 Good afternoon and welcome to the Justice Subcomittee on Policing's third meeting of 2018. We have no apologies. Agenda item 1 is the decision on taking business and private. That's item 3, which is discussion on the subcommittee's work programme in private. Are we all agreed about that? Agenda item 2, counter corruption unit. On an extended item is an evidence session on Durham Constabulary's reports on Police Scotland's counter-corruption unit. I refer members to paper one, which is a note by the clerk, and paper two, which is a private paper. I welcome Michael Barton, chief constable, and Darren Ellis, senior investigator, Darren Stabley. Thank you for travelling to see us. I would invite you, chief constable, to make some opening remarks, if you wish to please. Thank you very much, convener, and thank you very much for your invitation to us both to come. This isn't the first time, of course, we've been in Scotland because we were up for seven months on our investigation. The reason why I wrote to you as a committee was I read the transcript of a previous hearing that you'd had in relation to this, and I felt that some of the evidence that was given to you needed to be corrected. Okie doke. Well, your report and others have generated a considerable amount of paper, and there's a lot of very detailed information in there. Can I ask First and Formos, Mr Barton, about your terms of reference? Do you believe there was clarity about that? Oh, sorry, it was read, so I'm going to ask Darren to follow up on what I say. I was called by the chief constable, chief constable Gormley, and asked to do an inquiry. It was going to be in two parts. First of all, to do an independent investigation, as described by the IPT, so Police Scotland, the law department, Police Scotland had undertaken to the IPT in London that they would conduct an independent investigation because the authorities that had been gained within the counter-corruption unit were deemed to be unlawful by the IPT. I agreed to do that. The other part of the investigation was to review a number of cases that the counter-corruption unit had actually been part of. When I scoped that part of the inquiry, I realised that that was just going to be too much for—it would have been inordinate for—Durham to do all of their business, as well as both sides of that inquiry. I asked the chief constable of Northumbria, with chief constable Gormley's agreement, that they would actually do that part of the inquiry. When I was given the inquiry, it was very clear to me from the chief constable that we would be asked to do an investigation, which means that we can investigate, we have access to all the documents and we can interview people so that we can then make a recommendation on whether or not there may be misconduct. Of course, all the way through any inquiry like this, we have got to be cognisant that there may be criminal matters that are revealed. We were satisfied, by the way, all the way through this, that there were no criminal matters that needed to be referred, but that is always something that we have in the back of our mind. What emerged when we were doing our inquiry was that we were then told that this is not an investigation, this is an inquiry, and that is where I became a little bit confused and a little bit concerned. Have I got that right, Darren? Yes, sir. In terms of reference, what struck me, while the terms of reference for ear piece of work were eminently clear, the chronology of this thing, without getting too detailed for you, is that an eye-occur inspection in June 15 identified what was further, which later deemed to be unlawful, which was reported on a month later and in more detail, in the November 15. The four adversely affected people, as termed by the Investigatory Power Tribunal process, were in themselves complainants. Let's not lose sight of the fact that, at that particular time, two of the four were serving members of Police Scotland. Those people did not provide a complaint statement until February 2016, but were clear to say that the Investigatory Power Tribunal process was to ensue, so they didn't know what they didn't know. Those individuals, one could argue, perhaps weren't engaged with, and Matt has explained that, in any great detail, with any great haste, they really didn't know the position until the IPT in August was actually clear. That led to my staff having to re-engage with the complainant and said that juncture to find out what it is that they were concerned about and to determine the length and breadth of the work that needed to be done. That was done subsequently to any terms of reference. In short, the terms of reference were set far too early, because let's not forget that work that we were required to do was an undertaking on behalf of Police Scotland to the IPT to fulfil an independent investigation. Secondly, we have four complainants here who need to be engaged with, re-issued and satisfied and answers given. The terms of reference, I would argue, were set far too early. It seems to be a pivotal part of this. The relationship between any misconduct, discipline, call it what you will—I'm not sure what it would be called south of the border—and criminal matters would again be pivotal, because it would be clear and important for individuals who you did see to understand their status—are they a witness, a suspect or accused, things like that? Was there no clarity given around those aspects in the initial brief, or how were you initially advised? I was initially asked to conduct an investigation, and that's what I agreed with Thill Gormley. Subsequent to that, the professional standards department in Police Scotland decided that we should only conduct an inquiry. I argued with them all the way through. I should be allowed to do an investigation because that's the commitment that Police Scotland had given to the IPT, and I was never allowed to do an investigation. We were not allowed to have the investigation status, which allows us to speak to officers who may or may not have been guilty of misconduct but are certainly pivotal for us to speak to under caution. I don't wish to labour the point. There's various legislation underpins. Criminal matters are at the behest of Crown Office Brokerator Fiscal Service. Misconduct matters are at the behest of the Deputy Chief Constable. Was there any discussion around the parameters? I mean, poep? It's unsaid. I can't be clear whether or not we had a specific agreement. That would have been an unspoken agreement. I do lots of inquiries into other forces, and it's an unspoken agreement that, when we're conducting misconduct matters, if we reveal criminality in that inquiry, there will be an immediate discussion with the relevant law officers in Scotland, the relevant CPS or Chief Constable in England. That was not a problem. I was not concerned, Mr Convener, at all about that component of our terms of reference, on the criminality side at all. I don't know if that's been helpful there. It seems to hinge on the initial contact, and that's what I'm trying to bury down on. I don't think that it's unreasonable for a chief constable to be asked to investigate to assume that it is what the layperson assumes to be an investigation, but I'm trying to link it in to the investigative powers, what their expectation was, and whether Chief Constable Gormley was asking you to deliver their expectation, rather than an inquiry that may encompass misconduct and criminality. As far as I was concerned, I was asked to investigate. As far as I'm concerned, I agree with you. That's what the common man or woman would agree, would understand what an investigation is. That's what I wanted to do, and I was prevented from doing so. Finally, because there's a number of questions, was there the terms of reference in writing? Yes, but I referred to my point earlier that the terms of reference, which may have arrived in August and September of 2016, at that point, we hadn't engaged with the complainants, so I agree with Mr Bowden. The independent investigation for Mr Gormley, I would guess as a direct result of the wording provided by the IPT, but remember the issue with respect, sir. As part of that process, you also had four individuals who quite distinctly had made complaints to Police Scotland, so our investigation was to cover the need of the IPT process and the undertaking given by Police Scotland and to satisfy four individuals who were making, because they were entitled to do, police complaints to Police Scotland. Chief Constable, you said when you initially looked at what you were being asked to do that it was beyond what you felt Durham could undertake, and hence Northumberland was brought to the table. I just want to ask the very simple question whether, as a result of dividing the task in that way, there were any downsides to that division having taken place, and I hope to hear the answers now. You won't be disappointed. None whatsoever, that's why we divided it. In fact, if we'd kept both, there would have been confusion, because what we gave Northumbria was a review of everything that was completely disconnected to this inquiry. We kept everything that was connected to this inquiry, and the two were completely separate tasks anyway. When Phil Gomley first spoke to me, we did have that discussion that one was a really big task. Northumbria is a force that's more than twice my size, and after a bit of cajoling they agreed that they should take that. It was not seriously a small undertaking taken by Northumbria. The two forces undertaking this work would have talked to each other if what they were doing revealed the need to do so. We kept in touch, but I don't think that we found anything that strictly overlapped at all. I'm just looking at the quote towards the end of the report to the SPA, where you say that the findings have been reached on the basis that the alleged conduct occurred without any influence or participation from any officer of an executive rank. However, in reaching that conclusion, the SPA must also consider the restricted working environment that Durham has operated within, as articulated in the lessons learned chapter. In particular, the fact that Durham has not been able to fully investigate the conduct of the officers within the CCU by means of an unfettered misconduct investigation. It almost begs the question with that level of concern whether, in producing the report, you've legitimised a process in which you don't appear to have full confidence. Does that be a fair characterisation? What was clear to me when we started on this process when we first made contact to the four people who've been deeply wronged was that we had to try and bring fairness and justice to their position. My position at the start and remains—I've articulated this to the Deputy Chief Constable as well as the Chief Superintendent—is that, if they'd allowed me to do an independent investigation, I could have brought an end to this much sooner and much more effectively for the four complainants, because, of course, it still isn't over. Although I was frustrated, it was clear that Police Scotland—ironiously, I believe—felt that I had to go through this part of the process, an inquiry for them subsequently to launch an independent investigation. What, in effect, they were doing was putting me as an interim investigator for them to be an independent investigation thereafter. I did point out to them on more than one occasion, I felt myself sufficiently independent. It's instructive, I think, in the evidence that was given to you last time to try and answer that question, Mr MacArthur. There was a question put to Chief Superintendent Spears about people who deal with misconduct, who can't deal with complaints, and there's a real separation from all of these issues that's currently the interpretation in Police Scotland. I think that they're wrong. So Mr Spears said, you cannot have any previous involvement in any complaint handling to run an investigation. That is wrong. That is not what the regulations say. The regulations say three things as to my status. Then I can do any investigation. One, I'm a rank above the officers that have been investigated. I fulfil that criterion. That I've got the appropriate skills and experience, that's for others to judge. The third one is that I act impartially. That's it. So this false, in my view, separation between complaints and misconduct, and Police Scotland do this all the time, all it serves to do is lengthen the process. The way that I would have dealt with this, when Police Scotland was first alerted to this, it was by Iocca. Iocca governed me too. They governed the entire country. And this is a real important day for me. This is High Court judge coming into my organisation and looking at the secret stuff that I do. So I've got to be on my best behaviour and I am prepared for that meeting. And generally, we get a clean bill of health. There are sometimes minor recommendations to make. The Iocca report that Police Scotland got in 2015, June 2015, was excoriating. They were told that people had acted illegally and they then got their report in July. So they were given a verbal report in June, report in July. Even though there were two serving officers then and two retired officers, those officers, even though they were in jeopardy and had been wronged, Police Scotland didn't contact them. Then that report was published in November. Then the four officers who were wronged were then written to, but in a very regimented way, by the Iocca, as a result of the Iocca report, not from Police Scotland. They were told that they were in jeopardy and they were all perplexed. Still no report, still no contact from Police Scotland, even though Police Scotland employed two of those people. So then, in February, I think, there was then a complaint and that was the first, as far as I can make out, the first contact made by Police Scotland to these four people, bearing in mind they'd been told that they'd acted unlawfully the previous June. So the way that I would have dealt with it, and I need to put this in context just to, because I think this meeting is just, it's necessary, but it's such a pity that we're here. So in June, if I had got that report then from the High Court judge, I would have said, right, we need to put this right now. So I would have immediately made sure that the counter-corruption unit was fit for purpose. So if I felt that some people needed training or needed to be investigated, if they needed to be investigated they would have been deployed elsewhere. If they needed further training, that would have been done promptly and I would have kept at the High Court judge informed every month, probably every fortnight informally, every month formally. And those four people would have been approached and we would have reassured them that everything that we'd obtained illegally was destroyed forthwith. That still hasn't been destroyed so I got a letter last week from Police Scotland asking me to oversee the destruction of the stuff that was obtained illegally in 2015. Now if that had happened then we wouldn't have been where we are. So I've had four complainants, now one who is serving and just to name him, that's Sergeant Stephen Adams and he has been gravely wronged and remains gravely wronged. So we've got... Mr Barton, sorry to interrupt you. I think we have to go with the report here. It would probably be helpful not to mention individuals please. Okay. That's fine. Can I seek clarification from the clerks just what we can and can't say? Police Scotland, for example, is an inanimate object. When we're talking about Police Scotland, a single force, what are we talking about here? This is the police force under investigation and I think we have to drill down about who has blocked, as I understand it, Mr Barton, the investigation that you thought you could fully carry out but were not allowed to do so. If I can clarify from the clerks, I'm very keen that we thoroughly look at this. We have a lot of communications you're aware of, Margaret, which suggests that there are still life proceedings, so it is that that is at the back of my mind when we talk about the individual officers. I'm not trying to fetter your explanation of the whole circumstance. Mr Combeena, I have absolutely no intention of naming any officers who may or may not be in jeopardy. Absolutely not. That would be incorrect of me and that could jeopardise further proceedings. I will not do that. However, it is a matter of public record the names of the four people who are wronged. It's named in the IOCRA report, it's named in the IPT report and it's named in the HMI, all of which are in the public domain. I'm simply repeating things that are in the public domain, so I have no intention, Mr Combeena, of embarrassing you at all. No, no, it's not about embarrassing. Sorry, I meant legally embarrassing. Yes, so we have four people who are gravely wronged and continue to be gravely wronged. The problem that we have when we're dealing with those four people is every time we go and see them again, they feel that there is more conspiratorial activity by Police Scotland. I can understand why, because they're not getting to the end of it all. I've got to say, I try and reassure them, there isn't any conspiracy in Police Scotland. This is ineptitude and in my view, and there's certainly not a conspiracy just to reassure the committee. However, because this has carried on for so long, we've got four complainants, one of whom still works for the organisation, who feel that the organisation is ganging up on them. As a result of that, every time we see them, there are more allegations that we had to field throughout our inquiry. I'm simply trying to point out to you that Police Scotland's aim is to be speedy around all this. Their current interpretation of the rules in which they work are, I think, wrong and don't serve anybody. Officers are waiting for years to get an adjudication and complainants are waiting years to get satisfaction. On that point, and it is the interpretation of the regulations, Police Scotland sought Queen's Council's opinion and shared it with you. I saw it. In my legal opinion, it was exactly what I thought it would be. I have a law degree. I read the regulations. I interpreted them. What's happened is Police Scotland has created a policy on top of the regulations. They're not working to the regulations, Mr Convener. They're working to their policy that they've written after the regulations and they don't carry the force of regulation. The regulations are clear. I've explained what it is—three things that I need to be able to conduct in investigation. I don't know whether I'm going to be unhelpful here, Mr Convener, but the way that it's misinterpreting now is that Police Scotland has separated complaints from misconduct. When a member of the public complains to Police Scotland, that's investigated. When that's finished, or there might be misconduct here, they push it into the misconduct line. They say to the complainant, it's all done and dusted now. That's it. Your complaint's been dealt with. The complainant then says, I don't know what's happening with the misconduct. That's nothing to do with you. That's completely separate. That's wrong. If a complainant complains about something in my organisation, they should stay with it all the way through. We should be absolutely keeping them informed, so much so that they could be invited to the hearing if there is one, and certainly they would be informed what the result is. Let's say the result is that it's not misconduct, but we've gone into the misconduct rule in my force, then we would say, we wouldn't name them, this officer has got to, I mean the complainant wouldn't know who they were, but this officer has got to have management advice, this person has got to go on a training course and at the end of the training course, years later, a year later, we would then inform the complainant that that's exactly what we've done. That isn't what happens in Scotland. Once the complainant is deemed to be closed by Police Scotland, that's it. The complainant is pretty much set free and then the misconduct happens completely separately and not transparently. Keith Brown, thank you for that. There are a number of questions. Rona Mackayl. Yes, I said just that. Chief Constable Barton, when you were told that it wasn't an investigation, it was to be an inquiry, how much time elapsed between you thinking it was an investigation and then being told it was an inquiry? A couple of months, sir. Sorry, can you just repeat the question? How much time elapsed between you being thinking you were about to conduct an investigation and then subsequently being told it was an inquiry? It was two to three months, yeah. We started, the team and I started in earnest in early December, yeah. With any investigation, the initial stages of that was to clear the ground, gain understanding, obtain documents, speak to witnesses, not vulnerable witnesses who could help with the picture and then the dialogue started with Police Scotland. So you actually had a chance to start the investigation as you thought it was going to be? Absolutely. The difference between inquiry investigation, I mean there are one or two nuances, but the main one is to help you, is we can't interview officers under caution. So if we spoke to the officers who might be at risk, whatever they said to us could never be used in a subsequent investigation, which seemed to me bizarre. So there was no point of speaking to the officers because whatever they said to us wouldn't be helpful to the person who subsequently took over my inquiry. So that's the main difference. I'm just glad there's a small question. In your experience, has this ever happened to you before? Or was this something in time? This is a novel experience for me. Okay, thank you. Perhaps I could ask, you've said that it's in an epitode rather than anything more serious, which is comforting at this stage of that sort of conclusion. But can I ask if you think some of this in the epitode has come as a result of having a single force, a single force that is under review because of what's happened, and do you think it was appropriate therefore, given that the single force was under review, that it was then the arperture setting the policy and then determining that you couldn't continue with the investigation that you were only looking at complaints and therefore couldn't look at conduct? My interpretation of what happened in terms of they asked me to do an inquiry rather than an investigation, I can't comment on whether or not that's because there's a single force or not. That hasn't crossed my mind quite frankly. I was dealing with what I was dealing with. But I'm thinking about your question now. I think there was a lack of openness in certain parts of the organisation and remain so, certainly in the legal department. So when we conducted our inquiry, we wanted to look at everything. When we were looking at the senior officers, we needed to see the email change between people before they came here to see whether there was any conspiracy about people not coming here and telling you the truth. We were told that we couldn't see those emails. The way that the legal officers in Police Scotland interpreted legal privilege, we never asked to see the legally privileged documents where a solicitor or a lawyer advises their client. It's legitimate for a senior police officer or anyone, member of the Federation, to sit down with their solicitor and to be absolutely sure that those conversations are sacrosanct. I don't want to breach that. The way that the law officers in Police Scotland misinterpreted that was, anything that a senior officer did as a result of that meeting they deemed to be legally privileged, which is clearly nonsense. That took me two or three months to just get through that particular arm pass. Another arm pass was that we wanted to speak to senior officers who had retired. The inquiry wanted us to do that. Police Scotland wanted us to do that. Lawyers in Police Scotland said that we weren't allowed to know where they lived because it was data protection. We asked them very politely how the devil we were going to get in touch with them. Eventually, after another two months, we actually got the details and we were able to go and see those people. In answer to your question, I think that currently the lawyers in Police Scotland are not transparent and they're overly defensive and they are risk averse and it got in my way. Whether that has to do with being one police force or not, I cannot say. It certainly chimes in with concerns that some of us have had since the inception of Police Scotland. The checks and balances weren't there to ensure the necessary accountability, transparency and openness. It seems to me that there's a conflict of interest here if the organisation under investigation can block the passing over of information. Can you comment on the Northumbrian report? I haven't seen that. I know that if they haven't sent it, then it's pretty much sent. If you reached any conclusions about the culture within the organisation, because the Northumbrian report certainly had contracts on that, if I could read it out to you within Police Scotland and unlike complaint processes in England, officers subject to an investigation by Police Scotland, PSD and Stroke CCU often result in a counter-allegation made against those officers who are conducting the investigation. It is unclear whether that is orchestrated by individuals or whether they are coerced into the course of action by legal representatives of federation or peers, but that appears to be the immediate response following any executive action taken as part of the CCU-PSD investigations. My comment on that, Darren may come in after me on this one, because he's closer to some of the detail, but what you're describing there for me, Ms Mitchell, is a culture. The reason why I would put it full on my sword very smartly in any situation like this, and I follow my sword genuinely, is organisations need to have humility, especially when the police forces, because they've got power. We wield power on behalf of our communities and our states, and it's crucial that we exercise that with humility. So I follow my sword really quickly. That's why I know what I would have done in this case. Darren, my former head of professional standards, would have come in and he would have looked grave, and it would have been clear to me within five minutes what I would have to do, and that is after the foreing and profusely apologise. When that doesn't happen, it permeates an organisation. So individually, there's some smashing people in Police Scotland. Everybody we met, smashing people, I've got to say, I've got dreadfully crossed with the legal people and the PSD people, because I think they misinterpreted the rules, quite frankly, and the two risk averse. There's still smashing people, but the culture. So what was instructive in the evidence that you were given by Mr Spears? He said, when I think one of you asked what were the four complainants like, and said, oh well we've sort of subcontracted that to Durham, and Durham are really in touch with them, and they're looking after them. Well yes we are, but only by default. That should have been done by Police Scotland. That should have been really clear from day one, and that's why I think the serving officer who continues to have a grave injustice inflicted upon him. Can I just ask finally, you said in your opening statement that there was information given to the committee that needed to be corrected. Has that now been corrected? No. Okay, good. You perhaps elaborate on what that was. Thank you. I'm now going to take you through the transcript if you would mind. At the top of page 6, top right, at the end of the paragraph, it talks about the process seems to have been complicated and somewhat protracted. I want to really emphasise to you that's because of the decisions that I've just described, the way that risk averse decisions were made. But I do agree with the convener at the time who suggested that it didn't need to be. So I also disagree that complaints and conduct are two separate matters in the conduct regulations. They're not. That's just how they have been misinterpreted. Also Police Scotland's intention was to publish a redacted version. I have sent you an unredacted version of both reports and I sent them before the end of the year. As the report's author, the handling codes on that particular document gave me the right to do that. Halfway down page 7 on the left-hand side, Chief Superintendent Spears said, it would probably be unfair for me to go into the finer details because that in itself would probably identify those officers. Those officers are already named. They're already named in three separate published reports. Then at the top of page 8 on the right-hand side, the report becoming public would prejudice the investigation, but the matters looked into were already in the public domain. All of that was in the IPT, the IOCRA review and the HMICS report. All of that is when people say that they want to be open and transparent, everything that they're doing and saying militates against that. On the bottom of page 8 on the right-hand side, Chief Superintendent Spears said, it would be incredibly unfair of the officers who were subject to the inquiry at this time. He's got that wrong. It's incredibly unfair to the four complainants and actually the length of this is incredibly unfair to the officers. So it's that secrecy, that lack of transparency that is incredibly unfair to everybody because there isn't speedy justice. Chief Superintendent Spears at the bottom of page 9 on the left-hand side, he says the redaction will largely be in the Durham report and will relate to very personal information. He then goes on at the bottom of page 13 on the left-hand side in response to your question, Ms Mackay, that he says, it goes into fine detail, my report, about the officers. Their ages, I've never mentioned anybody's age, their postings, their relevant postings, were they in the CCU or were they part of the murder inquiry or neither? And a whole raft of other details, well forgive me, there were no raft of other details, there were no ages and I simply named the officers where they worked and that information was drawn from three reports in the public domain. Chief Superintendent Spears on the top of page 14 on the right-hand side then says, that is a good question, I will be honest with you that the report is written in Durham style, there's an implication there that bless me, I've created a Durham style that's not quite up to snuff in Scotland, I absolutely disagree with that judgement. When we asked that force to do an investigation and provide a report, we accepted the report in the format that it was provided, I gave the force guidance on the normal approach that police Scotland anticipated, but I am working with the report that Durham submitted to us. The implication there is he told us exactly how he wanted his report and we failed to comply. He gave us, and I've supplied this to you, a one sheet of paper with Police Scotland heading on it, that was it. What's really instructive is that as a result of my report, by the way I've done quite a few of those, and the most important part of that report is lessons learned. That wasn't part of any template that we were given. What's really instructive, because we spoke to Police Service of Northern Ireland, we had to, because they took over the inquiry from them, we had to brief them. They were told by Police Scotland, by Mr Spears department, to follow our report structure because they found it helpful. On page 19, you asked about suspension. I never spoke to anybody about suspension. It was never raised with me and I didn't offer an opinion. That was not within my brief, but since it's been mentioned there and there was an implication that we were part of it, I will say this. I don't think those officers in the CCU should have continued in the CCU after that decision was made by IOCA. I'm going back now to June 2015. I think there may be one more page. I'm sorry for going on, Mr Convenience. It's more of a comment about the timeliness. I moved at pace here, and the only times that we paused were when we were asking for preliminary assessments. At any time in our report, they could have done a preliminary assessment. If they had done a preliminary assessment in the professional standards department, they could have switched it even under their arcane rules into an investigation and chose not to do that. We gave them ample opportunity on a number of occasions to switch it into a full investigation. We were balked to speak to some people because we weren't given those addresses and we were balked because we weren't allowed to see what were assessed to be legally privileged documents that weren't. I just wanted to comment on timeliness. That's been very helpful to get all of that on the record, Mr Bartner's number. It's also important to put on the record that, as the unredacted reports were Police Scotland and the SPA's reports, the sub-committee was unable to publish those. As you'll be aware, we publish all documentation in advance of meetings, and members are not able to refer to those particular reports. Daniel, I think that you're next. Thank you. I'll just begin by clarifying. It sounds to me as if there's two fundamental issues here. One was the timing of the setting of the scope of your work, which, in my understanding, is essentially because the complainants hadn't had the opportunity to come forward at that point. Is that correct? Second is the interpretation of regulations. You're essentially saying that there's the same regulations that apply to all forces across the UK, but Police Scotland has interpreted them in a different way. That's not true. There are different regulations in Scotland, but essentially the main difference is that police officers in Police Scotland can make a complaint, as if they were a member of the public, and police officers in England and Wales can't do that. On how that then gets pursued, you're saying that, essentially, there should be no difference. Are there after? When I saw the regulations, I was entirely comfortable with them, because that's what I'd worked with all the time in England and Wales. When I saw those three rules so that I could do an independent investigation, that was fine by me. In turn, however it's been wrapped up in procedure and policy thereafter within Police Scotland, that's where I think the problems have started. Again, by way of clarification, you've referred a number of times that you've done a number of those investigations in the past across a number of different forces in the rest of the UK. Could you just give us some sort of understanding of how many that is and, therefore, how unique your experience in Scotland has been? Well, I'm conducting some quite confidential inquiries at the moment, but I do inquire into other countries as well, so this is not something where I've just inquired into England and Wales matters. I inquire into other countries as well, but I'm not at liberty to explain that. However, all I can say is that I was flummoxed as to the misinterpretation in my view of how we should proceed. If I could help with that, Mr Johnson, as the head of PSD for seven years, it would run into dozens, and no, I've never been confronted with this issue. Just to add clarity to the point around, because Durham picked up four adversely affected disillusioned people who had not been given the respect and the values of Police Scotland of integrity, fairness and respect, well, keep looking if any of those three elements shine through in this plot, but because they hadn't had the respect of an explanation given to them, misunderstandings and myths had built upon, so, yes, I could understand your driving down the terms of reference, but outwith Durham conduct an independent investigation, what is it that we needed in further detail and an investigation which started? The four individuals themselves didn't really understand it, so for the terms of reference to be meaningful, they needed to be pliable and flexible enough to meet the needs of the four complainants, notwithstanding for the IPT process to meet their statutory responsibility, and this has been shared with Police Scotland, they have to oversee an effective remedy. The effective remedy, as written down in the order, is an investigation upon which reasonable decisions would be made. It's still yet to be decided from the IPT's perspective and the complainants have spoken with the IPT as to whether they feel that the process adopted by Police Scotland does actually meet their needs. I think that this is a really critical point there for it. When I hear your differences of opinion with Mr Spears' evidence, I hear what you're saying about the legal department in terms of the way that they interpret their regulations. Do you think that the source of the issues around the way that Police Scotland interpreted or implemented processes around the regulations is limited to the legal department? Does that extend beyond that? To what extent do you think that there is a responsibility on senior officers to make sure that their legal processes are fit for purpose in terms of serving the interests of their officers and their force? I have a great deal of sympathy for the chief officers of Police Scotland, because it is more what they have received than they have designed. I think that it started from an overcautious approach. My impression is that the unions, unison, federation and supers have said that they are going to work in that. I think that it has become an overly protracted process. I understand that there have been a number of judicial reviews that the Police Federation in Scotland have taken against the force. That tends to create polarised opinions on those things. In my opinion, the only way that you can make those regulations breathe and work so that people can feel that fairness is there is for there to be co-operation on all sides. I do not think that it is principally or exclusively the legal department, although I have got to say that I got quite cross at times with the way that they were dealing with our reasonable requests for information. However, I think that it has grown. It has grown like topsy, and people have added a little word there and a little word there. For example, the policy. Have you got the policy in front of you, Darren, quickly, where they have added two or three items? That is the guide. Can you find the policy? I think that this will help you in understanding how things have grown. The misconduct investigation is part 2, and this is the conduct regs from 2014. It is 10 subparagraph 5. An investigator appointed under paragraph 4A must be a constable of a higher rank than the constable being investigated and have the necessary knowledge, skills and expertise to plan and manage the misconduct investigation in relation to which the appointment is made. Subparagraph 6 is that the deputy chief constable must not appoint an investigator at any constable whose appointment could give rise to a reasonable concern as to whether that constable could act impartially in relation to the misconduct investigation. If somebody does a preliminary inquiry and has a look at something, could they be impartial for the second half? I will tell you what. We will build in so that the first person who does the inquiry cannot do the investigation, then we are bomb proof on that. Instead of taking a very pragmatic view of that, I mean goodness me, I do not know any of the protagonists in this inquiry other than Mr Gormley when I entered into this. I have got to be seen as impartial, and yet I was not deemed impartial because Police Scotland concentrated on the rule that they had created over and above the regs, which was if you did the inquiry, you cannot do the investigation. Does that answer that one? It does. Can I ask one final question, which is this? It is very clear to me that you found that legal department to put stumbling blocks in your way. Did you experience any other blockages or impediments from other people within Police Scotland as you tried to do your work at all? One I see is a significant issue. There is an expectation, a respect of which legislation you are speaking about, about which conduct or complaint regulation you are using, be it England, Mason or Scotland, that on receipt of whatever the complaint looks like an assessment is conducted, what is called a preliminary assessment. By way of discussion, that preliminary assessment has never been carried out in this investigation. I was told initially that one had been completed, then I was told one hadn't been completed, then I was told one had been completed and lost, then I was told one hadn't been completed. Over a period of perhaps six to eight weeks, when it's not so much about the terms of reference, what I was trying to identify is what's the starting point and what to Police Scotland consider, the four complainants views and the IPT views, an assessment of that, which would dictate the play that was never done, or I don't believe that it was ever done, but we don't know. Running alongside some of the reasons for delay, add that one in as well, so it was a really difficult position because I didn't really have a starting point. Thank you. Mr Ells, would there be, for instance, correspondence regarding that particular aspect, email exchanges? No, there isn't. To my knowledge, there isn't. I'm only led to believe and to follow the last instruction, the last instruction was, after a degree of searching and consultation and engagement with key members of staff, that a preliminary assessment, which is a fairly significant piece of work, is required even in a complaint at the lowest level of which that isn't, because, as we know, that was described as serious, unlawful and in need of an independent investigation by the IPT. For a preliminary assessment to be absent is of surprise and concern. I wonder, with respect to the concerns that you have had, at various stages, you have referred to ineptitude within Police Scotland, a culture of secrecy, risk aversion and a number of other concerns, and you have evidenced why you have come to those conclusions. Did you at any stage have conversations with the former chief constable or, more recently, have you had conversations with DCC Livingston about those concerns, recognising that you appear to have come up against various impasses at various stages with the legal department and others? Can I name the two chief officers that I've spoken to? I've not spoken to Mr Livingston about it because Mr Livingston isn't part of this. So, in terms of the decision making, it's DCC, if it's Patrick, that I've been speaking to. I spoke to Mr Gormley when he first rang me and then, because he's chief constable, I wouldn't expect to speak to him at all after that. However, when I was frustrated with an early meeting with the professional standards department, we were at a chief's council meeting together, and I did say to him, can you just have a word, because it's not moving as quickly as I would like, and that was the length and breadth of our conversation, but I wouldn't have anticipated any more than that, because you've got to keep the chief constable separate in these matters, because sometimes they can adjudicate, so that would be standard for me. I wouldn't want to compromise him. It's a matter of record that the deputy chief constable, Fitzpatrick, doesn't agree with my interpretation. She stands by the interpretation of Police Scotland, and you're quite right to say that I think they've got a lawyer's advice. I think it's wrong. As part of your engagement, was there a point of contact that you were given, or did you have any support from officers from Police Scotland? I don't know a staff officer or something of that nature. We're pretty much self-contained. We do lots of these. We're not needy people, but our point of contact was the professional standards department and, principally, Mr Spears, I think. Ben, thank you, convener. Much of what I wanted to ask has already been covered, but going back to the point about the obstruction that you encountered with the legal team in particular, was that, in your experience, something that had continued from historical arrangements pre-emerger, or did it appear to be a set of processes or practices that had come about in recent times? I think that my understanding was, and Darren can cover this, my understanding was that the Federation, the supers, the professional standards, the lawyers and, indeed, the judicial reviews bear testament to this, have got into a position where they've made it overly legalistic, which isn't what the regs wanted. The regs wanted to get rid of that loyaliness, that overloyaliness, so that you could actually sit down and learn lessons. So the complaints are a liberating experience for an organisation because it shines a light on where you're letting people down. That isn't what's happened here. What's happened here over time is people have dug themselves into the trenches, and so you can't seem to get out of it. I think it's preposterous that, in an inquiry, I was invited to go and speak to officers and they couldn't be held to account for what they told me. They could have just told me a load of old bunkum and I'd have had to write it down and hand it on to somebody who was investigating. Then they'd look at me and say, well, you're not so good, Mick. You've just put a load of bunkum in front of me because it couldn't be a probing interview and a caution. So I think it's grown over time, Mr McPherson, is my answer to you. But I do think it needs everybody putting to a sack and shaking up and saying, for heaven's sake, fix it and stop it because the only people who are suffering as a result of this are the complainants who are making complaints and they've got a less than optimal service and the officers themselves because it's dreadful that they're held under suspicion for quite so long. And I would add to that, members of the public, because I think members of the public deserve open transparency explanation and if their rights cease to exist from the point that the complaint inquiry is completed and don't stay with it right to the end, well, the result of that is that it's actually contrary to all of the strategic documents about explanation, apology, openness, transparency, understanding—that's never achieved. The only thing I would like to add is that Mr Livingstone was interviewed as part of our inquiry, but it's not significant and it was discounted in terms of the SPA report. I think it's right to explain that the work Northumbria police did was recommendation 39, so there were previous 38 recommendations, which I'm sure you are overseeing in terms of the counter-corruption unit, so that's the HMIC report. At a time when we're investigating processes within the counter-corruption, clearly other stakeholders had observed another 38 recommendations worth that perhaps improvement was required and what we didn't see within that was any policy book, rationale around decision making, which would have made our hypotheses and conclusions perhaps a little different if we understood why certain individuals embarked on certain actions, but there's nothing to defer to to try and understand Loog's decision making rationale as to why what we would call actions in an investigation, the investigation that brought about the legal revibrations, because there was no explanation as to why that was done or where it was to take the investigator, it makes it all the more concerning. I'm not clear if this committee's role includes sack-shaking, but we'll can look into that and maybe come back to you. It sounds a commendable practice for that. Margaret, you've had another question. I've highlighted and very clearly said that there are four people here who have been very much wronged and appears they're still being wronged. The committee is in receipt of a letter from one of those complainants and I think you said that the IP currently is deliberating on whether Police Scotland have delivered a recent decision to the IPT judgment. I think that these deliverance are still on-going and if you'll allow me to continue, this person says that despite this there's been an attempt to close down the whole episode as a result of a letter from Alan Spears, which says that I write to advise you, this is a complainant, that in line with the IPT recommendations it is the intention of Police Scotland to cleanse the contents of the relevant force databases and all material, not considered to reflect the truth of these matters, will now be removed. I would take it, you would be absolutely opposed to that as I think the committee have already said they are. No, that bit needs to be done, Ms Mitchell. In my evidence I gave to you, I said, if I'd been the chief when I got that in 2015 or the senior officer, it probably wouldn't have been the chief but anyway, the senior officer who received that very critical IOCRA report which said the activity you engaged in in April of this year was illegal and you shouldn't have done it against those four people, I would have got rid of that material there and then. That's the material that DCC Fitzpatrick wrote to me last week to oversee the destruction thereof and we will do that but we haven't put the arrangements in place for that yet so we're getting rid of, so the phone records that were illegally obtained still exist in, I mean, they're sealed off but they still exist in Police Scotland, they need to be destroyed. We're going to oversee the destruction of those records. I'm a bit puzzled, I'm not sure I understand that and the complainant certainly doesn't, because— But you've hit the nail on the head with that, with the fact that you're perplexed. Because people take an overly loyally approach to this, rather than sitting down with people and having a normal conversation in everyday language, people don't understand what's happened and that's exactly what's happened to these four complainants all the way through. They've either been starved of information or given very legalistic, dry, cold, and frankly, you can't understand the letters that you get. Until it is fully completed, if there's even a centillar of doubt that this might be relevant. I would only do that after I've contacted the four so I'm not going to steam in and destroy that without going to see the four people because we've got a good relationship with the four people so we're not going to do anything that's pivotal in this inquiry unless the four complainants are kept brief. But you see, I didn't tell you that because that's just like breathing. Those that are dismissed, which are really recent and could even have been this week, it's Durham's view—and I'm picking up the vibe from yourself—we won't oversee and it'll be our shout to provide that quality assurance to the four complainants. We will not oversee any destruction of data until we ensure that all proceedings ensuing from this debargel are concluded. Only at that point, and I'm sure that we would have consent—and there are two of the complainants in the room today—I'm sure that we would have their consent for Police Scotland to hold that information up until all matters are finalised. It would be wrong to do that because in that data it could be helpful information to those who perhaps may consider other proceedings. Thank you very much, that's greatly reassuring. Yes, it's very helpful to have that on the record. Stuart, do you have? The absolute clarity—I'm going to use a particular form of words—the data or information about which we're talking is information or data that it has been determined it is not legal for Police Scotland to have or perhaps—sorry, let me correct myself and say—the process by which Police Scotland obtained the data is not legal and therefore it's not legal for them to hold it, that is the data about which we are having this discussion at the moment. Both. It's both the data that led to the application—well, it's three—it's the data which led to the application, it's the application process itself and it's the data received as a result of the application process. Yes, but just to be absolutely clear, the process I'm not focusing on because all we can destroy when and if that happens is the data and information that's obtained. Destroy the false intelligence that was used to acquire the data itself, so all of it has got to be cleansed. Anything that's wrong in any of that process from the start before even any of the data was collected has got to be cleansed. I was just making sure that we have on the record a clear understanding of what data we're talking about. It seemed to me there was a danger as a layperson that we would get, but I think it's not clear if I'm asking you. Data was obtained but information intelligence was used to obtain that data. The information and intelligence will be cleansed as well as the data itself. Sorry, I will return to that subject. It would be perfectly legal for Police Scotland to have that intelligence that led to the action. It's wrong. Ah, no, no, I was going to make the point, but having it doesn't make it correct. Is that— Yeah, but they can't keep something about somebody when it's a lie. No, I understand that, but it was perfectly proper for them to have it in the first place for them to then conclude, as you say— No, because they made it up. Sorry? Because it was made up. So it was never legitimate to have it because they made it up. Right. Okay, that's clear. Thank you. We've gone over our times, very help. Can I, Mr Barton, just maybe ask—I know that you've looked at previous transcripts, and I wonder—you also talked about the pivotal role that senior officers could have played in that. Our early engagement on that issue was with DCC Richardson, and I wonder if you wished to comment on your examination of the transcript and whether he's been helpful to us discharging our obligations in relation to scrutinising that issue. My preference is that you read the report that I provided to the Scottish Police Authority. I'm very clear in that report. I am very clear. I'm grateful for that response. Okay, there have been no further questions. Can I thank you, Mr Barton and Mr Ellis, for your attention to detail on that issue, and for coming here today? I know that it's your shift journey home, and we're now moving to private session. Thank you very much.