 I welcome to the fourth meeting of the Justice Sub-Committee on Policing. We have no apologies. Agenda item 1 is taking a decision in private. It is a discussion on the sub-committee's work programme. Are members content to undertake that? Thank you very much indeed. Agenda item 2 is the counter-corruption unit. This is an evidence session on Durham Constabulary's report on Police Scotland's counter-corruption unit. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private briefing. I welcome the Deputy Chief Constable, Rose Fitzpatrick, Duncan Campbell, interim head of legal services, and Superintendent Andy McDowell of the Professional Standards Department of Police Scotland. Thank you for written submissions and we'll go straight to questions, and the first question is Daniel. I begin by looking at the central contention, which is the status of the work that was undertaken by Durham Constabulary. If I could just quote the letter that Police Scotland wrote to Durham on 28 July 2016, the first paragraph asks, with their agreement for the Durham Conservatory to undertake, and I quote, an independent investigation relative to the non-criminal complaint allegations identified by Ayoko. I also note that we've had a more recent letter from the investigative powers tribunal, which again sets out their query about the nature of that work, in which they go on to say that you have not, in accordance with their order, referred the matter to the Durham force for investigation and asked for your response. I understand that you've provided that response, but given the language of your initial letter, given the understandings of the investigatory powers tribunal, it's understandable that Durham is confused and, indeed, perhaps upset about the ambiguity about the nature of the investigation and, indeed, whether it was an investigation or not, what would you say to that summary and analysis of those understandings and the communications that have been with regard to that matter? The first thing that I would say is that I'm very grateful to Durham Constabulary for their very thorough and professional report, which was produced to us under their terms of reference. The terms of reference and the letter that you refer to asks them to undertake an independent investigation, as you say, relative to the non-criminal complaint allegations. It's not, I suppose, it shouldn't be a surprise that, in anything as important and complex as this matter clearly is, that, at particular times, we should all want to make sure that we are operating in accordance with the terms of reference and, particularly importantly, that we're operating effectively under the law as it exists in Scotland. So when I was first asked by the Chief Constable of Police Scotland to become effectively the decision maker in this matter, which was in January and formally appointed to that role by him in February 2017, I was engaging straight away with Mr Barton to discuss the progress of their complaints investigation and also to establish whether progress was being made and whether there were any issues that I could assist with. When he made it clear that there were some issues for him around the terms of reference and, in particular, the regulations under which he was conducting his investigation, which are the Police Scotland Conduct Regulations 2014, I, of course, listened very carefully to that. It's not unusual in complex matters for there to be a difference of professional view about the best way of progressing things, but we were very clear that he and Durham Constabulary had been asked to undertake an independent investigation only into the complaints allegations and non-criminal complaints allegations, and that our conduct regulations require other stages to take place should there require to be an investigation then into the conduct of individual officers. We had, as the committee will be aware, we had a number of discussions about that. Mr Barton very helpfully came up to discuss that with me in person on 30 January 2017. I listened very carefully to what he said and I felt that it was actually my responsibility to take legal advice and the committee would have seen the senior council's opinion that we received, which made it clear that because we were operating under the conduct regulations 2014, we needed to go through the process that set out in those regulations and that effectively we would need to continue to carry out an assessment in order for me to make a decision whether there should then be a conduct investigation and if so, who should be appointed to undertake it. Both of those investigations were conducted independently. Durham's investigation clearly independent of us and their conclusions arrived at independently and then the separate conduct investigation undertaken by the police service of Northern Ireland, again, their conclusions arrived at independently. You raised the matter of the regulations, which we had a considerable degree of discussion when Chief Constable Barton was in front of us. Can I just refer to the official record of that meeting and about the preliminary assessment? I understand the importance of that given the different nature about the way complaints are made in Scotland compared to the rest of the UK. I understand that, but the evidence in terms of the preliminary assessment was somewhat worrying, and I will quote from the official record. This is from Darren Ellis. I was initially told that a preliminary assessment had been completed. I was then told that one had not been completed, then I was told that one had been completed and lost, and after that I was told again that one had not been completed. Over six to eight weeks, I tried to identify the starting point and what Police Scotland considered to be the views of the four complainants and the IPT because an assessment of that would dictate the play. I do not believe that the work was ever done. Further, he added that in responding to Chief Constable Barton about whether he knew at that point, and Darren Ellis said, we do not know. Given the importance of that preliminary assessment, what do you acknowledge? Is that not a deeply worrying state of affairs and a worrying report, both in terms of the lack of clarity and indeed the prospect that such assessment had not been carried out? What would you say to that? What I would say is that a preliminary assessment is a very important part of the process that leads from a complaints investigation and determines whether there will be a conduct investigation thereafter. When we received Darren's report, Darren conducted his investigation and was asked to do the work, as you rightly say, in July and August of 2016. I believe that Mr Ellis and his team were appointed to progress the work further in November, certainly late 2016. When they completed their report and provided it to us in May 2017, that then triggered under the regulations, the conduct regulations section 10, that then triggered what is known as a preliminary assessment, which essentially enables me to look at the conclusions from the complaints inquiry and the result of their investigation and to decide on the basis of that, in this case, Darren identified that there were a number of officers whose conduct, if proven, might amount to misconduct. I agreed with that assessment, I agreed with their conclusions in my preliminary assessment and my decision making that a number of those officers should be subject of a conduct inquiry to determine whether, on the basis of the evidence that that inquiry and investigation would look at, should they then subsequently, for example, face misconduct proceedings. That was the point at which the regulations provide for that preliminary assessment to be the bridge between the complaints allegations and any subsequent misconduct investigation. Just to recap, we had confusion and perhaps disagreement in terms of the status of the work that Darren Constabley were carrying out. We had a difference of opinion about the interpretation of the regulations that we've had from Mr Barton. We have, at best, a lack of clarity from Darren Constabley about whether or not a preliminary assessment, which we can all agree is a very important step in this process, existed or not. That strikes me that these are three fundamental and very important bits where there was a fundamental difference of understanding between Police Scotland and Darren Constabley over what we can all agree is a very serious and important matter. Does that not speak to a very worrying situation? How would you explain that? What lessons have you taken from this situation? It clearly is a really important issue for all of us. We have been very clear that our failings in 2015, which were the subject of the IOCOO report and IPT judgment and order, were severe. We were also very clear that our responsibility was to provide Darren Constabley with all the support that they would need to conduct their own independent complaints investigation. When I took up that responsibility to be the decision maker, towards the end of January 2017, I met with Mr Barton. We spoke on many occasions about a number of issues around the progress of his investigation. He raised, as I said with me, the issue around the terms of reference. We were all very conscious of our responsibilities to make sure that this was all undertaken under the conduct regulations as they provide, and to make sure that, from my point of view, if there were any issues that Mr Barton required to be resolved or any material that he needed, we could resolve those along the way. You will see, I hope, from the exchange of letters that we were able to do that as we went. Those were very complex and important issues. I did not find it surprising that Mr Barton and Darren Constabley should want to progress in the way that they thought fit. I certainly was very conscious of my responsibility to make sure that we were progressing clearly in line with the conduct regulations as they exist. As I understand it, when the moment came to determine the issue about Darren being able to move from the complaints investigation straight into a conduct investigation, I felt very clearly that I had a responsibility to take proper legal advice about that. You will see that we took senior council's opinion. What we then agreed to do was to progress on the basis of the original terms of reference and under the conduct regulations 2014. If I may, when we received Mr Barton's report on 12 May, his letter acknowledges that point. He says, My team found your colleagues to be helpful and professional, and for that I thank you. Please pass on my thanks to them. My report is not as prompt as I would have liked. There were necessary delays taking legal clarification on the status of my inquiry. I'm glad to say that that was ultimately resolved. He goes on to say, I have, I trust helpfully, referred further to this issue in the lessons learned chapter, that's of his final investigation report. We all acknowledged that this was an issue where there was a professional difference of view, and ultimately we resolved that and agreed to proceed on the basis of the terms of reference and the interpretation by senior council of the conduct regulations as they operate in Scotland. Just finally, on that answer, I'm struggling, frankly, to reconcile what you're telling me in comparison to what Chief Constable Barton said. If we were to take your evidence as you've just put it, it would sound like you had left things in a very amicable and in a way where all parties understood one another. Yet, Chief Constable Barton, in your evidence, you characterised Police Scotland in a particular legal department as acting in an overly legalistic way and a risk averse way. The conclusion that one would draw from that was that the procedure was getting in the way of looking after the wronged police officers. If everything was so amical, why was Chief Constable Barton giving the evidence that he gave to this committee if there's nothing wrong? I think that I've reflected the fact that we did have a significant difference of professional view, which was resolved by the taking of legal advice and an agreement that we would proceed on the basis of the original terms of reference that Durham Constabulary were given. The two sets of legal advice that we'd received from Senior Council, and I think that Mr Barton's letter of the 12th may reflect that, I've spoken and read from his letter the point about the lessons learned in that part of his report and the committee will be aware that we have been very keen to make sure that all of the lessons learned from each of the individual independent reports that we've had from the IOCRA report, the IPT judgment and order, through to HMICS's 39 recommendations on their assurance review of the CCU, right through to Northumbria, Durham and the PSNI report. There's been learning for us in all of those issues, which sits alongside the actual findings of those investigations. A huge amount of work has already gone on, certainly on the 39 recommendations from the HMICS review, so we are very clear that where there are things to be learned about, the processes, for example, with Durham Constabulary, then we will take those on. As I said as well, I don't for a moment suggest that there weren't points that Mr Barton raised with me in our many conversations and our exchanges of letters where he felt that actually we could provide something to him or provide perhaps a little more support to his team. As soon as I became aware of those, then we resolved those issues as we went along. As I say, it's a complex matter that went on for a long time, so I am not surprised with all of us determined to proceed in the right way that there would have been differences of opinion, but as you can see from Mr Barton's final letter to us, I believe that they were resolved ultimately by the way that we agreed to proceed. I know that Stewart is wanting another supplementary. I can just ask you three very brief points, Deputy Chief Constable. You are the disciplinary authority for Police Scotland. Could you have, on receipt of the IOCW report, decided that there would be no conduct proceedings? I suppose that technically that would have been the case. I was not then the disciplinary authority for the... In fact, I was asked to be the disciplinary authority in this particular case only at that stage by the Chief Constable in early 2017. What I do know is that we had the IOCW report, which was the determination of IOCW, which was received in November 2015, was followed by complaints from four complainers in, I believe, March 2016, which were referred to the Crown Office. At that point, we had complaints which we are bound to ensure are investigated. My understanding was that when those complaints were received, they were referred to the Crown Office to establish whether there was any criminality in the allegations. It was determined that there was no criminality, but it was agreed. I understand at that point with the complainers that those complaints would be pended until the IPT hearing, which took place in July, and then the IPT judgment and order in August. It was at that point that the complaints then were referred to Durham Constabulary, and they were asked to conduct their independent complaints investigation. The investigation or inquiry that you asked of Durham Constabulary, can you tell me what the status of the individuals that they would have interviewed would have been? Were they witnesses? Were they suspect? Were they accused? Under a complaints investigation, there would have been complainers, so four complainers in this case, and witnesses essentially to establish the substance and the recommendations in relation to those complaints. There are particular and very clearly defined in the conduct regulations issues around conduct investigations, which put in place particular processes and procedures, and in some cases safeguards in relation to officers who may become what we call subject officers, those who are subject to conduct investigation. Indeed, in the legal opinion talks about that and the position for challenge where that to be the case, but conversely, was there the potential, given the direction that you had given to Durham Constabulary, was the potential for anyone interviewed to have been compromised if they were, let's say, subsequently to become a subject constable or an accused? That was never raised with us by Durham Constabulary. There will always be the case when before a determination is made that people may be spoken to, and then subsequently it becomes clear that perhaps they need to become a subject officer, i.e., to have their conduct investigated because there is considered that it may be a possibility of misconduct or indeed gross misconduct. In this case, that's the preliminary assessment that makes that decision. In this case, Durham Constabulary identified that as a result of their investigation, they had identified a number of officers who, in their view, a decision needed to be taken about whether their conduct needed to be investigated. That was the preliminary assessment point, which led to the conduct investigation. Okay, just for completeness. Did Durham interview the people that they subsequently say could be subject to disciplinary proceedings? I don't believe they did. What, if anything, should this committee read into the fact that DCC, ex-DCC Richardson did not co-operate with Durham Inquiry? I really can't say, I'm afraid. Their inquiry at that stage was independent and I had no role other than in providing, the organisation would have provided details of retired officers, for example, to Durham Constabulary. Nonetheless, for this instance, you are the disciplinary authority, and indeed Mr Richardson previously had been the disciplinary authority. Would you not have anticipated full co-operation from your predecessor? May I say that, actually, Durham were conducting two parallel conduct investigation, non-criminal complaints investigations at that stage, one on our behalf and the other on behalf of the SPA. Any issues around senior officers would have been part of the senior officer complaints investigation, which was under the auspices of the SPA. Nonetheless, Mr Richardson could have been a witness, he could have been a serving officer or a subject to investigation. Do you have no view on his unwillingness to co-operate? I'm simply saying that if approaches were made to him, I'm not aware of what the conversation was, convener. I'm really not in a position to comment. I just wanted to be clear on sequencing. We have the chief constable Barton submitting his investigation conclusions 12 May 2017, and that is the end of one chapter, it seems to be. The next step, as you've described, is your role in doing a preliminary assessment as to whether a misconduct inquiry would have to happen. In coming to your preliminary assessment view, what input would separate from the submission of the report from Durham, would there be from the Durham report? Would it simply be that you would go back to clarify points that you felt would meet me or was that now out of the picture and that there would be no role in the preparation or preliminary assessment for Durham beyond the fact that they'd submitted a report that you would be drawing on? I'm very fortunate that I have to my left our conduct expert here, but if I might just try to answer that myself and then hand over to Superintendent MacDowell to put me right on anything that I may leave out. Durham's independent complaints investigation was complete and entire in itself. It came to the conclusion that a number of those complaints were upheld, some partially upheld and others not upheld. It also came to the conclusion that a number of officers, they took the view that there was prima facie, a case that a number of officers, if their conduct was proven, that conduct might be found to be in fact misconduct, to breach the standards of behaviour that we expect of professional police officers. The decision making in that then is formed with support, in this case for me, of an assessment of what those particular matters that come out of. We separate out the complaints issue, we look at those individual officers, and then I make a decision on the basis of what's provided to me from in the Durham Constability report in this case, is there that prima facie case which requires to be investigated. I determined that there was, in relation to, there were originally eight officers that Durham spoke about. I determined that looking at it in detail, that seven of those officers, was a prima facie case, that their conduct, if proven, could amount to gross misconduct, and that therefore an independent misconduct investigation should take place. That was based on the Durham Constabulary report. I understand that you used the phrase in coming to your conclusion, with support, and it was really kind of that I'm focused on. What was that support? Where did it come from? Did it involve going back to Durham to say that you've come up with this list, the charge sheet, if you like, to get further information so that the preliminary assessment could be as complete and reasonable in all sorts of ways as we've been necessary? I just want to know if, after 17 May, Durham were no longer part of the decision making process, or were they still advising you? I didn't go back to Durham, other than to thank them for their report at that stage. I don't know if any of my colleagues in our conduct world felt that it would be appropriate or helpful to do that at that stage. Thank you, ma'am. First of all, good afternoon, convener, committee members. Mr Stevenson, there's not much more that I can add to the Deputy Chief Constable's interpretation of how we formulated that regulation 10 preliminary assessment under the regulations. What I would, however, add is that the Durham report was conclusive and it was the information contained within that report that actually allowed us to formulate a preliminary assessment on the information contained within in order that we could then, after progress matters through the conduct regulations as required. So it was the Durham report that the Reg 10 assessment was based on. Thank you, convener. I don't really want to labour the point too much, but I can just ask you a bit more about the terms of reference because I feel I need clarification and I'm still quite confused by it all. Chief Constable Barton said that it was three to four months into his investigation when he was told that it wouldn't be an investigation and he didn't have full investigatory powers and it would be an inquiry. Is that the period that you took over after that preliminary work had been done and you then decided to take legal action because I'm puzzled as to why the original remit from the Chief Constable, why he didn't do that at the outset? Well, as I said earlier on, I wasn't actually... didn't become the decision maker for this until, effectively, the end of January and appointed officially on the 14th of February. The terms of reference were set in a letter to Durham Constabulary from the Chief Constable of Police Scotland on 4 August 2016. Durham began work at that point and, as I say, I first engaged with Mr Barton in, I believe, in January 2017 when their work had been under way since August. That's what I'm trying to determine. Was it you having sight of that work that then decided that there's a different procedure that needs to take place? I need to take legal advice here. Was it that point? Sorry, if I may. It was simply my initial conversations with Mr Barton. I spoke to him at the end of January and then we had a meeting on the 30th of January 2017 and we had an exchange of letters then about the terms of reference. Of course, as soon as he raised it with me, I wasn't aware to that point that there was an issue or a difference of view about the terms of reference and the extent of his inquiry. Of course, as soon as he raised it with me, I had to listen very carefully to that and then I determined that I really needed to take some legal advice on the application of the conduct regulations in Scotland to that particular circumstance and that's when I did that. So how long was that period and you had been lazing with him before you realised you would need to take advice? I would think. I can just give me a moment. I actually... We had a number of conversations. We had an exchange of letters in February and then I received Senior Council's opinion on the 21st of March. So it was sequential. We talked about the terms of reference. We realised that we had a different professional view about that. We discussed it. I believe Mr Barton said that he took legal advice. My recollection was that he mentioned that to me as well. We took legal advice, but I think importantly as well I was very conscious of my responsibility to be open minded about the views that he had come to but also to make sure that we were proceeding on a very sound legal basis. If I'm very honest, the issues of 2015 where we, as ICO and IPT have determined, acted unlawfully, no legal advice was taken at that point and I was very keen to make sure that we were operating on a sound legal basis, hence taking legal advice. I actually took two different sets of legal advice because during those conversations we were getting the first set of Senior Council's opinion on the Scotland regulations. Mr Barton made a specific proposal about how he might proceed under the regulations. I asked for that to be put to Senior Council to look at it specifically because, again, I wanted to be open minded about if that was an appropriate and in fact a better way to proceed then I would take advice on that. We would go down that road if appropriate to all concerned but that second set of Senior Council's advice on that very specific point was that we could not be advised to go down that route and that, in fact, the Scotland regulations would not allow us to do that and to keep within the regulations themselves which have the force of law. I felt that it was my responsibility to make an informed decision on two sets of legal advice which had been very specific about those points. I take it that you stand by that decision today that you did the right thing by taking that advice. I believe that I did. Okay, thank you. Good afternoon. Mr Barton said, when I was given the inquiry, it was made clear to me by the chief constable that we were being asked to do an investigation. That means that we can investigate, access all the documents and interview people so that we can make a recommendation on whether or not there was misconduct. As part of that, he said that he wanted to interview senior officers and, before that, he wanted to see a chain of emails from the senior officers. He was not allowed to do that. Legal privilege was given as the answer. Would you like to comment on that, Mr Campbell? Good afternoon, Mrs Mitchell. Thank you for the opportunity to comment on that. I was interviewed by Mr Ellis in December of 2015 or 2016 as part of the investigation. I was asked to provide factual information, which I did, which essentially related to the interaction that I had with this committee in its predecessor existence between the periods of December 2015 and January 2016, which I did. I was also asked to provide a chronology and copy of information passing between myself and the IPT in the period immediately following the hearing on 22 July. Mr Ellis asked me also to provide additional information surrounding the factual material. Excuse me, just a minute. I indicated to him that I took the view that the material that he was looking for was legally privileged and that I would need to get permission of the chief constable before privilege was waived, privilege vesting in my client who was the chief constable. The matter was not immediately pursued further with me at the time. When it was subsequently pressed, I offered advice to the chief constable about his entitlement to waive privilege as he saw fit. I also indicated to the chief constable that if he was so minded to do so, he might wish to avail himself of independent legal advice on whether he wished to waive privilege. I did not withhold any material that Mr Ellis asked for, that I was in a position to provide to him. The chain of emails, what aspect of it did you think was covered by legal privilege? Every single bit of the emails between these senior officers? I have seen Mr Barton's evidence in that connection. I am not in a position to comment on emails passing between senior officers. I was only able to comment on material that was held within our own file, which concerned matters put to me for advice. You should not have made that distinction. On the basis of the emails that I hold in my file, my advice is legal privilege kicks in, but you can see any of the emails that the senior officers have had in the chain of correspondence. That was not the inquiry that was made of me by Mr Ellis. I do not know whether he made that inquiry of anybody else, but he did not make that inquiry of me. He was quite clear that he asked to see the emails between people sent to each other. I think that that was fairly reasonable. Given his remit, he investigated aspects, all documents and interviewed people so that you can make recommendations. He had to see everything. He does see quite clearly that it is legitimate for a senior officer, a member of the Scottish Police Federation to sit down with his solicitor and be absolutely sure that those conversations are satisfied. That is a given. That is not what you were talking about. I will help at this point because this issue came up with Mr Barton in our discussions in January and February. February, if I recollect. We had discussions about it and we also had an exchange of letters about it. I have just noted that, from my letter of the 22nd of February, I was able to confirm to him that we were waving legal privilege in relation to briefing documents that he required for his investigation and another issue was access to telecoms product. At that point, as I said earlier, when Mr Barton, in the course of our conversation, raised one or two issues with me that he felt that we needed to progress, then I was, as far as possible, able to resolve them. I think that that has a bearing on the point that you were just asking about. It most certainly has. It took three months to do it and it goes right to the heart of the allegation or the criticism here that the legal department was risk averse and that it was not open and it was not transparent. Would you care to reflect now, given the benefit of this analysis having made the subsequent three months later of the correspondence being released, that you might reflect and do things differently? The correspondence that I sent to Mr Ellis was sent sooner than the date that Deputy Chief Constable Fitzpatrick refers to in terms of the briefing note that I think that it would be a risk to be aware of the risks that would arise if certain courses of action were followed and to offer advice on that premise. Your advice was to not release the legal department, because it would be a risk to be aware of the risks that would arise if certain courses of action were followed and to offer advice on that premise. Your advice was to not release. No, with respect, my advice was not against releasing or not releasing. My advice to Chief Constable was it's your privilege and it's for you to determine whether it's waived. It's not for me to waive the privilege on your behalf. So what took three months? If you looked at this, the request was made, I would have thought you passed that info. Did it take you three months to come to that conclusion or did it take DCC, or who made the decision ultimately that they would be released? It wasn't a decision that was taken by me, Mrs Mitchell. I initially reflected back to Deputy Chief Constable Livingston the day after I'd seen Mr Ellis and explained to him that in part a request had been made for access to privileged material. It was suggested to me that that might be quite an unusual request and I should reflect that back to Mr Ellis which I did the following day. Why did it take three months to release these emails? Were they subsequently released? As I said earlier, Mrs Mitchell, when it was raised with me by Mr Barton when we had our discussions at the end of January and in February, it was one of the issues that he raised with me and I was able to confirm to him that having had a discussion with the Chief Constable that we would be happy to provide the briefing documents that he was requesting. Can you put it another way? Is there a problem with communication? It took three months and you still haven't told me why. In an investigation that should have been going smoothly, those emails, it turns out, should have been released. Were they subsequently released but it took three months to do it? Why? Having come into the issue at the end of January and the beginning of February being appointed to be the decision maker on 14 February, I was able to confirm to Mr Barton on 22 February as a result of him raising it with me that we would be providing him with that material. So you're saying you only came to it late with somebody else's problem? I'm saying that as soon as I became aware of it, Mrs Mitchell, I sought to have the matter resolved between us and it was resolved. Are there lessons to be learnt? There are indeed and the lessons that are set out, as I said in Mr Barton's report and our discussions with him along the way form the basis of a significant amount of organisational learning for us, not only in relation to the original matters of the IPT and IOCO, but subsequently. We've had these platitudes before DC Fitzpatrick with respect, but the fact that you can't come today being fully aware of this evidence last two weeks ago, that there was this gap and you're reassuring us that we've kind of moved on and everything was quite amical at the end. It wasn't. There was no criminality found. It was merely inept. I'm afraid that's what's coming over today. Can I ask about the data protection and the addresses of the officers? Retired officers were, which was refused. Whose decision was that and for what reason? Is it that? Yes, thank you. Once again, any organisation, as we know, has responsibilities for data. The data legislation sets that out. Retired officers are effectively members of the public and we have a responsibility for their data, which includes their personal details. Again, Mr Barton raised with me that this seems to be taking some time. Before we even got there, lawyers in Police Scotland said that they were not allowed to know where these police officers lived. It wasn't just a member of the public or somebody interested. It was the person in charge of the investigation. It's really a legal question. I feel that I have to ask Mr Duncan about this. The first time I became aware of having access to retired officers as an issue was when I was shown a letter, which I think is before you, from Mr Barton dated 7 February. I think that I was showing the letter that day or possibly the next day. I think that when one looks at the official transcript of Mr Barton's evidence on 22 February, you might form the impression that I or one of my colleagues had already given some advice or instruction that home addresses were not to be released. I can, I hope, reassure you that that's not the case. We hadn't had any involvement in the matter up until receipt of the letter of 7 February. I discussed that with Deputy Chief Constable FitzPatrick. I think that the next day, we discussed a number of matters that are reflected in her letter of 13 February. One of them is the way in which we propose to resolve the issue of access, namely to facilitate access, which is what we wanted to do, but to ensure that we were doing so in a lawful and proportionate way. If you didn't give legal advice, was it Mr Barton told by someone else that that was legal advice? If so, it was erroneous because two months later, they got the information about where the retired police officers lived. How was that resolved? In my letter to Mr Barton of the 13 February, we undertook to resolve that, and in fact it was at that stage in hand. We were doing as we were required to do in relation to personal information, which was contacting the individuals and asking them if they were happy for us to provide that information, i.e. their contact details to Durham Constabulary. If I can ask one final question, it goes on to professional standards. Mr Barton said that he moved as fast as he could times we paused for preliminary assessments. At any time in our car, the officers in the professional standards could not have done a preliminary assessment. If they had done that, they could have switched the process under their agreement rules into investigation, and they chose not to do that. We gave them ample opportunity on a number of occasions to switch to a full investigation. We were bought, in speaking to some people because we were not given their addresses, and we were bought because we were not allowed to see what were assessed as being legally privileged documents, although they were not. I just wanted to comment on the timeliness. Five months seems to have been delayed in this process. Mr McGill. Thank you, Mrs Mitchell. I must confess that I am somewhat perplexed as to how we could suddenly jump from a complaints investigation straight into a conduct investigation. As the conduct portfolio lead for Police Scotland, I have already discussed the regulation 10 preliminary assessment process. That regulation 10 process follows on to an appointment of an investigating officer by the Deputy Chief Constable to investigate misconduct matters. Legally, in Scotland, we are not allowed to investigate police misconduct unless that process has been undertaken. As I mentioned to Mr Stevenson, the basis on which we formulated that regulation 10 preliminary assessment was on the concluded Durham report, we could not, prior to that, have quite simply appointed an investigating officer without having gone through that legal regulatory process. I remain unconvinced by the explanations today. I am somewhat concerned that areas that were in the public domain last week I am asking about and we still do not have answers perhaps to reflect on that as we move forward. I want to go back to the legal opinions and Deputy Chief Constable FitzPatrick. You said that decisions were made on 30 January concerning the terms of reference and consideration about whether to seek, was that when the decision to seek Senior Council was made? I can't recall exactly when the decision was made. My first meeting with Mr Barton was on 30 January. We were talking about those issues at that point. In the follow-up to that meeting, I have two real questions. One, why was Senior Council sought rather than internal legal advice? What was the position around that? Two, was Mr Barton content with the process of seeking Senior Council? Was he in agreement with that? First, I wanted to take the best possible advice to make an informed decision about that. Of course, internal legal advice is part of that, but Senior Council's advice would of course be on very specific points. I think that it is common for most organisations and many police services to seek Senior Council's advice on particularly important or complex matters. I am not suggesting for a moment that I could not have had advice in house, as it were, and in fact was receiving that advice where that was appropriate. Again, Senior Council is called Senior Council for a reason, and I wanted to make sure that we were getting the best possible focus on that. I certainly discussed that with Mr Barton. I made him aware that we were taking advice. On both occasions, when he came back with his specific proposal, as well. It was very frank in discussing the content of that advice with him. I know that he said to the committee previously that he himself took legal advice. Ultimately, as our exchange of letters suggests, and as he refers to in his final letter to us when his report was received, we effectively agreed to differ, but we agreed to proceed on the basis of the legal advice that we had received as Police Scotland. There was no objection at the time from him in terms of instructing Senior Council? I do not think so at all. I do not recollect that at all. We had a number of conversations about it. We knew the points on which we differed professionally about our interpretation of the Scottish regulations. I hope that I was very open with him that that is what I intended to do. I asked a question simply because the position that he takes that Police Scotland was overlegalistic to use his phrase in the process. From instructing a Senior Council in a previous role before this, I know that it can take longer, and perhaps that led to the time delay. It can often be the case that different legal opinions are sought from different advocates. Was that ever considered? I am trying to say if I specifically considered that. I do not think that I did. I was, as you suggested, quite mindful of time. I asked that for Senior Councils a view to be taken. I did not specify which Senior Council that should be. I am not a lawyer myself. In fact, because the two things were taken so closely together, it was a benefit of time effectively to have the general point taken, opinion on, and then the very specific proposal taken in the same context. The legal opinions, particularly 51 and 52, in the first legal opinion, state the risk in the Senior Council's view of judicial review. Was Mr Barton receptive to that risk? Did he understand it? He must have been receptive because we ultimately agreed to proceed on the basis of my decision to follow the legal advice that I had received. It is a matter, I was very clear that this is not a matter in abstract that we have, Police Scotland has actually been judicially reviewed on this matter, a very similar matter previously, so this was not an issue about an abstract discussion of what might happen. The decision to take a legal opinion and the opinion that was given was not questioned or dismissed by Mr Barton. I never found Mr Barton dismissive at all and I hope he did not find me dismissive. I think that we were two professionals who both appreciated the importance and the complexity of this particular issue, both very determined to do right by the issue and the people involved, in particular the complainers, and to take this forward in an effective way. We agreed to differ, we both, as I understand it, took legal advice and then we agreed to proceed on the basis of the legal advice that we had received. The debate over the interpretation of the 20 phone regulations prolonged the investigative process and it has been stated that this had a reverse effect on the individuals who were involved to accept that? I have accepted that and had the opportunity for which I was grateful to apologise to three of the four complainers on 1 March in person and by letter to all four complainers on the same day for not only the failings that occurred in 2015 but for the subsequent impact on them and their families. I am mindful of that. I know that Mr Barton was very mindful of it. The discussions that we were having when I took that on formally in February and March led Mr Barton to then go on to conclude his investigation and his report was with us in early May, the 12th of May, I believe. I am mindful of all of that. What steps will need to be taken to avoid any confusion around the application of the 2014 regulations with regard to any future inquiries that need to be carried out? I would say that the discussions that we had had and I had had particularly with Mr Barton and with the Durham investigation team not only did we get a very thorough and diligent and professional report from them which enabled us to progress the processes but you will then recall that we then went on to develop terms of reference for the Police Service of Northern Ireland to conduct the conduct investigation and from my point of view it was important that we were very clear about those we both understood exactly the legislative framework we'd be operating under that PSN and I were happy with that so my personal learning was to take that the discussions that I'd had with Mr Barton about terms of reference and the difference of view which had arisen into the very early discussions with the Police Service of Northern Ireland in ensuring agreement with their terms of reference so despite the delay, the admitted delay and the potential damage that it can have there's a constructive outcome of this in terms of future investigations we have a lot of lessons to learn and as I say we've already put that into practice in asking the PSN and I to do the work that they have done a supplementary from Daniel and then William I'd just like to ask there's a technical clarification in the nature of the disagreement my understanding is that in Scotland we have a separation between the complaint and the subsequent investigation and the contention of Police Scotland is that in terms of the investigation that that investigator cannot have any previous involvement in the complaint handling because that would undermine the requirement of the investigating officer to be impartial which is in the police regulations is that the correct understanding of where the crux of this disagreement is is that correct? That as I understand it as well was the crux of the disagreement that formed the basis of the legal advice and as I think I said earlier in answer to Mr Fersen's question earlier this was not an abstract issue for us it is a point on which we had previously discussed Liam I think a little like others I'm struggling a bit to reconcile the evidence that we had on the 22nd of February from Chief Constable Barton which was of the moment reflecting back on what had happened and at that stage we still felt moved to make some fairly serious criticisms and the more reassuring tone that you've sought to strike today and I think that's probably material for this committee insofar as it tends to suggest that when it comes to lessons learned you're more reassured than Chief Constable Barton and his colleagues are at the moment and I sort of leave that hanging there for the moment on the basis of the evidence that we've had a couple of things have lept out at me it just seems to me staggering that the issue around access to retired officers would not have been identified as a potential issue resolved if not in terms of each individual case but resolved in terms of handling and agreed with Durham at the point where the investigation was to initiate I mean I just cannot understand why that issue almost came as a surprise in out of left field after Durham had been asked to undertake an investigation would that not just be standard procedure that there would undoubtedly and almost inevitably be a request at some stage to make an approach to retired officers in which case how was Police Scotland going to respond? I can understand why you might need to seek permission but I cannot for the life of me understand why it is that you would not anticipate that arising in the early stages not just at some point but in the early stages of the investigation. I think you've quite rightly identified an area of learning for us in terms of preparation for these things and something that we took into what they would need in order to facilitate their subsequent independent conduct investigation. Again, in passing and it really is only in passing I think some of what Chief Constable Barton was referring to in terms of an attitude and a lack of transparency was reflected for me in terms of the level of redaction in the reports that were handed to us I'd entirely understand and respect the requirement to redact reports of this nature but it seemed to me the extent of the redaction including information that was in the public domain spoke to an attitude that as I say Chief Constable Barton during his evidence session was moved to suggest was an overly secretive approach but can I turn to the issue of the pastoral care where there isn't any and there's never been any disagreement is around the fact that four individuals concerned were I think Chief Constable Barton said gravely wronged I think you've said that you were determined to do the right thing by the complainers but as far as I understand the IOC reported to Police Scotland in July 2015 and Chief Constable Barton then suggested that it was made by Police Scotland with the Four Effectives in February 2016 and why on earth did it take that long for Police Scotland having been made aware of IOC's concerns and the nature of those concerns why did it take whatever it is, seven months to make an approach to those that affected I appreciate this predates your involvement but I mean I find that absolutely staggering I'm afraid I don't know why it took so long I do know, while we're on the subject of learning that having been asked to become the decision maker in this officially on the 14th of February but in discussions with Mr Barton in late January our discussions and we agreed wholeheartedly on this I was determined to offer to meet my partners as soon as possible and to offer them a personal and what I described to them and as in my letters to them a wholehearted and unreserved apology to them and I touched on it briefly earlier that was not only for the failings that the IOC and IPT had identified in 2015 in terms of our processes and procedures around the communications data but also for the impact on them and their families of those acts but also in the time since then I was very grateful that three of the complainers agreed to meet with me and I completely understood that a fourth did not choose to do that I mean my understanding is that that apology was welcomed and was acknowledged for being as fulsome as you suggest but I just to get this clear you were apologising not just for what happened but the impact that it had was it also an apology for the lack of on-going engagement and seeming concern for the wellbeing of the existing and retired officers throughout this process I mean we've had colleagues of yours acting chief constable Livingston has made great play in a number of evidence sessions about the priority he attaches to the wellbeing of officers and staff and it just seems to me in this instance that was glaringly absent throughout this process and potentially on-going I mean I don't know the outcome of the discussions you've had but presumably that impact is on-going certainly the complainants don't necessarily feel as if this has resolved the matter for them so presumably there's a commitment from Police Scotland to continue in an on-going basis subject to a willingness to engage to work through what may bring a resolution to this one of the striking things and I think it's the case for anybody when you sit down with someone was for me when I spoke individually to the three complainers who agreed to meet with me on 1 March 2017 was to listen to them to listen to what the impact on them had been so of course it was my intention to and I did apologise to them directly individually but also to hear from them what the impact on them had been and not just on them on their families the work that Mr Livingstone I think has previously spoken to the committee in respect of wellbeing certainly needs to include our processes and procedures in relation to officers serving whatever their status and whatever the circumstances of our relationship with them in the future just to be clear that that meeting on 1 March is not an end point notwithstanding the fact that the apology that was being sought was offered at that stage but there's an on-going commitment to engagement if that seemed to be felt to be necessary by those involved if indeed yes absolutely if indeed it is we as you will know a number of those complainers have retired but we still have a responsibility to any of those who has not retired certainly and this was probably one of the most significant points of learning for us that there was a very long gap which you've identified and that with Durham's help we were able to I was able to meet with them at the beginning of March of what I felt was my responsibility at that time Thank you Do you see if it's Patrick? A lot of people, given the profile that this issue has had and the seriousness of it which has been acknowledged by Police Scotland will be quite astonished that the outcome of this is effectively you've learnt issues but no one's been culpable in any way you've a range of disposals for additional training but none of that where are the individuals who have been involved in this, where are they now because concerns have been expressed to this committee that these people albeit and I readily accept that they are acquitted are now in more promoted posts and the reason I raised that is because there are genuine concerns about reputational damage and the signal that that sends out can you comment on how after all this no one even gets spoken to in fact that's not quite the case What were the disposals then? The disposals, so seven officers were the subject of PSNI's independent conduct inquiry and if I can quote from the PSNI investigation report they found that a number of allegations were proven on the balance of probabilities but no evidence of willful acts of misconduct what they did describe was where there was no evidence of willful actions, there was clearly recklessness and that chimed entirely with the IOCO and IPT findings that we had been reckless as an organisation PSNI found that those individuals some of those individuals had been reckless in their own individual behaviour and that they PSNI also identified failure of leadership systems and processes what of the seven officers four officers were subject to what we call improvement action which is a disposal aimed at focusing on why they had behaved in that way previously and them taking action to make sure that that does not occur again and three individuals who PSNI determined were very peripheral to these issues no further action was taken so there for four of the individuals improvement action plans to make sure that those actions do not are not in future likely to lead to adverse outcomes were put in place and how many of the seven have subsequently been promoted I'm afraid I don't have that information I'm happy to provide it to the committee if that would help following up on that obviously we discussed earlier the involvement or the lack of access to officers that are now retired presumably any improvement actions can't be applied to those that have retired did the PSNI report shed any light on that you've talked about reckless behaviour and a lack of leadership one would assume that something more than improvement actions would be required in the event of reckless actions so the PSNI have anything to say about the behaviour involvement of retired officers and had they still been in the force whether or not more serious measures might have been necessary and appropriate in those circumstances? Yes they did and PSNI observed that they had not been able to engage with officers who had retired because of course the conduct regulations fall when an officer retires from policing and so they'd not been able to engage with them and they did observe on the basis of what they knew they felt that other action might have been appropriate but of course they did observe they had not been able to engage with or interview those officers so that was at that stage a judgment as opposed to something they could say was a matter of fact to us Is that then something that you can take learning from even if there isn't action that you can take because of the status of the officer being retired there's something from that that you can take in terms of lessons learned going forward? To the extent that it's important that you learn from all of these things that the issue here of course is the conduct regulations which differ from those in England and Wales and in which there is no there's no way of compelling if you like individuals who've retired to engage with a conduct investigation and in fact the conduct investigation has no locus for them at all because they are no longer serving as police officers so that actually is a regulatory issue that particular point is a regulatory issue not something we have control of Given the role of this Parliament perhaps to look out where regulation is and isn't working is that something that you would be supportive of Parliament looking at? Is it a deficiency in the way that regulations are structured now that by dint of retiring an officer can escape any sort of sanction for not criminal offences but very very serious misdemeanors on their part? I think that in policing there's a range of views about that I do know that the conduct regulations 2014 clearly have been in place now for four years over four years I think there is learning about the regulations just as there has been organisational learning for us all the way through in other matters in relation to CCU and comms data and so on so it's very wise to keep these things under review I think DCC if it's Patrick are you able to tell us why you can't publish the SNI report please? I'm going to again look to Superintendent McDowell to keep me right on this but my understanding of the conduct regulations is that again unlike some of the arrangements which exist in England and Wales where for example hearings may be in public in particular conduct matters that does not apply in Scotland and there is a presumption that in the conduct regulations that misconduct proceedings i.e. the conduct of the misconduct will be in private and that people have an expectation therefore of privacy It's specifically the report even in redacted form why it's not possible and if I can express some surprises the disciplinary authority I would have anticipated that the small number of regulations would have a full grasp of so I'm sorry if the committee thinks that I don't do I'm only going with the comments you've said that you're understanding My understanding is that there is an issue around the misconduct proceedings being in private I'm going to ask Mr McDowell as my left-hand man to be able to put me right on this if indeed I have misinterpreted them Thank you ma'am You absolutely do The misconduct, the police misconduct proceedings in Scotland are private proceedings again that is not similar to England and Wales and as a result of that I don't think that this refers to this specific matter in terms of the PSNI investigation I think it's important that we maintain that degree of consistency not just for regulatory compliance but for all other misconduct regulations which are not put into the public domain OK, can I ask then DCC Fismatic, is that information was that shared with the complainers that there was to be no proceedings? I certainly wrote to the complainers on 30 June with the complaints investigation results, very lengthy letters to them That's the Durham report The PSNI report Right, I'm trying to look now did I to them 15 January I have here Oh that's right, sorry On 15 January when we were speaking to the subject officers and letting them know the outcome of the conduct investigations into them I'm sorry, it just took me a moment there there have been so many letters in this matter that I letters were hand delivered from me to each of the four complainers on that day so they heard on the same day as the officers who'd been subject to the misconduct investigation heard the outcome Are you able to share how they responded to your decision not to institute proceedings? I think that's a matter for them effectively, convener Ok, on the point of the retention of material and the recent exchanges about that Police Scotland use quite an unusual phrase if you don't mind me saying and that is the any material on Police Scotland databases which does not reflect the truth Can you explain what that means please? Yes I can convener I hope we the committee will be aware that the original material which led to the ICO breach was one set of material and the IPT judgment governs the disposal if you like of that material ultimately but also as four of the complainers three of whom were serving officers at the time I understand that they had some concerns quite rightly about other material that might be held on any of our databases so that might be for example our HR database professional standards database and so on so when we talk about material that doesn't reflect the truth of these matters it is any material which the complainers feel doesn't effectively represent the truth the IPT material is slightly different the IPT order governs the material which relates to the authorisations and the comms data but I wanted to speak to and in speaking to the three complainers as I did on 1 March I wanted to assure them of the fact that if there was any material which they felt didn't reflect what had happened truthfully then we would be very open to removing that material from any of our databases HR, complaints or other databases the complainers talk about delivering our remedy do you think that Police Scotland has delivered a remedy for people who have been wronged? there are two aspects to that I suppose one is the effective remedy which is referred to by the IPT which was determined could only come about by an independent investigation into what's happened we've had two independent investigations I know from speaking to the complainers when I met them on 1 March last year that they feel very gravely wronged in this matter and so for me there's that separate issue about what people feel personally is an effective remedy and again I can't answer for the complainers on that because I know that is a very personal view do you think that it's legitimate that the feel continue to feel wrong? I absolutely as I said to them when I met them and I have repeated in my letters to them I feel we failed them as an organisation absolutely and that we continued to fail them by not being in contact with them and I continue to offer them my wholehearted apologies for that failing okay well my final question what reassurance can you give to the people of Scotland that we won't see a repetition of this abuse? I've spoken about organisational learning and I think it's very easy to use that phrase organisational learning I also think that it's very legitimate to make sure that those lessons are actually implemented and they do affect change the committee will be aware that Her Majesty's Inspectorate of Constabulary in Scotland carried out a very early assurance review of our CCU arrangements our countercorruption arrangements that has led to really substantial change the 39 recommendations they made have all either been completed three finally proposed for closure now and in fact HMICS are currently back in force with us carrying out a further review of the our progress on implementing those recommendations so there is independent assurance around whether we have moved on from those days thank you indeed committee will be seeking an update from the inspectorate on that any further questions can I just comment on one thing on the information that should be destroyed you sort of said it was regulation reflect the truth we were told quite bluntly it was made up and can I suggest to you unless we speak very plainly in these kind of terms to say a speed is in fact a speed and we are holding up our hands to that and we will address it then this lack of openness transparency and accountability on how the senior management and we are not talking about the rank and file who are getting on with their job on a daily basis until that openness transparency and accountability is at the very hard of what you do then we are going to be here on a regular basis I don't know if you wish to respond to that DCC we are certainly very keen that there is maximum engagement with the inspectorate and following up these 39 recommendations indeed convener and if I might just follow up Mrs Mitchell's point we have actually asked and Durham have very kindly agreed to provide independent assurance to the process of removing material which as I've said doesn't reflect the truth on all of our databases Mokie, thank you very much can I thank you all for your evidence and we now move to private session