRO having provided advice in relation to journalistic sources that designated person having authorised they're both the same rank Taking a different view to the person who warns that this is counter to the rules Were you aware of that for instance? Was I aware of what? That advice had been given that what was proposed was counter to the rules contrary to the rules but nonetheless it went ahead I'm not sure it's just quite as straightforward as that but in general terms I'm aware that the SRO did provide advice that these kind of applications potentially would breach the code So why are we here then? Because people expect Police Scotland to adhere to that? No, I agree I would rather not be here having to explain why this is why we do this and that we hadn't breached the code that would be the best possible position for us to be in but unfortunately we have and fairly obviously you've got a role to play in terms of understanding exactly what happened and that's why I'm here hopefully to explain to you exactly what happened now that will be bolstered by the fact that we've got more information will come out in terms of that which will deal with a whole load of things that no doubt I've strayed into and that might cause me a issue later but that's fine and then it will be bolstered by the HMICS's review in terms of what they do which at the end of the day ought to provide yourselves the public the absolute level of information that you require to know yes, unfortunately we've got it wrong yes, we've breached the code but what we've done and what we've got in place and from my action plan that this will never happen again it can never happen again The difficulty Mr Nicholls is mistakes happen, mistakes happen police officers make mistakes, politicians make mistakes and it is about the aftermath of that and the response to that and what prompts the mistake was Mr Richardson aware that the detective superintendent had warned that to take this course of action would breach the rules I would doubt it but you would need to ask him directly that question Have you had the opportunity to review Mr Richardson's evidence from Yes, I've listened to his evidence I've listened to his evidence and do you feel that the information we've been given subsequent to that fills the gaps that were evident in his Well I hope so, that's a judgment for you not a judgment for me I've come here to try and provide you with as much information as I can to strike a sensitive balance between the information that you want and the information that the IPT will have and the information that the Her Majesty's Inspectorate of Constabulary will have ultimately and hopefully that all of that information when it comes together will give you everything that there is to know about what happened here One of the challenges we have Mr Nicholls in is the growing perception that the reason that you're sitting there rather than other officers are 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 reflects very poorly on the judgment of the CCU and chief officers, is that not the case? No, that's not the case at all So would you be perfectly happy for these officers to attend and give us? People are not on oath but we expect as a parliamentary committee the courtesy of people telling us the truth I hope that you... Of course the points in terms of the individual officers themselves so we've got the tribunal coming up so we're a bit concerned about them from their own mouths on their mining code might happen at the tribunal and we've got legal advice on that 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 serious criminality now obviously we already know their names but what we don't want to have is their identities so that people know who they are and their addresses and whatever else happens to be and the risks that that raises so that's our concern Why would their addresses be out there Mr Nicholson? Well because they come here they're going to be seen on the TV by everybody and a whole range of people will recognise them and we want to act responsibly we would not expect any individual to compromise themselves we wouldn't seek to compromise the safety of any individual but we can't deal with this provocation you would probably not be here if Mr Richardson had been frank with us I'm not going to comment on that as it is for you to take but I hope that you feel I've been frank and upfront I'm not trying to frustrate as a police service we absolutely understand the role of the committee we support the role of this committee for the voids of any doubt we want to give you as much information as we possibly can we will give you all the information and we would give you more information fairly obviously after the IPT so I do not want you to feel So what's the area of additional information just the generality of it that you feel able to give us subsequently? There will be details in terms of what individual officers did and the consideration is round the bite I would have thought Why can you not provide that at the moment? I don't want to stray into what the IPT may wish to consider at a later stage I understand what you're saying that there are aspects that you can't divulge at the moment because it could be a conflict with the investigation from the inspectorate but can I just understand that the senior responsible officer did raise concerns another officer of the same rank dismissed those concerns and said that these investigations could go ahead Now was that a member of the counter-corruption unit themselves or? No no It's not as straightforward as that the senior responsible officer provides advice and then this officer has that advice and then dismisses that completely In the entirety of all of this that the officer who signed off the DP who signed us off knew that the codes were in place that they had changed considered them misinterpreted what the code meant and authorized Had that officer ever been involved with the murder investigation? Not that I am aware of Sorry Thank you very much Thank you Good morning Good morning Have you spoken to any of the officers involved in the authorisation process since you became aware of the breach? I have spoken to all the officers involved that was part of my review so I carried out a review into all the circumstances and I reported through Deputy Chief Constable Livingston to IOCO that this report obviously formed part of what ultimately IOCO have decided in terms of their determination So did the officers at that time express concerns that they had been tasked to carry out these authorisations that they were put under pressure? No not at all I mean this is a process of that goes on looking at journalistic material it is not something that goes on on a regular basis however the actual process in terms of communication data is a very regular process so our people go through that process probably on a daily basis so we will have someone who applies for that kind of material because they believe it is relevant we will have the accredited officers will review that make sure that it is in the right format make sure as best they can so make sure that it is proportionate it is necessary that it is lawful and then they will pass that to an authorising officer who will look at the application and look at that application and what is contained in the application without knowing anything else about the investigation so it is absolutely what is contained in that application and they will make a determination one way or another without any detriment to them whatsoever that they either authorise sorry you said that this does not happen every day and then you said that you deal with these issues every day or the officers do so what was so different about this particular journalistic material so on a day-to-day basis my area of business is serious organised crime and terrorism so on a day-to-day basis we would use this legislation so we would use this legislation across serious crime perhaps not so serious crime and for missing people for abductions, for a whole range of different issues in many occasions where life's at risk so that's the crux of what the legislation is there for and so that's the bulk of what we would be carrying out investigations into so these individuals would be looking at that on a day-to-day basis right across the whole of the country in terms of journalistic material though what I said was we do not do that on a very regular basis we do it on a very very infrequent basis that was one of the main changes in this legislation was that when we intercepting journalists you should get judicial authorisation which from my point of view as a layperson on reading legislation and in particular part it seemed quite clear so I find it hard to understand why an experienced officer misinterpreted that journalist judicial authorisation seems quite clear to me perhaps can you tell us what else differed in the code of practice what was the difference between the recommendations contained in Sir Paul Kennedy's report of 4 February which was shared with the element officer so how did it change over the consultation period so I think the conclusion then of the Sir Paul Kennedy report which was the fourth of February was so at 8.9 of that on page 37 after a careful consideration of all the evidence we have collected and reviewed in this inquiry and due to the sensitivities and complexities of the considerations required when contemplating an interference with article 10 of the convention we make the following two recommendations and number one is judicial authorisations must be obtained in cases where communication data is sought to determine the source of journalistic information so that's what was in the fourth of February and I think I said early on that that was the first time that we knew how to change the code gets slightly expanded in terms of that to consider intermediaries but it doesn't change very much from that original piece so it had been in the view of senior officers in Place Scotland for some considerable time and then it was just a case of it was then relayed out to down the ranks so it was into Police Scotland that report came into us on the fourth of February there was consultation there was a degree of trying to understand exactly what that required, trying to get that out and in the timescale and we can argue and debate whether there was enough timescale or not we are suggesting that we could have done with more time and Sir Anthony May and his half-yearly report suggest that that is not the case for Police Scotland it is the case across the country in terms of that there could have been more consultation and whoever but sorry I don't mean to try and undermine to try and reduce the severity or the enormity of what's happened here I'm trying to explain why it happened it shouldn't have happened and we accept that it shouldn't have happened Can I just ask you then what is happening with that murder investigation now that murder investigation is not my area of business but there is an on-going live murder investigation and again I wouldn't want to stray into that fairly obviously hopefully the on-going investigation brings us to a conclusion okay thank you Alison, followed by Margaret Mitchell followed by Roderick you said you're not trying to excuse it and I'm grateful for that I mean you'll agree that it was a high profile report from Sir Paul Kennedy he reported directly to the Prime Minister so it was national news there was a lot of discussion in public about it I would have expected officers whose main job was to be of a with the most up-to-date interpretations of these things would be alert to that whatever time the actual communication came into Police Scotland can I ask, since your action plan has gone into place are you comfortable that it's doing what it hoped it was doing have there been any applications for similar types of surveillance and have they been refused so in more general terms we wouldn't answer that question but the answer to your question at this moment in time is no there's been no further applications will you be keeping an eye on it to see whether or not it works yes absolutely we'll be keeping an eye I don't want to feel flippant about this but it doesn't feel it's not comfortable I have to say it doesn't feel comfortable having to come here and explain why we got something wrong I totally understand why I need to do that that's fine and that's part of the process but I promise you that I'll be doing everything I possibly can never to see you in this as from stance again if I could just ask you about action point 4 a chief officer briefing notification process to be implemented to ensure full consideration is given to article 10 of the European convention of human rights prior to embarking on any investigation relative to unauthorised disclosure of information to the media that's an action point you've put in place yes shouldn't this be something that's happening routinely are there impact assessment studies carried out for every aspect of Police Scotland's work to ensure that they don't breach article 10 honey so that's all part of the considerations of the authorising officers and whoever in terms of investigation forgive me this is generally every aspect of Police Scotland's worth should be subject to impact assessments to ensure that they don't breach those articles so why are we putting this in place well so in general terms we would do that but in terms of well the action plan is about certain professions so I want to make sure so when you read the commissioners report then it will talk about in more general terms about that chief officers ought to stress article 10 that might be a general piece for the forson so we do that but what I want to do is make sure that in every single case that there was a certain profession and that includes journalists that an actual brief would go to the senior ranks within the organisation to make sure that they were scrutinising that and they were making sure that they were comfortable individually that it didn't breach article 10 there's always a suspicion within committees that impact assessments are ticks in boxes yes it's been impact assessed I think you've just confirmed today that that might be the case if you felt now or you feel in your action plan there's a necessity to put a specific person in place to look at this issue when it should be something that's actually fundamental and on-going and on a regular basis throughout the force I agree with your points well made and I hope it's not a tick box I don't think it's a tick box but I think that in terms of a certain profession and what we're talking about here and the sensitivities that merits it going to a chief officer sanctioning the fact that we would continue with an inquiry and that's the reason for me putting that into place I didn't intend that everything else wasn't working in terms of having that or that people weren't considering that but I wanted to make 100% sure and this is what I spoke about earlier about raising the bar was making 100% sure that we never ever find ourselves in this position again clearly it doesn't seem to be running through the whole police force or we wouldn't be here again today can I ask you one final question I don't pretend to have kept up to date with the media reports or this case in any way she performed but it seems to me that there's a bit of a balance to be struck here and it seems well it seems that a lot of priority and attention was given to looking at sources from what I understand and you can correct me if this is wrong some media coverage perhaps criticism that something had been missed in the investigation it wasn't going as as smoothly as it should and that rather than going back to look at the investigation the emphasis then moved on to looking at the source rather than taking the German point that there might have been something not quite right or something that could have been proved on or taken up within regional investigation so I think I said earlier it's not mutually exclusive I think that what we're doing is both and I know it feels like the emphasis was on the journalistic side of it I think that HMICS hopefully will demonstrate that we were doing both so fairly obviously an inquiry that goes back almost 10 years or 10 years with the number of witnesses that were interviewed way back then that will take a long time for someone to understand exactly what the complexities are of that the lines of inquiry that need to be followed and take that forward I need to be careful about straying into something that may well end up in a court procedure at a later stage Just finally then do you have any concern that this misinterpretation was willful given we're looking at action point 1 which says the processes should be carried out by people that are independent of the investigation itself that's really the nub of the issue I don't have any concern and the actual release from IOCO suggests to us that it was reckless but that it wasn't willful so from that I take some comfort from that that somebody hasn't acted deliberately but little comfort I would add so have been reckless that's what's being suggested to us we take that on board I totally understand that but I don't think that anybody from what I have seen and again I'm now straying into the IPT what they might determine but from what I've seen nobody actually deliberately in terms of this and in fact I honestly held belief that what they were doing was correct potentially if they were well I don't think it's potential I know that if they were doing it again they would consider it in a different way so I suppose we're back to the balance again reckless in that perhaps they pursued the journalistic source more than looking at the criticisms to the original investigation willful would be deliberately going down that source and not looking at the investigation criticism so I think it's undefined to be honest but the person that can tell us about why he suggested it was reckless as Sir Stanley Princeton the commissioner so I'm not going to speculate on what the interpretation of that is but they've said quite clearly that it's reckless that's what they believe it to be and they've got all the material that I've spoken about and they've considered all of that and when they've come back they haven't pulled any punches in terms of what they've said to us so they believe it's to be reckless okay, thank you if I may just to turn back to the preparation for ICOCO's visit on the 15th of June as we know they intimated on the 23rd of March that they would be carrying out an inspection and they referred to the importance of Sir Paul Kennedy's work in his report on the 4th of February in paragraph 8.9 on page 37 and his first recommendation judicial authorization must be obtained in case his work communications data is sought to determine the sense of journalist information so that was a key part and obviously there might be issues in terms of training we have the teleconference on the 6th of May but can you just tell us what preparation was undertaken prior to ICO's visit and surely given the importance of this recommendation the question of whether or not there was an issue of judicial authorization would have been fairly uppermost in that preparation so they will come they will tell us they're coming to inspect and then they will decide what they're doing they will tell us what they're going to look at they'll tell us who they want to interview and then we'll make sure that they know who they are and they will go in to whatever authorization and applications that they want to see and that's not dictated by us in any way whatsoever so the preparations that we can do in terms of an inspection will be fairly limited that's absolutely right so they ought to be as you would expect they will come in and get access to whatever material it is that they want to get access to preparation would be fairly limited it would be making sure that the people that they wanted to interview were available to them to interview making sure that they could get on to our systems and then they go and troll whatever it is that they want to troll the future will be that part of our understanding of it is that we will flag these kind of applications up to them at the very beginning of the inspection so that's part of the new regime see what I'm having trouble with is recognising that the first time this problem was recognised was in early July following the ICOCA report seems to me that inevitably this issue would have been to the forefront at the latest before that inspection in the middle of June yeah unfortunately people believe that they had done the right thing until the inspector came in and inspected and we were told categorically that we hadn't and from that point so they come the inspectors at the very end of that they'll give some verbal feedback about what they found and then they will commit all of that to writing at some later stage in fact they will come and visit the force and give an overview of what we've done what we ought to be doing and recommendations and whatever else so we understood that there was an issue and then as we got more information about it or as the organisation got more information about it then I was asked to review to review the whole thing in its entirety and to come up with recommendations about how we would prevent that from happening again okay I'll leave it there thank you very much ACC Nicholson for your attendance today as we agreed earlier we're now going to move into private session so could I ask everybody in the gallery to leave please