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JUDICIAL REGISTER: ‘Judges should register their interests’ says former Judicial Investigator – as Holyrood Justice Committee set to consider SIX YEARS of work, evidence and backing from MSPs & Public Petitions Committee

Scottish Parliament probe judicial interests & register proposal. A SIX YEAR Scottish Parliament probe into Petition PE1458: Register of Interests for members of Scotland’s judiciary which generated over sixty two submissions of evidence, twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate – is set to be looked at by Holyrood’s Justice Committee, tomorrow – Tuesday 25 September.

The proposal, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

The move to create a register of judicial interests enjoys cross party support from a full debate at Holryood in October 2014.

Now, members of the Scottish Parliament’s Justice Committee are set to look at the proposals, already backed by many MSPs and the Public Petitions Committee.

Recommendations for action by Justice Committee members – listed in papers for Tuesday’s meeting include the following options:

5. Once a petition has been referred to a subject Committee it is for the Committee to decide how, or if, it wishes to take the petition forward. Among options open to the Committee are to: Keep the petition open and write to the Scottish Government or other stakeholders seeking their views on what the petition is calling for, or views on further information to have emerged over the course of considering the petition; Keep the petition open and take oral evidence from the petitioner, from relevant stakeholders or from the Scottish Government; Keep the petition open and await the outcome of a specific piece of work, such as a consultation or piece of legislation before deciding what to do next; Close the petition on the grounds that the Scottish Government has made its position clear, or that the Scottish Government has made some or all of the changes requested by the petition, or that the Committee, after due consideration, has decided it does not support the petition;

The Committee may wish to consider what action, if any, it would like to take in  relation to the petition. Possible options are set out at paragraph 5 above. If this is an issue that the Committee would like to explore further, it may wish to consider writing to those listed at paragraph 9 to ask whether they had anything to add to their earlier contributions. It could also seek more information on the Norwegian model, and then obtain an updated briefing from SPICe.

Included also in the Committee papers are submissions from the Petitioner, and Moi Ali – Scotland’s first Judicial Complaints Reviewer – who gave evidence to the Public Petitions Committee in September 2013, supporting the petition’s calls for the creation of a register of judicial interests.

The submission from Moi Ali reads as follows:

This brief submission to the Justice Committee relates to its consideration of a proposal to implement a register of interests for the judiciary. I am writing as an ordinary citizen, but my submission is informed by my experience as Scotland’s first Judicial Complaints Reviewer (JCR).

In that previous role I gave evidence to the Petitions Committee in support of a register of interests.

Although now writing in a private capacity, I have served on public boards for nearly two decades and as a Board Member I have (rightly) been required to complete a register of interests for each role, to provide assurance to the public that my dealings are not motivated by money, family connections or friendships.

The Justice Committee members who will take the decision on a register of interests, as MSPs must publish their interests too.

It is time that the judiciary joined the rest of those in public life in taking this small, simple step to improve transparency and accountability, thereby enhancing their own reputation in the process.

I have long campaigned for greater transparency in public life, yet in my role as JCR I occasionally found the judiciary to be needlessly secretive.

I am not suggesting that there was anything to hide, but a failure to be transparent inevitably left the public with whom I dealt feeling suspicious.

I will not rehearse the arguments in favour of a register of interests: they are well known.

However, I would emphasise that although opposed by the judiciary, it is in their own interests as well as the public interest that there be a register of interests.

I would like to conclude by reiterating my respect for the judiciary and the essential work that they undertake. Judicial independence is vital to a democracy, but with independence goes accountability. A register of interests is a mechanism for enhancing accountability. Ms Moi Ali 18 September 2018

In March of this year, after lengthy deliberations & evidence,  the Scottish Parliament’s Public Petitions Committee backed the petition calling for the creation of a register of interests, and concluded the proposal to increase judicial transparency – should become law.

On Thursday, 22 March 2018, the Public Petitions Committee of the Scottish Parliament held it’s 25th hearing on Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Members of the Committee concluded that such a register should be introduced into law – and cast aside arguments put forward by two top judges that such a register was “unworkable

Petitions Committee Convener Johann Lamont MSP (Scottish Labour) said: “In the course of our consideration of the petition, positive developments have occurred—most notably the introduction and further development of a register of judicial recusals. The register brings welcome transparency to instances where a judge may decide, or be requested, to decline to hear a particular case. “

“The committee particularly welcomes the recent agreement of the Lord President to expand the information that is captured in the register. However, the core action that was requested by the petition was the establishment of a register of financial interests.”

“We have given much thought to this request, hearing views both for and against such a register. Having taken those arguments into account, the committee has concluded that a register of financial interests is not unworkable, and it is the view of this committee that such a register should be introduced.”

Deputy Convener Angus MacDonald MSP (Scottish National Party) added: “This is another long-running petition, having been live since December 2012—for as long as I have been on the committee. It was originally based on a similar move in New Zealand, which was subsequently withdrawn.”

“Along with a wide range of back benchers from across the political spectrum, I spoke in favour of the introduction of a register of interests during a debate in the chamber in the previous session. It is clear to me that we need to ensure transparency and openness in public life as well as ensuring that people can have confidence in those holding public office. I believe that a register of interests along the lines of the system operating in Norway, which I have looked at, is the way to go. However, I am aware that the committee as a whole has not taken a view on that.”

“The petition has already secured a result, which you have referred to, with the introduction of a register of recusals, which was brought into effect in April 2014, directly as a result of this petition. You also referred to the fact that the current Lord President, Lord Carloway, has agreed to extend the scope of the register of recusals.”

“I would be keen for the Scottish Government and the Judicial Office for Scotland to do some further work on the introduction on the introduction of a register of financial interests. However, as you have suggested as possibly being the way forward, in the first instance we should refer the petition to the Justice Committee to allow it to move the issue forward.”

The Petitions Committee have since written to the Justice Secretary Michael Matheson, and Lord Carloway.

When responses are received, MSPs will consider further action.

Video footage and a transcript of the Public Petitions Committee hearing follows:

Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 March 2018

Judiciary (Register of Interests) (PE1458):

The Convener:  The next petition, PE1458, calls for the introduction of a register of interests for members of Scotland’s judiciary. As members will recall, we have previously agreed to write to the Lord President and the Cabinet Secretary for Justice, and have considered a draft letter at previous meetings. The petition has received much consideration since it was lodged in 2012. I express my gratitude to the petitioner for raising the issue and to all those who have engaged in discussions on the issues that are raised in the petition, including the Lord President, Lord Carloway, and his predecessor, Lord Gill.

In the course of our consideration of the petition, positive developments have occurred—most notably the introduction and further development of a register of judicial recusals. The register brings welcome transparency to instances where a judge may decide, or be requested, to decline to hear a particular case. The committee particularly welcomes the recent agreement of the Lord President to expand the information that is captured in the register. However, the core action that was requested by the petition was the establishment of a register of financial interests. We have given much thought to this request, hearing views both for and against such a register. Having taken those arguments into account, the committee has concluded that a register of financial interests is not unworkable, and it is the view of this committee that such a register should be introduced.

In reaching that view, the committee is very clear that it does not consider there to be a basis for any suggestion of corruption in respect of Scotland’s judiciary or of inappropriate influences on judicial decision making. Rather, it is the view that we have reached, based on the principles of transparency and openness in public life. While that is the view of this committee, we also understand that the Lord President and the Scottish Government have indicated they do not support the introduction of a register.

Would it be appropriate for us to invite the Justice Committee to consider the petition in light of our recommendation? Would members be content to write to the Lord President and the Scottish Government setting out our view and to refer the petition to the Justice Committee for its consideration? Do members have any comments?

Angus MacDonald (Falkirk East) (SNP): This is another long-running petition, having been live since December 2012—for as long as I have been on the committee. It was originally based on a similar move in New Zealand, which was subsequently withdrawn. Along with a wide range of back benchers from across the political spectrum, I spoke in favour of the introduction of a register of interests during a debate in the chamber in the previous session. It is clear to me that we need to ensure transparency and openness in public life as well as ensuring that people can have confidence in those holding public office. I believe that a register of interests along the lines of the system operating in Norway, which I have looked at, is the way to go. However, I am aware that the committee as a whole has not taken a view on that.

The petition has already secured a result, which you have referred to, with the introduction of a register of recusals, which was brought into effect in April 2014, directly as a result of this petition. You also referred to the fact that the current Lord President, Lord Carloway, has agreed to extend the scope of the register of recusals.

I would be keen for the Scottish Government and the Judicial Office for Scotland to do some further work on the introduction on the introduction of a register of financial interests. However, as you have suggested as possibly being the way forward, in the first instance we should refer the petition to the Justice Committee to allow it to move the issue forward.

Rona Mackay: I broadly agree with what my colleague has said. That is a natural way forward for the petition. I do not think that we can take it any further, given the history that we have just heard. I think that it is sensible to send it to the Justice Committee for its consideration.

The Convener:  Do we agree to write to the Lord President and the Scottish Government setting out our view and to refer the petition to the Justice Committee for its consideration?

Members indicated agreement.

Decision: PE1458 by Peter Cherbi on Register of Interests for members of Scotland’s judiciary. The Committee agreed to write to the Lord President and the Scottish Government setting out its view that a register of interests should be introduced and to refer the petition to the Justice Committee, under Rule 15.6.2 of Standing Orders, for its consideration.

The judicial interests petition – filed at Holyrood in October 2012 and first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary.

MSP at Holyrood have previously heard over sixty two submissions of evidence, during twenty one Committee hearings, and a private meeting between two MSPs and a top judge, and two private meetings since early December 2017 to decide a way forward on their six year investigation.

Cross party support for the Petition at the Scottish Parliament saw fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2018.

The move to create a register of judicial interests enjoys cross party support, is widely supported in the media and  in public debate as a result of media coverage.

The petition secured early support of Scotland’s Judicial Complaints Reviewer Moi Ali, and her successor – Gillian Thompson.

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013, giving early backing to the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Scotland’s second Judicial Complaints Reviewer Gillian Thompson OBE also supported  the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

Video footage and a full report on Lord Brian Gill giving evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests – Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

Video footage and a full report on Lord Carloway (Colin Sutherland) giving widely criticised evidence to the Scottish Parliament in July 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

The letters sent by the Public Petitions Committee to Lord President Lord Carloway, and Justice Secretary Michael Matheson recommend the creation of a register of judicial interests:

Dear Lord Carloway,

Petition PE1458: Register of Interests for members of Scotland’s judiciary

Calling on the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

As you may be aware, the above petition was lodged in December 2012 and has been considered by the current Public Petitions Committee and its Session 4 predecessor. Over this period MSPs have taken on board the arguments for and against a register of interests and the nature of the interests that might be covered in such a register. This letter sets out the conclusions that the Public Petitions Committee has reached on the petition.

In setting out these conclusions, I would emphasise that the Committee absolutely recognises that an independent and well-functioning judiciary is, and must be, an essential part of our system of government.

I also make clear that the Committee’s consideration of the petition, and the views set out in this letter, reflect our viewpoint that there is no basis for any suggestion of corruption in respect of Scotland’s judiciary or of inappropriate influences on judicial decision making.

The Committee has reached its views based on the wider contemporary picture of transparency and openness in public life wherein preventing the perception of any undue influence is important in ensuring confidence in those holding public office.

Register of recusals

One of the welcome developments in the course of this petition has been the introduction of a register of recusals. The Committee notes that this register was brought into effect in April 2014 directly as a result of the petition and a meeting between the then Lord President, Lord Gill, and representatives of the Session 4 Public Petitions Committee. In recent discussions with the Committee, and the petitioner, you agreed to extend the scope of the register of recusals. As a result, the register will now ensure transparency about recusal across courts and tribunals in Scotland. The Committee very much welcomes these measures.

In doing so, we note that this addresses one of the arguments made against a register of financial interests – that it would not capture those instances where consideration of any potential conflict in a case was based on a social or personal connection that may not be known about prior to a case coming to court.

The Committee agrees that the practicalities are such that it would not be possible or proportionate to require advance registration of personal connection with parties that may at some point be relevant within a particular case. However, we do consider that public transparency of such connections is vital and the register of recusals is the tool that strikes an appropriate balance in this regard.

We would also observe that the value of collating information about recusals is that it enables analysis to be undertaken of the way the recusal systems operates and for this analysis to inform ongoing thinking about the administration of justice through the Scottish courts.

Register of financial interests

Turning now to the core question of a register of interests, the Committee’s most recent consideration of the petition focussed on seeking to understand and explore some of the arguments put forward against the introduction of such a register.

These arguments have included—

• a risk of online fraud due to retribution from dissatisfied litigants (which, it was argued, may have an inhibitory effect on the administration of justice if judges start to decline roles on public bodies such as the board of the Scottish Courts and Tribunals Service) and,

• the possibility of the existence of a register of interests having a damaging effect on recruitment.

Members do, of course, have an understanding of the practical operation of a register of interests given the duties that apply to elected members. However, in considering the arguments put forward, we have not considered the role of judges as analogous to the role of elected members or had in mind any particular model for a register of interests that might be appropriate for judges.

Instead, our consideration has been based on an understanding of the expectations that apply to all holders of public office, whether elected or unelected, in relation to disclosure of financial interests. As we noted above, such disclosures not only allow for demonstration that decision-making is not influenced by personal interests but also prevent the perception of the influence of interests on decision-making.

Having considered these arguments and the thinking behind them, the Committee has not been convinced that a register of interests is an unworkable idea and it is the view of the Committee that such a register should be introduced.

Recognising that the Scottish Government and the Judicial Office for Scotland have indicated that they do not support the introduction of a register, the Committee today agreed to refer the petition to the Justice Committee, inviting that Committee to consider the petition further, in light of our recommendation.

Yours sincerely: Johann Lamont MSP Convener

The National reported on the success of the six year petition calling for a register of judicial interests, in the following articles:

Judges register backed by MSPs to become law

Martin Hannan Journalist 23 March 2018

IT’S taken nearly six years and 25 hearings but as The National predicted yesterday, a register of interests for all Scottish judges is set to become law.

The petition for a register by legal issues campaigner Peter Cherbi will now go the Justice Committee at Holyrood with a recommendation that the register becomes law.

The current and previous Lord Presidents, Lord Carloway and Lord Gill respectively, both strongly opposed the register which they feel will make it difficult for judges to be recruited.

Committee chair Johann Lamont said: “The committee has concluded that a register of financial interests is not unworkable and it is the view of the committee that such a register should be introduced.”

She said the committee’s view had been reached with regard to “the principles of openness and transparency in public life”.

Having achieved his success after years of work, Peter Cherbi told The National: “I am delighted to hear the Public Petitions Committee support the creation of a register of interests for judges, and applaud their work on this petition.

“From filing the petition in 2012, being a part of the process to submit evidence, report on hearings, and observing witness evidence, I am very impressed that Holyrood followed this through from committee, to a full debate in the main chamber in October 2014, where the petition gathered overwhelming cross party support, to now, with the decision to recommend the creation of a register of judicial interests.

“Key evidence from Judicial Complaints Reviewer Moi Ali in September 2013 was, I believe, the turning point and a key moment where the proposal for register of judicial interests gathered steam.

“MSPs were able to hear for themselves from someone within the justice framework how a register of interests for judges would not only benefit transparency, but also bring back much needed public trust and respect to the justice system and our courts.

“My sincere thanks to MSPs Angus MacDonald, David Torrance, current Convener Johann Lamont, ex-convener David Stewart, Jackson Carlaw, particularly Alex Neil who asked key questions several times in the process, former MSPs Chic Brodie and John Wilson and all members of the Public Petitions Committee past and present who have given their considerable time, effort and input into this petition, have taken the time to study the evidence, and arrive at the conclusion transparency in the judiciary is a good thing, and not as Lord Carloway and Lord Gill claimed ‘unworkable’.”

This is a good day for the Scottish Parliament and for transparency.

The Sunday Mail print edition reported on the Petitions Committee backing for legislation to require judges to declare their interest, and also featured a report on Alex Neil MSP – who supports the judicial transparency proposals and is prepared to bring in a Members Bill to create a register of judges’ interests:

BATTLE TO BRING IN JUDGES’ REGISTER

Sunday Mail 25 March 2018

Ex-minister Alex Neil will defy Nicola Sturgeon with a bill forcing Scotland’s judges to declare their interests.

Holyrood’s petitions committee have asked the Government to legislate for a register which may include details of financial, professional and personal connections of judges, sheriffs and justices of the peace.

Sturgeon is expected to reject the committee’s recommendation. But Neil believes there is enough cross-party support to raise his own bill, in a rare act of SNP backbench rebellion.

He said: “If no bill is brought forward by the Government, I would intend to do so myself, as there is significant support from other MSPs.”

Former health secretary Neil backs the register after representing constituent Donal Nolan, who took Advance Construction to court over a land dispute.

It later emerged that judge Lord Malcolm sat on the case despite his lawyer son Ewen Campell acting for the construction firm.

Neil said: “If the committee decide to recommend a bill, it is absolutely necessary as I have seen from cases such as Nolan v Advance Construction where there were undeclared interests.”

The Scottish Sun print edition also reported on the Petition Committee’s backing for a register of judicial interests and Alex Neil MSP’s plan for a Member’s Bill:

JUDGE LIST IS BACKED

Scottish Sun 23 March 2018

MSPs defied Nicola Sturgeon yesterday by calling for judges to list their financial ties.

Holyrood’s cross-party Public Petitions Committee backed a register of interests for the judiciary.

Its convener Johann Lamont said the move was based on “principles of transparency and openness in public life”.

Top judge Lord Carloway claimed the register would hit recruitment and the Government has said it was “not needed”.

Last night Nats MSP Alex Neil warned if plans for the list are not backed he is “prepared to do it as a Member’s Bill”.

A further report in The National newspaper:

MSPs to call for judges’ register in Scotland after years-long campaign

Martin Hannan Journalist 22 March 2018

AFTER nearly six years and 25 sittings of evidence and debate on the petition to create a register of judges’ interests, The National has learned that the Holyrood Petitions Committee is set to recommend legislation to the Scottish Government.

The petition lodged by legal issues campaigner Peter Cherbi in 2012 called for a Register of Pecuniary Interests Bill and when it meets later today, the Petitions Committee will have a draft letter before it suggesting the Scottish Government brings in such a register.

Cherbi’s petition has been strongly supported by MSPs such as Alex Neil and equally strongly opposed by members of the judiciary led by the current and former Lord Presidents, Lords Carloway and Gill respectively, who said it could be harmful to judges and their recruitment.

Cherbi said last night: “Everyone apart from the judiciary, and apparently those with a desire on becoming a judge, gets the idea that judges should declare their interests in a register, just like everyone else in public positions.

“For the judiciary to have stalled this transparency proposal on their reasoning that judges should be given a pass from transparency just because they are judges does not fit in with modern life or expectations by the public of openness in government and the justice system.

“Two top judges have given evidence. Both adopted overwhelmingly aggressive positions to the idea that the same transparency which exists across public life, and which they are charged with enforcing in our courts, should be applied to them.

“Yet amidst their inferences that justice would shut down, judges could not be hired, and the world would stop turning, neither Lord Carloway nor Lord Gill could make a convincing case against creating a register of judicial interests.

“Prosecutors, police, court staff, even the legal aid board – all key parts of the justice system have registers of interest. Therefore there can be no exclusion from transparency for the most powerful members of the justice system – the judiciary itself.

“Who would have thought judges would have been so fearful of transparency and disclosing their own interests, that it would have taken six years for the Scottish Parliament to reach this stage of recommending legislation? Time now to take openness forward for our judiciary, which will ultimately help regain a measure of public confidence in the courts.

“This is a win win for Scotland. We as a team, petitioners, the media, Judicial Complaints Reviewers, those in our courts and even the legal profession who back this move – changed the judiciary’s expectations of openness and requirements of transparency.”

The video timeline of debate at the Scottish Parliament’s Public Petitions Committee from 2012 to 2018 on Petition PE1458:

Petition PE1458 Register of Interests for Scottish Judiciary Scottish Parliament 8 January 2013

The Committee decided to call for submissions on the petition from the Lord President, the Law Society of Scotland, Faculty of Advocates and Crown Office.

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament

Petition PE1458 by Peter Cherbi calling on the Scottish Parliament to legislate to create a Register of Interests for Scotland’s judiciary was heard today 5 March 2013. The Committee decided to call for further evidence and also to invite the Lord President Lord Gill and others along to speak to MSPs and be questioned on the matter.

Petition 1458 Register of Interests for Scotland’s Judiciary Scottish Parliament 16 April 2013

 

A petition calling for a register of interests for Scotland’s judiciary has again been debated at the Scottish Parliament, where upon the Lord President Lord Gill’s refusal to attend the Petitions Committee to give evidence, the Petitions Committee decided to repeat its invitation to Lord Gill to attend, and also agreed to seek the views of the Judicial Appointments Board and the Judicial Complaints Reviewer.

Petition 1458 Register of Interests for Scottish Judiciary 25 June 2013 Scottish Parliament

Members of the PPC decided to invite Moi Ali, the Judicial Complaints Reviewer to give evidence and also to contact Dr Kennedy Graham MP of the New Zealand Parliament. Dr Graham currently has a bill before MPs in New Zealand calling for a Register of Pecuniary Interests of Judges. During the debate it was noted Lord Gill has refused to attend the Scottish Parliament to discuss the petition and judge’s interests, but has attended the Justice Committee to discuss court closures in Scotland.

Evidence from Judicial Complaints Reviewer Moi Ali on Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament

Moi Ali, Scotland’s Judicial Complaints Reviewer gives evidence to MSPs at the Scottish Parliament regarding Public Petition PE1458 calling for a Register of Interests for Scotland’s Judiciary.

Petition 1458 Register of Judicial Interests Public Petitions Committee 28th January 2014

Following a private meeting between Scotland’s top judge, the Lord President Lord Brian Gill, and the Convener & Deputy Convener of the Public Petitions Committee of the Scottish Parliament,the Committee agreed today, 28 January 2014 to defer consideration of Petition PE1458 by Peter Cherbi calling on the Scottish Parliament to create a register of judicial interests, pending receipt of a letter from the Lord President.

The Convener, David Stewart MSP and Deputy Convener, Chic Brodie MSP reported back to members on what had been said at the private meeting with Scotland’s top judge who refused to attend the Scottish Parliament to be questioned on his deep seated opposition to the proposal to requie Scottish judges to declare all their interests, hidden wealth, family & business links and other matters which may impact on cases being heard before judges in Scottish courts.

Committee Member John Wilson MSP requested details of the private meeting with the judge be put on the official record of the Committee, and Jackson Carlaw MSP drew attention to the fact had it not been for the Petitions Committee asking tough questions there would not even be any letters forthcoming from Lord Gill.

The petition will be heard once a letter has been received from Scotland’s top judge, who appears to be set against any attendance to face questions on why judges should not be required to register their interests, unlike all other public officials, politicians, Government Ministers and others.

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

The Committee agreed to seek time in the chamber for a debate on the petition. The Committee also agreed to write to the Lord President and the Scottish Government.

Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament Public Petitions Committee

The Committee agreed to continue the petition, and is seeking a debate in the main chamber of the Scottish Parliament. The Committee also agreed to write to the Lord President and the Scottish Government for more detailed responses.

The next fifteen video clips are from the debate held at the Scottish Parliament on Thursday 09 October 2014, in which MSPs, Scottish Government ministers and members of the Public Petitions Committee spoke in the debate. The full text of the speeches of each MSP can be found here: DEBATING THE JUDGES: Cross party support for proposal seeking a register of interests for members of Scotland’s Judiciary as Scottish Parliament holds first ever debate on judicial accountability & transparency

David Stewart MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

David Stewart: The committee’s motivation in giving consideration to the issue and in seeking time in the chamber to debate it is a point of principle and comes from the starting point of there being an assumption of openness and transparency in all areas of public life in order to shine a light, if you like, into every corner of Scottish society.

Roseanna Cunningham MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Roseanna Cunningham: The setting up of a register of judicial interests would be a matter for the Lord President, as head of the judiciary in Scotland. The Lord President takes the view that a register of pecuniary interests for the judiciary is not needed. Furthermore, a judge has a greater duty of disclosure than a register of financial interests could address.

Graeme Pearson MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Graeme Pearson: Until the petition was discussed, there was no knowledge of recusals in the public domain. I welcome the fact that, as of April this year, the Lord President has introduced a register of recusals. It is fair to say that without the petition and the work of the Public Petitions Committee, such a register would probably not have been considered.

Jackson Carlaw MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Jackson Carlaw: It is perhaps difficult to take on the judiciary, because judicial independence is always mentioned. As I said, that is a cornerstone of democracy, but because there has been no separation of accountability and independence, it is easy for the judiciary to say, ‘We are independent, so don’t interfere in that.’ Unless independence and accountability are separated, legislation will continue to include no requirement for more openness and transparency.”

Angus MacDonald MSP Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

Angus MacDonald: If we as elected members have to register and declare our interests, I see no reason why members of Scotland’s judiciary should not be subject to a full and publicly available register of judicial interests.

Anne McTaggart MSP Register of Judicial Interests debate – Petition PE1458 Scottish Parliament 9 Oct 2014

Anne McTaggart: In Scotland, claims continue to emerge of trials that have been unfair as a result of religious, ethnic or national bias. As long as those claims continue to exist, it is the Parliament’s job to promote fair government. In conclusion, I declare my support for the petition and encourage support from all the other MSPs.

David Torrance MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct

David Torrance: Although I understand that conflicts of interest are on occasion declared in open court prior to taking on a case, the introduction of a register of interests would provide a more consistent and sound basis on which to move forward.

Neil Findlay MSP speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

Neil Findlay: We need to do much more to make our society less secretive and less closed, and I think that the register that we are discussing is just one step towards that end. I, for one, give it my full support and urge other MSPs to do the same.

Joan McAlpine MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct 2014

Joan McAlpine: I gently suggest to the Lord President, in whose gift it is to set up a register, as we cannot legislate for it in the Parliament, that he should be mindful of the need for the judiciary to move with the times, along with every other public institution, in order to retain the confidence of the public.

John Wilson MSP speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

John Wilson: A register of interests for judges is an area in which we could move forward and build more confidence in the system that we have in place.

Stewart Stevenson MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Stewart Stevenson: I encourage Lord Gill and his successors to think about recalibrating their relationship with Parliament.

Jackson Carlaw MSP closing speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 October 2014

Jackson Carlaw: Mind you, I would point out that we, too, swear an oath, but we nonetheless still subscribe to a register.

Elaine Murray MSP Register of Judicial Interests Petition PE1458 Scottish Parliament 9 October 2014

Elaine Murray: “Given the position of power held by the judiciary, it is essential not only that they have absolute integrity–but crucially, that they are seen to have absolute integrity.” Therefore, the issue is not that anyone doubts the judiciary’s integrity, but that the public need to see that integrity.

Roseanna Cunningham MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Roseanna Cunningham: A number of members referred to the register of interests of MSPs. However, the situation is different, because we are directly accountable to the electorate.

Chic Brodie MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Chic Brodie: There is concern that a register would have unintended consequences—a phrase that has been used often in the debate—for the judiciary’s freedom and privacy and its freedom from harassment from the media or dissatisfied litigants. Those are concerns, but they are no less so for others in public life, including MPs and MSPs, who may be attacked publicly for non-declaration of interests. Although it is argued that the establishment of a register may have the unintended consequence of eroding public confidence in the judiciary, it might equally be argued that its absence might have the same effect.

The debate at the Scottish Parliament now returns to deliberations of the Public Petitions Committee on Petition PE1458 – A Register of Interests for members of Scotland’s Judiciary:

Register of interests for judiciary Petition PE1458 Scottish Parliament 28 October 2014

Paul Wheelhouse Register of Judicial Interests Petitions Committee Scottish Parliament 9 Dec2014

Minister for Community Safety Paul Wheelhouse gives evidence to the Public Petitions Committee on their investigation of proposals to create a register of judicial interests as called for in Petition PE1458. Mr Wheelhouse on behalf of the Scottish Government opposes the creation of a register which will inform the public about what judges have, their interests, links to big business, banks, shares in corporations and tax avoidance scams.

Petition 1458 Register of interests for Scotland’s Judiciary Scottish Parliament 12th May 2015

The Scottish Parliament’s Public Petitions Committee discussed Petition PE1458 on Tuesday 12 May 2015. The Committee agreed to call Gillian Thompson OBE – Scotland’s current Judicial Complaints Reviewer to give evidence on the creation of a register of judicial interests.

Evidence of Gillian Thompson Judicial Complaints Reviewer Register of Interests for Judges Petition PE1458 Scottish Parliament 23 June 2015

The Scottish Parliament’s Public Petitions Committee discussed Petition PE1458 on Tuesday 23 June 2015. The Committee took evidence from Gillian Thompson OBE – Scotland’s current Judicial Complaints Reviewer who gave evidence in support of the creation of a register of judicial interests.

Lord Brian Gill evidence to Public Petitions Committee Scottish Parliament 10 Nov 2015

Lord Brian Gill, former Lord President and Lord Justice General of Scotland gives evidence to the Scottish Parliament’s Public Petitions Committee on Petition PE1458 calling for a register of interests for judges.Gill refused two earlier invitations to appear before the Public Petitions Committee in 2013 and was dubbed “Lord No No.”. Several times during the debate the 73 year old ‘retired’ Lord Gill called on the panel of MSPs to show faith in the UK judiciary and scrap the petition along with calls for greater transparency of judges interests.

Petition PE1458 Register of Interests for Judges Public Petitions Committee Holyrood 1 Dec 2015

Petitions Committee member Kenny MacAskill MSP calls for the committee to invite the new Lord President upon their appointment to appear to give evidence. Convener Michael McMahon MSP agrees to write to the new Lord President.

Petition PE1458 Register of judicial interests Scottish Parliament 23rd February 2016

The Committee decided Lord Carloway is to be called to give evidence, MSPs will also contact Professor Alan Paterson of the University of Strathclyde for evidence.

Petition PE1458 Public Petitions Committee Scottish Parliament 29 Sept 2016

The Petitions Committee decided to call Lord President Lord Carloway to give evidence, and also hear from Professor Alan Paterson of the University of Strathclyde.

Petition PE1458 Register of Interests for judges Public Petitions Committee 22 Dec 2016

MSP Angus MacDonald (SNP) moves to call Professor Alan Paterson to give evidence to the committee and for msps to consider evidence from the Professor then to contact the Lord President, Lord Carloway.

Professor Alan Paterson Petitions Committee PE1458 19th Jan 2017

Professor Alan Paterson evidence to Public Petitions Committee on creating a register of interests for members of Scotland’s judiciary.

PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

Members of the Scottish Parliament’s Public Petitions Committee decide to invite Lord President Lord Carloway to provide evidence before the Committee at a future date, and to invite Alex Neil MSP to appear before the Committee at the same meeting. The decision was taken after Lord Carloway offered concessions on the recusal register of Scotland’s judiciary – created as a result of this petition.

Lord Carloway Register of Judges interests Petitions Committee Scottish Parliament 29 June 2017

Lord Carloway gives evidence to the Public Petitions Committee on a proposal to create a register of judicial interests for members of Scotland’s judiciary. The proposal has been investigated by the Scottish Parliament for five years, there is wide support for the register, from cross party msps to the media to both Judicial Complaints Reviewers.

The Petition will next be heard on Thursday 7 December 2017 where the Public Petitions Committee will be asked to consider taking evidence from Baroness Hale, President of the UK Supreme Court, and to seek further evidence on the operation of Norway’s Register of Judicial Interests.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

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DEPUTY CASH CONSTABLE: Top Cop who asked for her expenses in cash – fails to impress Holyrood Justice Committee with lack of answers over delays to dealing with Durham Constabulary probe of Police Scotland illegal spying scandal

DCC Rose Fitzpatrick could not explain delays over report. A DEPUTY Chief Constable of Police Scotland – who asked for her relocation expenses to be paid by cash – has failed to explain to MSPs why emails between senior officers took three months to release to a probe on activities surrounding an illegal Police spying operation connected to the unsolved murder of Emma Caldwell.

And, it emerged at a hearing on Thursday at the Scottish Parliament’s Justice sub-Committee on Policing – that Police Scotland witnesses were unable to explain why contact details for retired officers who were of relevance to the probe being carried out by Durham Constabulary – were withheld for at least two months..

Evidence from Deputy Chief Constable Rose Fitzpatrick during Thursday’s session at Holyrood was braded unbelievable and “absolutely staggering” by MSPs on the justice committee.

Margaret Mitchell MSP (Scottish Conservative) who is convener of the full Justice Committee – was unable to secure a reasonable explanation from the witnesses as to why information was not handed over to Durham Constabulary during the investigation.

Frequently during answers to members of the Committee, the Deputy Chief Constable referred to legal advice on what could or could not proceed, yet DCC Fitzpatrick remained vague throughout each response.

At one point Ms Mitchell said she “remains unconvinced at answers given today”.

Ms Mitchell later dismissed an explanation by deputy chief constable Rose Fitzpatrick regarding what the police had learned from their failings.

MSPs also criticised Police Scotland’s “overly secretive approach” to investigations into their illegal spying activities against journalists, sources & Police officers.

Reports subsequently generated by these investigations – the published – yet heavily redacted report by Durham Constabulary, and the so-far unpublished Police Service of Northern Ireland (PSNI) report on misconduct were branded as attempts to conceal information which had already been published in other areas.

Deputy Chief Constable Fitzpatrick admitted during her evidence that Police Scotland had failed four officers at the centre of the illegal spying probe, but then she went on to defend her colleague’s handling of the independent investigation carried out by Durham Constabulary’s Chief Constable – Michael Barton.

During an appearance at the Justice sub-Committee on Policing in February, Chief Constable Michael Barton told the committee he had originally been asked to carry out an investigation into the Counter Corruption Unit (CCU) following a ruling of the Investigatory Powers Tribunal (IPT).

However, it emerged in Mr Barton’s evidence the investigation was later downgraded to an inquiry.

Struggling to give acceptable responses without continually referring to legal advice, DCC Fitzpatrick admitted there had been a “significant difference of professional view” between herself and the Durham Constabulary Chief Constable on how to proceed with the probe – but that a resolution had been found after Police Scotland obtained legal advice.

A full report on the Durham Chief Constable Michael Barton’s evidence to the Justice sub-Committee on Policing can be read here: FAIR COP: Police Scotland officers fabricated intelligence in order to spy on journalists & sources in CCU spying scandal – evidence from Durham Constabulary’s Chief Constable to Holyrood Justice Committee

The 80 minutes of ‘evidence’ from Police Scotland witnesses – which included – Duncan Campbell, Interim Head of Legal Services, and Superintendent Andy McDowall, Professional Standards Department, Police Scotland. was widely criticised in the media and by cross party politicians.

The full evidence session with DCC Rose Fitzpatrick & other witnesses at the Scottish Parliament’s Justice sub-Committee on Policing can be viewed here:

DCC Rose Fitzpatrick evidence to Justice Sub committee on Policing – Holyrood 15 March 2018

Full written transcript of the hearing :

Counter-corruption Unit (Durham Constabulary Reports)

The Convener: Agenda item 2 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 Deputy Chief Constable Rose Fitzpatrick; Duncan Campbell, interim head of legal services with Police Scotland; and Superintendent Andy McDowall from the professional standards department of Police Scotland. Thank you for the written submissions. We will go straight to questions.

Daniel Johnson (Edinburgh Southern) (Lab): I begin with the central contention, which is the status of the work that was undertaken by Durham Constabulary. The first paragraph of the letter that Police Scotland wrote to Durham Constabulary on 28 July 2016 asks Durham Constabulary to agree to undertake “an independent investigation relative to the non-criminal complaint allegations identified by IOCCO.”

We have a more recent letter from the Investigatory Powers Tribunal, which sets out its query about the nature of that work. The tribunal said that you had not, in accordance with its order, referred the matter to the Durham force for investigation and asks for your response. I understand that you provided a response. However, given the language of your initial letter and the understanding of the Investigatory Powers Tribunal, it is understandable that Durham Constabulary is confused, and perhaps upset, about the ambiguity relating to the nature of the investigation and indeed whether it was an investigation. What would you say to that summary and analysis of those understandings and the communications that there have been on the matter?

Deputy Chief Constable Rose Fitzpatrick CBE QPM (Police Scotland): The first thing that I would say is that I am very grateful to Durham Constabulary for its thorough and professional report, which was produced for us under its terms of reference. The letter that you refer to asked Durham Constabulary to undertake an independent investigation “relative to the non-criminal complaint allegations”, and that was set out in the terms of reference. It should not be a surprise that, in something as important and complex as this, at particular times we should all want to ensure that we were operating in accordance with the terms of reference and, particularly importantly, that we were operating effectively under the law in Scotland.

When the chief constable of Police Scotland first asked me to become, in effect, the decision maker in this matter—that was in January 2017, and he formally appointed me to the role in February 2017—I engaged straight away with Mr Barton to discuss the complaints investigation and 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 Service of Scotland (Conduct) Regulations 2014, I of course listened carefully to that.

It is not unusual in complex matters for there to be a difference of professional view about the best way of progressing, but we were clear that he and Durham Constabulary had been asked to undertake an independent investigation only into the non-criminal complaint allegations and that our conduct regulations require other stages to take place should there require to be an investigation into the conduct of individual officers.

As the sub-committee will be aware, we had a number of discussions about that. Mr Barton helpfully came up to discuss that with me in person on 30 January 2017. I listened carefully to what he said and I felt that it was my responsibility to take legal advice. The committee will have seen the senior counsel’s opinion that we received. That made it clear that, because we were operating under the 2014 conduct regulations, we needed to go through the process that is set out in those regulations. In effect, we needed to carry out an assessment in order for me to make a decision on whether there should be a conduct investigation and, if so, who should be appointed to undertake it.

Both of those investigations were conducted independently. Durham Constabulary’s investigation was clearly independent of us and its conclusions were arrived at independently, and then there was the separate conduct investigation, which was undertaken by the Police Service of Northern Ireland, and again its conclusions were arrived at independently.

Daniel Johnson: You raised the matter of the regulations, about which we had a considerable degree of discussion when Chief Constable Barton was in front of us. I refer to the Official Report of that meeting and the discussion on the preliminary assessment. I understand the importance of that, given the different way in which complaints are made in Scotland compared to the process in the rest of the United Kingdom, but the evidence about the preliminary assessment was somewhat worrying. Darren Ellis said:

“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 again told 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 that work was ever done”.—[Official Report, Justice Sub-Committee on Policing, 22 February 2018; c 18.]

Further to that, in responding to Chief Constable Barton about whether or not they knew even at that point, Darren Ellis said, “We do not know.” Given the importance of that preliminary assessment, which you acknowledge, is that not a deeply worrying state of affairs and a worrying report, in relation to the lack of clarity and the prospect that such an assessment had not been carried out? What would you say to that?

Deputy Chief Constable Fitzpatrick: I would say 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. As you rightly say, Durham Constabulary was asked to do the work in July and August 2016. I believe that Mr Ellis and his team were appointed to progress the work further in November 2016 or certainly late in 2016. When they had completed their report and provided it to us in May 2017, that triggered, under regulation 10 of the conduct regulations, what is known as a preliminary assessment.

I considered the conclusions of the complaints inquiry and the result of the investigation, which had identified that there were a number of officers whose conduct, if proven, might amount to misconduct, and I agreed with that assessment. I agreed with those conclusions in my preliminary assessment and my decision was that a number of the officers should be the subject of a conduct inquiry to determine whether, on the basis of the evidence that that inquiry would look at, they should subsequently face misconduct proceedings, for example. That was the point at which the regulations provide for the preliminary assessment to be carried out, as the bridge between the complaints allegations and any subsequent misconduct investigation.

Daniel Johnson: Just to recap, we had confusion and perhaps disagreement about the status of the work that Durham Constabulary was carrying out; we had a difference of opinion about the interpretation of the regulations, as we have heard from Mr Barton; and we had, at best, a lack of clarity in Durham Constabulary about whether a preliminary assessment, which we all agree is a very important step in the process, existed. It strikes me that those are three fundamental and important issues on which there was a fundamental difference of understanding between Police Scotland and Durham Constabulary over what we can all agree is a serious and important matter. Does that not speak to a very worrying situation? How would you explain that and what lessons have you taken from that situation?

Deputy Chief Constable Fitzpatrick: It clearly is a really important issue for all of us. We have been clear that our failings in 2015, which were the subject of the report of the Interception of Communications Commissioner’s Office and the IPT judgment and order, were severe. We were also clear that our responsibility was to provide Durham Constabulary with all the support that it needed to conduct its independent complaints investigation.

When I took up the responsibility of being 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 and, as I said, he raised the issue of the terms of reference. We were all very conscious of our responsibilities to ensure that the process was undertaken under the conduct regulations. From my point of view, I had a responsibility to ensure that, if Mr Barton required any issues to be resolved or if he needed any material, we could resolve those along the way. I hope that you will see from the exchange of letters that we were able to do that as we went.

The issues were very complex and important. I did not find it surprising that Mr Barton and Durham Constabulary should want to progress in the way that they thought fit. I was certainly conscious of my responsibility to ensure that we were progressing clearly in line with the conduct regulations. When the moment came to determine the issue about Durham Constabulary being able to move from a complaints investigation straight into a conduct investigation, I felt clearly that I had a responsibility to take proper legal advice about that, and you will see that we took senior counsel’s opinion.

We then agreed to progress on the basis of the original terms of reference and under the 2014 conduct regulations. The letter that we received with Mr Barton’s report on 12 May acknowledges that point. He said:

“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 clarifications on the status of my enquiry. I’m glad to say that was ultimately resolved”.

He went on to say: “I have, I trust helpfully, referred further to this issue in the ‘Lessons learned’ chapter”, which is a chapter in his final investigation report.

I think that we all acknowledged that there was a professional difference of view on the issue. Ultimately, we resolved that and agreed to proceed on the basis of the terms of reference and the interpretation by senior counsel of the conduct regulations as they operate in Scotland.

Daniel Johnson: Frankly, I am struggling to reconcile what you are telling me with what Chief Constable Barton said. From the way that you have just put it, it sounds as if you left things in a very amicable way in which all parties understood one another. However, in his evidence, Chief Constable Barton characterised Police Scotland, and in particular the legal department, as acting in an “overly legalistic” and “risk averse” way. The conclusion that one would draw from that is that procedure was getting in the way of looking after the wronged police officers. If everything was so amicable and nothing was wrong, why did Chief Constable Barton give the evidence that he gave to this committee?

Deputy Chief Constable Fitzpatrick: I have reflected the fact that we had a significant difference of professional view, which was resolved by the taking of legal advice and an agreement that we proceed on the basis of the original terms of reference that Durham Constabulary was given and the two sets of legal advice that we had received from senior counsel. Mr Barton’s letter of 12 May reflected that. I have spoken about and read from his letter the point about the lessons learned part of his report.

The committee will be aware that we have been keen to ensure that all of the lessons are learned from each of the individual independent reports that we have had, from the IOCCO report and the IPT judgment and order through to Her Majesty’s inspectorate of constabulary in Scotland’s 39 recommendations in its assurance review of the CCU, right through to the Northumbria Police, Durham Constabulary and PSNI reports. There has been learning for us in all of those that sits alongside the actual findings of the investigations.

A huge amount of work has already gone on, certainly on the 39 recommendations from the HMICS review. We are clear that, where there are things to be learned about the processes, such as those with Durham Constabulary, we will take those on. I do not for a moment suggest that, in our many conversations and exchanges of letters, Mr Barton did not raise points with me where he felt that we could provide something to him or perhaps provide a little more support to his team. As soon as I became aware of those issues, we resolved them as we went along. As I say, it was a complex matter that went on for a long time, so I am not surprised that, given that all of us were determined to proceed in the right way, there were differences of opinion. As I believe you can see from Mr Barton’s final letter to us, ultimately, they were resolved by the way that we agreed to proceed.

The Convener: Deputy chief constable, you are the disciplinary authority for Police Scotland. On receipt of the IOCCO report, could you have decided that there would be no conduct proceedings?

Deputy Chief Constable Fitzpatrick: I suppose that, technically, that would have been the case. I was not the disciplinary authority then. In fact, I was asked by the chief constable to be the disciplinary authority in this particular case only in early 2017. I know that the IOCCO determination, which was received in November 2015, was followed by complaints from four complainers in, I believe, March 2016. Those complaints were referred to the Crown Office. At that point, therefore, we had complaints that we were bound to ensure were investigated. My understanding is that, when the 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 at that point I understand that it was agreed with the complainers that the complaints would be pended until the IPT hearing, which took place in July, followed by the IPT judgment and order in August. It was at that point that the complaints were referred to Durham Constabulary, which was asked to conduct its independent complaints investigation.

The Convener: What was the status of the individuals who were interviewed in the investigation or inquiry that you asked Durham Constabulary to do? Were they witnesses, suspects or accused?

Deputy Chief Constable Fitzpatrick: Under a complaints investigation, there would have been complainers—there were four complainers in this case—and witnesses, in relation to establishing the substance of the complaints and the recommendations relating to the complaints. There are issues around conduct investigations. Such investigations are clearly defined in the conduct regulations, 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—in other words, officers who are subject to a conduct investigation.

The Convener: The legal opinion talks about that and the position of challenge, were that to happen. Conversely, given the direction that you had given Durham Constabulary, was there the potential for anyone who was interviewed to have been compromised if they were subsequently to become a subject officer or an accused?

Deputy Chief Constable Fitzpatrick: That was never raised with us by Durham Constabulary. There will always be cases in which, before a determination is made, people may be spoken to, but it then becomes clear subsequently that perhaps they need to become a subject officer—that is, their conduct needs to be investigated because it is considered that there may be a possibility of misconduct or gross misconduct. It is the preliminary assessment that makes that decision. In this case, as a result of its investigation, Durham Constabulary identified a number of officers in relation to whom, in its view, a decision needed to be taken as to whether their conduct needed to be investigated. That was the preliminary assessment point that led to the conduct investigation.

The Convener: Just for completeness, did Durham Constabulary interview the people whom it subsequently said could be subject to disciplinary proceedings?

Deputy Chief Constable Fitzpatrick: I do not believe that it did.

The Convener: What, if anything, should this committee read into the fact that ex-DCC Richardson did not co-operate with the Durham Constabulary inquiry?

Deputy Chief Constable Fitzpatrick: I really cannot say, I am afraid. The inquiry was independent and I had no role; the organisation would have provided details of retired officers to Durham Constabulary.

The Convener: Nonetheless, in this instance you are the disciplinary authority and Mr Richardson had been the disciplinary authority. Would you not have anticipated full co-operation from your predecessor?

Deputy Chief Constable Fitzpatrick: Durham Constabulary was conducting two parallel non-criminal complaints investigations, one on our behalf and the other on behalf of the Scottish Police Authority. Any issues concerning senior officers would have been part of the senior officer complaints investigation, which came under the auspices of the SPA.

The Convener: Nonetheless, Mr Richardson could have been a witness or, if he was a serving officer, subject to investigation. Do you have no view on his unwillingness to co-operate?

Deputy Chief Constable Fitzpatrick: I am simply saying that, if approaches were made to him, I am not aware of what the conversation was. I am really not in a position to comment.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP): I want to be clear on the sequencing. We have Chief Constable Barton submitting his investigation conclusions on 12 May 2017; that is the end of one chapter, it seems to me. The next step, as you have described it, 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—separate from its submission of a report—would there have been from Durham Constabulary? Would you simply have gone back to clarify points, or was Durham Constabulary out of the picture, with no role in the preparation of the preliminary assessment beyond the fact that it had submitted a report that you would be drawing on?

Deputy Chief Constable Fitzpatrick: I am very fortunate that I have a conduct expert to my left, but I will try to answer that myself and then hand over to Superintendent McDowall, who will put me right on anything that I may leave out.

Durham Constabulary’s independent complaints investigation was complete and entire in itself. It came to the conclusion that a number of the complaints were upheld, that some were partially upheld and that others were not upheld. It took the view that there was a prima facie case involving a number of officers, which, if proven, might lead to a finding that their conduct was in fact misconduct and in breach of the standards of behaviour that we expect of professional police officers.

My decision making was formed with support—in this case, that support was an assessment of the particular matters that came out. We separate out the complaints issue, we look at the individual officers, and then I make a decision on the basis of what is provided to me—in this case, the Durham Constabulary report—as to whether there is a prima facie case that requires to be investigated. Durham Constabulary spoke about eight officers originally. Looking at the case in detail, I determined that, for seven of those officers, there 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.

Stewart Stevenson: In relation to how you came to your conclusion, you used the phrase “with support”, and that is really what I am focused on. What was that support? Where did it come from? Did it involve going back to Durham Constabulary to say, “You have come up with this charge sheet,” and to get further information, so that the preliminary assessment could be as complete and reasonable, in all sorts of ways, as would be necessary? I just want to know whether, after 17 May, Durham Constabulary was no longer part of the decision-making process, or whether it was still advising you.

Deputy Chief Constable Fitzpatrick: I did not go back to Durham Constabulary other than to thank it for its report. I do not know whether any of my colleagues in our conduct world felt that it would have been appropriate or helpful to do that at that stage.

Superintendent Andy McDowall (Police Scotland): Mr Stevenson, there is not much more that I can add to the deputy chief constable’s interpretation of how we formulated that regulation 10 preliminary assessment. The Durham Constabulary report was conclusive, and it was the information contained within that report that allowed us to formulate an assessment so that we could progress matters under the conduct regulations, as required. It was the Durham Constabulary report that the regulation 10 preliminary assessment was based on.

Rona Mackay (Strathkelvin and Bearsden) (SNP): I do not want to labour this too much, but can I ask you a bit more about the terms of reference? I feel that I need clarification, and I am still quite confused by it all. Chief Constable Barton said that it was three to four months into his investigation when he was told it would not be an investigation, that he did not have full investigatory powers and that it would instead be an inquiry. Is that when you took over, Deputy Chief Constable Fitzpatrick—after the preliminary work had been done and you decided to take legal action? I am puzzled as to why the original remit from the chief constable of Police Scotland did not take that approach at the outset.

Deputy Chief Constable Fitzpatrick: As I said earlier, I did not become the decision maker until the end of January 2017—I was appointed officially on 14 February 2017. The terms of reference were set out in a letter to Durham Constabulary from the chief constable of Police Scotland on 4 August 2016. Durham Constabulary began work at that point and I first engaged with Mr Barton in January 2017 when the work had been under way since August.

Rona Mackay: That is what I am trying to determine. Was it after you had sight of that work that you decided that a different procedure needed to take place? Was it at that point that you said, “I need to take legal advice”?

Deputy Chief Constable Fitzpatrick: Those were simply my initial conversations with Mr Barton. I spoke to him at the end of January, we had a meeting on 30 January 2017 and we had an exchange of letters about the terms of reference. Until then, I was not aware 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 that with me, I had to listen very carefully. Then I determined that I needed to take some legal advice on the application of the conduct regulations in Scotland to the particular circumstance, and that is when I did that.

Rona Mackay: When you were liaising with him, how long was it before you realised that you would need to take advice?

Deputy Chief Constable Fitzpatrick: We had a number of conversations and we had an exchange of letters in February. Then I received senior counsel’s opinion on 21 March 2017. It was sequential: we talked about the terms of reference, we realised that we had a different professional view about the issue and we discussed it. I believe that Mr Barton said that he took legal advice—my recollection is that he mentioned that to me—and we also took legal advice. Importantly, 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 am very honest, no legal advice was taken at the time in relation to the 2015 issues, when IOCCO and IPT determined that we had acted unlawfully, and I was very keen to make sure that we were operating on a sound legal basis, and hence taking legal advice.

I actually took two different sets of legal advice because, during those conversations and as we were getting the first set of senior counsel’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 counsel to look at specifically because, again, I wanted to be open-minded about whether that was an appropriate—or, indeed, a better—way to proceed. I took legal advice on that, so that we could go down that road if that was appropriate for all concerned.

However, the second set of senior counsel’s advice, on that very specific point, was that we could not be advised to go down that route—that, in fact, the Scotland regulations would not allow us to do that while keeping within the regulations, which have the force of law. I felt that it was my responsibility to make an informed decision, based on two sets of legal advice that was very specific on those points.

Rona Mackay: I take it that you stand by that decision today, and that you believe that you did the right thing by taking that advice.

Deputy Chief Constable Fitzpatrick: I believe that I did, yes.

Margaret Mitchell (Central Scotland) (Con): 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 may be misconduct.”—[Official Report, Justice Sub-Committee on Policing, 22 February 2018; c 2.]

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 those senior officers. He was not allowed to do that; the reason given for that was legal privilege. Would you like to comment on that, Mr Campbell?

Duncan Campbell (Police Scotland): Good afternoon, Mrs Mitchell. Thank you for the opportunity to comment on that. I was interviewed by Mr Ellis in December 2015 and January 2016, as part of the investigation. I was asked to provide factual information, which I did. That essentially related to my interaction with this committee’s predecessor committee between December 2015 and January 2016. I was also asked to provide a chronology and a copy of information that passed between me and the IPT in the period immediately following the hearing on 22 July.

Mr Ellis also asked me to provide additional information around the factual material. 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 the chief constable’s permission before privilege was waived; that privilege was vested in my client, who was the chief constable. The matter was not immediately pursued further with me. When it was subsequently pressed, I offered the chief constable advice about his entitlement to waive privilege as he saw fit. I also indicated to him that, if he was minded to do that, he might wish to avail himself of independent legal advice on whether to waive privilege. I did not withhold any material that Mr Ellis asked for and which I was in a position to provide to him.

Margaret Mitchell: What aspect of the chain of emails did you think was covered by legal privilege? Was it every single bit of the emails between those senior officers?

Duncan Campbell: I have seen Mr Barton’s evidence in that regard. 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 in our own file, which concerned matters that were put to me for advice.

Margaret Mitchell: Should you not have made that distinction? Should you not have said, “On the basis of the emails I hold in my file, my advice is that legal privilege kicks in, but of course you can see any of the emails in a chain of correspondence that the senior officers have had”?

Duncan Campbell: 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.

Margaret Mitchell: He was quite clear that he asked to see the emails that people sent to each other. I think that that was fairly reasonable. Given that the remit was, as Mr Barton said, to

“investigate, access all the documents and interview people, so that we can make a recommendation”,

Mr Ellis had to see everything. Mr Barton also said quite clearly that

“It is legitimate for a senior police officer or a member of the Scottish Police Federation to sit down with their solicitor and to be absolutely sure that those conversations are sacrosanct.—[Official Report, Justice Sub-Committee on Policing, 22 February 2018; c 11.]

That is a given. That is not what we are talking about here.

Deputy Chief Constable Fitzpatrick: I may be able to help. That issue came up with Mr Barton in our discussions in January and February—in fact in February, as I recollect; we also had an exchange of letters about it. I have just noted that, from my letter of 22 February 2017, I was able to confirm to him that we were waiving legal privilege in relation to the briefing documents that he required for his investigation.

Another issue related to access to a telecommunications product. As I said, when in the course of our conversation Mr Barton raised one or two issues with me that he felt that we needed to progress, I was able to resolve them, as far as that was possible. I think that that has a bearing on the point that you were just asking about, Mrs Mitchell.

Margaret Mitchell: It most certainly has. It took three months—the issue goes right to the heart of the criticism that the legal department was risk averse, that it was not open and that it was not transparent. Given the benefit of the analysis that has been made and the fact that the correspondence was subsequently released—albeit three months later—would you care to reflect now as to whether you might do things differently in future?

Duncan Campbell: 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.

As far as being risk averse is concerned, my role in providing advice to Deputy Chief Constable Fitzpatrick and to colleagues in the professional standards department is to be risk aware, rather than risk averse—in other words, to be aware of the risks that would arise if certain courses of action were followed and to offer advice on that premise.

Margaret Mitchell: Your advice was to not release.

Duncan Campbell: No. With respect, my advice was not against releasing—it was not to not release. My advice to the chief constable was, “It is your privilege and it is for you to determine whether to waive it. It is not for me to waive the privilege on your behalf”.

Margaret Mitchell: So what took three months? If you looked at it and the request was made, I would have thought that you would have passed on that information. Did it take you three months to come to that conclusion? Who made the decision ultimately that the information would be released?

Duncan Campbell: It was not a decision that was taken by me. I initially reflected the situation back to Deputy Chief Constable Livingstone, the day after I had seen Mr Ellis. I 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 that I should reflect that back to Mr Ellis, which I did the following day.

Margaret Mitchell: Why did it take three months to release these emails? They were subsequently released.

Deputy Chief Constable Fitzpatrick: As I said, when we had our discussions at the end of January and in February, this was one of the issues that Mr Barton raised with me. I was able to confirm to him that, having had a discussion with the chief constable, we would be happy to provide the briefing documents that he was requesting.

Margaret Mitchell: Perhaps I can put this another way: is there a problem with communication? It took three months, but you have still not told me why. This investigation should have been going smoothly, and these emails should—as it turns out—have been released. They were subsequently released, but why did it take three months to do so?

Deputy Chief Constable Fitzpatrick: I came to the issue at the end of January and the beginning of February. I was appointed as decision maker on 14 February, and I was able to confirm to Mr Barton on 22 February, as a result of his raising the matter with me, that we would be providing him with the material.

Margaret Mitchell: Are you saying that you only came to this late and that, in other words, it was somebody else’s problem?

Deputy Chief Constable Fitzpatrick: I am saying that as soon as I became aware of the matter, I sought to have it resolved, as it was.

Margaret Mitchell: Are there lessons to be learned?

Deputy Chief Constable Fitzpatrick: There are indeed. As I have said, the lessons that are set out 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 IOCCO, but subsequently.

Margaret Mitchell: With respect, we have had such platitudes before. You have come here today, fully aware of the evidence that was given two weeks ago about this gap, and you are seeking to reassure us that things have moved on and that everything was quite amicable at the end. However, that is not the case. No criminality was found, and I am afraid that what we are hearing today merely sounds inept.

I want to ask about data protection and the request for the addresses of the retired officers, which was refused. Whose decision was that, and what was the reason for the refusal?

Deputy Chief Constable Fitzpatrick: Shall I take that?

Duncan Campbell: Yes.

Deputy Chief Constable Fitzpatrick: As we know, every organisation has responsibilities with regard to data, and they are set out in data protection legislation. As retired officers are effectively members of the public, we have a responsibility for their data, including their personal details. Again, Mr Barton raised with me the point that this seemed to be taking some time—

Margaret Mitchell: Can I stop you there? We were told at our previous meeting that

“lawyers in Police Scotland said that we were not allowed to know where those retired officers lived”.—[Official Report, Justice Sub-Committee on Policing, 22 February 2018; c 11.]

We are talking not about a member of the public or somebody with an interest, but about the person in charge of the investigation. As it is really a legal question, I feel that I have to ask Mr Campbell about it.

Duncan Campbell: I first became aware that access to retired officers was an issue when I was shown the letter from Mr Barton dated 7 February, which I think is before you. I was shown the letter either that day or possibly the next. When you look at the Official Report 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 hope that I can reassure you that that was not the case. We had not had any involvement in the matter until receipt of the letter of 7 February. I discussed it with Deputy Chief Constable Fitzpatrick; the next day—I think—we discussed a number of matters, which were reflected in her letter of 13 February and one of which was the way in which we proposed to resolve the issue of access. We wanted to facilitate access, but to ensure that we did so in a lawful and proportionate way.

Margaret Mitchell: You say that you did not give legal advice, but was Mr Barton told by someone else that it was legal advice? If so, that was erroneous, given that two months later he got the information about where the retired police officers lived. How was the matter resolved?

Deputy Chief Constable Fitzpatrick: In my letter to Mr Barton of 13 February, there was an undertaking to resolve it—in fact, by that stage, it was in hand. We were doing what we were required to do in relation to personal information, which was to contact the individuals and ask them whether they were happy for us to provide that information—that is, their contact details—to Durham Constabulary.

Margaret Mitchell: Finally, on professional standards, Mr Barton said that he moved as fast as he could,

“and the only times that we paused were when we asked for preliminary assessments. At any time in our inquiry, the officers in the professional standards department could have done a preliminary assessment. If they had done that, they could have switched the process, even under their arcane rules, into an investigation, and they chose not to do that”.

Mr Barton then makes the main point when he says:

“We gave them ample opportunity on a number of occasions to switch to a full investigation. We were balked in speaking to some people because we were not given the addresses and we were balked 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 timeliness.”—[Official Report, Justice Sub-Committee on Policing, 22 February 2018; c 14-5.]

There seems to have been a five-month delay in this process. Do you wish to respond, Mr McDowall?

Superintendent McDowall: I must confess that I am somewhat perplexed as to how we could suddenly jump from a complaints investigation straight into a conduct investigation. We have already discussed the regulation 10 preliminary assessment process, and as the conduct portfolio lead for Police Scotland, I would point out that the regulation 10 process follows on from 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 the regulation 10 preliminary assessment was the concluded—and conclusive—Durham report. We could not have appointed an investigating officer without having gone through that legal regulatory process.

Margaret Mitchell: I remain unconvinced by these explanations, and I am somewhat concerned that, despite areas being put into in the public domain at the committee’s previous meeting, we still do not have any answers. Perhaps you will reflect on that as we move forward.

Ben Macpherson (Edinburgh Northern and Leith) (SNP): Good afternoon. Going back to the legal opinions, I believe that Deputy Chief Constable Fitzpatrick said that decisions were made on 30 January with regard to the terms of reference. Was that when the decision to seek senior counsel was made?

Deputy Chief Constable Fitzpatrick: I am afraid that I cannot recall exactly when the decision was made.

Ben Macpherson: Would it have been thereabouts?

Deputy Chief Constable Fitzpatrick: My first meeting with Mr Barton was on 30 January and we were talking about those issues at that point.

Ben Macpherson: In following up that meeting, I want to ask two real questions. First, why was senior counsel rather than internal legal advice sought? What was the position in that respect? Secondly, was Mr Barton content and in agreement with the process of seeking senior counsel?

Deputy Chief Constable Fitzpatrick: First of all, I wanted to take the best possible advice to make an informed decision about this. Internal legal advice will, of course, be part of that, but senior counsel’s advice will relate to very specific points, and I think that it is common for most organisations and many police services to seek senior counsel’s advice on particularly important or complex matters. I am not suggesting for a moment that I could not have had in-house advice—in fact, I was receiving that advice where that was appropriate—but it is called “senior counsel” for a reason and I wanted to make sure that we were getting the best possible focus on the matter.

I certainly discussed that with Mr Barton. I made him aware on both occasions—and when he came back with his specific proposal, too—that we were taking advice, and I was very frank in discussing the content of that advice with him. I know that Mr Barton told the committee that he took legal advice himself and ultimately, as our exchange of letters suggests, and as he mentions in his final letter to us after his report was received, we agreed to differ. However, we agreed to proceed on the basis of the legal advice that we as Police Scotland had received.

Ben Macpherson: But there was no objection from him at the time about your instructing senior counsel.

Deputy Chief Constable Fitzpatrick: I do not think so—I do not recollect that at all. We had a number of conversations about the matter. We knew the points on which we differed professionally with regard to our interpretation of the Scottish regulations, and I hope that I was very open with him about what I intended to do.

Ben Macpherson: I ask the question simply because of Mr Barton’s position that Police Scotland was—to use his phrase—“overly legalistic” in the process. I know from having instructed senior counsel in a previous role that it can take longer and that that perhaps led to the time delay. Moreover, it is often the case that different legal opinions are sought from different advocates. Was that ever considered?

Deputy Chief Constable Fitzpatrick: I am trying to think whether I specifically considered that—I do not think so. As you have suggested, I was quite mindful of time; I asked for senior counsel’s view to be taken, but I did not specify which senior counsel it should have been. I am not a lawyer myself. In fact, because the two matters were taken so closely together, it was for the benefit of time that we decided to take opinion on the general point and on the very specific proposal.

Ben Macpherson: Paragraphs 51 and 52 of the first legal opinion, in particular, state the risk in senior counsel’s view of judicial review. Was Mr Barton receptive to that risk and did he understand it?

Deputy Chief Constable Fitzpatrick: 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. I was very clear that this was not some abstract matter and that Police Scotland had already been judicially reviewed on a very similar issue, so this was not about having some abstract discussion of what might happen.

Ben Macpherson: And the decision to take legal opinion and the opinion that was given were not questioned or dismissed by Mr Barton.

Deputy Chief Constable Fitzpatrick: We discussed it, and I did not find Mr Barton to be dismissive at all. I hope that he did not find me dismissive, either. We were two professionals who both appreciated the importance and complexity of this particular issue; we were both very determined to do right by the issue and the people involved, particularly the complainers, and to take things forward in an effective way. We agreed to differ. As I understand it, we both took legal advice and then agreed to proceed on the basis of the legal advice that we had received.

Ben Macpherson: The debate over the interpretation of the 2014 regulations prolonged the investigative process, and it has been stated that that had an adverse effect on the individuals involved. Do you accept that?

Deputy Chief Constable Fitzpatrick: I have accepted that, and I had the opportunity—for which I was grateful—to apologise in person to three of the four complainers on 1 March and in a letter to all four complainers on the same day not only for the failings that occurred in 2015 but for the subsequent impact on them and their families. I am mindful of that, and I know that Mr Barton was very mindful of it. The discussions that we had when I formally took this on in February and March led Mr Barton to conclude his investigation and his report was with us on, I believe, 12 May.

Ben Macpherson: Being mindful of all of that, what steps do you think will need to be taken to avoid any confusion with regard to the application of the 2014 regulations to any future inquiries or investigations that need to be carried out?

Deputy Chief Constable Fitzpatrick: As a result of the discussions that we had, particularly with Mr Barton and the Durham Constabulary investigation team, not only did we get a very thorough, diligent and professional report from them, which enabled us to progress the processes, but, as you will recall, we went on to develop terms of reference for the PSNI to carry out the conduct investigation. I felt that it was important that we were very clear about those, and we both understood exactly the legislative framework that we would be operating under. The PSNI was happy with that. My personal learning was to take my discussions with Mr Barton on the terms of reference and the difference of view that had arisen into the very early discussions with the PSNI to ensure agreement on its terms of reference.

Ben Macpherson: So despite the admitted delay and the potential damage that that could have had, there has been a constructive outcome to this with regard to future investigations.

Deputy Chief Constable Fitzpatrick: Indeed. We have a lot of lessons to learn. As I have said, we had already put that into practice in asking the PSNI to do the work that it has done.

Daniel Johnson: I seek a technical clarification on the nature of this disagreement. My understanding is that, in Scotland, we separate the complaint from the subsequent investigation, and Police Scotland’s contention is that the investigator in the investigation cannot have had any previous involvement in the handling of the complaint, as that would undermine the requirement in the police regulations for the investigating officer to be impartial. Am I correct in understanding the crux of this disagreement?

Deputy Chief Constable Fitzpatrick: I understand, too, that that was the crux of the disagreement. That is what formed the basis of the legal advice. As I think I said in answer to Mr Macpherson, this was not an abstract issue for us; we had previously been judicially reviewed on the point and had had to concede it.

Daniel Johnson: That was helpful. Thank you.

Liam McArthur (Orkney Islands) (LD): A little like other members, I am struggling a bit to reconcile the evidence that we had on 22 February from Chief Constable Barton, which was of the moment and reflecting back on what had happened. At that stage, he still felt moved to make some more serious criticisms than the more reassuring tone that you have sought to strike today. That is probably material for the committee in so far as it tends to suggest that, when it comes to lessons learned, you are more reassured than Chief Constable Barton and his colleagues are. I will leave that hanging there for the moment.

On the basis of the evidence that we have had, a couple of things have leapt out at me. It is staggering that access to retired officers was not identified as a potential issue and resolved, not in terms of each case, but in terms of handling, and agreed with Durham when the investigation was initiated. I cannot understand why that almost came as a surprise and out of left field after Durham had been asked to undertake an investigation. Is it not standard procedure? At some stage, there will undoubtedly—almost inevitably—be a request to make an approach to retired officers. How would Police Scotland respond? I can understand why you might need to seek permission but, for the life of me, I cannot understand why you would not anticipate that arising in the early stages—not just at some point, but in the early stages—of the investigation.

Deputy Chief Constable Fitzpatrick: You have quite rightly identified an area of learning for us in terms of preparation for these things. It is something that we took into our discussions with PSNI about what it would need in order to facilitate its subsequent independent conduct investigation.

Liam McArthur: Again, in passing, some of what Chief Constable Barton was referring to when he talked about an attitude and a lack of transparency was reflected in the level of redaction in the reports that were handed to us. I entirely understand and respect the requirement to redact reports of this nature, but it seemed that the extent of the redaction, including of information that was in the public domain, spoke to an approach that Chief Constable Barton was moved to suggest was overly secretive.

I turn to the issue of the pastoral care. There has never been any disagreement around the fact that the four individuals concerned were gravely wronged, as Chief Constable Barton said. You have said that you were determined to do the right thing by the complainers. As I understand it, the IOCCO reported to Police Scotland in July 2015. Chief Constable Barton then suggested that the first contact that was made by Police Scotland with the four was in February 2016. Having been made aware of IOCCO’s concerns, why on earth did it take Police Scotland seven months—or whatever it was—to approach those affected? DCC Fitzpatrick, I appreciate that this predates your involvement but, again, I find that absolutely staggering.

Deputy Chief Constable Fitzpatrick: I am afraid that I do not know why it took so long. While we are on the subject of learning, having been asked to become the decision maker in this officially on 14 February, although I was in discussions with Mr Barton in late January—and we agreed whole-heartedly on this—I was determined to offer to meet the complainers as soon as possible and to offer them what I described in my letters to them as a whole-hearted and unreserved apology. I touched on this briefly earlier. That apology was not only for the failings in our processes and procedures around the communications data that the IOCCO and IPT had identified in 2015, but for the impact on them and their families at the time of those acts and since then. I was very grateful that three of the complainers agreed to meet me and I completely understood that the fourth did not choose to do so.

Liam McArthur: My understanding is that the apology was welcome and acknowledged for being as fulsome as you suggest but, just to get this clear, you were apologising for what happened and 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?

We have heard from colleagues of yours. In a number of evidence sessions, Deputy Chief Constable Designate Livingstone has made great play of the priority he attaches to the wellbeing of officers and of staff. That was glaringly absent throughout the process, and its absence is potentially on-going. I do not know the outcome of the discussions that you have had but I presume that the impact is also on-going. Certainly the complainants do not feel that the matter has been resolved for them, so I assume that Police Scotland is committed to continuing to work through whatever might bring about a resolution, subject to the willingness on the part of the complainants to engage.

Deputy Chief Constable Fitzpatrick: One of the striking things for me—and I think that this is the case for anybody who sits down with someone—when I spoke individually to the three complainers who agreed to meet with me on 1 March 2017, was to listen to them and to hear what the impact on them had been. Of course, I intended to apologise to them, and I did apologise to them directly and individually, but I also heard about the impact on them and on their families.

The work on wellbeing that Mr Livingstone has spoken to the committee about certainly needs to include our processes and procedures for serving officers, whatever their status and whatever the circumstances of our relationship with them in the future.

Liam McArthur: To be clear, 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, is there an on-going commitment to engagement if that is felt to be necessary by those involved?

Deputy Chief Constable Fitzpatrick: Yes. Absolutely, if indeed it is. As you will know, a number of the complainers have retired, but we still have a responsibility to any of them who have not retired.

One of the most significant points of learning for us was probably the fact that there was a very long gap, which you have identified. With Durham Constabulary’s help, I was able to meet the complainers at the beginning of March and that was an important part of what I felt was my responsibility at that time.

The Convener: DCC Fitzpatrick, given the profile and seriousness of the issue, which Police Scotland has acknowledged, a lot of people will be astonished that the outcome is that you have learned things but no one has been culpable in any way. You have a range of disposals. You could reprimand someone or you could caution them. You could send them for additional training. There has been none of that. Where are the individuals who have been involved in this?

Concern has been expressed to this committee that, although these people have been acquitted—and I readily accept that—they are now in more promoted posts. The reason I raise that is because there are genuine concerns about reputational damage and the signal that that sends out. Can you comment on why, after all this, no one even gets spoken to?

Deputy Chief Constable Fitzpatrick: That is not quite the case.

The Convener: What disposals were used then, please?

Deputy Chief Constable Fitzpatrick: Seven officers were the subject of the PSNI’s independent conduct inquiry. The PSNI investigation report found that a number of allegations were proven, on the balance of probabilities, but there was no evidence of wilful acts of misconduct. It also described how, although there was no evidence of wilful actions, there was clearly recklessness, and that chimed entirely with the IOCCO and IPT findings that we had been reckless as an organisation. The PSNI found that some of those individuals had been reckless in their own individual behaviour and it also identified failures in leadership systems and processes.

Of the seven officers, four were subject to what we call improvement action, which is a disposal aimed at focusing on why they had behaved in that way and them taking action to make sure that it did not occur again. The PSNI also determined that three individuals were peripheral—that is my word—to these issues, and no further action was taken. For four of the individuals, therefore, action plans were put in place to make sure that their future actions are not likely to lead to adverse outcomes.

The Convener: How many of the seven have subsequently been promoted?

Deputy Chief Constable Fitzpatrick: I am afraid I do not have that information, convener. I am happy to provide it to the committee if it would help.

Liam McArthur: Just following up on that, earlier we discussed the lack of access to officers who are now retired. I presume that any improvement actions cannot be applied to those that have retired. Did the PSNI report shed any light on that?

You have 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 did the PSNI have anything to say about the behaviour and involvement of retired officers and whether, had they still been in the force, more serious measures might have been necessary and appropriate in the circumstances?

Deputy Chief Constable Fitzpatrick: Yes, it did. The PSNI observed that it had not been able to engage with officers who had retired because, of course, the conduct regulations fall when an officer retires from policing. The PSNI observed that, on the basis of what it knew, it felt that other action might have been appropriate. Of course, it also observed that it had not been able to engage with or interview those officers. At that stage, that was a judgment as opposed to something that it could say to us was a matter of fact.

Liam McArthur: Is that then something that you can take learning from, even if you can take no action because of the status of the officers as being retired? Are there lessons to be learned from that going forward?

Deputy Chief Constable Fitzpatrick: Yes, to the extent that it is important to learn from all of these things. The issue here of course was the conduct regulations, which differ from those in England and Wales and under which there is no way of compelling individuals who have retired to engage with a conduct investigation. In fact, the conduct investigation has no locus for them at all because they are no longer serving as police officers. That particular point is a regulatory issue and not something that we have control over.

Liam McArthur: Given the role of this Parliament in looking at where regulation is and is not working, would you support our looking at that? Is it a deficiency in the way that the regulations are structured that, by dint of retiring, an officer can escape any sort of sanction, not for criminal offences, but for serious misdemeanours on their part?

Deputy Chief Constable Fitzpatrick: There is a range of views about that in policing. The 2014 conduct regulations have been in place for more than four years. 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. I think it is very wise to keep these things under review.

The Convener: Can you tell us why you cannot publish the PSNI report?

Deputy Chief Constable Fitzpatrick: Again, I look to Superintendent McDowall to keep me right on this, but my understanding of the conduct regulations is that, under the arrangements that exist in England and Wales, for example, hearings—in particular, on conduct matters—may be held in public, whereas that does not apply in Scotland. There is a presumption in the conduct regulations that misconduct proceedings—that is, on the conduct of the misconduct—will be in private and that people therefore have an expectation of privacy.

The Convener: My question is specifically on the report and why it is not possible for it to be published, even in redacted form. I express some surprise, because I would have expected that, as the disciplinary authority, you would have a full grasp of the small number of regulations that comprise the conduct regulations.

Deputy Chief Constable Fitzpatrick: I am sorry if the committee thinks that I do not have—

The Convener: I am only going by your comment that it was your understanding. I would have thought—

Deputy Chief Constable Fitzpatrick: My understanding is that there is an issue around the misconduct process, and the proceedings being in private. I was going to ask Mr McDowall, as my left-hand man here, to put me right if I had misinterpreted the regulations.

Superintendent McDowall: Absolutely. The police misconduct proceedings in Scotland are private proceedings. That is not similar to England and Wales. As a result—I do not think that this refers just to the specific matter of the PSNI investigation—it is important that we maintain consistency, not just for regulatory compliance but for all other misconduct regulations, which are not put into the public domain.

The Convener: Was the information that there were to be no proceedings shared with the complainers?

Deputy Chief Constable Fitzpatrick: I wrote to the complainers on 30 June with the result of the complaints investigation. The letters were very lengthy.

The Convener: That was the Durham Constabulary report. What about the PSNI report?

Deputy Chief Constable Fitzpatrick: That is right. I am trying to look now—[Interruption.] On 15 January, when we were speaking to the subject officers and letting them know the outcome of the conduct investigations into them—I am sorry; that took me a moment, because there have been so many letters on this—letters from me were hand delivered to each of the four complainers. Therefore, the complainers heard the outcome on the same day as the officers who had been subject to the misconduct investigation.

The Convener: Are you able to share how they responded to your decision not to institute proceedings?

Deputy Chief Constable Fitzpatrick: I think that that is a matter for them, convener.

The Convener: On the point about the retention of material and the recent exchanges on that, Police Scotland used quite an unusual phrase, if you do not mind me saying so, when it referred to any material on Police Scotland databases that did not “reflect the truth”. Can you explain what that means, please?

Deputy Chief Constable Fitzpatrick: Yes; I hope so. The committee will be aware that the original material that led to the IOCCO breach was one set of material; ultimately, the IPT judgment governs the disposal of that material. I understand that four of the complainers, three of whom were serving officers at the time, had some concerns, quite rightly, about other material about them that might be held on any of our databases—for example on our human resources database, or our professional standards database. When we talk about material that does not reflect the truth of these matters, that means any material that the complainers feel does not effectively represent the truth.

The IPT order governs the material that relates to the authorisations and the communications data. In speaking to the three complainers, as I did on 1 March 2017, I wanted to assure them of the fact that, if there was any material that they felt did not reflect truthfully what had happened, we would be very open to removing that material from any of our databases, such as our intelligence, HR, complaints or other databases.

The Convener: The complainers used the words “delivering our remedy”. Do you think that Police Scotland has delivered a remedy for people who have been wronged?

Deputy Chief Constable Fitzpatrick: There are two aspects to that. One is the effective remedy, which is referred to by the IPT; it was determined that that could come about only by an independent investigation into what has happened. Effectively, we have 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, so for me there is that separate issue about what people feel personally is an effective remedy. Again, I cannot answer for the complainers on that, because I know that that is a very personal view.

The Convener: Do you think that it is legitimate that they continue to feel wronged?

Deputy Chief Constable Fitzpatrick: Absolutely. As I said to them when I met them, and as I have repeated in my letters to them, I feel that we failed them absolutely as an organisation, and that we continued to fail them by not being in contact with them. I continue to offer them my whole-hearted apologies for that failing.

The Convener: What reassurance can you give the people of Scotland that we will not see a repetition of this abuse?

Deputy Chief Constable Fitzpatrick: I have spoken about organisational learning. I think that it is very easy to use the phrase “organisational learning”, but I also think that it is legitimate to ensure that those lessons are actually implemented and that they effect change.

As the committee is aware, HM inspectorate of constabulary carried out a very early assurance review of our CCU arrangements, which has led to substantial change. The 39 recommendations that HMICS made have all either been completed or, in the case of three, are finally proposed for closure. In fact, HMICS is back with us to conduct a further review of our progress in implementing those recommendations. There is independent assurance around whether we have moved on from those days.

The Convener: Thank you. The committee will seek an update from the inspectorate on that work. Are there any further questions?

Margaret Mitchell: May I comment on one thing? It concerns the information that should be withdrawn. You said that it was about regulation, and that it did not fully reflect the truth. We were told quite bluntly that it had been made up. Unless you speak very plainly and say, “A spade is in fact a spade, we are holding up our hands to that and we will address it”, the lack of openness, transparency and accountability in how senior management—we are not talking about the rank and file—are getting on with their jobs on a daily basis, will mean that we will be here on a regular basis. At a senior level, openness, transparency and accountability must be at the very heart of what you do.

The Convener: Do you wish to respond, DCC Fitzpatrick? We are very keen that there is maximum engagement with the inspectorate on following up those 39 recommendations.

Deputy Chief Constable Fitzpatrick: Indeed, convener. I will respond to Mrs Mitchell’s point. We have asked Durham Constabulary, and it has very kindly agreed, to provide independent assurance on the process of removing material that, as I said, does not reflect the truth on all of our databases.

The Convener: I thank you all very much for your evidence. We now move into private session.

14:21 Meeting continued in private until 14:30

Meanwhile a day after the woeful evidence from Police Scotland witnesses to MSPs, information has emerged at an employment tribunal that Deputy Chief Constable Rose Fitzpatrick asked for relocation expenses to be paid by cash transfer.

A former accountant with the Scottish Police Authority (SPA) – Amy McDonald told the tribunal that the payment would not have gone through the payroll system, where it would have been taxed.

Mrs McDonald said this was akin to a bonus payment and was against SPA and government rules.

The tribunal heard that the senior accountant was frozen out by the SPA after raising objections.

Previously at the tribunal hearings, Mrs McDonald had also revealed four unnamed senior SPA figures had received significant payments of public cash – totalling £350,000.

Mrs MacDonald claims the four who received the payments should not have been entitled to them.

The payments included a £165,000 “golden handshake” for a senior executive who had been arrested for domestic abuse just weeks previously.

Mrs McDonald – who was the Scottish Police Authority’s director of Financial Accountability – told the tribunal she raised objections with the watchdog’s officials.

Two months after raising concerns, Mrs McDonald informed the public spending watchdog Audit Scotland and Justice Secretary Michael Matheson.

As a result, Audit Scotland probed issues raised and published a scathing report into the SPA’s finances in December, criticising the “unacceptable” use of taxpayers’ money – which has not been repaid.

DCC Fitzpatrick became Scotland’s most senior female police officer when she moved from the Metropolitan Police in London in 2012, ahead of the formation of Police Scotland in April 2013.

The Audit Scotland report said the deputy chief constable was given £18,000 to relocate during the 2014/15 financial year, and another £49,000 for a similar move in 2016/17.

Mrs McDonald told the employment tribunal hearing in Glasgow that DCC Fitzpatrick had asked for a cash transfer to be made for the expenses although by the time she made the request she had lived in Scotland for four years.

Mrs McDonald said: “I could not see any exceptional circumstances to support this payment of relocation expenses.

“There was no event or circumstance which I can see to support the claim.”

Mrs McDonald said DCC Fitzpatrick viewed the payment as more akin to a bonus and added: “The SPA does not allow bonuses to be paid. And Scottish government rules also prevent bonuses from being paid.”

Mrs McDonald said normally such payments would go through the payroll.

Ms McDonald said: “The deputy chief constable asked for a cash transfer. This is something which does not go through the tax system.”

In its report, Audit Scotland said relocation money paid to DCC Fitzpatrick and a further £53,000 to settle her tax liability in 2017 “did not represent a good use” of public funds.

While Audit Scotland rebuked the SPA for its poor accounting of these payments, none of the public funds have been repaid.

A BBC Scotland article reports that Ms McDonald’s tribunal case relates to hundreds of thousands of pounds in further payments received by other senior figures in policing from the SPA, all of which she says she raised concerns about through the body’s whistleblowing policy.

However, a court order obtained by the SPA prevents the names of those senior figures – who received large payments of public cash – from being revealed in connection with the proceedings.

Mrs McDonald is a qualified chartered accountant who joined the SPA as director of financial accountability in 2014. However, and possibly as a result of raising objections to matters of financial accountability, Mrs McDonald is no longer in a financial role at the SPA having moved to a position with its forensic science team.

The case in which the details of cash demands by DCC Fitzpatrick have emerged relates to an action brought by Mrs McDonald – who claims she has suffered as a result of highlighting the potential financial wrongdoing.

BBC Scotland has further revealed that the tribunal later heard that after Mrs McDonald had submitted her grievance, she was warned she had posed a terrorist threat to DCC Fitzpatrick.

In her application to the tribunal she had said that the deputy chief constable had sold her house but insisted she had only revealed the town and county where it was located.

Asked what she understood the threat to be, she said: “I had put DCC Fitzpatrick’s personal safety at risk, potentially she could come to great harm as a consequence.

“Not harm just for DCC Fitzpatrick but for her family as well.”

Mrs McDonald said she was extremely frightened by this and was put under a great deal of stress.

Further information payments to DCC Rose Fitzpatrick can be found in the Scottish Sun here: Law unto themselves – Police Scotland branded ‘dodgy tax haven’ for wrongly listing part of top cop’s taxpayer-funded £120k relocation deal as childcare vouchers

Events have further moved on today, with the announcement that the deputy chair of the Scottish Police Authority – Nicola Marchant – who was appointed under the former chair Andrew Flanagan – is to resign from her role on 21 March.

In a statement issued by the Scottish Police Authority, SPA Board member, Nicola Marchant, has announced her resignation from the Board of the SPA having stood down as Deputy Chair last month.

Dr Marchant informed the Cabinet Secretary and SPA Chair earlier this week and will step down on 21 March 2018.

Susan Deacon, Chair of the SPA said: “I want to thank Nicola for the contribution she has made to the SPA over the last two and a half years as a Board member, as Deputy Chair and most recently for her work on the Executive Review of the SPA. I wish her well for the future.”

Politicians have described this as a good move, however, there has been recent criticism of the new SPA Chair Susan Deacon’s praise of the Scottish Government’s approach to policing, raising questions as to whether Ms Deacon – who replaced Andrew Flanagan as SPA Chair – will fair any better in bringing transparency to the discredited Scottish Police Authority.

Previous articles on the Scottish Police Authority can be found here: Scottish Police Authority – Poor governance, private meetings & lack of accountability at Police regulator

 

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TOP COP SECRETS: Transparency lacking at Police Scotland as spy scandal cops refuse to disclose files on complaints & historical sexual assault case details involving Deputy Chief Constable Iain Livingstone

Police Scotland refused to disclose secret files on top cop. SCOTLAND’S single national Police service – Police Scotland has refused to disclose details of secret files on a case involving allegations of sexual assault against the force’s most senior office – Deputy Chief Constable Iain Livingstone.

The force also refused to disclose any non-disclosure agreements which may have been part of any settlement of the case – which ultimately led to the female officer leaving her job,

And, the information has been categorised as so sensitive, Police Scotland refuse to confirm if the files even exist.

The move came in relation to Freedom of Information requests seeking details of information held by Police Scotland on accusations and allegations of sexual assault made by a female Police Officer against current DCC Iain Livingstone during his time in Lothian and Borders Police.

Also sought for disclosure was information contained in any discussions or misconduct hearings in relation to these allegations and information contained in any admissions by Iain Livingstone with regards to these allegations and, any information contained in any non-disclosure agreements, termination of employment, resignation or retirement of any persons or Police Officers making these allegations against Iain Livingstone.

However a statement from Police Scotland in response to the Freedom of Information request refused any form of disclosure or acknowledgement of the status of any files held by Scotland’s single national Police service – who said:

“Police Scotland endeavours to provide information whenever possible. However, under section 18(1) of the Act, a public authority may refuse a request where:

• if the information existed and was held by the authority, it would be exempt from release under any of Sections 28 to 35, 38, 39(1) or 41 of the Act; and

• the authority considers that to reveal whether the information exists, or is held by it, would be contrary to the public interest.

In this instance, it is considered that to reveal whether the information you have requested exists, or is held by Police Scotland, would be both exempt from release under the Act and contrary to the public interest. There is a strong public interest in protecting individuals’ privacy, and personal information is exempt from release into the public domain under section 38 of the Act if it would be unfair, unlawful or otherwise breach the Data Protection Act.

For these reasons, Police Scotland must refuse your request under section 18(1) of the Act.

This notice should not be taken as conclusive evidence that the information you have requested exists or is held.”

Issues surrounding the allegations of sexual assault made by a female Police Officer against Iain Livingstone while he served at Lothian & Borders Police in 2003 resurfaced during recent scrutiny of Police Scotland over the past year.

Livingstone was however, cleared of the allegations by a hearing chaired by another senior Police officer – John McLean, Strathclyde assistant chief constable. The Police led hearing on allegations against Police Superintendent Livingstone established there had been no sexual impropriety or intent on Mr Livingstone’s part.

However, interest in the 2003 case and details surrounding it has resurfaced – after the single Police service – created by the Scottish Government in 2013 – was hit by several scandals including numerous suspensions of senior officers, allegations of Ministerial meddling with ultimately led to the ousting of Chief Constable Phil Gormley, and the ongoing probe into senior officers use of a surveillance unit within Police Scotland to illegally spy on journalists & cops.

At the time of the sexual assault allegations in 2003, Iain Livingstone, 37, was working as an aide to Scotland’s most senior police officer, Sir Roy Cameron, at Her Majesty’s Inspectorate of Constabulary, when he was suspended in February 2003 over the claims – which arose from a drunken party at the Scottish Police College at Tulliallan.

It was reported at the time that Iain Livingstone – previously a solicitor and member of the Law Society of Scotland – had been suspended for 17 months after the WPC claimed she had been sexually assaulted during the party.

Five allegations of serious sexual assault made by the female Police officer against Livingstone were dismissed – but, at an internal misconduct hearing, Mr Livingstone admitted less serious allegations, including being in the woman’s room overnight after falling asleep.

A qualified lawyer and member of the Law society of Scotland, Mr Livingstone switched careers in 1992, joining Lothian and Borders Police. In just 10 years, he reached the rank of superintendent.

Livingstone was ultimately demoted from superintendent to constable following the disciplinary hearing, although is now in the position of caretaker Chief Constable of Police Scotland, while the Scottish Government attempt to find another ‘suitable’ candidate to fill the Chief Constable post vacated by Phil Gormley.

However, recent interest in the case surfaced after it emerged DCC Iain Livingston was being promoted to fill the Chief Constable slot vacated by Gormley – who had effectively been ousted from his job after Justice Secretary Michael Matheson intervened in a decision taken by the Scottish Police Authority to allow Mr Gormley to return to work

And, it later emerged that during evidence given by Deputy Chief Constable Iain Livingstone to the Scottish Parliament’s Justice Committee, neither Livingstone or the Justice Sub Committee Convener John Finnie declared they knew each other, after papers revealed Mr Finnie had represented Mr Livingstone when he was cleared of the sexual misconduct claims in 2003.

In a further refusal to disclose information on the current top cop in Scotland, Police Scotland refused to reveal any information in relation to additional complaints made against Deputy Chief Constable Iain Livingstone.

And, again, Police Scotland refused even to confirm if such information was held – this despite information already available in the public arena including discussions on social media platforms relating to additional complaints made against DCC Livingstone by Police Officers.

A request for information relating to numbers of complaints, subject of complaints, and identities (not name, but by rank, status as Police Officer, civilian employee, member of the public or other) – who have made complaints (and the numbers of complaints) against current DCC Iain Livingstone from 1 April 2013 to the date of this FOI request and the status, and outcomes of these complaints – resulted in the following response from Police Scotland, with a refusal to disclose:

“Police Scotland endeavours to provide information whenever possible. However, under section 18(1) of the Act, a public authority may refuse a request where:

• if the information existed and was held by the authority, it would be exempt from release under any of Sections 28 to 35, 38, 39(1) or 41 of the Act; and

• the authority considers that to reveal whether the information exists, or is held by it, would be contrary to the public interest.

In this instance, it is considered that to reveal whether the information you have requested exists, or is held by Police Scotland, would be both exempt from release under the Act and contrary to the public interest. There is a strong public interest in protecting individuals’ privacy, and personal information is exempt from release into the public domain under section 38 of the Act if it would be unfair, unlawful or otherwise breach the Data Protection Act.

For these reasons, Police Scotland must refuse your request under section 18(1) of the Act.

This notice should not be taken as conclusive evidence that the information you have requested exists or is held.”

And, it emerged in February of this year that during evidence given by Deputy Chief Constable Iain Livingstone to the Scottish Parliament’s Justice Committee, neither Livingstone or the Justice Sub Committee Convener John Finnie declared any previous links to each other while Livingstone testified before MSPs.

A report in the Sunday Mail newspaper in February revealed Mr Finnie – previously a serving Police Officer and representative for the Scottish Police Federation (SPF) – had represented Mr Livingstone when he was cleared of the sexual misconduct claims in 2003.

The issue was reported by the Sunday Mail newspaper here:

Green MSP under fire after failing to reveal sex case link to top cop Iain Livingstone

John Finnie failed to tell MSPs he represented the acting chief constable when he was cleared of sexual misconduct.

By Mark Aitken 18 FEB 2018

John Finnie failed to tell MSPs he represented Iain Livingstone

A Green MSP is facing questions over his connection with Scotland’s acting chief constable.

Former police officer John Finnie failed to tell fellow MSPs he had represented Iain Livingstone when he was cleared of sexual misconduct.

He failed to declare the link at a meeting of Holyrood’s justice committee when Livingstone was being questioned.

Finnie spent 14 years as an official for the Scottish Police Federation (SPF) – the organisation who represent police officers up to the rank of chief inspector.

Livingstone, the frontrunner to replace Phil Gormley as Scotland’s chief constable, was acccused in 2004 of sexually assaulting a female police officer.

Livingstone admitted falling asleep in the woman’s room at the Scottish Police College in Tulliallan, Fife, after a drunken party in 2000.

Iain Livingstone was accused of sexually assaulting a female police officer in 2004

At an internal hearing, more serious allegations were dropped.

Livingstone, who was then a superintendent, was demoted to constable but won his job back on appeal. Livingstone’s appeal was backed by the SPF.

Finnie said at the time that the case had highlighted “the ease with which the system can be abused and the punitive consequences which affect not only the officer but their family”.

At Holyrood’s justice committee in January, Finnie quizzed Livingstone about staffing levels and said losing chief officers was one of the benefits of creating a single police force.

Scottish Labour justice spokesman Daniel Johnson said: “John is a valued colleague on the justice committee but I am alarmed that he did not see fit to declare this link with the acting chief constable.

“Police Scotland are in desperate need of scrutiny – and the public will expect such scrutiny to be conducted professionally.

“I would urge him to correct the record and to ensure he declares interests fully and promptly in future.”

A spokesman for the Scottish Conservatives added: “He also owes parliament an explanation as to why he neglected to mention this very important link.”

Finnie began his career with Lothian and Borders Police in 1976 and moved to Northern Constabulary three years later.

He served as a full-time officer with the SPF from 1992 to 2006.

Finnie was elected as an SNP MSP in 2011 but quit the party the following year in protest at the decision to end their long-standing opposition to Nato membership.

Finnie and the Greens failed to respond to the Sunday Mail’s calls.

It has since come to light there are a number of non disclosure agreements in force which relate to Police Officers and others connected to Policing in Scotland, a matter now being probed by the media for further reporting.

 

 

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FAIR COP: Police Scotland officers fabricated intelligence in order to spy on journalists & sources in CCU spying scandal – evidence from Durham Constabulary’s Chief Constable to Holyrood Justice Committee

Chief Constable says Police Scotland hindered probe. SCOTLAND’S single national Police service – Police Scotland has been accused of fabricating intelligence to justify spying on journalists and sources – in connection with the unsolved murder of Emma Caldwell – who was murdered in South Lanarkshire, in May 2005.

Last Thursday, the Scottish Parliament’s Justice Committee heard from Michael Barton – the Chief Constable of Durham Constabulary – who candidly told MSPs that ‘evidence’ in the form of intelligence used by Scottish Police Officers to spy on their colleagues, and journalists – “was a lie”.

Chief Constable Barton was attending the Scottish Parliament to give evidence in connection with the Durham Constabulary investigation into events at Police Scotland where officers were found to have deliberately and illegally obtained communications data on journalists, while circumventing the judicial process around obtaining interception warrants.

The damning statement from the Durham Constabulary Chief in relation to Scottish Police officers fabricating intelligence – came in an exchange with Justice Committee member Stewart Stevenson MSP (SNP).

During questions, Mr Stevenson attempted to make a legal point to Mr Barton, stating: “… It would be perfectly legal for Police Scotland to have the intelligence that led to the action.”

However, Chief Constable Barton responded to the MSP, stating : “Not if it is wrong.”

Stewart Stevenson continued: ” No. I was going to make the point that having it does not make it correct.”

However, Chief Constable Barton did not back down, and said: “Police Scotland cannot keep something about somebody when it is a lie.”

Stewart Stevenson again raised the issue of the validity & existence of the intelligence at Police Scotland, stating: “I understand that, but it was perfectly proper for Police Scotland to have it in the first place before it concluded, as you say, that it was a lie.”

However, Chief Constable Barton was candid in his response, stating: “No. It was never legitimate for Police Scotland to have it, because it had made it up.”

The exchange between the two then ended with Stewart Stevenson saying: “Okay. That is clear.”

After that short, yet critical exchange, the meeting was brought to a halt, due to an ‘overrun of time’.

However, during earlier questions & answers, Chief Constable Michael Barton also accused the single Scottish Police force of preventing him from carrying out a full-scale misconduct probe.

Michael Barton said came up against a “culture of secrecy” at Police Scotland.

He also said Police Scotland’s complaints staff should be “put into a sack and shaken up”

Durham Constabulary’s Operation Seastorm report on the Counter Corruption Unit.

The Counter Corruption Unit (CCU) was used by Police Scotland to secretly spy on journalists & sources while circumventing judicial procures to obtain communications interception warrants.

A full report by the Sunday Mail newspaper on the Durham Constabulary report and spying scandal at Police Scotland can be viewed here: Police Scotland’s embarrassing illegal spying scandal began with a ‘suspicious’ Costa Coffee meeting

Police Scotland has earlier claimed that a full investigation had eventually been carried out into events at the Counter Corruption Unit (CCU), adding that there had been “significant organisational learning” from the case.

Seven Police Scotland officers from the counter corruption unit (CCU) were cleared by in-house Police hearings of misconduct in January following a lengthy investigation involving several police forces.

Police Scotland had asked their counterpart in Northern Ireland – the Police Service of Northern Ireland (PSNI) to ‘examine’ the allegations of misconduct.

The investigation, by Assistant Chief Constable Mark Hamilton, concluded that there was no misconduct on the part of any officer.

However, officers were found to have obtained communications data without judicial permission while trying to identify a journalist’s sources, after information about the Emma Caldwell murder inquiry was leaked.

An investigation by the Interception of Communications Commissioner’s Office (IOCCO) into the actions of Police Scotland officers said the failures “could properly be viewed as reckless”, however, Police Scotland’s senior officers maintained throughout that it had been an issue of “misjudgement” by an officer “misinterpreting” a newly-introduced code.

After the Interception of Communications Commissioner’s Office (IOCCO) identified that there had been a breach of protocols in June 2015, Durham Constabulary was asked to look into the breach.

The English force recommended a full misconduct probe, which was carried out by the Police Service of Northern Ireland – which resulted in all seven officers being cleared by their Northern Ireland Police colleagues.

Mr Barton told MSPs that he had initially been asked to conduct a full investigation, but later found this was downgraded to an inquiry – a lesser form of probe which would mean he would not have access to all documents or be able to interview people under caution.

He said: “As far as I was concerned, I was asked to investigate. That’s what I wanted to do. And I was prevented from doing so.”

Mr Barton said he was frustrated by the decision, and said there was “a lack of openness in certain parts of the organisation – and that remains so”.

He added: “I think currently, the lawyers in Police Scotland are not transparent, and they’re overly defensive, and they’re risk-averse, and that got in my way.”

In responses to questions Michael Barton added: “I got dreadfully cross with the legal people and the professional standards department people because I think they misinterpreted the rules, frankly, and I think they’re too risk averse, but they’re still smashing people. But it’s the culture.

“It’s that secrecy, that lack of transparency, that’s incredibly unfair to everybody, because there isn’t speedy justice.”

Mr Barton told Holyrood’s justice sub-committee on policing that the complaints processes at the Scottish single force needed to be “shaken up”.

He said: “What’s happened here, over time, is people have dug them into the trenches. So you can’t seem to get out of it. I think it’s preposterous that in an inquiry I was asked 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’s investigating, and then they’d look at me and say, ‘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 under caution.

“I think it’s grown over time. But I do think it needs everybody put into a sack and shaken up and told, ‘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 have a less than optimal service, and the officers themselves, because it’s dreadful that they’re held under suspicion for quite so long.”

Following the conclusion of the misconduct probe, Police Scotland acknowledged that guidelines had been breached and said there had been “significant organisational learning” as a result of the case.

Dep Ch Con Rose Fitzpatrick – who was recently in the headlines for receiving ‘relocation’ payments of £67,000 and having a tax bill of £53,000 paid for her from public cash – claimed: “A full misconduct investigation was carried out by PSNI at our request, which is the element of the process that Chief Constable Barton says he was prevented from undertaking.

“The PSNI investigation found that there was no misconduct on the part of any of the seven officers who were investigated. It is our position, supported by external and independent legal opinion from a QC, that our regulations would not have permitted Chief Constable Barton from carrying out both the complaint enquiry and the misconduct investigation.

“We have previously said that there has been significant organisational learning from these enquiries and a report on this has been provided to the Scottish Parliament’s justice sub-committee.”

In the wake of additional revelations during the testimony of Chief Constable Michael Barton – who told MSPs that Police Scotland officers wanted to destroy evidence of illegally obtained surveillance data, the Justice Committee has since written to Police Scotland asking for assurances the data will not be destroyed.

A letter to Police Scotland, from the Justice sub-Committee on Policing states the following:

The Justice Sub-Committee on Policing is aware that Police Scotland has written to at least one of the complainants involved in the Counter Corruption Unit (CCU) investigation to inform them of the process going forward now that the conduct investigation has concluded.

The correspondence indicates that it is Police Scotland’s intention in the coming weeks to cleanse the contents of the relevant Force databases and to remove all material not considered to reflect the truth of those matters. Police Scotland is taking this action to reflect the Investigatory Powers Tribunal (IPT) judgement of 8 August 2016.

The Sub-Committee understands that the IPT’s view is that the destruction of this data without the consent of the applicants would appear to be in breach of the agreement contained within the order. The IPT has instructed that Police Scotland should desist from this action, unless it makes a further application to the Tribunal.

The conduct investigation has been completed, but there may be continuing related proceedings, for example in the High Court. The Sub-Committee is therefore seeking an urgent assurance from Police Scotland that it will not destroy any evidence or data until the applicants have consented.

The Justice sub-committee on Policing also wrote to the Scottish Police Authority, asking for information on the SPA’s oversight responsibilities for the process and the CCU investigation and the SPA’s view on Police Scotland’s proposed action to destroy evidence of illegality, and timeframe.

The full evidence session with Durham Chief Constable Michael Barton,  Investigator Darren Ellis of Durham Constabulary and the Justice sub-Committee on Policing can be viewed here:

Durham Constabulary Chief Constable evidence to Justice Sub committee on Policing 22 Feb 2018


Full report of Justice sub-Committee on Policing, Counter-corruption Unit (Durham Constabulary Reports):

The Convener: Item 2 is an evidence session on Durham Constabulary’s reports 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 paper. I welcome Michael Barton, chief constable, and Darren Ellis, senior investigator, from Durham Constabulary. Thank you for travelling to see us. Chief constable, I invite you to make some opening remarks, if you wish to.

Chief Constable Michael Barton (Durham Constabulary): Thank you for your invitation to us both. This is not the first time that we have been in Scotland, because we were up for seven months on our investigation. The reason why I wrote to the committee was that I read the Official Report of a previous meeting that you had in relation to the matter, and I felt that some of the evidence that was given to you needed to be corrected.

The Convener: Your report and others have generated a considerable amount of paper and contain a lot of detailed information. Can I ask first about your terms of reference? Do you believe that there was clarity about that?

Chief Constable Barton: I will ask Darren Ellis to follow up on what I say. I was called by Chief Constable Gormley and asked to do an inquiry. It was going to be in two parts. First of all, there was to be an independent investigation, as described by the Investigatory Powers Tribunal. The law department in Police Scotland had given the IPT in London an undertaking that it would conduct an independent investigation, because the authorisations 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 involved reviewing a number of cases that the counter-corruption unit had been part of. When I scoped that part of the inquiry, I realised that it would be too much for us. It would have been an inordinate amount of work for Durham to do all its own business as well as both sides of the inquiry, so I asked the chief constable of Northumbria Police, with Chief Constable Gormley’s agreement, whether they would do that part of the inquiry.

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 may be misconduct. Of course, all the way through any such inquiry, we must be cognisant that criminal matters may be revealed. By the way, we were satisfied all the way through the inquiry that there were no criminal matters that needed to be referred, but it is always something that we have at the back of our mind.

However, as we were doing our inquiry we were told, “This isn’t an investigation. This is an inquiry.” That is where I became a little bit confused and concerned. Have I got that right, Darren?

Darren Ellis (Durham Constabulary): Yes. What struck me was that, although the terms of reference for the piece of work were eminently clear, the chronology—without getting too detailed—was such that an inspection by the Interception of Communications Commissioner’s Office in June 2015 identified something that was later deemed to be unlawful. That was reported a month later, and then in more detail in November 2015.

The four adversely affected people, as they were termed by the Investigatory Powers Tribunal process, were in themselves complainants. Let us not lose sight of the fact that, at that time, two of the four were serving members of Police Scotland. Those people did not provide a complaint statement until February 2016. They were clear that the Investigatory Powers Tribunal process was to ensue, but they did not know what they did not know—one could argue, that those individuals were perhaps not engaged with, and nor were matters explained in any great detail or with any great haste, so they really did not know the position until the IPT position, in the August, was clear. That led to my staff having to re-engage with the complainants at that juncture, to find out what they were concerned about, and to determine the length and breadth of the work that needed to be done. That was done subsequent to any terms of reference.

In short, I think that the terms of reference were set far too early. The work that we were required to do was based on an undertaking on Police Scotland’s behalf to the IPT to fulfil an independent investigation. There were also four complainants who needed to be engaged with, reassured and satisfied, and answers given. The terms of reference, I would argue, were set far too early.

The Convener: That seems to be a pivotal part of the issue. The relationship between any misconduct or discipline issues—call them what you will; I am not sure what they would be called south of the border—and criminal matters would also be pivotal. It would be important for the individuals to understand their status and to know whether they were a witness, a suspect or an accused. Was no clarity given on those aspects in the initial brief? How were you initially advised?

Chief Constable Barton: I was initially asked to conduct an investigation, and that is what I agreed with Phil Gormley. Subsequently, the professional standards department in Police Scotland decided that we should conduct only an inquiry. I argued with the department all the way through that I should be allowed to do an investigation, because that was the commitment that Police Scotland had given the IPT, but I was never allowed to do an investigation. We were not allowed investigation status, which would have enabled us to speak to officers who may or may not have been guilty of misconduct and who it was certainly pivotal for us to speak to under caution.

The Convener: I do not wish to labour the point, but underpinning this are various pieces of legislation. Criminal matters are at the behest of the Crown Office and Procurator Fiscal Service and misconduct matters are at the behest of the deputy chief constable. Was there any discussion of the parameters?

Chief Constable Barton: It was unsaid. I cannot be clear about whether we had a specific agreement—it would have been an unspoken agreement. I do lots of inquiries in other forces, and there is an unspoken agreement that, when we are conducting misconduct inquiries, if we reveal criminality, there will be an immediate discussion with, in Scotland, the relevant law officer or, in England, the Crown Prosecution Service or relevant chief constable. The criminality side was not a problem. I was not concerned at all about that component of our terms of reference.

I do not know whether that is helpful.

The Convener: The issue seems to hinge on the initial contact, which is what I am trying to burrow down into.

Chief Constable Barton: Yes, it does.

The Convener: It is not unreasonable for a chief constable who is asked to investigate something to assume that it will be what the layperson assumes is an investigation. However, I am trying to link the issue into the investigatory powers system, what Police Scotland’s expectation was and whether Chief Constable Gormley asked you to deliver that expectation rather than an inquiry that might have encompassed misconduct and indeed criminality.

Chief Constable Barton: As far as I am concerned, I was asked to investigate and I agree that it was what the common man or woman would understand to be an investigation. That is what I wanted to do, but I was prevented from doing so.

The Convener: Members have a number of questions, but I will ask a final one. Were the terms of reference in writing?

Darren Ellis: Yes, but I refer to my earlier point that the terms of reference arrived in August or September 2016 and, at that point, we had not engaged with the complainants. I agree with Mr Barton that Mr Gormley’s request for an independent investigation came as a direct result of the wording that was provided by the IPT. However, with respect, sir, we should remember that, as part of that process, we also had four individuals who quite distinctly had made complaints to Police Scotland. Our investigation was to cover the requirements of the IPT process and the undertaking given by Police Scotland, but it was also to satisfy the four individuals who had made police complaints to Police Scotland, as they were entitled to do.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP): I have a very simple quick question. Chief constable, you said that, when you initially looked at what you were being asked to do, it was beyond what you felt that Durham could undertake and hence Northumbria Police was brought to the table. Were there any downsides as a result of dividing the task in that way? I hope to hear that the answer is no.

Chief Constable Barton:#You will not be disappointed. There were no downsides whatsoever—that is why we divided it. In fact, if we had kept both tasks, there would have been confusion. What we gave Northumbria was a review of everything that was completely disconnected to the inquiry, and we kept everything that was connected to the inquiry. The two were completely separate tasks. When Phil Gormley first spoke to me, we discussed the fact that one was a really big task. The Northumbria force is more than twice the size of mine and, after a bit of cajoling, it agreed to take that. Seriously—it was not a small undertaking.

Stewart Stevenson: The two forces that were undertaking the work would have talked to each other if what they were doing revealed the need to do so.

Chief Constable Barton: Yes. We kept in touch, but I do not think that we found anything that strictly overlapped.

The Convener: I understand that Liam McArthur has a supplementary question on that.

Liam McArthur (Orkney Islands) (LD): Towards the end of the report to the SPA, you say:

“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.”

You go on to say:

“However, in reaching this conclusion the SPA must also consider the restricted working environment Durham have operated within as articulated in the ‘Lessons Learned’ chapter. In particular the fact that Durham have not been able to fully investigate the conduct of the officers within the CCU by means of an unfettered misconduct investigation.”

That level of concern almost begs the question whether, in producing the report, you have legitimised a process in which you do not appear to have full confidence. Would that be a fair characterisation?

Chief Constable Barton: It was clear to me when we started on the process—when we first made contact with the four people who had been deeply wronged—that we had to try to bring fairness and justice to their position. My position at the start—it remains so, and I have articulated this to the deputy chief constable, as well as to the chief superintendent—was that if they had allowed me to do an independent investigation, I could have brought an end to the matter much sooner and much more effectively for the four complainants, because of course it is still not over.

I was frustrated, but it was clear that Police Scotland—erroneously, I believe—felt that I had to go through an inquiry for it subsequently to launch an independent investigation. In effect, it was putting me in as an interim investigator in order for there to be an independent investigation thereafter. I pointed out to Police Scotland more than once that I felt myself to be sufficiently independent.

To try to answer the question, Mr McArthur, it is instructive that, in the evidence that you were given at your previous meeting, a question was put to Chief Superintendent Speirs about the idea that people who deal with misconduct cannot deal with complaints. There is a real separation of those issues in the current interpretation within Police Scotland. I think that that is wrong.

Mr Speirs said that, to run an investigation, officers “cannot have any previous involvement in any complaint handling.”—[Official Report, Justice Sub-Committee on Policing, 23 November 2017; c 6.]

That is wrong. It is not what the regulations say. The regulations say three things about my status if I am to do any investigation. The first is that I must be a rank above the officers that are being investigated. I fulfil that criterion. Secondly, I must have the appropriate skills and experience. That is for others to judge. Thirdly, I must act impartially—and that is it. The false—in my view—separation between complaints and misconduct simply serves to lengthen the process, and Police Scotland does that all the time.

The way that I would have dealt with the matter if I had been in Police Scotland when it was first alerted to it is through IOCCO. IOCCO governs me, too—it governs the entire country. It is a really important day for me when, in effect, the High Court comes into my organisation and looks at the secret stuff that I do, so I have to be on my best behaviour, and I am prepared for that meeting. Generally, we get a clean bill of health, although sometimes minor recommendations are made.

However, the IOCCO report that Police Scotland got in June 2015 was excoriating. Police Scotland was told that people had acted illegally. Following the verbal report in June, Police Scotland got the report in July. At that time, two of the officers were still serving and two were retired. Even though they were in jeopardy and had been wronged, Police Scotland did not contact them.

The IOCCO report was published in November 2015. The four officers who were wronged were written to—in a regimented way—as a result of that report, but not by Police Scotland. They were told that they were in jeopardy. They were perplexed because, at that time, there had still been no contact from Police Scotland, even though it employed two of those people.

Then—I think that it was in February 2016—a complaint was made. As far as I can make out, that was Police Scotland’s first contact with the four people, bearing in mind that it had been told that it had acted unlawfully the previous June.

I need to put the matter into context and explain how I would have dealt with the situation. This committee meeting is necessary, but it is such a pity that we are here. If I had got a report from a High Court judge in June, I would have said. “We need to put this right—now.” I would have immediately made sure that the counter-corruption unit was fit for purpose. If I considered that some people needed training, that would have been done promptly; if I considered that people needed to be investigated, they would have been deployed elsewhere. I would have kept the High Court judge formally informed every month and informally informed every fortnight. Those four people would have been approached and we would have reassured them that everything that we had obtained illegally had been destroyed forthwith. That material has still has not been destroyed. Indeed, last week, I got a letter from Police Scotland asking me to oversee the destruction of the material that was obtained illegally in 2015.

If that had all been done, we would not be where we are. I have had four complainants, one of whom who is still a serving officer—Sergeant Steven Adams. He has been—and remains—gravely wronged. We have got—

The Convener: Mr Barton, I am sorry to interrupt you, but we have to go with what is in the report, so it would probably be helpful not to mention individuals, please.

Chief Constable Barton: Okay; that is fine.

Margaret Mitchell (Central Scotland) (Con): I seek clarification from the clerks about what we can and cannot say. Police Scotland is an inanimate object; it is a single force. What are we talking about here? Police Scotland is the police force under investigation and we must drill down into who has, as I understand it, blocked the investigation that Mr Barton thought that he could fully carry out but was not allowed to do so.

The Convener: I have conferred with the clerks. I am very keen that we thoroughly look into the matter. However, we have a lot of communications, which Margaret Mitchell is aware of, that suggest that some proceedings are still live. That issue is at the back of my mind when talking about individual officers. I am not trying to fetter Mr Barton’s explanation of the whole circumstances—

Chief Constable Barton: I have absolutely no intention of naming any officers who may—or may not—be in jeopardy. That would be incorrect of me and it could jeopardise further proceedings, so I will not do that. However, the names of the four people who were wronged is a matter of public record—they are named in the reports by the IOCCO, the IPT and Her Majesty’s inspectorate of constabulary in Scotland, all of which are in the public domain. I am simply repeating things that are in the public domain. I have no intention at all of embarrassing you, convener.

The Convener: No, it is not embarrassing—

Chief Constable Barton: Sorry, I meant legally embarrassing.

The Convener: Please continue.

Chief Constable Barton: We have four people who were—and continue to be—gravely wronged. Our problem when dealing with those four people is that, every time that we go to see them again, they feel that there is more conspiratorial activity by Police Scotland. I can understand why, because they are not getting to the end of it all. I try to reassure them that there is no conspiracy in Police Scotland and that the situation is a result of ineptitude. I reassure the committee that it is certainly not a conspiracy.

However, because this has carried on so long, we have four complainants, one of whom still works for the organisation, who feel that the organisation is ganging up on them. As a result, every time we see them, we get more allegations that we have to field in our inquiry.

I am simply trying to point out to you that Police Scotland’s aim is to be speedy with all this, but its current interpretation of the rules that it works under is, I think, wrong and does not serve anybody. Officers wait for years to get an adjudication and complainants wait for years to get satisfaction.

The Convener: On the point about the interpretation of the regulations, I believe that Police Scotland sought Queen’s counsel opinion and shared it with you.

Chief Constable Barton: I sought that too, and the legal opinion that I received was exactly what I thought it would be. I have a law degree, and I read and interpreted the regulations. What has happened is that Police Scotland has created a policy on top of the regulations, and it is working not to the regulations but to the policy that it wrote after the regulations. That policy does not carry the force of regulation. The regulations are clear; indeed, I have already explained the three things that I need to be in order to conduct an investigation.

I do not know whether I am going to be unhelpful here, but the way in which this is being misinterpreted is that Police Scotland is separating complaints from misconduct. When a member of the public complains to Police Scotland, the complaint is investigated; when that investigation is finished and it appears that there might be misconduct, the matter is pushed into the misconduct line. However, the complainant is told, “It’s all done and dusted. That’s it—your complaint’s been dealt with.” If they say, “What’s happening with the misconduct issue?”, they are told, “That’s nothing to do with you. It’s a completely separate matter.” That is wrong. If a complainant complains about something in my organisation, they are able to stay with the matter all the way through and we absolutely keep them informed—so much so, indeed, that they can be invited to the hearing, if there is one. They will certainly be informed of the result.

In my force, if the result takes us into misconduct, we will say, “This officer”—we would not name them, but the complainant would know who they were—“has got to have management advice and go on a training course.” At the end of the training course—say, a year later—we would inform the complainant of exactly what we had done. That does not happen in Scotland. Once Police Scotland deems the complaint closed, that is it. The complainant is pretty much set free, and the misconduct element is addressed completely separately and not transparently.

The Convener: Thank you for that. I see that members have a number of questions.

Rona Mackay (Strathkelvin and Bearsden) (SNP): Just to backtrack a wee bit, how much time elapsed between your thinking that you were about to conduct an investigation and your subsequently being told that it was an inquiry?

Darren Ellis: It was two to three months. The team and I started in earnest in early December. In the initial stages of any investigation, we clear the ground, gain understanding, obtain documents and speak to witnesses—not vulnerable ones, but ones who can help with the picture. Then the dialogue started with Police Scotland.

Rona Mackay: So you actually had a chance to start the investigation—or what you thought was going to be an investigation.

Darren Ellis: Absolutely.

Chief Constable Barton: There are one or two nuances with regard to the difference between inquiries and investigations, but, to help you, I would say that the main difference is that in an inquiry we cannot interview officers under caution. If we spoke to the officers who might be at risk, whatever they said to us could never be used in a subsequent investigation. That seemed bizarre to me. There was therefore no point in speaking to the officers, because whatever they told us would not be helpful to the person who subsequently took over my inquiry.

Rona Mackay: Finally, has this ever happened to you before, or is it something entirely new?

Chief Constable Barton: This is a novel experience for me.

Margaret Mitchell: You have said that we are talking about ineptitude rather than anything more serious. It is comforting that, at this stage, that is your conclusion.

Do you think that some of the ineptitude has been a result of having a single force—a single force that was under review because of what had happened? Given that the single force was under review, do you think that it was appropriate that it was the arbiter, that it set the policy and that it made the determination that you could not continue the investigation and that you could look only at complaints rather than conduct?

Chief Constable Barton: I cannot comment on whether I was asked to do an inquiry rather than conduct an investigation because there was a single force. Quite frankly, that did not cross my mind; I was dealing with what I was dealing with.

I think that there was a lack of openness in certain parts of the organisation—in the legal department, certainly—and that remains the case. When we conducted our inquiry, we wanted to look at everything. When we looked at the senior officers, we needed to see the emails that people sent each other before coming before your committee, to find out whether there was a conspiracy that involved people not telling you the truth, but we were told that we could not see those email chains.

The legal officers in Police Scotland misinterpreted legal privilege. We never asked to see legally privileged documents, which are documents relating to advice provided by a solicitor or a lawyer to their client. It is legitimate for a senior police officer or a member of the Scottish Police Federation to sit down with their solicitor and to be absolutely sure that those conversations are sacrosanct. I did not want to breach that, but the law officers in Police Scotland misinterpreted legal privilege—they deemed anything that a senior officer did as a result of such a meeting to be legally privileged, which is clearly nonsense. It took me two or three months just to get through that impasse.

Another impasse was to do with the fact that we wanted to speak to senior officers who had retired. Police Scotland wanted us to do that as part of the inquiry, but lawyers in Police Scotland said that we were not allowed to know where those retired officers lived, because that would be a breach of data protection. We asked them very politely how the devil we could get in touch with those people. Eventually—after another two months—we got the details and we were able to go and see them.

I think that, currently, the lawyers in Police Scotland are not transparent. They are also overly defensive and risk averse, and that got in my way. I cannot say whether that has anything to do with it being a single force.

Margaret Mitchell: That certainly chimes with the concern that some of us have had since the inception of Police Scotland that the checks and balances are not there to ensure the necessary accountability, transparency and openness. It seems to me that there is a conflict of interest if the organisation that is under investigation can block the passing on of information.

Could you comment on Northumbria Police’s report?

Chief Constable Barton: I have not seen that. I know that if Northumbria Police has not sent it, it is pretty much sent.

Margaret Mitchell: Have you reached any conclusions about the culture in the organisation? Northumbria Police’s report says:

“Within Police Scotland and unlike the complaints process in England, officers subject of an investigation by Police Scotland PSD/CCU often resulted in a counter allegation made against those officers who are conducting the investigation.”

It goes on to say:

“It is unclear if this is orchestrated by individuals or they are coerced in to this course of action by legal representatives, federation or peers but this does appear to be the immediate response following any executive action taken as part of CCU/PSD investigations.”

Chief Constable Barton: Darren Ellis might come in after my comment on this because he is closer to some of the detail.

What you describe to me, Ms Mitchell, is a culture. The reason why I fall on my sword smartly in any such situation and do so genuinely is that organisations need to have humility. That applies especially to police forces, because we yield power on behalf of our communities and states and it is crucial that we exercise that power with humility. Therefore, I fall on my sword quickly.

That is why I know what I would have done in this case. Darren Ellis, who is my former head of professional standards, would have come into my office and looked grave. It would have been clear to me within five minutes what I would have to do, which would be to have the four complainants in and apologise profusely.

When that does not happen, it permeates an organisation. Individually, there are some smashing people in Police Scotland. Everybody we met was a smashing person. I have to say that I got dreadfully cross with the legal people and the PSD people because they misinterpreted the rules, to be frank, and are too risk averse, but they are still smashing people. The issue is the culture.

It was instructive that, when one of the committee members asked what the four complainants were like, Mr Speirs said something like, “Oh well, we have sort of subcontracted that to Durham and Durham are really in touch with them and looking after them.” Yes, we are, but only by default. That should have been done by Police Scotland. It should have been really clear from day 1. That is why the officer who continues to serve continues to have a grave injustice inflicted upon him.

Margaret Mitchell: You said in your opening statement that there was information given to the committee that needed to be corrected. Has that now been corrected?

Chief Constable Barton: No.

Margaret Mitchell: Will you elaborate on what that was?

Chief Constable Barton: Thank you. I will now take you through the Official Report of your meeting of 23 November 2017, if you do not mind.

The end of the paragraph at the top of column 6 says: “the process seems to have become complicated and somewhat protracted.”

I emphasise to you that that is because of the decisions that I have just described—the way that risk-averse decisions were made. However, I agree with the convener at the time, who suggested that it did not need to be so.

I disagree that “Complaints and conduct are two separate matters in … the Police Service of Scotland (Conduct) Regulations 2014”.

They are not. That is just how they have been misinterpreted.

The Official Report says that it was “Police Scotland’s intention to publish a redacted version” of our report. I have sent you an unredacted version of both our reports. I sent them before the end of the year. As the reports’ author, the handling codes on those documents gave me the right to do that.

Halfway down column 7, Chief Superintendent Speirs 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 in three separate published reports.

At the top of column 8, he says: “The report becoming public would prejudice the investigation.”

However, the matters looked into were already in the public domain in the IPT judgment, the IOCCO review and the HMICS report. People say that they want to be open and transparent but everything that they do and say militates against that.

At the bottom of column 8, Chief Superintendent Speirs says that providing a summary “would be incredibly unfair on the officers who are subject to the inquiry at this time”.

He has got that wrong. It is incredibly unfair to the four complainants and, actually, the length of the process is incredibly unfair to the officers. That secrecy and lack of transparency are incredibly unfair to everybody, because there is not speedy justice.

At the bottom of column 9, Chief Superintendent Speirs says: “The redaction will largely be in the Durham report and will relate to very personal information.”

At the bottom of column 13, in response to Ms Mackay’s question, he goes on to say that my report “goes into fine detail about the officers”, such as “their ages”—I never mentioned anybody’s age—and “their postings”. I mentioned their relevant postings—whether they were in the CCU or part of the murder inquiry or neither. He says that my report contained “a whole raft of other details.”

Forgive me, but there was no raft of other details. There were no ages. I simply named the officers and where they worked, and that information was drawn from three reports that were in the public domain.

At the top of column 14, Chief Superintendent Speirs says: That is a good question. I will be honest with you that the report is written in Durham’s style.”

There is an implication there that, bless me, I have created a Durham style that is not quite up to snuff in Scotland. I absolutely disagree with that judgment. He goes on:

“When we asked that force to do an investigation and provide a report, we accepted the report in the format that it 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.”—[Official Report, Justice Sub-Committee on Policing, 23 November 2017; c 6, 7, 8, 9, 13, 14.]

The implication is that he told us exactly how he wanted his report and we failed to comply. He gave us one sheet of paper, which I have supplied to the committee, with a Police Scotland heading on it—that was it. I have done quite a few such reports, and the most important parts of them are the lessons learned, but that was not part of any template that we were given. The really instructive thing is that, when we spoke to the Police Service of Northern Ireland, as we had to because that service took over the inquiry, and we had to brief it, we found that the Police Service of Northern Ireland was told by Police Scotland—by Mr Speirs’s department—to follow our report structure, because they found it helpful.

At column 19, Mr Finnie asks about suspension. I never spoke to anybody about suspension. It was never raised with me and I did not offer an opinion, as that was not within my brief. However, since it was mentioned and there was an implication that we were involved, I will say this: I do not think that those officers in the CCU should have continued in the CCU after the decision was made by IOCCO. I am going back now to June 2015.

I am sorry for going on, convener, but I have one more comment. Actually, it is more of a comment about timeliness. I moved at pace, and the only times that we paused were when we asked for preliminary assessments. At any time in our inquiry, the officers in the professional standards department could have done a preliminary assessment. If they had done that, they could have switched the process, even under their arcane rules, into an 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 balked in speaking to some people because we were not given the addresses and we were balked 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 timeliness.

The Convener: Thank you—it has been helpful to get all that on the record. I am told that it is also important to put on the record that, as the unredacted reports were Police Scotland and SPA reports, the sub-committee was unable to publish them—as you will be aware, we publish all documentation in advance of meetings. Members are therefore not able to refer to those particular reports.

Daniel Johnson (Edinburgh Southern) (Lab): It sounds to me as though there are two fundamental issues. One issue is the timing of the setting of the scope of your work. As I understand it, the complainants had not had the opportunity to come forward at the point that the scope was set. Is that correct?

Chief Constable Barton: They had not come forward in an informed manner.

Daniel Johnson: The second issue is the interpretation of regulations. You are saying that the same regulations apply to all forces in the United Kingdom, but that Police Scotland has interpreted them in a different way. Is that right?

Chief Constable Barton: No, that is not true. There are different regulations in Scotland. The main difference is that Police Scotland officers can make a complaint as if they were a member of the public. Police officers in England and Wales cannot do that.

Daniel Johnson: Are you saying that, in essence, there should be no difference in how a complaint is pursued thereafter?

Chief Constable Barton: When I saw the Police Scotland regulations, I was entirely comfortable with them because what was in them is the same as what I had worked with in England and Wales. When I saw those three rules for doing an independent investigation, they were fine by me. However, I think that how the regulations have been wrapped up in procedure and policy thereafter in Police Scotland is the reason why the problems started.

Daniel Johnson: You referred a number of times to having done a number of similar investigations in the past and in a number of different forces in the rest of the UK. So that we can get an understanding of how unique your experience in Scotland has been, will you tell us how many you have done?

Chief Constable Barton: I am conducting some quite confidential inquiries at the moment. I have not just inquired into England and Wales matters; I inquire into matters in other countries, but I am not at liberty to explain that. All I can say is that I was flummoxed by the interpretation—misinterpretation, in my view—of how we should proceed.

Darren Ellis: I was the head of PSD for seven years, so my total runs into dozens. I have never been confronted by the issue that we were confronted by here.

Durham picked up four adversely affected, disillusioned people who had not been given respect. You should keep looking to see whether any of the Police Scotland values of integrity, fairness and respect shine through in this plot. Misunderstandings and myths built up because those people had not been shown respect by being given an explanation.

I can understand why your are drilling down into the terms of reference, but, outwith Durham conducting an independent investigation, what did we need in further detail? The investigation started with the four individuals not really understanding the terms of reference. For terms of reference to be meaningful, they needed to be pliable and flexible enough to meet the needs of the four complainants.

Notwithstanding that, for the IPT process to meet its statutory responsibility—this has been shared with Police Scotland—it has to oversee an effective remedy, which, as written down in the regulations, is an investigation on which reasonable decisions can be made. It has yet to be decided whether the process adopted by Police Scotland meets the needs of the complainants who have spoken to the IPT.

Daniel Johnson: That is a really critical point. I hear your differences of opinion with Mr Speirs’ evidence and I hear what you are saying about how the legal department interprets the regulations. Is the source of the issues regarding the way that Police Scotland has interpreted the regulations and implemented its processes and procedures limited to the legal department, or does it extend beyond that? To what extent is there a responsibility on senior officers to ensure that their legal processes are fit for purpose and serve the interest of the officers in their force?

Chief Constable Barton: I have a great deal of sympathy for the chief officers of Police Scotland, because the process is one that they have received rather than one that they have designed.

I think that the situation started with an overcautious approach. My impression is that the unions—Unison, the Scottish Police Federation and the Association of Scottish Police Superintendents—sat down and asked themselves how they would work in the process. The process has become overly protracted, and I understand that the Scottish Police Federation has lodged judicial review proceedings against the force. That tends to create polarised opinions. The only way in which to make the regulations breathe and work so that people can feel that there is fairness is for there to be co-operation on all sides.

The issue is not principally or exclusively the legal department. All that I have to say is that I got quite cross at times with the way in which it dealt with our reasonable requests for information. However, the process has grown like Topsy, and people have added in a little word here and a little word there. I will give you an example. Darren, have you got the policy in front of you? Can you find where two or three items have been added?

Darren Ellis: Yes, I have the guidance.

Chief Constable Barton: Will you find the policy, Darren? Thank you. That will help the committee to understand how I think things have grown.

I refer members to part 2 of the Police Service of Scotland (Conduct) Regulations 2014, on “Misconduct investigations”. Regulation 10(5) states: “An investigator appointed under paragraph (4)(a) must— (a) be a constable of a higher rank than the constable being investigated; and (b) have the necessary knowledge, skills and expertise to plan and manage the misconduct investigation in relation to which the appointment is made.”

Regulation 10(6) states: “The deputy chief constable must not appoint as an investigator 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.”

I will explain how that regulation has been interpreted. People have considered a situation in which somebody has a look at something in a preliminary inquiry and they have asked themselves whether that person could be impartial for the second half of that work. In order to ensure that they are bombproof on that aspect, they have built into the policy that the person who does the inquiry cannot do the investigation.

They have taken that view instead of taking a pragmatic view. Goodness me! I do not know any of the protagonists in this inquiry—other than Mr Gormley, when I entered into the work—so I must be seen as impartial, yet I was not deemed impartial because Police Scotland concentrated on the rule that it had created, over and above the regs, that the person who did an inquiry could not do an investigation. Does that answer that point?

Daniel Johnson: It does. I have a final question. It is clear that you found that the legal department put stumbling blocks in your way. Did you experience any other blockages or impediments from other people in Police Scotland as you tried to do your work?

Darren Ellis: Irrespective of which legislation you are speaking about, which conduct or complaint regulation you are using or whether the matter relates to England, Wales or Scotland, there is an expectation that, on receipt of a complaint—no matter what it looks like—a preliminary assessment will be conducted. That preliminary assessment has never been carried out in this investigation, and that is a significant issue.

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 again told 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 that work was ever done—

Chief Constable Barton: We do not know, do we?

Darren Ellis: We do not know. That is another reason for the delay. It was a really difficult position, because I did not have a starting point.

The Convener: Are there items of correspondence or email exchanges regarding that particular aspect?

Darren Ellis: Not to my knowledge. The last instruction was that, after a degree of searching, consultation and engagement with key members of staff, there should be a preliminary assessment. That is a fairly significant piece of work and it is required for a complaint at even the lowest level, which the case that we are discussing is not at—as we know, it was described as serious, unlawful and in need of an independent investigation by the IPT. Therefore, for a preliminary investigation to be absent is surprising and of concern.

Liam McArthur: At various stages, you have referred to ineptitude within Police Scotland, a culture of secrecy and risk aversion and a number of other concerns. You have given evidence on why you have come to your conclusions. At any stage, did you have conversations with the former chief constable or, more recently, DCC Livingstone, about those concerns, recognising that you appear to have come up against impasses with the legal department and others?

Chief Constable Barton: Can I name the two chief officers I have spoken to?

The Convener: Yes.

Chief Constable Barton: I have not spoken to Mr Livingstone about it, because he is not part of this. On the decision making, I have been speaking to DCC Fitzpatrick. I also spoke to Mr Gormley when he first rang me. Because he was the chief constable, I would not have expected to speak to him at all after that. However, when I was frustrated by an early meeting with the professional standards department, I met him at a National Police Chiefs Council meeting and asked him to have a word, because the process was not moving as quickly as I would have liked it to. That was the length and breadth of our conversation. I would not have anticipated the conversation being more than that, because the chief constable has to be kept separate in these matters as they can sometimes be called on to adjudicate. That would be the standard procedure for me—I would not want to compromise him.

It is a matter of record that DCC Fitzpatrick does not agree with my interpretation. She stands by Police Scotland’s interpretation, and you are right to note that Police Scotland has received advice from lawyers. However, I think that that advice is wrong.

The Convener: As part of your engagement, were you given a point of contact? Were you given any support from Police Scotland in the form of a staff office or something of that nature?

Chief Constable Barton: We are pretty much self-contained. We do lots of these investigations, and we are not needy people. Our point of contact was the professional standards department—principally Mr Speirs.

Ben Macpherson (Edinburgh Northern and Leith) (SNP): Much of what I wanted to ask has already been covered. Going back to the issue of the obstruction that you felt you encountered in relation to the legal team in particular, do you feel that that was a culture that had continued from historical arrangements pre-merger, or did it appear to be a set of practices that had come about in recent times?

Chief Constable Barton: My understanding—which accords with the findings of the judicial reviews—is that the federation, the supers, the professional standards department and the lawyers have got into a position whereby things have been made overly legalistic, which is not what the regulations called for. The regulations were designed to get rid of that over-lawyerliness, so that people could sit down and learn lessons. The intention was to ensure that the complaints would be a liberating experience for an organisation because they would shine the light on where people were getting let down. However, that is not what has happened in this case. What has happened here is that, over time, people have dug themselves into trenches and they cannot seem to get out of them.

It is preposterous that, in an inquiry, I was invited to speak to officers who could not be held to account for what they told me, which meant that I could not conduct probing interviews under caution. They could have just told me a load of old bunkum and I would have had to write it down and hand it on to someone who was investigating it, who might have looked at me and said, “You’re not so good, Mick. You’ve just put a load of bunkum in front of me.”

My answer to your question is that that culture has grown over time. I think that everybody needs to be put into a sack, shaken up and told, “For heaven’s sake, fix it—stop this.” The only people who are suffering are the people who make complaints, who are getting a less-than-optimal service, and the officers themselves—it is dreadful that they are being held under suspicion for quite so long.

Darren Ellis: Members of the public are suffering, too. They deserve openness, transparency and explanation. If their rights cease to exist from the point at which the complaint inquiry is completed and do not continue right to the end of the process, that is contrary to what all the strategic documents say about explanation, apology, openness, transparency and understanding—those things are never achieved.

Mr Livingstone was interviewed as part of our inquiry, but his involvement was not significant and was discounted in the SPA report. It is right to explain that the work that Northumbria Police did was on recommendation 39. I am sure that the committee is overseeing the previous 38 recommendations with regard to the counter-corruption unit.

Chief Constable Barton: You are referring to the HMIC report.

Darren Ellis: Yes. When we were investigating processes in the counter-corruption unit, other stakeholders had observed that improvement—38 recommendations’ worth of improvement—was required. We did not see the application of any policy book or any rationale around decision making that would have made our hypotheses and conclusions a bit different. If we understood why certain individuals embarked on certain actions, the picture might have been different, but there is nothing to defer to in helping us to understand the decision-making rationale as to why what we would call actions in the investigation that brought about the illegal applications were taken. The absence of any explanation of why that was done or where it would take the investigator makes it all the more concerning.

The Convener: I am not clear whether the committee’s role includes sack shaking. We can look into that and get back to you.

Chief Constable Barton: It is a great English custom. [Laughter.]

The Convener: It sounds like a commendable practice.

Margaret Mitchell: You have highlighted that there are four people who have been seriously wronged, and it appears that they are still being wronged. The committee has received a letter from one of the complainants. I think that you said that the IPT is deliberating on whether Police Scotland has delivered a “reasoned decision” as required by the IPT judgment. Those deliberations are still on-going.

The complainant says that, despite that, an attempt has been made to close down the whole episode, as the letter from Alan Speirs shows. It says: “I write to advise you”— “you” being the 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 take it that you would be absolutely opposed to that, as the committee has already said it is.

Chief Constable Barton: No—that bit needs to be done.

Margaret Mitchell: That is interesting.

Chief Constable Barton: In my evidence, I said that, if I had been the chief or the senior officer who in 2015 had received the very critical IOCCO report that said, “The activity that you engaged in against those four people in April of this year was illegal and you shouldn’t have done it,” I would have got rid of that material then and there. That is the material that DCC Fitzpatrick invited me to oversee the destruction of, when she wrote to me last week. We will do that, but we have not yet put in place the arrangements for that. The phone records that were illegally obtained still exist in Police Scotland. They are sealed off, but they still exist and they need to be destroyed. We will oversee the destruction of those records.

Margaret Mitchell: I am a bit puzzled—I am not sure that I understand that, and the complainant certainly does not, because—

Chief Constable Barton: You have hit the nail on the head with the fact that you are perplexed. Because people take an overly lawyerly approach to the issue, rather than sitting down and having a normal conversation in everyday language, they do not understand what has happened. That is exactly what has happened to the four complainants all the way through. They have either been starved of information or have been given very legalistic and dry information. Frankly, it is hard to understand some of the letters.

Margaret Mitchell: Should the destruction of the records not be halted until the investigation is fully complete if there is even a scintilla of uncertainty about whether they are relevant?

Chief Constable Barton: I would do that only after I had contacted the force. I am not going to steam in and destroy records without going to see the four complainants. We have a good relationship with the four complainants and we will not do anything pivotal in the inquiry unless they are kept briefed. I did not tell you that, because it is just like breathing.

Darren Ellis: Those letters are really recent—they could even have been sent this week. I am picking up a vibe from you, Mrs Mitchell. It is our shout to provide quality assurance to the four complainants. We will not oversee any destruction of data until we are sure that all proceedings ensuing from this debacle are concluded. Two of the complainants are in the room today and I am sure that we would have their consent for Police Scotland to hold that information until all matters are finalised. It would be wrong to destroy the data before then, because it could contain information that is helpful to those four, who may consider other proceedings.

Margaret Mitchell: Thank you. That is greatly reassuring.

The Convener: Yes. It is helpful to have that on the record. Stewart, do you have a question?

Stewart Stevenson: I want to get absolute clarity, so I will use a particular form of words. The data or information about which we are talking is data or information that it has been determined it is not legal for Police Scotland to have. Let me correct myself. The process by which Police Scotland obtained the data is not legal and, therefore, it is not legal for Police Scotland to hold that data. That is the data about which we are having this discussion.

Darren Ellis: It is three forms of data. It is the data that led to the application, the application process itself and the data received as a result of the application process.

Stewart Stevenson: Yes. However, to be absolutely clear, I am not focusing on the process, because all that we can destroy—when and if that happens—is the data and information that is obtained.

Chief Constable Barton: No—we can destroy the false intelligence that was used to acquire the data. All of it must be cleansed. Anything that is wrong, in any of the process—from the start, before any data was even collected—must be cleansed.

Stewart Stevenson: I was just making sure that we have on record a clear understanding of what data we are talking about. As a layperson, it seemed to me that there was a danger that—

Chief Constable Barton: Could I help? Data was obtained, but information and intelligence was used to obtain that data. The information and intelligence will be cleansed as well as the data itself.

Stewart Stevenson: Sorry—I will return to that subject. It would be perfectly legal for Police Scotland to have the intelligence that led to the action—

Chief Constable Barton: Not if it is wrong.

Stewart Stevenson: No. I was going to make the point that having it does not make it correct.

Chief Constable Barton: Police Scotland cannot keep something about somebody when it is a lie.

Stewart Stevenson: I understand that, but it was perfectly proper for Police Scotland to have it in the first place before it concluded, as you say, that it was a lie.

Chief Constable Barton: No. It was never legitimate for Police Scotland to have it, because it had made it up.

Stewart Stevenson: Okay. That is clear.

The Convener: We have gone over our time. Mr Barton, I know that you have read previous Official Reports. You also talked about the pivotal role that senior officers could have played in this issue. Our early engagement on the issue was with former Deputy Chief Constable Neil Richardson. Do you wish to comment on your examination of the Official Report and on whether DCC Richardson has been helpful to us in discharging our obligations in relation to scrutinising the issue?

Chief Constable Barton: My preference is that you read the report that I provided to the Scottish Police Authority. I am very clear in that report.

The Convener: I am grateful for that response.

Thank you, Mr Barton and Mr Ellis, for your attention to detail on the issue and for coming here today. I wish you a safe journey home.

14:10 Meeting continued in private until 14:25.

 

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NO CONFIDENCE: Chair of Scottish Police Authority refuses to stand down, as board member criticises Holyrood scrutiny of governance, secrecy culture & lack of accountability at discredited Police watchdog

Chair Andrew Flanagan clings to power at Police regulator. AMID further calls to quit, the Chair of the embattled Scottish Police Authority (SPA) grimly remains in office and at the centre of a crisis which has eroded public confidence in the Police watchdog to the point only a clean sweep of the board may begin to repair significant reputational damage to the regulator of Police Scotland.

Facing further criticism from the Scottish Parliament’s Justice sub-committee on Policing late last week, Andrew Flanagan again refused to stand down from his £70K position as Chair of the SPA.

According to his declarations on the SPA website, Andrew Flanagan also holds positions on the Civil Service Commission, NHS Business Services Authority, London-based NEL Commissioning Support Unit, and the Criminal Injuries Compensation Authority, positions he earns up to £75,000 a year in addition to his £70K salary as SPA Chair.

Flanagan’s decision to remain in office comes after members of Holyrood’s Justice Committee said in a report  they had “serious concerns”in the current SPA Board – which has responsibility for oversight and spending of the £1.1 billion Police Scotland budget.

The Justice Committee expressed “very serious concerns about the standards of governance” at the body and said it “does not have confidence that the current chair is the best person to lead the board”.

The report was issued after the Justice Committee held an evidence session with SPA Chair Andrew Flanagan & CEO John Foley after hearings at the Scottish Parliament’s Public Audit Committee heard details of Andrew Flanagan’s treatment of Moi Ali – a former SPA board member who spoke up over concerns about the lack of transparency & accountability at the Police Watchdog.

At an earlier meeting of the PAPLS Committee Moi Ali accused Flanagan of bullying, which led to Ms Ali’s resignation from the Police regulator after she publicly objected to plans to hold meetings in private and arrangements over the publication of board papers prior to meetings.

During the evidence session at the Justice Committee, SPA Chair Andrew Flanagan told MSPs he had issued a written apology to Ali on Tuesday of that week, however, evidence has since emerged the apology was emailed to Ms Ali  less than two hours before Flanagan was to appear before MSPs to answer concerns about harassment and transparency.

The Justice Committee have not yet commented on whether they plan to quiz Mr Flanagan further on his contradictory claims in relation to his communications with Moi Ali.

While Justice Secretary Michael Matheson has remained conspicuously silent in the crisis at the SPA, Matheson has quietly requested an inspection of transparency and accountability issues at the organisation be brought forward by Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS).

The results are expected in June, however Justice Committee member Mary Fee MSP (Scottish Labour) branded Flanagan’s testimony to the Justice Sub-Committee on Policing “frankly inadequate”, adding: “We do not have confidence in his leadership.”

The report released by the Justice Committee says Flanagan’s repeated use of the phrase “I have to accept” when discussing his treatment of Moi Ali – does not reassure the committee that he has a “real belief and understanding” that the actions he took and “repeatedly defended were wrong”.

Speaking to the BBC, Mary Fee MSP – Convener of the Justice sub-Committee on Policing – said: “Though he was apologetic, we are not confident he accepts he was wrong.

“This issue remains unresolved. We will continue working with the Scottish Police Authority, and other justice stakeholders, until we are confident the governance of the SPA is significantly improved.”

Also speaking to the media, former Police officer & Justice Committee member John Finnie – also the Justice spokesperson for the Greens, said: “Andrew Flanagan said nothing at his most recent appearance in front of the Justice Sub-Committee on Policing which led me to believe that he has learned the important lessons necessary for him to lead the SPA.

“Mr Flanagan’s half-hearted apology, emailing Moi Ali around an hour before his appearance at the sub-committee, epitomises his approach to this whole sorry saga – looking out for his own self-interest rather than that of the Scottish Police Authority.

“In order to effectively chair an important public body it is vital that you hold the confidence of Parliament. It is clear from the views expressed by both the Public Audit Committee and today by the Justice Sub-Committee on Policing that Mr Flanagan lacks that confidence.

“He certainly does not hold my confidence.

“This ongoing situation continues to overshadow the vital work of the SPA and must be resolved sooner rather than later. I would ask Mr Flanagan to seriously reflect on his position.”

Giving evidence to the sub-committee, Flanagan was asked if he accepted there had been “reputational damage to SPA that it may not recover from”.

He replied: “I think we can recover from it, I think there has been some damage there. I think my apology to Moi is a start of that process, it is not the end of the process.

Responding to the Justice Committee’s criticisms of the SPA and their report SPA Chair Andrew Flanagan said: “As I have already done with the views of other parliamentarians, I and the SPA Board will consider this report very carefully over the coming days and reflect on its contents.

“As I indicated in my evidence to the Committee, I have publicly acknowledged recent mistakes without caveat or qualification. I also believe that in my time in office I have brought much improvement and clarity to the strategy, governance, sustainability, and relationships within policing.”

“I remain focussed on building a broad consensus around my continuing leadership of the SPA, and my contribution to a stable and collaborative leadership within policing as a whole.”

“Today, and in recognition of recent areas of contention, the SPA has backed my recommended changes to governance that will increase both the transparency of our meetings and the accessibility of information.”

“This will begin to address the concerns of stakeholders, and the inspection report of HMICS will provide a further opportunity to build on that.”

“I also look forward to further developing and broadening the Board’s approach with the appointment today of Nicola Marchant as the first Deputy Chair.”

It has since been reported in the Herald newspaper SPA Chair Andrew Flanagan did not share a crucial report on forensics with all his board members.

The SPA has control of forensic services – including DNA, drug analysis and scene examination – and Mr Penman sent the chair a “professional advice note” (PAN) on the subject.

The document flagged up possible reforms on a part of the Police service that has had to make efficiency savings.

Speaking to the Herald, a spokesman for HMICS said of the advice note: “HMICS received a letter on 31 October 2016, from the [SPA] Chair acknowledging the final version and confirming that it had been shared with all board members.”

The Herald further reported: “However, asked yesterday to confirm that Mr Flanagan had shared the advice note with all board members, a spokesman for the SPA said:

“The SPA members received briefing from their officers last August in which one of the options set out in respect of forensic services clearly reflected the HMICS advice note. The paper provided to members made clear that background papers available to them included the independent analysis and advice by HMICS in relation to forensic services.”

A senior policing source said it was a “fair assumption” that the advice note was not given to all board members at the time.”

Report from the Justice Sub-Committee on Policing: Justice Sub Committee on Policing Report on Governance of the Scottish Police Authority

1. The Justice Sub-Committee on Policing held an evidence session on the governance of the Scottish Police Authority (SPA) on 18 May 2017.

2. It took evidence from Andrew Flanagan, Chair, and John Foley, Chief Executive of the Scottish Police Authority.

3. This was in response to the letter from the Public Audit and Post-legislative Scrutiny Committee to the Cabinet Secretary for Justice outlining its “very serious concerns about the standards of governance at the SPA”, following its recent evidence sessions^

4. The Cabinet Secretary for Justice has asked Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS) to bring forward aspects of his intended statutory inspection into the state, efficiency and effectiveness of the Scottish Police Authority scheduled for 2017/18. The Cabinet Secretary has asked HMICS focus on transparency and accountability issues.]

5. Accordingly, HMICS is currently undertaking a Thematic Inspection of the Scottish Police Authority – Phase 1 Review of Openness and Transparency and is to report to the Scottish Parliament on 22 June 2017. The terms of reference are as follows:

The overall aim of this review will be to assess the openness and transparency in the way that the Scottish Police Authority conducts its business. It will specifically examine:

(i) the Authority’s decision on holding meetings in private and the publication of meeting papers; and also assess

(ii) the Authority’s compliance with relevant legislation, guidance and standing orders and the awareness and understanding of the Chair, Board members and SPA officers of these.

Introduction

6. This report outlines the views of the Justice Sub-Committee on Policing on the evidence heard at its meetings of 20 April, when representatives of Unison, the Scottish Police Federation and the Association of Scottish Police Superintendents provided evidence, and of 18 May, with the Chair and Chief Executive of the SPA.

Committee consideration

7. The 18 May evidence session focussed on the following decisions:

• to hold committee meetings in private;

• to not circulate to the SPA board members the letter from HMICS raising concerns about holding committee meetings in private; and

• the Chair’s letter to Moi Ali of 19 December, in response to her dissenting to meetings being held in private.

8. The Sub-Committee considered the decisions taken by the Chair and Chief Executive, the actions they took (or did not take) as a result of those decisions, and the impact on the effective governance and reputation of the SPA.

9. The Sub-Committee also considered the impact of the proposed actions to be taken going forward on the SPA’s governance, transparency and reputation.

Conclusions

10. The Sub-Committee shares the very serious concerns about the standards of governance at the SPA raised by the Public Audit and Post-legislative Scrutiny Committee and thanks it for its scrutiny of the governance of the Scottish Police Authority.

11. The Sub-Committee agreed to write to the Cabinet Secretary for Justice, copied to Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS), outlining its views. The letter is attached at Annexe A of this report.

PAPLS Letter from the Cabinet Secretary for Justice to HMICS, 20 April 2017

PAPLS Letter to the Cabinet Secretary for Justice, 12 May 2017

Letter from the Justice Sub Committee on Policing to Justice Secretary Michael Matheson:

Dear Michael: The Justice Sub-Committee on Policing held an evidence session on 18 May 2017 on governance of the Sottish Police Authority. This was to provide an opportunity for the Chair and Chief Executive of the SPA to address serious governance concerns raised by the Public Audit and Post-Legislative Scrutiny Committee in its recent letter to you.

The Sub-Committee also took evidence from Unison, the Scottish Police Federation (SPF) and the Association of Scottish Police Superintendents (ASPS) on 20 April, when SPA governance issues were raised.

The Sub-Committee appreciates that HMICS is currently undertaking an urgent review of the openness and transparency of the SPA and that you are to appraise the performance of the Chair of the SPA. This letter is to inform both.

Openness, transparency and accountability

The Sub-Committee agrees with your assessment that the SPA “needs to ensure that the processes and mechanisms that it has in place are open and transparent’’^”

Many of the issues surrounding the openness, transparency and accountability of the SPA’s governance seem to have been created by the implementation of two of the recommendations in Andrew Flanagan’s Review of Governance, which was published in March 2016. These were that committees should be seen as working groups (recommendation 15) and therefore that their meetings should be held in private (recommendation 16).

In his letter to Andrew Flanagan of 9 December 2016, Derek Penman cautioned that the proposal for committees to meet in private might impact negatively on the openness, transparency and legitimacy of the SPA, as well as public confidence in its governance. Despite this, the decision was made for committees to meet in private.

In a previous evidence session, the Justice Sub-Committee on Policing heard that those representing police staff, officers and superintendents felt that this decision excluded them from participating in the decision-making process.

Craig Suttie of the ASPS told the Sub-Committee that superintendents “had concerns when the governance review came out”, whilst Calum Steele of the SPF said that holding private committee meetings “undermines the SPA’s legitimacy”.

In response to questions on engagement with the unions and staff associations Mr Flanagan acknowledged that he was aware that stakeholders were unhappy, but held the view that the level of engagement was sufficient, saying that “In the committee structure that has been set up, people can come and give evidence … the SPF and other staff associations and unions can come to those meetings”.[4]

The proposal that committees are to meet in public and to publish papers well in advance of meetings is a move in the right direction. This is good practice and it is difficult to comprehend why this approach was not recommended in the governance review.

There is a need for some items to be taken in private, and the Sub-Committee appreciates Mr Flanagan’s assurance that respectful open debate on whether items should be taken in private will be encouraged going forward.

Private committee meetings, issuing papers at the last minute, and reducing input from key stakeholders has damaged the relationship between the SPA and police staff, officers and superintendents. It has also raised questions within the police service and externally about the SPA’s accountability, transparency and legitimacy.

Although there is now a proposal for committees to meet in public, Mr Flanagan suggested that this was due to improvements in the information that is submitted by Police Scotland,rather than being in response to the impact private meetings have had on key relationships and the SPA’s reputation. It is essential to repair both.

As part of his review, HMICS is to “engage directly with the key stakeholders, including police staff associations and members of the media and others who have a specific interest in the policing of Scotland and who may wish access to SPA meetings and papers”.

The Sub-Committee would refer HMICS to its evidence session on 20 April with Unison, the SPF and ASPS and, in light of recent media reports, respectfully request that Mr Penman engage with COSLA during his review of openness and transparency.

Correspondence from HMICS

It is clear that Derek Penman’s letter of 9 December 2016 to the Chair, copied to the Chief Executive, was time critical. In it Mr Penman raises a number of concerns about the Corporate Governance Framework, which was to be agreed at the following week’s SPA board meeting. Whilst Mr Flanagan has now acknowledged that this correspondence should have been circulated as a matter of course, and has committed to doing so in future, the Sub-Committee explored the reasons for the 9 December letter not being circulated.

The Sub-Committee heard that there were practical issues which contributed to Mr Penman’s letter not being circulated immediately. The Chief Executive was out of the country, with the letter apparently not being brought to his attention during or after his leave period. The Chair received the letter “late on Friday” and was not undertaking SPA duties again prior to the board meeting the following week.

However, Mr Flanagan stated that, in his view, there had been no need to circulate Mr Penman’s letter, telling the Sub-Committee that “I felt that his letter captured views that had already been expressed rather than injecting new ones”.

Mr Penman explained to the Public Audit and Post-legislative Scrutiny Committee on 11 May that his letter: “contained a level of detail that I would not have had the opportunity to explain in conversations on the margins with members”

Despite this Mr Foley told the Sub-Committee on 18 May that “It is not the case that his [Derek Penman’s] views were not known”

The letter was discussed at the pre-meeting and was not circulated before, during or at any time after the SPA board meeting. Board members and key stakeholders only saw the content of the letter, or in some cases became aware it, once it appeared in media reports some months later.

At the Sub-Committee meeting of 20 April 2017 Drew Livingstone stated that Unison was particularly concerned about not being made aware of the HMICS letter until recently, saying that: “there has been a reluctance on the part of the organisation to listen to opinions that might come across as being slightly dissenting”

Not circulating the HMICS letter to Board Members, as Her Majesty’s Inspector would have expected, was, in the Sub-Committee’s view, a serious error of judgement.

HMICS has a statutory role to look into the ‘state, effectiveness and efficiency’ of the SPA and it should provide HMICS with “such assistance and co-operation as we may require to enable us to carry out our functions”.

The Sub-Committee asks that you consider whether the Chair demonstrates sufficient understanding of the relationship between the SPA and HMICS and whether, in this instance, the required level of co-operation was provided to HMICS.

The operation of the SPA board

The On Board guidance states that “The Chair has an important role to play in ensuring that all Board members are enabled and encouraged to contribute to Board discussions”. Building and maintaining effective working relationships with SPA board members is an essential role of the Chair.

The Sub-Committee considered whether the Chair’s response to Moi Ali’s dissension at the board meeting in December, his interpretation of the On Board guidance and his communication style, enables and encourages members to contribute fully at SPA board meetings.

Treatment of Moi Ali

The Sub-Committee agrees with Mr Flanagan’s view that the tone, content and timing of his letter to Moi Ali in December was a misjudgement on his part and that the manner in which she raised concerns about transparency and perception at the SPA board meeting in December were consistent with her role as a Board member.

This issue has been on-going for almost 6 months and has been deeply damaging to the reputation of the SPA. It is therefore regrettable that Mr Flanagan did not come to this view initially, or before now, and that he did not seek to resolve this matter in person with Moi Ali before she felt it necessary to resign.

Mr Flanagan wrote to Moi Ali on two separate occasions, almost two months apart, but it seems that he did not find an opportunity to speak directly to Moi Ali to seek to resolve the issue and to repair the relationship.

The Sub-Committee notes that Mr Flanagan wrote a personal letter of apology to Ms Ali but that it was only written two days before the Sub-Committee’s evidence session and emailed on the day of the session.

Dissent

Mr Flanagan told the Sub-Committee that “The fundamental issue at the board meeting was that her [Moi Ali’s] decision to dissent was a surprise to me—that was the main frustration”

It remains Mr Flanagan’s view that he should be made aware before a board meeting if a member is likely to dissent in public, so that he was “prepared for that when the board meeting took place”.

This expectation is out of step with what is required of board members in the On Board guidance. Whilst this approach might be desirable for a Chair it does not enable the SPA board members to form a view at board meetings and could inhibit them from dissenting from a decision if they had not previously informed the Chair that they intended to do so. It has led to criticism that decisions are made before SPA board meetings and then ‘played out’ in public. There is an important distinction between a united board and an effective board. It is not always one and the same.

Relationship with SPA board members

The Sub-Committee heard that other SPA board members had only recently commented on the Chair’s treatment of Moi Ali, describing it to him as “a bit hasty and a bit heavy handed”.

The three SPA board members who gave evidence to the Public Audit and Post­-legislative Scrutiny Committee on 11 May, have only recently committed to asking the Chair why the HMICS letter was not circulated. They confirmed in evidence that they had not done so before now, despite the letter being in the public domain for a number of weeks.

It appears that on both these issues, despite having concerns about the Chair’s actions, significantly, SPA board members were reticent about speaking directly to Mr Flanagan.

Mr Flanagan told the Sub-Committee that the SPA board is to appoint a Deputy Chair. He indicated that one of the advantages of this appointment was that this person could meet with members of the Board who might feel constrained in raising an issue of concern directly with the Chair.

The Sub-Committee would be deeply concerned if Board members felt constrained in speaking to the Chair and, if that were the case, would expect the Chair to rectify that position as a matter of urgency.

Going forward

The Justice Sub-Committee on Policing agrees with the Public Audit and Post-legislative Scrutiny Committee’s assessment that it is essential that the public and stakeholders be reassured that the SPA is performing to an appropriate standard.

Unfortunately Mr Flanagan’s repeated use of the phrase “I have to accept” did not reassure the Sub-Committee that he has a real belief and understanding that the actions that he took in relation to Moi Ali and in not circulating the HMICS letter, and repeatedly defended, were wrong.

There will be many difficult decisions for the SPA board to take going forward. It is essential that as many of these as possible are taken in public and informed by stakeholders. Openness, inclusiveness and transparency will strengthen the decision­ making process and the accountability of the SPA. Given the evidence that it has heard, the Sub-Committee does not have confidence that the current chair is the best person to lead the Board.

HMICS is currently undertaking a review of the openness and transparency of the SPA.

The Sub-Committee asks HMICS to consider the evidence it has taken and the contents of this report as part of that review. Mr Flanagan has committed to write to the Sub­ Committee with a response to HMICS’ review at the earliest opportunity.

TRANSPARENCY FIRST: Former Board member Moi Ali spoke out on transparency concerns at Police Watchdog:

A glimpse into the world of the Scottish Police Authority’s board meetings features an excerpt from the SPA’s meeting of 15 December 2016, in which Board Member Moi Ali raised serious concerns about recommendations in relation to the publication on the day of board meetings and the holding of committees in private.

More on the discussion around the Governance Framework and input from Moi Ali who raised her concerns at the meeting can be viewed here:

Scottish Police Authority 15 December 2016 meeting Governance framework discussion

Ms Ali said she understood there were good reasons for those recommendations she had serious concerns about the lack of transparency around the two proposals, and that there were real drawbacks in relation to holding committee meetings in private.

Moi Ali said her concerns were two fold – the perception issue in relation to private meetings where it may be perceived that decisions may be taken behind closed doors, and that defacto decision may well be taken behind closed doors and that the process of decision making will be hidden and there is a danger in due course this will morph into a different kind of body in which effectively real decisions are taken albeit not in name but then come back to the SPA Board for rubber stamping rather than transparent debate.

UNFIT AUTHORITY: – Crisis continues at Scottish Police Authority after Board members criticise MSPs scrutiny of Cop Quango:

SPA Chair Andrew Flanagan’s decision to stay in the lead role at the now discredited Scottish Police Authority comes after one of it’s Board members – Graham Houston – launched a blistering attack on open hearings at the Scottish Parliament’s PAPLS Committee’ – after it’s members quizzed the Chair & CEO of the SPA, along with Scottish Government Civil Servants at an earlier meeting of 20 April 2017.

Scottish Police Authority Board Member Graham Houston hits out at PAPLS scrutiny of Police Watchdog

Critisising MSPs scrutiny of the Scottish Police Authority, Board member Graham Houston said: “I also think as an example of good governance I think the treatment of my fellow board members by an audit and scrutiny committee was frankly appalling and I think if that is an example of what is expected of good scrutiny it leaves a lot to be desired. And I suggest that the members of that committee look to themselves about setting an example and also look to the guidance on board about how they conduct themselves in doing that.”

Mr Houston then attacked the media, accusing the press of abusing the ‘openness’ of the SPA and concludes by stating “I think that what will transpire is that probably we are one of the most open public authorities in Scotland.”

The SPA’s statement on the outcome of the meeting claimed it had strengthened the transparency and accessibility of its governance arrangements by making a number of revisions to Board and committee meetings and publication of papers.

The changes decided at the meeting, which will come in to effect from 1 June 2017 include:

SPA committee meetings held in public, with items taken in private only when necessary and with a clear articulation of the reason.

The publication of agendas for all public Board and committee meetings will be available on the SPA website 7 days in advance of meetings.

The publication of papers for all public Board and committee meetings will be published on the SPA website (under embargo) 3-working days in advance.

The publication of agendas for closed Board and committee meetings will be published on the SPA website (redacted if necessary) and a summary of the business conducted will be reported to the next public Board meeting.

The public will also have the opportunity to pose questions about policing matters to the SPA Board in advance of meetings.

In addition, the SPA Board has established a new Deputy Chair role. Nicola Marchant has been unanimously appointed to that position with immediate effect.

Full details of the changes and next steps agreed by the Board are outlined in the following paper: http://www.spa.police.uk/assets/126884/400419/governance

Houston’s criticism of the refers to the following hearing, in which evidence revealed to MSPs portrayed the Scottish Police Authority as a haven of secrecy, run in the style of  a “kremlin” operation – according to former Cabinet Secretary & PAPLS member Alex Neil MSP (SNP):

Scottish Police Authority – Public Audit and Post-Legislative Scrutiny Committee – Scottish Parliament: 20th April 2017

A full report on the PAPLS meeting of 20 April can be found here: POLICING SECRETS: Former Scottish Police Authority board member Moi Ali invited to give evidence at Holyrood, after MSPs accuse SPA bosses of running Police watchdog like Kremlin ‘secret society’

A further appearance of current and former board members of the Scottish Police Authority before Holyrood’s PAPLS Committee on the 11th May – established evidence in relation to a sequence of alarming events at the SPA – giving MSPs significant cause for concern of how the SPA Chair was in effect, personally running the Police watchdog as a “secret society”.

Public Audit and Post-Legislative Scrutiny Committee – Scottish Parliament: 11th May 2017

A full report on the PAPLS hearing of 11 May can be found here: UNFIT AUTHORITY: Chair of Scottish Police Authority “is not fit to continue on any public board” – says former SPA board member in evidence to Holyrood’s Public Audit Committee scrutiny of Police watchdog

The hearing also established not one board member of the now discredited Police Watchdog backed former board member Moi Ali – who was forced to resign from the SPA after she bravely raised issues of transparency and accountability during a meeting of the Scottish Police Authority in December 2016.

Then, at a hearing of the Scottish Parliament’s Justice sub-committee on Policing, Andrew Flanagan was asked by MSPs several times to consider his position as SPA Chair – yet Flanagan refused each call to stand down and allow the Scottish Police Authority to move on from the current crisis.

Justice Sub-Committee on Policing – Scottish Parliament: 18th May 2017

A more detailed report on the 18th May 2017 hearing of the Justice Sub-Committee on Policing can be found here: AUTHORITY LOST: Chair of Scottish Police Authority refuses to resign after facing challenge from Justice Committee MSPs to consider his position on discredited Police watchdog

Previous articles on the Scottish Police Authority can be found here: Scottish Police Authority – Poor governance, private meetings & lack of accountability at Police regulator

 

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CASH IN THE CROWN: Forget millions on bonuses, mortgages, junkets & dodgy prosecutions – Holyrood Crown Office probe raises concerns, recommends changes for £113m ‘under-resourced’ & untrustworthy Prosecution service

Scots Prosecutors ‘getting by’ on £113m a year. SCOTLAND’S PROSECUTORS are “just about managing” on £113million a year of taxpayers cash – according to a report produced by the Scottish Parliament’s Justice Committee of the ‘Role and Purpose of the Crown Office & Procurator Fiscal Service (COPFS).

During the ‘bombshell’ inquiry into the Crown Office – an organisation once dubbed ‘the most corrupt institution in Scotland’ by a Cabinet minister – the Scottish Parliament’s Justice Committee heard claims COPFS staff suffered from shortage of resources,weak morale – including more than average levels of sick leave, claims of overwork.

MSPs also heard grips from the Lord Advocate – James Wolffe QC and his team over the level of public cash thrown at the infamous Edinburgh based Crown Office which now stands at a whopping £112.5million a year – according to figures in the Scottish Government’s own budget for 2016.

The report – into the ‘crime fighting’ Crown Office – which refused to prosecute the driver of the Glasgow bin lorry which left six people dead and injured 15 others in the centre of Glasgow – concludes: “On the whole, the public should have confidence that it is a rigorous and fair prosecutor. “However, the service remains under considerable pressure. There can be no room for complacency.”

The Committee’s inquiry also identified room for improvement in a number of Crown Office functions, including the support given to victims and witnesses – who are often poorly treated by COPFS staff.

However – during 2014 it was reported a senior manager in the Crown Office was suspended after openly criticising the treatment of crime victims.

John Fox, 47, made postings on an internal staff forum accusing his bosses of putting victims of domestic violence at risk. His criticism emerged days after the Sunday Mail newspaper revealed how victims of crime felt betrayed by Scotland’s justice system and were demanding reforms.

Mr Fox was formerly in charge of the 100-strong Victim Information and Advice Service (VIA), responsible for helping to improve services to crime victims and their families across Scotland. One of their tasks is to inform victims of domestic violence about the release from custody of the person charged with attacking them.

In some cases, victims of crime and witness have since alleged Crown Office employees told outright lies.

And, a recent investigation by the media reported key Crown Office employees hold secret criminal convictions for serious offences. The investigation, assisted by documents obtained by Freedom of Information legislation published here: Prosecutors own crime gang revealed  also found some victims and witnesses to crime had been threatened by Crown Office prosecutors and staff.

In a period of just two years – from November 2013 to November 2015 – the Crown Office admitted it retained records showing 15 cases reported to COPFS containing allegations of criminal offences by COPFS staff. Court proceedings were taken in 11 cases, three cases were disposed of by non-court disposal and no proceedings were taken in one case.

The charges brought against staff include assault and vandalism; road traffic offences; threatening and abusive conduct; breach of the peace; Misuse of drugs and offences against the police; data protection offences and an attempt to pervert the course of justice.

The Holyrood enquiry was apparently not handed any of this information. The inquiry did not take  steps to act upon it and quiz COPFS representatives, despite reports being available in the media  and to the inquiry – for some time.

Much of the inquiry’s focus on staff morale heard claims the Crown Office was underfunded and overworked, however figures revealed in a Freedom of Information request for the immediate three years after the collapse of several high street banks & huge cuts to public services – revealed successive Lord Advocates have spent over £572,307,16 on paying supposedly hard up staff everything from mortgages, relocation, rental costs and even phone bills, council tax and personal legal bills.

During financial year 2008/2009, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to 32 employees were: £212,500.76.
During financial year 2009/2010, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to 38  employees were £242,586.59.
During financial year 2010/2011, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to  26 employees were £117,220.14.

The cash expenses & junkets claims from COPFS staff continue, with figures released in another Freedom of Information request revealing a whopping £137,744.43 spent on further staff perks and junkets in 2014-2016. The FOI revealed:

During financial year 2011/2012, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to 16 employees were £85,513.21.
During financial year 2012/2013,payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to   8 employees were £38,711.35.
During financial year 2013/2014, payments made by COPFS for housing, rent or relocation allowances, or help with mortgages to  5 employees were £13,519.87.

The cash expenses & junkets claims from COPFS staff continue, with figures released in another Freedom of Information request revealing a further £28,090 spent on further staff mortgages, rent , phone bills, legal bills and other perks and junkets in 2014-2016. However, these figures are now thought to be in dispute – and of a much higher sum than was originally quoted by the Crown Office. Nevertheless the FOI revealed:

Payments made by COPFS for housing, rent or relocation allowances, or help with mortgages, for COPFS staff including Procurators Fiscal from 1 April 2014 to 31 March 2016, were made by 33  COPFS employees, totalling an extra £28,090.

A separate Freedom of Information request revealed the hard-up Crown Office media unit spent over £376,168.06 in one year alone on media relations – this despite the Lord Advocate’s staff of 6 full time media staff and one part time employee – operating a policy of “no comment” to journalists – who are in increasing numbers of cases told to put their request for comment in a Freedom of Information request.

And, an investigation by the Sunday Mail newspaper in 2011 established the Lord Advocate had authorised massive bonuses for Crown Office staff who pocketed bonus payments of more than £580,000 in just two years.

Figures released via Freedom of Information requests revealed 419 COPFS employees shared payouts totalling £326,844 in 2009-2010, while 518 COPFS staff were handed £253,330 for 2010-11.

In 2009-2010, eight employees of the Crown Office received Bonuses of up to £20,000 while a further 15 COPFS employees received bonuses of up to £8,000.

In the same year up to 200 members of staff received bonus pay-outs of up to £500 while a further 200 COPFS employees were paid bonuses of up to £1000 each.

And, an investigation by the Scottish Sun newspaper revealed supposedly hard up Crown Office staff were travelling to international destinations all bankrolled by taxpayers cash.

The allegedly hard up Crown Office spent more than £57,000 of taxpayers’ cash last year alone flying staff across the globe. Hong Kong, Mauritius, Taiwan and New York were among 15 exotic destinations visited by Crown Office employees. And since 2012, they have taken off on a total of 109 international flights to places like South Africa, Australia and Malta.

The Crown, led by Lord Advocate Frank Mulholland, racked up £29,504 on 39 international flights to meetings and conferences last year and £27,603 on 143 domestic trips.The number of overseas flights has remained fairly steady over three years at 36, 34 then 39. But domestic flights have increased sharply from 97 to 131, then 143 last year.

Amsterdam was the most common destination, with 30 trips since 2012. The Dutch city is a major travel hub and close to the International Criminal Court in The Hague. Flights to Washington DC and Malta were in connection with the ongoing probe into the 1988 Lockerbie bombing.

While the information has been available in the public arena for some time, COPFS representatives appearing in front of the Justice Committee did not face any lines of questioning of the massive cash spends on personal junkets, mortgages, rent and other bills accumulated by staff who managed to have them all paid off by taxpayers.

The Justice Committee also had to make do without attendance of Scotland’s top judge and other members of the judiciary after Lord Carloway issued a letter to all branches level of the judiciary informing them of his decision to refuse to give evidence to the Justice Committee’s probe into the Crown Office.

Lord Carloway  – who earns £222,862 a year for his role as Lord President & Lord Justice General – said the Scottish Courts & Tribunals Service (SCTS) should give evidence to the Justice Committee, rather than individual members of the judiciary – even retired ones

Carloway’s letter went out to every high court judge, the Sheriffs’ Association and the Scottish Justices Association (SJA) – which represents Justices of the Peace.

After Lord Carloway’s decision to refuse to attend the Justice Committee was made known – the SJA pulled out of its scheduled appearance in front of MSPs.

The report found that Scotland’s public prosecutor is coping in its core role of steering trials through the courts to an appropriate outcome, but the level of adjournments and postponements is unacceptably high and inadequate communication is a key problem.

It recommends that the COPFS develop more efficient and effective ways to update people whose attendance is no longer required at a trial.

It also says the COPFS should consider concerns raised about the erosion of prosecutors’ autonomy and discretion, the lack of preparation time and the consequences for morale.

Justice Committee convener Margaret Mitchell said: “An effective Crown Office is fundamental to an effective criminal justice system in Scotland.”

Ms Mitchell continued: “The committee heard many concerns during our inquiry. Across the board, witnesses identified possible improvements which could be made to how COPFS works – and better serve justice and the public. This report, its findings on the service’s strengths and weaknesses, and its recommendations are a considered, cross-party view following six months of work. These findings must be taken into account by COPFS management and the Scottish Government. There is no room for complacency, and the committee will be keeping close watch on developments.”

Justice Committee report – Role and Purpose of the Crown Office and Procurator Fiscal Service

Focussing on areas of Crown Office operation, the following excerpts are reproduced from the Committee’s final report:

Digital strategy

110. The “vision” of the Digital Strategy, published in 2014, is “to have modern, user-focused justice systems which use digital justice technology to deliver simple, fast and effective justice at best cost”. It is estimated by the Scottish Government that full implementation of the strategy across the entire justice sector (including the administrative and civil spheres) could save some £20-25 million per annum. The strategy sets out three objectives—

allow people and businesses to access the right information at the right time, principally by expanding online the amount of available information about the justice system. This objective also includes a commitment, by the end of 2017, to enable victims of crime to track their case online;

fully digitised justice systems;

make data work for us, ie collect and use data including stakeholder feedback to develop a more efficient and responsive justice system.

111. It is the second of these objectives that appears to have most potential to unlock efficiencies in the prosecution system, particularly in tandem with complementary reforms envisaged under the Evidence and Procedure Review. It includes plans for—

a “digital evidence vault” enabling the secure storage of all digital evidence in civil and criminal cases;

greatly increased use of live video links to reduce the need for accused, victims and witnesses to have to come to court in all instances;

the serving of more court documentation (eg arrest warrants) digitally; and

disclosure by the COPFS of all evidence to defence agents electronically.

112. The strategy also envisages the police being equipped with body-worn cameras and the integration of all legacy force ICT services within Police Scotland. The Committee notes the potential impact of these objectives on the prosecution of crimes, although they are not within the direct remit of this inquiry. Scrutiny of these issues is within the current work programme of the Justice Sub-Committee on Policing

and on

Evidence and Procedure Review

113. Lord Carloway’s March 2015 Evidence and Procedure Review concluded that the conduct of criminal trials needs to change because the process had not kept pace with entry into a digital age. The main recommendations related to—

child and vulnerable witnesses: as much as possible, taking evidence from them should be removed from the courtroom setting;

digital evidence: audio and video witness statements should ordinarily be admissible. This was seen as paving the way for the elimination of written witness statements, in most cases, in the future;

modernising criminal trial procedures: in essence, shifting the weight of trial preparation to earlier in the process, in part through greater judicial case management. Trial dates should only be fixed when it is clear that the case will be ready to run on the relevant date.

114. This was followed by a February 2016 “next steps” paper, setting out proposals on which the SCTS is currently working.158 These are intended to build on Lord Carloway’s three main recommendations and to align with relevant objectives in the digital strategy. The overall vision is of a more streamlined criminal justice system, with far less evidence having to be led in the courtroom.

115. As set out in the preceding section, the Lord Advocate and Crown Agent both indicated the COPFS’s readiness for reform, and said they saw real opportunities for progress, particularly in relation to the work of the Evidence and Procedure Review.The Crown Agent said the goal was to crystallise as much evidence as possible in advance of the actual trial.160 Amongst other things, this would greatly reduce the need for witnesses to attend trials – and the non-attendance of witnesses is one of the main causes of churn.

116. The Cabinet Secretary also set out his strong support for the Review. However, he referred in addition to a need for a “cultural change” on the part of all stakeholders if the full benefits of the Review were to be realised. He indicated that legislation would be required at some point to implement elements of the Review.

and on ‘Specialist Prosecutions’ MSPs heard evidence from a former COPFS Prosecutor linked to events in the David Goodwillie rape case – where the victim was forced to sue her assailant through the civil courts after the Lord Advocate refused to prosecute the footballer.

Specialist prosecutions

167. The Committee sought views on whether the COPFS had the appropriate skillsets it needed to carry out its prosecutorial role. This includes prosecuting the wide range of different crimes that the COPFS may encounter, ranging from historic child sexual abuse to corporate accounting fraud. As noted elsewhere in the report, the COPFS has moved towards greater specialisation in recent years, setting up offices dealing with sexual offences, serious and organised crime, and international cooperation, amongst others. The Committee notes that, in a relatively small jurisdiction such as Scotland, there are limits to this approach. There may be some types of case that only come before the criminal courts a handful of times in a few years, but which are of a particular complexity. It is hard to build up specialist expertise in such cases. Derek Ogg QC, a former head of the COPFS sexual offences unit told the Committee that, if there is considered to be a lack of in-house specialism to prosecute particularly complex crimes coming before the High Court, this could be addressed by borrowing that expertise; recruiting “locum” advocates depute with experience in that field for the duration of the case.

168. Some submissions expressed the view that the COPFS did not always have the specialist skillsets needed to prosecute certain types of crime as effectively as it should, for instance corporate or regulatory offences.HM Revenue and Customs gave positive evidence about its working relationship with the COPFS in the prosecution of crimes in which it was involved, although it indicated that the COPFS’s relative under-resourcing in some areas, for instance technology, sometimes put it under strain.

Centralised policy-making and local autonomy

184. The COPFS is a national service aspiring to achieve consistently high standards across Scotland. It is in the public interest that both accused and victims should expect the same professional standard of prosecution wherever their case calls. There was a consensus in evidence that the COPFS has become a more centralised organisation in recent years. Some evidence broadly welcomed this, but the Committee also heard views that this process had gone too far; to the point where it was impacting negatively on the COPFS’s effectiveness as a public prosecutor. Whether the COPFS was striking the right balance between pursuing centrally driven policies and letting local prosecutors take their own decisions emerged as one of the key themes of the inquiry.

Specialisation and central case-marking

185. A closely related issue is that of specialisation. In effect, specialisation is a form of centralisation, as it means that a small group of specialist prosecutors will tend to determine national approach to prosecuting particular crimes wherever they occur.

186. Specialisation has included the setting up a case-marking unit around 15 years ago. Local fiscals no longer mark cases at the initial stage of the prosecution. Instead, there are two centres – at Paisley and Stirling – where practically all cases are now marked. As the Committee understands it, the case marking process may involve not only a determination as to whether or not a case should be prosecuted, but further instructions on how to handle the case, for instance whether to accept plea bargains and, if so, on what basis.

Other types of specialisation

187. The setting up of a national sexual crimes unit at the COPFS in 2009 was welcomed by many stakeholders. They thought it had led to such cases (which now constitute around 70% of all High Court cases) being better handled at least at a strategic and policy level, with the views and interests of victims and their advocates better taken account of. This was the view of organisations including Scottish Women’s Aid and Rape Crisis. Susan Gallagher of Victim Support Scotland told the Committee that her organisation’s experience of centralisation – or specialisation – as it applied to victims was largely positive; it was when the Victim Information and Advice service had become more decentralised that inconsistency had crept back in.As noted above, the setting up of a specialist wildlife crime unit was also welcomed by stakeholders as having helped professionalise the COPFS’s approach to these offences.

Views from COPFS representatives

199. The FDA, representing fiscals, took a balanced view of the move towards a more centralised and more specialist service in recent year, recognising that it had its advantages and disadvantages. However, it was overall considered to have been positive. In relation to case-marking, the union’s Rachael Weir told the Committee that she considered it had been beneficial because it had led to greater specialist expertise in case marking being built up.

200. As noted elsewhere in the report, the Lord Advocate publicly affirmed his confidence in COPFS staff as the organisation’s “greatest asset” and expressed his “absolute trust and confidence in the judgment of those who prosecute on my behalf up and down the country”. However, the COPFS also made clear in its evidence to the Committee that one of the drivers of the move towards centralisation had been a desire to achieve greater consistency, and a higher quality public service overall.Overall, nothing in the COPFS’s evidence indicated to the Committee that the COPFS was minded to fundamentally reconsider its approach, in the light of views that had been expressed. The Lord Advocate cited learned authority from the 19th century that it was his role to ensure “the due and equal distribution of criminal justice”, so that all may have equal protection under the law, in order to underline that the concept of achieving consistency in prosecution policy was not a new one. It was his view that the current system did allow for some flexibility—

The system can accommodate matters that are of concern in local areas. Indeed, in their reports, the police might identify a particular issue as being a matter of concern. I can put it in this way: through having a national approach, we can ensure that, where there is justification for a variation from the norm to be applied in a particular locality, that is done consistently and does not depend on the views of a particular individual in a particular local area.

201. The Crown Agent said that previous less centralised models had run into problems of their own, such as some courts sitting until late evening. He said that the current system had brought greater professionalism and consistency. Inasmuch as it had probably brought down the number of court sittings, it may have reduced overall costs, although that was not, he stressed, the main reason behind the policy.In relation to the comments of the GBA and others that the current decision-making approach to individual cases can appear opaque and unnecessarily hierarchical, the Crown Agent acknowledged that there was, or had been an issue, explaining that recent internal reforms had led to the number of “approval levels” for ongoing cases being rationalised, with the grade for approval reduced to a local level.

Diversions and local knowledge

202. The Lord Advocate explained to the Committee that teams at the two central case-marking centres are organised by reference to Scotland’s six sheriffdoms. He argued this helped enable case-markers to develop local knowledge of particular areas. In relation to diversions from prosecution, the Lord Advocate said he had reflected on the evidence and posed an open question as to whether it indicated a lack of consistency across the country on the availability of diversion schemes as much as any perceived lack of local knowledge on the part of case markers.

203. Supplementary written evidence from the Crown Agent queried SACRO’s evidence that there had been a trend away from referrals to restorative justice schemes, arguing that it was not strongly supported in the follow-up information SACRO had itself provided to the Committee. The COPFS’s own statistics had indicated a gradual rise in the number of diversions from prosecution over the course of the current decade.The Committee notes that it would require further analysis to determine the extent to which diversions by case markers appear to have had outcomes that could be described as successful.

204. The Crown Agent’s written evidence also queried the JPs’ evidence to the Committee, which he interpreted as being to the effect that—

…prosecutors issue direct measures to avoid the expense of prosecuting cases in court. This is inaccurate and contrary to the Lord Advocate’s policies on decision making. The Scottish Parliament has given prosecutors a range of powers to take action against offenders and we seek to make effective use of all these powers.

205. Both the COPFS and the SCTS referred to statistics indicating that around 80% of direct measures consisting of fines or fixed penalties end up being paid.

206. The Committee notes the COPFS’s view that a drive towards increased centralisation and specialisation is likely to have helped it become a more efficient and professional organisation. The setting up of specialist prosecution units (for instance in relation to sexual offences) has been broadly welcomed. However, evidence has made clear that some trade-offs have been involved. It has been concerning to note evidence that local fiscals may sometimes find themselves running cases against their own professional judgment. The Committee also notes views that increased centralisation may have had an effect on morale and job satisfaction in local offices.

207. The Committee seeks clarification from the COPFS that consideration of the autonomy and decision-making capacity of local fiscals is being taken forward in its current “Fair Futures” programme being developed in consultation with its staff.

208. The Committee notes views that the centralisation of case marking has led to an erosion of knowledge as to the availability of local schemes and programmes where case markers are considering alternatives to prosecution. The Committee asks the Scottish Government to consider whether, if these perceptions are valid, Community Justice Scotland could be invited to address them in its ongoing work to develop a new model for community justice delivery.

209. More generally, the Committee asks the COPFS and Scottish Government as to what monitoring there is of the effectiveness of diversion from prosecution and whether and how the results of that monitoring are fed back to the COPFS for continuous improvement purposes.

Now, turning to the recommendations of the Scottish Parliament’s Justice Committee – funding of the Crown Office comes into sharp focus, despite evidence of massive waste of millions of pounds of taxpayers cash on Crown Office staff:

Recommendations: Resources and funding of the COPFS

The COPFS, in common with agencies across the public sector, has faced significant challenges as a result of a prolonged period of flat-lining budgets. This looks set to continue into 2017-18. The Committee notes the Lord Advocate’s remarks that he considered his 2017-18 budget to be a “sound settlement” that will enable him to continue to provide a fundamentally effective prosecution service.

For the most part, the COPFS has coped in this tougher financial environment as well as can be expected, and its frontline staff deserve credit and recognition for their resilience under sometimes difficult circumstances. It would be unreasonable for the COPFS to continue to rely on the resilience of its staff indefinitely. The Committee considers that change is necessary before the risks that are undoubtedly embedded in the prosecution system, as presently constituted, begin to crystallise.

The Committee agrees with evidence from the COPFS and the Cabinet Secretary for Justice that more efficient ways need to be found to manage the whole prosecution process. Whilst the COPFS is the single most important organisation involved in managing the prosecution process, it cannot achieve this reform on its own. The Committee notes that it is expected that change will be primarily driven by the cross-agency Justice Board, on which the COPFS is represented, and expects the Lord Advocate and Cabinet Secretary to provide the necessary backing for the Board as it proceeds in implementing key elements of the Justice Strategy

The Lord Advocate and Crown Agent have acknowledged in evidence that there is a need to address staffing concerns dating back several years. Above average numbers of staff on short-term contracts, on sick leave, or in long-term temporary promotions are danger signs. The Committee is pleased the current leadership appears to recognise this, to be listening to staff, and to be looking for ways to deal with these issues. The Committee will continue to maintain a watching brief on this issue and requests an update on staffing matters from the COPFS when it responds to this report.

In relations to matters such as job satisfaction and work-life balance, returns from staff surveys in recent years have been concerning. The Committee notes some evidence that, in these areas, the organisation might now be making progress. The Committee also notes evidence and public statements from the Lord Advocate that he has confidence in the judgment of his prosecutors and trusts them to take decisions in his name. However, it is still very early days and, in this context, indications that the COPFS may have to shed around 30 staff in 2017-18 to deal with real-terms budget cuts are worrying. It is difficult to see, given the current pressures staff are under, how further losses are sustainable. The Committee seeks clarification from the COPFS on the operational rationale for job losses and where they will fall.

The Committee also warns the COPFS against an over-reliance on digital solutions to deliver greater efficiencies.

Efficiency of the prosecution service

“Churn” – adjournment and delay of cases scheduled for trial – is one of the main sources of frustration for anyone having to engage with the prosecution process. The Committee accepts that a degree of churn is inevitable and unavoidable, but evidence received over the inquiry indicates that it remains unacceptably high.

The Committee accepts that the problem of delay and inefficiency in the prosecution process cannot be solved by the COPFS acting on its own. The Committee also accepts that churn is a part-consequence of the COPFS’s limited staffing resources, but calls on the COPFS to find methods of mitigating it. For instance, it should be within the capacity of the COPFS to develop more efficient and effective means of notifying those whose attendance is no longer required at a trial. The Committee asks the COPFS and the Scottish Government to take this forward within the Justice Digital Strategy.

The Committee notes evidence that 80% of Crown motions to adjourn arise because of the non-attendance of witnesses. Giving evidence in a trial is a civic duty and failure to do so can be deemed a contempt of court. The Committee accepts that there can be understandable reasons why witnesses do not attend a hearing, but seeks clarification from COPFS and Scottish Government as to: what measures are in place to encourage and, if necessary, ensure witness attendance; the extent to which these measures are being used; and whether alternative approaches are being considered over and above whatever may emerge in due course from the Evidence and Procedure Review.

No blame can be attached to witnesses for non-attendance when they have not in fact been cited to attend court. The Committee is concerned by evidence that the process is sometimes unreliable. The Committee asks the Scottish Government, COPFS and SCTS whether it accepts this evidence and, if so, what measures are being considered to address this, including for instance, the Sheriffs’ Association suggestion of a dedicated COPFS unit to issue citations.

Proposals set out in the Evidence and Procedure Review and the Justice Digital Strategy are welcome and, in some cases, long overdue. Aspects of current criminal law procedure could rightly be described as archaic. The Committee notes the potential for considerable savings to be made if far fewer witnesses are required to attend court and are able to give their evidence in other ways.

However, the Committee notes with concern that the timetable for implementation of some aspects of the Digital Strategy has slipped, with some targets already missed. The Committee further notes that there appears to be no public timetable for implementing the Evidence and Procedure Review.

The Committee asks for a progress report from the Scottish Government in respect of each main element of the Review and the Strategy, setting out the timescale, the anticipated effect on the prosecution process, and where possible, the projected cost saving in relation to each such element.

The Committee also asks for an update from the Scottish Government as to what legislative changes it envisages may be required to unlock the full potential of the Evidence and Procedure Review and the Justice Digital Strategy, and what plans it has in respect of these.

The Committee seeks further information from the Scottish Government as to how proposals to encourage increased judicial case management in the context of criminal proceedings will be progressed and what additional support, if any (eg training), it envisages the judiciary may require in this modified role.

The Committee also seeks further information from the Scottish Government as to whether additional funding will be required to fully implement the Digital Strategy and the Evidence and Procedure Review and, if so, whether these have been costed and what proportion of these costs fall on the COPFS.

Given acknowledged difficulties with the delivery of major IT projects in the public sector, the Committee is concerned that there should not be an over-reliance on information technology to drive reform in the criminal justice system.

Proposals set out in the Evidence and Procedure Review and the Justice Digital Strategy are welcome and, in some cases, long overdue. Aspects of current criminal law procedure could rightly be described as archaic. The Committee notes the potential for considerable savings to be made if far fewer witnesses are required to attend court and are able to give their evidence in other ways.

However, the Committee notes with concern that the timetable for implementation of some aspects of the Digital Strategy has slipped, with some targets already missed. The Committee further notes that there appears to be no public timetable for implementing the Evidence and Procedure Review.

The Committee asks for a progress report from the Scottish Government in respect of each main element of the Review and the Strategy, setting out the timescale, the anticipated effect on the prosecution process, and where possible, the projected cost saving in relation to each such element.

The Committee also asks for an update from the Scottish Government as to what legislative changes it envisages may be required to unlock the full potential of the Evidence and Procedure Review and the Justice Digital Strategy, and what plans it has in respect of these.

The Committee seeks further information from the Scottish Government as to how proposals to encourage increased judicial case management in the context of criminal proceedings will be progressed and what additional support, if any (eg training), it envisages the judiciary may require in this modified role.

The Committee also seeks further information from the Scottish Government as to whether additional funding will be required to fully implement the Digital Strategy and the Evidence and Procedure Review and, if so, whether these have been costed and what proportion of these costs fall on the COPFS.

Given acknowledged difficulties with the delivery of major IT projects in the public sector, the Committee is concerned that there should not be an over-reliance on information technology to drive reform in the criminal justice system.

Effectiveness of the prosecution service

The Committee agrees with the Lord Advocate that the COPFS is, overall, “effective, rigorous, fair and independent” in the prosecution of crime. The evidence received indicates that, in general, Scotland is fundamentally well served by the COPFS in its core role as public prosecutor. However, the same evidence also makes clear that there should be no room for complacency and that the various shortcomings stakeholders have identified must be addressed.

The Committee acknowledges that the criminal justice system has not always prioritised domestic abuse as it should have or treated it with the seriousness it deserves. It was necessary for a clear message to be sent by public agencies working in the system that domestic abuse is unacceptable and would be tackled robustly, in order to give victims confidence that their case would be taken seriously. The COPFS/Police Scotland Joint Protocol on domestic violence has played an important role in that process. The Committee notes the differing views it has received during this inquiry as to the COPFS’s application of the protocol, notes the Lord Advocate’s response to it, and asks the COPFS and the Scottish Government to reflect further on the views that the Committee heard.

The Committee calls on the COPFS and Scottish Government to note evidence as to the quality and consistency of prosecution of those summary cases in relation to which special considerations do not apply by way of Lord Advocate’s guidelines to prosecutors or in the Joint Protocol on domestic abuse. Such cases include instances of antisocial behaviour, crimes of dishonesty or less serious violent crimes. The evidence suggests that these are sometimes under-prioritised.

The Committee acknowledges the COPFS’s evidence that it intends to build stronger relationships with third sector stakeholders in the prosecution of wildlife or environmental crime. The Committee asks the COPFS to respond to views heard in evidence that recommendations in the Scottish Government’s 2008 report Natural Justice, particularly in relation to post-prosecution debriefings, have not been fully implemented, and to set out its plans to address this.

The Committee is concerned by evidence of very low prosecution rates for failure to hold employer’s liability insurance, noting that the consequences of failing to be properly insured can be devastating for individuals and families. The Committee welcomes the COPFS’s commitment to explore the reasons behind the low number of referrals with relevant reporting agencies and requests an update from the COPFS.

The Committee seeks the COPFS’s view on whether there is merit in recruiting locum prosecutors to prosecute High Court cases turning on complex and specialist aspects of criminal law such as corporate fraud or health and safety breaches and, if so, whether this is part of its current practice.

The Committee is concerned by evidence that the courts are sometimes being asked to take decisions on bail without access to the full range of relevant information. This may lead to decisions being made that are not necessarily in the public interest, for instance to refuse bail on the basis of the accused’s homelessness. Whilst the safety of the public and the integrity of the prosecution process must be the paramount considerations, the public interest is not served by individuals being remanded when more suitable alternatives may be available. The Committee asks the COPFS and Scottish Government, on behalf of the Scottish Prison Service, to respond to this evidence.

The Committee notes the COPFS’s view that a drive towards increased centralisation and specialisation is likely to have helped it become a more efficient and professional organisation. The setting up of specialist prosecution units (for instance in relation to sexual offences) has been broadly welcomed. However, evidence has made clear that some trade-offs have been involved. It has been concerning to note evidence that local fiscals may sometimes find themselves running cases against their own professional judgment. The Committee also notes views that increased centralisation may have had an effect on morale and job satisfaction in local offices.

The Committee seeks clarification from the COPFS that consideration of the autonomy and decision-making capacity of local fiscals is being taken forward in its current “Fair Futures” programme being developed in consultation with its staff.

The Committee notes views that the centralisation of case marking has led to an erosion of knowledge as to the availability of local schemes and programmes where case markers are considering alternatives to prosecution. The Committee asks the Scottish Government to consider whether, if these perceptions are valid, Community Justice Scotland could be invited to address them in its ongoing work to develop a new model for community justice delivery.

More generally, the Committee asks the COPFS and Scottish Government as to what monitoring there is of the effectiveness of diversion from prosecution and whether and how the results of that monitoring are fed back to the COPFS for continuous improvement purposes.

Victims and witnesses and the COPFS

The Committee supports the principle that the COPFS prosecutes in the public interest and not directly in the interests of individual victims of crime: it is not “the victim’s lawyer”. The Committee understands that this may sometimes lead to difficult decisions being made that victims find painful. However, the Committee considers that the principle is key to protecting the independence and integrity of the prosecution service.

The Committee considers that there is no inherent contradiction between putting the public interest first during the prosecution process and putting victim care at the heart of criminal justice system, In particular, victims have a right to be listened to and to be treated with respect and sensitivity. Their views matter and they should be consulted, whenever possible, at appropriate points in the prosecution process.

The Committee considers that an effective, efficient and fair COPFS in everyone’s interests; accused, victims and witnesses alike. The Committee is therefore concerned by evidence that a lack of preparation time means that time limits in solemn trials are being “routinely” exceeded and seeks the COPFS’s response.

The Committee also asks the COPFS to respond to evidence that its general policy is not to seek the withdrawal of warrants for arrest of an accused for non-attendance, even where there may be exculpatory or mitigating factors. The Committee accepts that non-appearance for a court hearing is a serious matter but asks the COPFS to respond to concerns that, if this is its policy, it may impact disproportionately on vulnerable people.

The Committee asks the COPFS and Scottish Government to clarify what information (if any) public agencies must provide to families and dependents of accused people and what measures are in place to ensure that the information is provided. The Committee seeks clarification from the COPFS and Scottish Government as to what measures are in place to ensure that family members or vulnerable adults accused or convicted of a crime are contacted and notified.

The Committee considers that the safety and mental welfare of victims, balanced against the accused’s right to a fair trial, should be at the forefront of consideration during the prosecution process. The Committee asks the COPFS and Scottish Government to confirm whether it is their understanding that Victims and Witnesses (Scotland) Act 2014 imposes legal duties on the COPFS, and other agencies, in relation to the hostile cross-examination of witnesses during a criminal trial and, if so, to clarify what practices and policies are in place to ensure that relevant legal requirements are met.

The Committee welcomes the Victims’ Code for Scotland and considers that the pamphlet should be available to all victims at their first point of contact with the criminal justice system. The Committee seeks clarification from the COPFS and Scottish Government as to current practices in relation to making the Code available.

The Committee welcomes ongoing work under the Evidence and Procedure Review to reform the way in which children give evidence during a trial but repeats its earlier concern that there is no publication date for the review’s findings.

The Committee notes that the aspiration is to make taking evidence from children in a courtroom setting the exception rather than the norm. Any reforms must continue to allow the defence to challenge and test the evidence. The Committee looks forwards to considering detailed proposals as they emerge.

The Committee welcomes the additional funding that the Cabinet Secretary provided for the victim fund, which assists families of murder victims, in the 2016-17 financial year. The Committee asks the Scottish Government to keep the fund under review to ensure that it is adequate.

The Committee considers that the evidence taken from victims of crime set out serious failings by the criminal justice system, of which the COPFS is a key component, to provide the confidence necessary for these victims to participate in court proceedings. These failings including a lack of communications, misinformation, delays and adjournments, have resulted in some of these victims concluding that they would never have reported the crime in the first place. The Committee considers that this is unacceptable and must be addressed as a priority, and repeats its view that it is imperative that the COPFS finds more effective methods for passing on accurate up-to-date information about trials in real time to all stakeholders, victims especially. The Committee acknowledges that the reasons for adjournments in criminal trials are complex and that the COPFS bears only partial responsibility for them.

The Committee asks the COPFS to clarify the extent to which it takes into account the vulnerability of victims and witnesses, and the risk to them of a prolonged or delayed prosecution process, in determining the prioritisation of cases, in the light of evidence that delays in hearing cases can disproportionately damage the mental welfare of vulnerable adults.

The Committee recognises the valuable role played by the Victim Information and Advice Service, and that there has been praise for the contribution of VIA staff members in evidence. The Committee recognises that the COPFS’s resources are finite and limited and prevent it providing as much assistance as it would like. At the same time, there are lessons for the COPFS as a whole to learn as to the way it sometimes communicates with victims of crime and with other prosecution witnesses.

Reforms under the Victims and Witnesses (Scotland) Act 2014 have significantly widened the duties owed to victims and witnesses and have been widely welcomed. The COPFS, in common with other public agencies, is still adjusting to these changes. The Committee is concerned by evidence appearing to indicate that some of the key rights secured by that legislation are not yet a reality for victims and witnesses in their journey through the criminal justice system. The Committee asks the COPFS and Scottish Government to respond to this evidence, and to evidence that victims and witnesses are not always aware of their rights.

The Committee welcomes the Lord Advocate’s acknowledgement that the COPFS might benefit from examining the process of giving evidence from the victim’s perspective in order to see whether it could be improved.

The Committee is concerned by evidence that vulnerable witnesses did not always obtain the special measures that they had requested and that where some special measures (for instance, screens) were provided, they were not always adequate. Evidence that victims and witnesses did not always feel secure outwith the courtroom setting during the trial process is also concerning. The Committee notes that, as well as potentially affecting victims’ and witnesses’ mental welfare, this might affect the evidence they give, or in extreme cases lead them not to give evidence at all.

The Committee recommends that the COPFS carry out an audit of victims and witnesses entitled to special measures in order to determine (a) whether they are aware of their rights to ask for special measures, (b) whether reasonable requests for non-standard special measures are being met, and (c) the extent to which the provision of special measures actually assisted the individual in providing evidence and, if not, what lessons could be learned from this.

Under the Victims and Witnesses (Scotland) Act 2014, the COPFS is required to take reasonable steps to enable victims and their families to avoid the accused during a trial. The Committee seeks clarification from the COPFS as to how it exercises that duty in practice and whether it makes victims and their families aware of its existence.

The Committee was concerned by evidence as to the lack of contact between victims and prosecutors during trial preparation, leading in some cases to a perception from victims that the Crown was not well prepared when it came to the trial. The Committee notes the explanation provided by the COPFS as to why, in the vast majority of cases, it is no longer considered appropriate to precognose victims and witnesses. However, the Committee also notes evidence that precognition by the Crown, amongst other things, may help evidence be agreed earlier, and thus help cases resolve more quickly, which is one of the main aims of the Evidence and Procedure Review. The Committee asks the COPFS to respond to this evidence.

Evidence received over the course of this inquiry shows a divergence between the intentions of the COPFS and the experience of many victims. Victims can be re-traumatised by what can come across as a mechanistic process that does not always appear to have their interests at heart. Victims and witnesses are sometimes made to feel like an afterthought. This is a system-wide problem but the COPFS, as the key organisation within the prosecution process, bears its share of responsibility. Any comprehensive solution must also be system-wide.

The Committee notes Dr Lesley Thomson’s Review of Victim Care in the Justice Sector in Scotland. Whilst welcoming the Review as a valuable contribution to the current debate as to how best to cater for victims within the prosecution process, the Committee considers that many of its conclusions have been voiced before but not acted upon.

The Committee requests a detailed response from the COPFS and the Scottish Government as to the main conclusions in the Review, including which recommendations they propose to accept, and what legislative reforms may be necessary in the light of this. The Committee further requests from the COPFS and Scottish Government a timetable for implementing recommendations in the Review. The Committee also seeks their views on the Review’s proposal that victims should have access to a single point of contact providing advice and support during their journey through the criminal justice process.

The Committee notes that the number of referrals to the VIA service has risen sharply (by around 45% in seven years) and that the Thomson Review estimates an additional 4000 referrals per annum in future thanks to recent legislative reforms. The Committee considers that without additional resource for VIA, there will almost certainly be adverse consequences for its ability to work effectively.

The Committee calls for the COPFS to audit the work VIA currently undertakes in order to come to a view on where the main demands on its services come from and whether there are areas of unmet need.

The Committee makes these recommendations in the context of what it recognises as an ongoing debate as to the future role of the VIA service. The Committee considers that obtaining more information on VIA’s current workload and on unmet need may help clarify next steps in relation to that debate.

The Inspectorate of Prosecutions

The Inspectorate of Prosecutions in Scotland has an important role to play in ensuring the effectiveness and efficiency of the prosecution system and the Committee supports its work. The inquiry has laid bare the Inspectorate’s very low public profile, even amongst criminal justice stakeholders. Whilst the Inspectorate is not a public-facing complaints-handling organisation or an advocacy body, it requires the input of informed experts and stakeholders to add value to its scrutiny work.

The Committee is therefore concerned at the lack of stakeholder awareness of the Inspectorate’s output, given that its reports have touched on matters of genuine public interest.

The Committee notes the Inspectorate’s assurances that it recognises its low profile as a concern and proposes to address it. The Committee requests an update from the Inspectorate as to what work is planned and would welcome the Scottish Government’s view on what the Inspectorate proposes.

The Committee notes that it helps the Inspectorate to have ex-COPFS staff working on its investigations. They bring with them a wealth of knowledge about how the service works that is likely to add to the quality of its output. However, the Committee considers that the Inspectorate has not currently got the balance quite right. This applies particularly to the practice of recruiting most assistant inspectors from the COPFS on secondment.

The Committee notes the Inspector’s assurances that she has never been influenced to change a recommendation in her reports. However, perceptions matter, and current arrangements contribute to a perception that the Inspectorate may not be as independent from the COPFS as it was intended to be. The Committee requests the Scottish Government to reflect on these views and to respond to them.

Finally, the Committee asks the Inspector to take into account conclusions and recommendations about the COPFS made elsewhere in this report when considering her next programme of inspections.

LET’S DO JUSTICE DIFFERENTLY – JAMES WOLFFE QC

At a meeting on 17 January 2017, MSPs on the Scottish Parliament’s Justice Committee took evidence from Lord Advocate James Wolffe QC – who told MSPs ongoing reviews suggested a “need to do criminal justice in really quite a different way”.

In the months since James Wolffe made this statement to MSPs, Wolffe has embarked on a public relations offensive in order to bring the thorny question of the removal of corroboration – a safeguard against miscarriage of justice – from Scotland’s criminal justice system – in order to secure what COPFS agents believe would be a vastly higher conviction rate – if the requirement of two independent sources of verification for evidence was dropped.

Appearing in sympathetic press, Wolffe has made known he now sides with the abolishment of corroboration and a wholesale change of the way criminal prosecutions are handled in Scotland.

However, critics say the Crown Office cannot be trusted with such radical alterations to Scots Criminal law – pointing to high levels of corruption at the Crown Office including staff who themselves hold criminal records for serious offences, and the widely known fact COPFS is heavily compromised by criminal informants, as well as legal staff who have tipped off other crooks including lawyers & financiers linked to major criminal investigations.

And – moves to drop corroboration in the past have been condemned as little more than a policy move to allow Prosecutors to make up evidence as they go along in Criminal Trials.

Legal figures from across Scotland have indicated it is their view that if  corroboration were removed from the Criminal justice system, trials would be likely to see an increase in all kinds of dodgy statements & evidence used by desperate prosecutors out for a conviction at any cost.

Evidence from Police Officers too has been widely criticised by several members of the judiciary who contend officers have knowingly given false, and at times corrupt evidence in  Scotland’s Sheriff and High Courts of Justiciary.

Legal insiders have since tipped off the media the Crown Office has conducted an internal consultation on how to ‘reinvigorate’ moves to abolish corroboration and return the issue to the Scottish Parliament’s Justice Committee – where MSPS previously concluded only two years ago that corroboration must remain as part of Scotland’s justice system.

The Justice Committee’s decision came from an impassioned address by Lord Brian Gill, who rightly supported the retention of corroboration as a safeguard to ensure the right to a fair trial across the spectrum of Scotland’s criminal justice system.

The Justice Committee – then under the chair of MSP Christine Grahame MSP, had previously heard from anti-corroboration protagonists Lord Carloway – who is now Scotland’s top judge, and the then Lord Advocate Frank Mulholland – who Carloway has since appointed to a £180k judicial post at the Court of Session.

The Justice Committee remained unconvinced of the merits of abolishing corroboration after hearing from Carloway, Mulholland and a plethora of other groups & vested interests.

Lord Advocate James Wolffe is also facing serious questions to answer over his role in a growing scandal around cash bungs and payments to members of the Faculty of Advocates – while Wolffe was Dean of Faculty.

An ongoing media investigation into a case in which a judge & privy councillor failed to declare links to his son – who was at the time representing a construction company which admitted an incident of unlawfully dumping contaminated waste – has established a QC representing the pursuer was paid large sums of cash after he demanded the payments “in any form except beads”.

An investigation into the payments – which breach Faculty rules -, and evidence of alleged malpractice by the QC was covered up while Wolffe was Dean of Faculty.

Now, the case has re-entered the headlines as calls grow for a full investigation into legal regulators including Wolffe’s Faculty of Advocates – who dismissed the complaint without even looking at it.

Video footage of two appearances by Crown Office agents including the Lord Advocate – James Wolffe QC, follow:

Scottish Parliament Justice Committee 17 January 2017 – COPFS Inquiry & other business

Committee convener Margaret Mitchell said the probe had “unearthed some serious concerns”.

She said: “From the amount of time wasted through trials not proceeding on schedule, to the workload of prosecutors and the support offered to the victims and witnesses who appear at court. “The justice committee will publish its conclusions in due course, but we hope that the Lord Advocate will have listened to the legitimate concerns raised so far.”

Conservative justice spokesman Douglas Ross pressed the Lord Advocate on whether there would be “an overhaul of the justice system” in light of concerns raised.

Mr Wolffe said he acknowledged the challenges COPFS faces, saying “significant reform” was ongoing, with a process review suggesting “the need to do criminal justice in really quite a different way”.

Crown Agent David Harvie, the professional head of the service, said there was a “very strong argument for system change” within the justice system, and “a need and an opportunity for transformational change”.

Staff surveys have noted that 40% of Crown Office staff don’t wish to stay in the service in the long term – although Mr Wolffe argued that this is “considerably higher” than the average in the civil service, saying things were moving in the right direction. He also argued that there should be no lack of confidence in the fundamental work of COPFS, with a conviction rate of 80% in cases prosecuted.

Mr Harvie said the “vast majority” of individuals were provided with a good service, although he said he “accepts and regrets” that some had been failed.

In response to further questions about staff issues, Mr Wolffe said “we are not complacent about it”, but added that “there is encouragement to be taken” from staff surveys. He said the service had “come a remarkable distance” in his lifetime, from a position where the criminal justice system paid no regard to the needs of witnesses.

The Lord Advocate highlighted communication and support for victims and vulnerable witnesses as a particular area of focus for ongoing improvements, with ambition to deal with evidence from children and vulnerable people in a different way.

Ms Mitchell said there was a “fundamental problem” over communications with victims of sexual assault in particular, with Mr Harvie agreeing this was an issue worthy of “significant reflection” and further work.

Under the current budget draft, the Crown Office budget is maintained in cash terms, which equates to a real-terms cut.

Mr Harvie told members that £1.5m of savings had been targeted, with half of the sum coming from staff costs.

He said “probably around 30” jobs would be cut, by not replacing staff who leave or retire. The other half of the savings will come from areas like expert witness costs and pathology, although Mr Harvie conceded there was a “risk” that some could also come from staffing – albeit “not a significant risk”.

Mr Wolffe previously appeared at Holyrood to give evidence about the draft budget, at which point he argued the Crown Office had adequate resources to fulfil its role.

Scottish Parliament Justice Committee 20 December 2016 COPFS Inquiry & other business

Concluding MSPs probe of the Crown Office, Justice Committee convener Margaret Mitchell said: “An effective Crown Office is fundamental to an effective criminal justice system in Scotland.The committee heard many concerns during our inquiry. Across the board, witnesses identified possible improvements which could be made to how COPFS works – and better-serve justice and the public. These findings must be taken into account by COPFS management and the Scottish government.”

Lord Advocate James Wolffe QC said: “It is gratifying that the committee has concluded that COPFS is an effective, rigorous, fair and independent public prosecutor.It states that, in general, the public in Scotland is fundamentally well-served by the COPFS in that core role. That is, in large part, a tribute to the professionalism and commitment of the staff of the service. The committee has made a number of recommendations and I will wish to take time to reflect on all of those recommendations.”

For a more substantive reporting on the Crown Office, read previously articles here: Scotland’s Crown Office & Procurator Fiscal Service – previous reports and on the office of Lord Advocate here: Scotland’s Lord Advocate – Top crime officer leaves much doubt on justice.

Have a problem with the Crown Office & Procurator Fiscal Service? Tips to tell on cases, prosecutions or presentation of dodgy evidence? Tell us more about it in confidence, by email to scottishlawreporters@gmail.com

 

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INQUIRY OF THE CROWN: Scottish Parliament’s Justice Committee launch inquiry into crime fighting ability of ‘institutionally corrupt’ Crown Office & Procurator Fiscal Service

Crown Crooked – MSPs to quiz £112m-a-year Scots prosecutors. OFTEN DESCRIBED as the most corrupt public body in all Scotland – the Crown Office & Procurator Fiscal Service (COPFS) – is to face a major investigation of it’s purpose and role in prosecuting crime – by the Scottish Parliament’s Justice Committee who want to hear from you by Wednesday 19 October 2016

Accused of being a haven of deceit, institutionally racist, sectarian, bigoted, prejudiced, corrupt, woefully incompetent and staffed with prosecutors who will – with ease – lie to victims of crime, misrepresent the facts in court, twist evidence of victims, witnesses and accused alike – this collection of swaggering lawyers and Crown Counsel who are paid a staggering £112.5 million of public cash this budget year to go after criminals – will now face questions on their own gangster-like existence in the annals of Scots Law.

The inquiry – which will take evidence in public during sessions of the Justice Committee over the coming months at Holyrood – will focus on the core role and examine the effectiveness and efficiency of the Crown Office, how well it works with its stakeholders, and the support it provides to witnesses and victims of crime.

The Committee will also examine its responsiveness to new challenges and opportunities, such as the evolving nature of crime and advances in technology. As part of the inquiry it will examine the role and function of the independent Inspectorate of Prosecution in Scotland.

Beware however – this is an enquiry which appears to focus more on questions of whether the Crown Office has enough resources – or the budget – to be effective at ‘fighting crime’.

Hands up those of you (not vested legal interests please) who believe £112.5 million of public cash a year – as part of an ever increasing budget – makes the Crown Office under budget or under resourced.

MSPs have also clarified the Justice Committee inquiry will not consider two other roles of the Crown Office – relating to establishing the cause of sudden, unexplained or suspicious deaths or investigating allegations of criminal conduct against police officers, except in relation to the general issue of whether the COPFS has the resources it needs to carry out its purpose.

This is a Crown Office gone bad – a prosecution service so rotten – the Scottish Government was forced to remove the law on double jeopardy to allow incompetent, often strange prosecutors – some with their own secret criminal histories – to bring persons before the court time and time again until convictions are eventually secured in front of increasingly worn out judges and juries.

The same Crown Office which shredded statistics on sectarian crime principally against Catholics and other religious minorities in Scotland shredded – to avoid being asked questions by MSPs considering the hated Offensive Behaviour at Football Matches & Threatening Communications Act and the impact of Scotland’s criminal justice system’s oh-so-obvious endemic religious bigotry.

The same Crown Office run by Prosecutors who present the deceased on witness lists at criminal trials.

The same Crown Office staffed by Prosecutors & employees who themselves have secret criminal records – on everything from assault, threats & perverting the course of justice to drugs offences.

The same Crown Office compromised by criminal informants among staff who leak details to crooks targeted by Police Scotland and other law enforcement agencies.

The same Crown Office who pride bonuses, junkets and higher salaries before obtaining justice for victims of crime.

The same Crown Office whose Advocate Depute did a runner from the High Court in 2007 during a major trial which resulted in the collapse of the first World’s End murder trial.

The same Crown Office run by a Lord Advocate who called into question the state of the judiciary in order to distract the public from Crown Office failures over the collapse of the same World’s End Trial –Top judge accused Lord Advocate of undermineg the judiciary in statements Angiolini made to the  Scottish Parliament.

The same Crown Office which campaigned for the removal of Corroboration – one of the cherished few safeguards of Scots law which cuts across every and all criminal cases and evidence presentation in our courts and helps to guard against miscarriage of justice.

And by removing corroboration – not, for any lofty aim of upholding justice and protecting the public – mind you.

The singular vested interest of the Crown Office in removing corroboration from the justice system was, and remains simply because – the Crown Office are so inadequate at prosecuting crime, they must have multiple chances to parade people in court to secure convictions, no matter how much it costs taxpayers, the reputation of Scots law.

Enter the man – no less than the ex Dean of the Faculty of AdvocatesJames Wolffe QC – who wanted – and was handed the job of Lord Advocate – tasked with steering, spinning and manipulating the Crown Office through the choppy murky waters of Scotland’s criminal empires, and not forgetting his own staff’s secret criminal pasts.

The accompanying fanfare and typical public relations exercise of Wolffe’s appointment to succeed former Lord Advocate Frank Mulholland, came with the usual fluff of a new broom to sweep away crime and criminality.

Yet Wolffe himself was – only a few months before his new commission of protecting Scots from big time crime barons – fretting with Scottish Ministers over his precious Faculty of Advocates spending of £320,000 on parts of Parliament House it had occupied without recorded title – yet somehow gained ownership of, reported here: WOLFFE HALL: Papers reveal Council’s legal action ‘abandoned’, £320K Faculty refurbishment of Laigh Hall.

And Scotland’s criminal justice system is so tipped against the rights of victims and accused – as the legal eagles waft in and out of jobs, earlier this week – Wolffe’s replacement as Dean at the Faculty of Advocates – Gordon Jackson QC – a leading lawyer who has rightly represented some of Scotland’s most hardened criminals and gangsters – lectured the Lord Advocate on the creeping rights of victims in an open letter to the press.

Mr Jackson expressed his concern that the “admirable principle” of an independent prosecution service, acting in the public interest, “is being eroded in practice”. Advocates depute and junior fiscals alike, he writes, are seen as reluctant to make decisions but refer cases to their superiors, and prosecutors have admitted to him that they are not following their own judgment on what can be proved “because of the family’s position” – referring to the now common practice of meeting victims’ families.

So now you know the views of the legal profession – picture the following – for it could, or may have already happened to you.

Your loved one has been brutally, mercilessly murdered by a criminal – a criminal perhaps not unknown to the authorities.

Or a victim of crime or has fallen to an untimely end at the hands of deceitful public servants or an unscrupulous business more interested in profits than the safety of their workforce.

Now – right in front of you- you face someone from the very same Crown Office talking at you – not to you – or with you

As you may begin to observe – they ask you questions – often the wrong questions – depending on their scheming ahead to figure out if they can secure a conviction or a grubby plea deal spun out by their public relations department as a win for justice. They may even tell you something in a meeting, face to face, then lie about it later. A big fat lie of a lie. No matter. The Lord Advocate will cover it up.

They claim they are going to put away the killer, the murderer, the fraudster, the crook who ruined your life, wiped someone’s very existence from life – yet you just know – that same Crown Office career monger has liar written all over their face. Unmissable, isn’t it – like a house on fire.

You’ll know it was all true – when the killer, crook or villain gets seven years and out in two.

Are you a victim of crime? Are you a victim of a miscarriage of justice? Are you a solicitor performing the testy task of representing accused persons against a prosecution service gone mad?

All of you have an interest in making your voice heard to this inquiry. Don’t leave it to vested interests, or the legal profession or those who cloak themselves in good deeds while concealing crime.

Make your voice heard – in writing – to the Scottish Parliament’s Justice Committee by 19 October 2016.

Those submitting are invited to restrict their submission, if at all possible, to the equivalent of approximately four sides of A4. Evidence should be submitted in electronic (preferably MS Word) format by email to justicecommittee@parliament.scot

Organisations and individuals who do not have access to a PC and the internet may submit a hard copy to: Clerk to the Justice Committee The Scottish Parliament Edinburgh EH991SP

For further information on this inquiry please contact the committee clerks by email at justicecommittee@parliament.scot or by phone at 0131 348 6241.

MSPs TO INVESTIGATE CROWN OFFICE:

The Scottish Parliament Justice Committee has agreed to hold its first major inquiry of this session into the role and purpose of the Crown Office and Procurator Fiscal Service (COPFS), with this remit:

The COPFS is Scotland’s independent prosecution service, acting in the public interest to help bring offenders to justice.

The core role of the COPFS is to consider reports about crime from the police and other agencies, to decide whether it is in the public interest to prosecute them, and, if so, to deploy the resources that are necessary to help ensure that justice is done.

The Committee’s inquiry will focus on this core role, examining in particular—

The Scottish Parliament Justice Committee has agreed to hold its first major inquiry of this session into the role and purpose of the Crown Office and Procurator Fiscal Service (COPFS), with this remit:

“The COPFS is Scotland’s independent prosecution service, acting in the public interest to help bring offenders to justice. The core role of the COPFS is to consider reports about crime from the police and other agencies, to decide whether it is in the public interest to prosecute them, and, if so, to deploy the resources that are necessary to help ensure that justice is done. The Committee’s inquiry will focus on this core role, examining in particular—

• The effectiveness and efficiency of the COPFS, and how well it works with other stakeholders in the criminal justice system;

• Whether the COPFS has the resources and skillsets it needs to carry out its core role;

• The COPFS’s responsiveness to new challenges and opportunities including the evolving nature of crime in 21st century Scotland, advances in technology, and changes in the delivery of court services that may affect access to justice;

• How the COPFS protects and supports witnesses and victims of crime.

The Committee will also take evidence on the role and function of the Inspectorate of Prosecution in Scotland. (The IPS is the independent inspectorate for the COPFS.)

The inquiry will not consider the COPFS’s two other roles of establishing the cause of sudden, unexplained or suspicious deaths or investigating allegations of criminal conduct against police officers, except in relation to the general issue of whether the COPFS has the resources it needs to carry out its purpose.”

Questions to consider:

Organisations and individuals are invited to submit written views to the Committee in relation to the inquiry. Those submitting views should feel free to address issues raised in the remit in whatever manner they prefer, but it would be particularly appreciated if they could aim to address some or all of the questions set out below, providing specific examples, data or other evidence to back up their views whenever possible—

1. Please outline your views on the overall efficiency and effectiveness of the COPFS in its core role of considering reports about crime from the police and bringing prosecutions. Are there ways in which the services provided by the COPFS could be improved – for instance, through increased use of technology, further reforms to criminal procedure, or better case management? If so, do those changes also bring risks, in terms of the overall interests of justice or of access to justice (bearing in minds the differing needs of people across Scotland; urban and rural communities, economically disadvantaged people, vulnerable groups, etc)?

2. Please outline how well you consider the COPFS works with other stakeholders in the criminal justice system, so as to provide a “joined up” and complementary service that helps meet the ends of justice. Other stakeholders might, for instance, include the police, defence lawyers, the courts, the prison service, criminal justice social work, and third party organisations working with victims or offenders.

3. Does the COPFS as presently constituted have the resources and skillsets it needs to carry out its core role effectively? And is it appropriately “future-proofed” – for instance to deal with new technologies available to criminals, changes in the overall profile of crime in 21st century Scotland, or withdrawal from the European Union? If not, what additional capacities does the COPFS need?

4. How well does the COPFS respond to the needs of victims of crimes and to witnesses (especially vulnerable witnesses) in criminal cases and meet its legal obligations towards them?

5. The Inspectorate of Prosecution in Scotland is the independent, statutory inspectorate for the COPFS. What is your awareness of the existence and role of the IPS and of its effectiveness in carrying out that role? How effective has it been in carrying out its role? Does it appear to have the resources it needs?

Committee convener Margaret Mitchell MSP commented: “The Crown Office & Procurator Fiscal Service is absolutely fundamental to the operation of an effective justice system in Scotland. This is why this committee has chosen to make it the focus of its first major inquiry.

“MSPs on the previous Justice Committee raised several concerns about the additional pressures that the organisation faced in recent times – including an increase in complex historic sex abuse and domestic abuse cases and new requirements required by legislation.

“The COPFS’s responsibilities towards victims and witnesses have also been increasing – and rightly. This has all taken place against a backdrop of tight budgetary settlements in recent years.

“It is likely these significant pressures will continue, so fundamental to this inquiry will be to determine if the COPFS has the resources it needs to bring offenders to justice, and is ‘future proofed’ to deal with new challenges.”

If you feel the Scottish Parliament should be asking many more questions of our prosecutors, don’t forge to make your views known to your own MSP, even ask them to go along to the hearings and make your issues more aware to the Justice Committee.

For previous articles on the Crown Office, read more here: Scotland’s Crown Office – in Crown detail

 

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