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JUDGE SCANDAL: Dark side of Scotland’s judiciary reveals how judges & courts covered up scandal hit judges – from fraud, tax avoidance, alcohol related violence to the wife-beating Sheriff – who all avoided action from Crown Office & Police

Judiciary, Police & prosecutors failed to act on retired scandal Sheriff. THE WAY in which the Judiciary of Scotland deal with allegations against their own members, was never more evident, and in remiss than when the wife of a now deceased Sheriff tried in vain to report her judge husband to Police and prosecutors.

The late Sheriff Lothian, who it turns out – was well known to judicial figures and even Scottish Court Service staff – for his visits to sauna parlours, rumours of mistreatment of his family and use of prostitutes – is one of the dark, yet not so far away chapters of Scotland’s legal circuit.

Yet to this day, snippets of similar behaviour by sheriffs & senior legal figures from unpublished court documents, hearings in chambers,quietly arranged divorces and even missing Police reports – is as shielded from the public today, as it was during Lothian’s reign in the Sheriff courts.

Far from the image of judicial figures cosying up to First Ministers, Lord Advocates and the reluctant ex top judges lecturing politicians and the public on morality, transparency and accountability – members of the judiciary have recently been caught up in all kinds of seedy accusations, ranging from mega millions in hedge fund linked financial impropriety, to carefully concealed court cases and even divorce, where allegations against judges range from wife battering to drunken rages and smashing objects.

Yet, the public learn very little, if usually nothing of these events – and mysteriously, the courts, prosecutors, even Police, all comply with a very judicial silence.

The “me too” #metoo movement – a campaign to denounce sexual assault and harassment – which has somehow mysteriously skipped Scotland under First Minister Nicola Sturgeon – certainly stands no chance against angry, embittered & wife beating members of the judiciary.

Nor does “me too” stand a chance against shady senior figures in Police Scotland– who support each other when reports of sexual assault or harassment end up buried with a ‘no action’ ticket at the Policeman’s ball.

The history of the demise of Sheriff Lothian – who died in 2016 – is well known.

However, the cover up by colleagues on the bench, who knew of Lothian (and other judicial figures) associations with prostitutes, sauna bars, and the attempts by Lothian’s wife to report her husband to the Police & Crown Office – stands to this day as an example of the dark side of Scotland’s judiciary.

A carefully crafted system of cover up, denial and protection of a 500 year old white male dominated judiciary – which runs from the lowly Justices of the Peace who have criminal records for shop lifting & assault, to the most senior levels of the bench where tax avoidance, failures to declare interests, wife beating & carefully denied allegations of sexual misconduct in the workplace never see the inside of a court, the pages of a recusal register or the ink of a charge sheet.

It is also worth noting, many of Scotland’s current senior judges were on the judicial bench during Sheriff Lothian (among others) penchant for boozing, sexual assault, use of prostitutes & reign of terror at home. Yet, to this day, not one judge ever spoke out.

Sheriff Lothian quietly retired on a pension of £7,000 a month.

A Freedom of Information disclosure from the Scottish Government to DOI Journalists also revealed Sheriff Lothian received substantial payments from the Scottish Government & service awards.

Documents within the FOI disclosure reveal that under the Judicial Pensions Act 1981, Sheriff Lothian was entitled to a pension of £63,200.00 per annum and a lump sum of £84,547.00 and in addition Lothian would receive a service award of £50,560.00, based on a salary of £126,400.

Additionally, under the Judicial Pensions and Retirement Act 1993, Sheriff Lothian was entitled to a pension of £62,627.00 per annum, and a lump sum of £84,547.00 together with a net service award of £52,920.00 – based on his pensionable pay of £125,253.33.

Exchanges within the documents disclosed by the Scottish Government also reveal the then Justice Secretary – Kenny MacAskill – was not informed of Sheriff Lothian’s sudden decision to quit the bench, and further emails between heads of the justice department show concern at enquiries from newspapers as to the conduct & status of Sheriff Lothian.

In relation to the allegations against Sheriff Lothian of wife beating and other reports to Police – no action was ever taken against him by the Crown Office or Lothian & Borders Police.

A report on the allegations against Sheriff Lothian and the suffering of his wife, which exposed brutality at a judicial level, featured in the former News of the World newspaper.

It may be a grim read for some, but a necessary read for all – and much further afield than Scotland:

SICK SECRETS OF SAUNA SHERIFF

Ex-missus claims Lothian’s obsession with vice girls and booze destroyed their marriage  Downed sprits daily  Begged for 3-way sex  Hit wife at Christmas

By MARCELLO MEGA News of the World 15 March 2009

SLEAZY sheriff Andrew Lothian is a wife-beating drunk who’s obsessed with prostitutes, his ex-wife reveals today.

The shamed 66-year-old was forced to quit the bench after claims he paid for spanking and whipping sessions with an Edinburgh hooker.

But today the News of the World can expose the SHOCKING secrets of his sordid private life.

According to long-suffering ex-wife Harriet Lothian, the twisted beak TRIED to make her have sex with strangers while he watched

ADMITTED using prostitutes during their marriage

DOWNED at least a bottle of spirits every day, and BATTERED her while their unsuspecting kids slept upstairs.

Speaking at length for the first time since her ex-husband’s sauna shame, disgusted Harriet, 57, said: “I’m surprised it took so long for his activities to be exposed.

“I tried repeatedly to alert the police and the Crown to his unsuitability for office because of his behaviour, but to no avail.

“I suffered greatly at his hands, both during our marriage and for many years after I divorced him.”

We told last November how Lothian quit his £125,000-a-year job after Crown Office bosses confronted him about allegations over his private life.

But, according to Harriet his obsession with sordid sex had been going on for YEARS.

Lothian’s wife of 19 years said: “Sexually, there were problems from an early stage in the marriage.

“I found it so unsettling that I sought advice from my father, who was a doctor, and who I could talk to about anything.

“Andrew was into kinky but fairly inadequate sex. He also had fantasies about introducing third parties, men or women, into the bedroom.

“I had no interest, but he kept asking me to do it to please him.

Repugnant

“I refused because I found the idea repulsive. He said he could pay people to make his fantasies come true.” Harriet suspected her hubby was using hookers DURING their marriage.

And she told how her elderly father was forced to confront Lothian about the sleazy claims.

Harriet said: “He confessed without any shame. He told me he had lost his virginity at 16 to a prostitute, and that he’d always been turned on by them.

“I was devastated. I told him I’d never have unprotected sex with him again but he was totally unrepentant.

“Once his obsession was out in the open, he became more demanding. If he was out at a dinner, he would bring men home and want me to have sex with them while he watched.

“I would have to throw them out, which was embarrassing. I found the idea repugnant. Apart from anything else, I had children in the house.

“My father was 68, but was very close to me and he had no hesitation in speaking to Andrew and telling him to shape up.”

The couple had married on December 28, 1983, after a whirlwind romance.

Lothian already had a son, also Andrew, from the first of two previous marriages, and Harriet had a young son, James, from a previous relationship.

Two years after their wedding, Harriet gave birth to their son Robert, but already the foundations of the marriage were beginning to crumble.

She says: “By the time Robert came along, I had serious concerns about his father’s alcoholism and how terribly ill it was making him.

“He was drinking at least a bottle of spirits a day, and that was just what I was witnessing. He was in a mess.

“I went home with Robert on New Year’s Day 1986 and Andrew was in such a terrible state that he became abusive. I threw a milk bottle at him and hit him on the side of the head.

“The next day, I insisted he saw a doctor, and he agreed because his mother was in the house.

Harriet tried to alert senior legal officals to her husband’s alcohol abuse but was snubbed at every turn.

Things spiralled further out of control and by Christmas 1996 Harriet demanded Lothian move out.

She said: “His language became more abusive. There were implied threats of violence and the odd punch to the side of the head where no visible marks were left, but I was still shocked by what happened then.”

Harriet told how their sons, James, now 27, and Robert, now 23, were in their bedrooms when a huge row erupted on Christmas Eve that year.

She claims Lothian slapped her hard in the face, before punching her full on the nose.

As their shocked mother took refuge in the bathroom, where she tried to stem the flow of blood, both sons plucked up the courage to leave their rooms and go to her aid.

Charade

With her face badly marked and her eyes beginning to blacken, the family went through the motions the next day, exchanging presents and eating dinner — but the mood was understandably bleak.

Harriet said: “Until that point, I’d been trying to hold things together for my sons, but I couldn’t go on with the charade.

No child should have to see their mother pouring with blood from a blow their father has struck.

It was a total nightmare.” Robert said: “I remember clearly what happened that night and it sickens me the way he behaved. It is more than ten years since I have spoken to him.

“When I was 12 I wrote him a letter telling him I wanted nothing to do with him.” Following the attack Harriet demanded that Lothian move out of the family home in Lauder, Berwickshire.

She wept: “I feared for the safety of our sons. I had no choice.”

But in SLEAZE: summer 2001 Lothian — then living in Edinburgh — launched a court bid to SELL the house.

She said: “The move was especially hurtful as Robert was about to start his Higher courses.

“It was also difficult to understand as Andrew had inherited a six-figure sum the previous year when his mother died.”

Lothian’s partner at that time, Eleanor Burns, daughter of Sir John and Lady Eleanor Burns, had also inherited a substantial sum on the death of her mother, just a week before Catriona Lothian’s death.

By 2002, when they finally divorced, Harriet claims exclusive that Lothian enjoyed a six-figure salary whilst Harriet took care of their children and could only work part-time as a rape crisis counsellor.

In the end she had to pay Lothian £28,000 to buy him out of the family home and finish the marriage.

Assault

Lothian and his brother Murdoch were subject to an Inland Revenue investigation in 2000 after claiming the contents of their late mother’s Stirling home were worth a mere £5,000.

This included antique furniture, jewellery, silver, paintings and pottery.

It’s understood the Inland Revenue later valued the list at £300,000.

But Harriet still wishes justice had been done for the assault she endured in 1996. She said: “Successive governments on both sides of the border have claimed to wage war on domestic violence.

“There was an opportunity for the Scottish establishment to show there was substance behind the platitudes by taking action against a senior lawyer. But typically, they covered his back.” Now self-employed in horticulture, Harriet added: “I have to work extremely hard to make a living.

Andrew’s disgrace has not made life any easier, but I feel vindicated.”

Lothian served on the Glasgow bench from 1979 to 1992 before moving to Edinburgh. He’s expected to keep his £7,000-a-month pension.

He was unavailable to comment on the allegations.

Read more articles about the Judiciary of Scotland here : Judiciary of Scotland – Previous articles

 

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TOP OF THE COPS: Police Scotland media team in row over “wrong” word in transcript of top cop explaining away suspension, demotion & reinstatement after male-led cop tribunal cleared him from FIVE allegations of serious sexual assault

Scotland’s new Top Cop once faced serious sexual assault probe. THE “WRONG” word in a newspaper’s transcribed version of an interview with the officer who is now Scotland’s new Chief Constable – Iain Livingstone – became the subject of bitter exchanges between media officers of Police Scotland and a national newspaper.

Reports from inside the media have revealed the matter became the subject of protracted requests to the Daily Mail newspaper from Police Scotland’s media unit – which includes a Communications officer identified as Chris Starr.

The dispute arose after a mistake was identified in the paper’s published transcript of a television interview asking Iain Livingstone about how he dealt with five allegations of serious sexual assault from a female colleague.

The mistake amounted to one word – “all” .. which should have read from interview as “wrong”.

However, questions have arisen as to why Police Scotland’s media unit hare being used to target the media over the wording of a transcript – a task which should have been allocated to a law firm.

And, while cops have taken issue with reporting of the sexual assault allegations against Scotland’s new Chief Constable, Police Scotland and the Scottish Police Authority continue to resist full disclosure and publication of the full details of the FIVE allegations of sexual assault made against Iain Livingstone by a female officer who has since left the force.

Livingstone was recently confirmed as Scotland’s new Chief Constable after a gruesome sequence of suspensions of colleagues, a damning report on how Scots Police spied on journalists and whistle-blowers, and the Ministerial backed ousting of former Chief Constable Phil Gormley.

During the BBC Scotland Investigates documentary “A Force In Crisis” – investigative journalist Sam Poling asked Mr Livingstone about the ‘allegations of sexual assault’ and about him being ‘bumped down from superintendent to constable and suspended’.

Mr Livingstone said: “There was a set of circumstances in 2000 whereby at a social event at Tulliallan, at a training event I had too much to drink.

I fell asleep in the wrong place and that was “wrong” and I shouldn’t have done that, and clearly I accept that.

I was suspended, I spent time off work. There was a hearing convened where I did accept I fell asleep.

I was cleared of any sexual impropriety.

I was cleared of any level of sexual intent and at that hearing, initially, I was then demoted from superintendent to constable.

I immediately appealed against that and I was reinstated.

I came back to work, I accepted that I made a mistake, I accepted I had learned from it and since that time I have continued to conduct my duties with absolute rigour and professionalism.”

Asked whether he could be the ‘strong professional leader with integrity’ that the public want as chief constable, Iain Livingstone said: “I think I could discharge the responsibilities of the job. ‘One of my main strengths, I think, is the ability to work collectively and to work in a collegiate manner.”

“I do think I could do the job, I just need to be quite clear in my own mind that that’s what I want to do for the next three to five years.”

Mr Livingstone was suspended in 2003 after a female officer said she was sexually assaulted at Tulliallan, Scotland’s police training college.

At the time he was 36, a father of three, and held a post in Her Majesty’s Inspectorate of Constabulary, which used to oversee regional police forces.

There were no legal proceedings – although Mr Livingstone was demoted from superintendent to constable in 2004 following a disciplinary hearing.

Five allegations of serious sexual assault were dismissed but, at an internal misconduct hearing, he admitted being in the woman’s room overnight after falling asleep.

The hearing, chaired by the then assistant chief constable of Strathclyde Police, found there had been no sexual impropriety or intent.

The woman, who had been on the accelerated promotion scheme for graduates, was reported to have left the scheme, which guarantees fast-track promotion.

A statement to the Press issued by a Police Scotland media representative in May on the subject of the BBC Scotland interview stated: “This matter was subject to due process by Lothian and Borders Police and was formally concluded under police regulations 14 years ago.”

“A hearing concluded that there was no sexual impropriety or intent on Mr Livingstone’s part and he has nothing further to add.”

TIMELINE OF SEXUAL ASSAULT ALLEGATIONS AGAINST TOP COP:

FEBRUARY 2003: Iain Livingstone, then 36, is suspended amid sexual assault claims and admits he is ‘shattered’.

AUGUST 2003: Prosecutors drop proceedings against Mr Livingstone – but he faces internal disciplinary proceedings.

JUNE 2004: Mr Livingstone is demoted from the rank of superintendent to constable, which means a loss of more than £1million in salary and pension payments.

AUGUST 2004: Tayside’s Chief Constable John Vine upholds Mr Livingstone’s appeal and reinstates him, agreeing that the original decision was ‘harsh’.

OCTOBER 2015: Now Deputy Chief Constable of Police Scotland, Mr Livingstone emerges as a candidate for the top job after Sir Stephen House quits.

DECEMBER 2015: Former Norfolk Constabulary Chief Constable Phil Gormley is named as the new boss of Police Scotland.

JULY 2017: Mr Livingstone announces his retirement, saying it was a ‘privilege to serve the people of Scotland’.

SEPTEMBER 2017: Amid the bullying row engulfing Mr Gormley, Mr Livingstone cancels his retirement plan and takes charge of the single force.

APRIL 2018: Front runner to become the new full time chief, Mr Livingstone is confronted about his conduct in a BBC Scotland TV documentary.

Journalist Sam Poling questioned Iain Livingstone during the BBC Scotland documentary, A Force in Crisis, which aired on Monday 30 April 2018.

The transcript of the interview between Sam Poling & then Deputy Chief Constable Iain Livingstone (now promoted to Chief Constable) reads as follows:

SAM POLING: What about your background?

DCC IAIN LIVINGSTONE: My background as a police officer?

SAM POLING: The allegations of sexual assault. You ended up admitting misconduct, staying in the room of a junior officer.

You were bumped down from superintendent to constable and suspended. Am I right?

DCC IAIN LIVINGSTONE: No, not on that, no you’re not right.

SAM POLING: You weren’t taken down from superintendent to constable?

DCC IAIN LIVINGSTONE: No, I wasn’t taken down from superintendent to constable and then suspended.

There was a set of circumstances in 2000 whereby at a social event at Tulliallan, at a training event, I had too much to drink.

I fell asleep in the wrong place and that was wrong and I shouldn’t have done that, and clearly I accept that.

I was suspended, I spent time off work. There was a hearing convened, where I did accept I fell asleep.

I was cleared of any sexual impropriety. I was cleared of any level of sexual intent and at that hearing, initially, I was then demoted from superintendent to constable.

I immediately appealed against that and I was reinstated.

I came back to work, I accepted that I made a mistake, I accepted I had learned from it and since that time I have continued to conduct my duties with absolute rigour and professionalism.

SAM POLING: The public want a strong professional leader with integrity in their chief constable. Is that you?

DCC IAIN LIVINGSTONE: I think I could discharge the responsibilities of the job. One of my main strengths, I think, is the ability to work collectively and to work in a collegiate manner.

I do think I could do the job, I just need to be quite clear in my own mind that that’s what I want to do for the next three to five years.

SEXUAL ASSAULT ALLEGATIONS AGAINST TOP COP TO REMAIN SECRET:

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 read as follows:

“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.”

Material in relation to new complaints made against DCC Iain Livingstone was sought from the Scottish Police Authority in February of this year, after information was received with regards to further serious complaints made against Police Scotland’s current ‘interim’ Chief Constable.

However, the Scottish Police Authority under Susan Deacon deliberately delayed releasing their response to the Freedom of Information request – by a number of months, as members of the Scottish Police Federation and Scottish Government ministers bolstered DCC Livingstone’s position as front runner for the top job – despite the grim details of a case involving 5 allegations of serious sexual assault which were dismissed by a tribunal composed of Livingstone’s male cop colleagues.

The Scottish Police Authority were asked to provide details of :

  • The 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

  • The status, and outcomes of these complaints.

However, and some time after discussions over the Freedom of Information request had taken place, inside & outside the SPA – the Scottish Police Authority responded to the FOI request four months late, in early June – denying access to all of the information sought in relation to DCC Livingstone.

In their response, issued months late and outwith Freedom of Information timescales, the Scottish Police Authority wrongly claimed the material sought was “personal data of a third party” in a concerted attempt to conceal further details of complaints against DCC Livingstone from the public.

The Scottish Police Authority stated in it’s letter of response, dated 8 June 201:

The SPA considers that this request constitutes personal data of a third party and is, therefore, exempt in terms of Section 38 (1)(b) of the Freedom of Information (Scotland) Act 2002.

Furthermore this information is exempt under Section 34 (3)(a) of the Freedom of Information (Scotland) Act 2002 – Investigations by Scottish public authorities and proceedings arising out of such investigations.

Both are absolute exemptions and as such no public interest test has been applied.

A request for review has been lodged, and material also sent to the Scottish Information Commissioner with regards to the SPA’s refusal to disclose the information.

The Scottish Police Authority’s eagerness to conceal information in relation to a senior Police Officer – who has been previously accused of 5 allegations of serious sexual assault, and has faced further complaints including an ‘interaction’ with another officer – raises questions about the impartiality of the recruitment round to appoint a new Chief Constable to Scotland’s crisis hit single Police service.

With reference to the five allegations of serious sexual assault, Iain Livingstone was cleared of sexual impropriety or intent – by a tribunal headed by a male top cop colleagueAssistant Chief Constable John McLean of Strathclyde Police.

The former lawyer and Raith Rovers footballer had been suspended for 17 months after the WPC claimed she had been sexually assaulted during the party.

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, Livingstone – who had also once played for Raith Rovers – had clearly been fast tracked, reaching the rank of superintendent.

At the time of the allegations and ‘internal’ investigation by his Police colleagues, Livingstone was not prosecuted by the Crown Office over the claims.

Instead, Livingstone admitted a less serious allegation about being in the woman’s room overnight and falling asleep.

It should be noted that during the time of the investigation & tribunal, handled by Police, the Lord Advocate was Colin Boyd, Baron Boyd of Duncansby – now a judge in the Court of Session, and the Solicitor General was Elish Angiolini – recently appointed by Nicola Sturgeon a Scottish Minister to investigate how complaints are handled against Police in Scotland – reported here: PROBE CONFLICT: £604K public cash inquiry magnate Ex Lord Advocate appointed to investigate Police complaints – linked to lawyers representing cops facing complaints

A full report on Police Scotland’s refusal to release the details of allegations against Iain Livingstone can be found in an earlier article here: 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

A report on the Scottish Police Authority’s refusal to release information in connection with the allegations of sexual assault against Iain Livingstone can be found here: THE COP FACTOR: Scottish Police Authority refuse to release documents on sex assault case top cop who wants to be Chief Constable – now, new info said to contain more complaints & references to ‘interaction with another officer’

 

 

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IMMUNITY LORD: Conflict judge who failed to declare interest in case linked to his son – upholds Lord Advocate immunity from common law claims in £9M Rangers Admin action – which was initially to be heard by the Lord Advocate’s judge wife

Lord Malcolm rules Lord Advocate immune from parts of Rangers admin claim. A SENIOR Court of Session judge who failed to disclose he heard a case on eight occasions involving his own son – has now ruled the Lord Advocate has absolute immunity from being sued in connection with common law claims in relation to a £9million damages claim brought by former administrators for Rangers Football Club.

Lord Malcolm – real name Colin Campbell QC – made the ruling in an opinion published on Thursday in the case of “David John Whitehouse against Phil Gormley QPC & others”

The case – initially heard in the Court of Session in November 2017- was originally set to be decided by Lord Advocate James Wolffe’s own wife – Court of Session judge Lady Sarah Wolffe.

However, Lady Wolffe was switched at the last minute after questions were raised when her marital status and conflict of interest became apparent – reported here: CRY WOLFFE: Judicial Office hit with new conflict of interest claims as Court of Session papers reveal £9 million damages claim against Chief Constable & Lord Advocate James Wolffe QC was set to be heard by the Lord Advocate’s wife – Judge Lady Wolffe

In last week’s lengthy 107 page ruling by the Court of Session Judge & Privy Councillor – Lord Malcolm ruled in 2018 where Lady Wolffe could not in 2017 – and upheld the absolute immunity of Lord Advocate James Wolffe QC – in respect of the common law claims but rejected the Lord Advocate’s submission that the article 8 claim should be dismissed in advance of proof.

Lord Malcolm’s summary and decision states: “The pursuer, and separately his former co-administrator of Rangers Football Club, are claiming damages from those said to be responsible for allegedly wrongful detentions, arrests, and prosecutions. The claims are brought at common law and in terms of articles 5 and 8 of ECHR. The Lord Advocate’s submission that the article 8 claim should be dismissed in advance of proof is rejected. However his plea of absolute immunity in respect of the common law claims is upheld. It follows that the actions against him shall proceed in respect of only the ECHR claims”

While upholding the Lord Advocate’s immunity, Judge Lord Malcolm allowed Mr Whitehouse’ claim against Police Scotland to go ahead to a proof, stating: “So far as Mr Whitehouse’s claim against the police is concerned, the court is not prepared to uphold his submission that it can be decided on the pleadings that he need not prove malicious conduct on their part. The result is that the pursuer’s claim against the chief constable, and the defences to it, shall proceed to a proof before answer (as was agreed by the respective parties in Mr Clark’s action)”

A proof will now take place at a date to be decided, regarding claims that Whitehouse’s human rights were breached by prosecutors when he was arrested.

In allowing a proof to go ahead, Lord Malcolm also ruled that the hearing should also consider whether PoliceScotland exceeded their powers and acted maliciously in their investigation into Whitehouse.

The hearing will take place alongside another set of proceedings dealing with Clark’s claims.

The £9million damages claim came about after David Whitehouse and his colleague, Paul Clark, who worked for administrators Duff & Phelps, who faced criminal proceedings following the takeover of Rangers by Craig Whyte.

However, criminal charges against both Mr Whitehouse and Mr Clark were later dismissed following a hearing at the High Court in Glasgow in June 2016 – amid a clear lack of evidence for a case to proceed, and widely shared views the charges were motivated more out of headline hunting PR by the Crown Office & Police Scotland.

Both Whitehouse and Clark claimed in the court action that the Lord Advocate’s prosecutors pursued a wrongful prosecution against them and there was no evidential basis for the charges brought against them.

Mr Whitehouse and Mr Clark also claimed that PoliceScotland acted maliciously against them and they should be entitled to damages from the Chief Constable – who was at the time – Phil Gormley.

Both of the former Rangers administrators believe detectives breached their legal powers during the investigation.

Gerry Moynihan QC – acting for Lord Advocate James Wolffe –  told the court that his client, the Lord Advocate enjoyed absolute immunity from being sued in a civil court.

The issues surrounding the Lord Advocate’s immunity were discussed earlier this year during a debate at the Court of Session – after the case had been passed around a number of judges – beginning with the Lord Advocate’s own wife – Lady Sarah Wolffe QC – who was initially scheduled to head the case and decide on it during November 2017.

Legal representatives of Mr Whitehouse claimed their client’s ECHR human rights were breached and that PoliceScotland should pay compensation to Mr Whitehouse

Rangers went into administration in February 2012, shortly after they were bought by Whyte, and Clark and Whitehouse were appointed as administrators.

Six days later Whitehouse contacted the police to raise concerns, particularly about Whyte, said Moynihan. Later that year the Crown Office announced that it had instructed Strathclyde Police to investigate. Lawyers for the two men believe that the crown was “the directing influence” in the probe.

Rangers later went into liquidation before being sold to a consortium led by Charles Green.

In 2014 Mr Whitehouse and Mr Clark were detained by PoliceScotland and held overnight, and the following year – both appeared in court on a second petition – then the case collapsed.

Craig Whyte later stood trial on criminal charges, however, he was acquitted by a jury at the High Court in Glasgow in June 2017.

In the current action, both Mr Whitehouse and Mr Clark say their arrest  and detention was wrongful, that their ECHR rights were infringed, and their professional reputations were damaged as a result of the case.

At a hearing held earlier this year, Whitehouse’s lawyers told Lord Malcolm that they didn’t believe that a hearing had to be held into whether the police breached their powers when investigating their client.

It was claimed that on the evidence made available to the court, Lord Malcolm was able to rule that PoliceScotland should be required to compensate Mr Whitehouse.

Whitehouse’s lawyer Heriot Currie QC told the court that his client’s arrest had affected his ability to make a living.

He added: “For 18 months the pursuer was subject to very serious, we say wholly unfounded allegations with a significant adverse effect on him, his family and his professional career.”

Gerry Moynihan QC, acting for the Lord Advocate, argued that the law stated that the Lord Advocate enjoyed immunity and that Lord Malcolm was bound to follow this.

However, Lord Malcolm refused the motion, concluding he couldn’t issue a ruling ordering PoliceScotland to hand over compensation to Whitehouse.

Lord Malcolm said the matter could only be decided following another hearing in the Court of Session.

Further hearings and a proof will take place at a date yet to be decided.

The circumstances and the parties’ contentions in the action are set out in the pleadings – which also mention the episode of the “Charlotte Fakes” emails, and reference to Craig Whyte – who initially faced charges – which were later dropped by the Lord Advocate.

PURSUERS PLEADINGS from the full Court of Session opinion by Lord Malcolm:

[1] At the outset it is necessary to describe the background to and the circumstances of the present action. The pleadings extend to over 250 pages, therefore what follows should be understood as a summary of what is a detailed and complicated picture. In late 2010 a Scottish businessman, Craig Whyte, expressed interest in acquiring Rangers Football Club.

In March 2011 he engaged David Grier of MCR, a corporate restructuring advisory firm of which the pursuer was a partner (prior to MCR’s acquisition by Duff & Phelps in October 2011), to assist in negotiations with the club’s lenders, Lloyds Banking Group. In May 2011 Craig Whyte, through an acquisition vehicle, Wavetower Limited, entered into an agreement for the purchase of a controlling shareholding in the club and was appointed as a director. The club struggled to meet its liabilities. In February 2012 it entered administration. The pursuer and his colleague were appointed joint administrators. Later that month the pursuer met with senior officers from Strathclyde Police and informed them that preliminary investigations suggested that the acquisition of the club by Wavetower may have involved illegal financial assistance. The administrators initiated proceedings at the Royal Courts of Justice in London seeking payment of sums due to the club held by Collyer Bristow, a firm of solicitors acting for Wavetower. Subsequently the administrators raised proceedings for payment claiming an unlawful means conspiracy, on the basis that Craig

Whyte and Gary Withey (Mr Whyte’s legal advisor and a partner at Collyer Bristow) had made false representations to the previous owners as to the availability of funds to finance the acquisition, and had acquired the controlling shareholding by fraud. The police were notified of these allegations.

[2] On 25 June 2012 the Crown Office issued a press statement in the following terms:

“The Crown Office has today instructed Strathclyde Police to conduct a criminal investigation into the acquisition of Rangers Football Club in May 2011 and the subsequent financial management of the Club. The investigation into alleged criminality follows a preliminary police examination of information passed to them in February this year by the Club administrators. The Procurator Fiscal for the west of Scotland will now work with Strathclyde Police to fully investigate the acquisition and financial management of Rangers Football Club and any related reports of alleged criminality during that process.”

At the hearing it was confirmed that the press release was issued on the instructions of and with the authority of the then Lord Advocate.

[3] The club was marketed for sale by the administrators. In May 2012 a consortium led by Charles Green entered into an agreement with the administrators. It obliged him to pursue a company voluntary arrangement, with funding of £8.5 million, which failing to purchase the business and assets of the club for £5.5 million. In June 2012 the creditors rejected the CVA proposal. Mr Green’s acquisition vehicle, Sevco (Scotland) Limited, acquired the business and assets of the club and paid £5.5 million to the administrators. In October 2012 Jane Stephen and Malcolm Cohen of BDO were appointed joint liquidators, with the pursuer and his colleague vacating office.

[4] During the police inquiry officers recovered materials by executing search warrants at a range of locations, including the premises of banks and professional advisors involved in the transaction. It is averred that the second defender, through his deputes, and the Lord Advocate at all times directed the police investigation. They were made aware of all evidence recovered and approved all lines of inquiry. In August 2013 officers from Police Scotland attended at the London and Manchester premises of Duff & Phelps, the pursuer’s employers, and executed search warrants previously granted by a sheriff at Glasgow Sheriff Court. Many documents were seized, including material over which privilege was claimed, and material which was said to be beyond the scope of the warrant. Duff & Phelps instructed their solicitors to liaise with the police in relation to this matter. It is averred that in February 2014 the Crown assured Duff & Phelps that the police had not reviewed or intromitted with material subject to the privilege claim, however officers had carried out a preliminary sift of all such material. The fact of that sift was not revealed at the time. In November 2014 Duff & Phelps’ solicitor attended a meeting at Crown Office in Edinburgh with a procurator fiscal depute and James Keegan QC, the allocated depute of the Lord Advocate. The solicitor was informed that his clients were to be treated as suspects and would be detained. It is averred that the advocate depute asked him whether that would change his position on privilege. It is stated that it was erroneously believed that the privilege dispute would be resolved by the appearance of the pursuer and his colleague on petition.

[5] At dawn on Friday 14 November 2014 the pursuer was detained at his home in Cheshire by officers from Police Scotland. This was said to be in terms of section 14 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). The pursuer was informed that the basis for his detention was “fraudulent scheme and attempt to pervert the course of justice”. He was taken to Helen Street Police Office in Glasgow where he was interviewed, arrested and charged. He was held in police custody until Monday 17 November 2014 when he appeared in Glasgow Sheriff Court. Requests for him to be released or liberated on an undertaking were declined, the police citing direction by the Crown. On 17 November he was committed for further examination and admitted to bail. It is averred that there were no reasonable grounds to suspect that the pursuer had committed an offence. In any event the detention was unnecessary.

[6] The pleadings set out lengthy averments and counter-averments in connection with the proposition that there was no reasonable foundation for what occurred. For example, averments are made as to the basis upon which the reporting officer, DCI Robertson, was of the opinion that there was a sufficiency of evidence available to give rise to a reasonable suspicion that Mr Whyte’s allegedly fraudulent transaction could not have been completed without the involvement, knowledge or advice of the pursuer and his colleagues, and that the pursuer had misled the police about his knowledge of and advice as to the financing of the transaction (sometimes referred to as the “Ticketus deal”). It is stated that DCI Robertson suspected that crimes of fraud and attempting to pervert the course of justice had been committed by the pursuer. He provided a briefing to the detaining, interviewing and arresting officers prior to the executive action being taken, which included reference to the matters which informed his suspicion. It is averred on behalf of the chief constable that the totality of material available was sufficient to give rise to a reasonable suspicion such as to justify interviewing the pursuer and others under caution and in detention. It was not appropriate to seek to make arrangements for voluntary attendance at a police station by multiple accused in which the offences suspected included an attempt to pervert the course of justice. It should be understood that the intention was to detain the pursuer, Mr Clark, and others as part of executive action to detain a number of suspects at the same time.

[7] At 7.15 pm on 14 November 2014 the pursuer was informed by the arresting officer that he was charged with a fraudulent scheme and an attempt to pervert the course of justice. The fraudulent scheme arose because of the false pretence which had been proffered, namely that Craig Whyte was a wealthy man who was investing his own capital in the acquisition of the club, when in fact he was using funds advanced by Ticketus. The practical result of the fraudulent pretence was that Mr Whyte was able to gain control of the club, and then force an administration, to the financial benefit of the pursuer whose firm was appointed administrators. Without the false pretence, Sir David Murray, the controlling shareholder of the club, would not have been willing to sell his shares to Mr Whyte. It was suspected that the pursuer had known of the criminal nature of this enterprise and had actively joined in it. It was further suspected that he had attempted to pervert the course of justice in providing statements to police in which he had deliberately omitted key information which he knew to be relevant to their inquiry. The arresting officer was satisfied that there were reasonable grounds for this course of action and sufficient evidence to charge the pursuer on the basis of information provided to her in the interview pack prepared by the reporting officer, the detailed briefing from him, and the interview of the pursuer and his responses.

[8] The decision for the pursuer to remain in custody pending court appearance on the next court day was taken by the custody sergeant in the police station whose function it was to make such decisions in respect of all arrestees at that station at that time. She had regard to the Lord Advocate’s guidelines, the Crown Office decision that he would be appearing on petition, and the nature and gravity of the offences with which the pursuer was charged. It is averred that the police officers acted in good faith. While the pursuer no doubt disagreed and disagrees with the decisions taken, that does not render them unlawful or unreasonable or actionable. Reliance is placed upon the terms of section 22 of the 1995 Act.

[9] These averments are answered in detail by the pursuer in support of the proposition that there was no basis for any suspicion that he had engaged in criminal activity. For example, it is averred that Ticketus were known to be an existing provider of working capital to Rangers. The existing owners of the club had suggested that the purchaser should continue to use Ticketus. A key issue for the club’s board was that there should be sufficient working capital to finance the club’s operations post-acquisition. An email exchange relied upon by the first defender did not suggest knowledge of the actual arrangement entered into between the club (under the control of Whyte/Wavetower) and Ticketus. This gives a flavour of the issues which would be addressed in any evidential hearing. In general it is the pursuer’s position that he had no knowledge of any intention on Mr Whyte’s part to use Ticketus funds in the purchase of the club or to misrepresent the true position as to the funding of the acquisition.

[10] In the course of the hearing it was explained that the critical part of the alleged fraud was not the use of the Ticketus funds, but the misrepresentation as to the financing of the acquisition. The pursuer avers that if Craig Whyte claimed that “Duff & Phelps knew everything”, which is denied, that claim provided no basis for suspicion or arrest of the pursuer as an individual. In any event such a claim was wholly at odds with the available documentary evidence which clearly demonstrated deliberate concealment of information from MCR. When in November 2014 the pursuer appeared on petition in respect of charges of fraud (relating to the acquisition and subsequent management of the club) and attempting to pervert the course of justice, he was served with a summary of evidence by the Crown, which it is said made no reference to any evidence supporting his involvement in fraud. It is claimed that there was insufficient evidence to support the decision to place the pursuer on petition.

[11] In June 2015 the Crown informed the defence that the focus of the inquiry had changed, and that any subsequent indictment was likely to include charges relating to the administration and disposal of the assets of the club. On 12 August 2015 DCI Robertson delivered a letter to the pursuer’s solicitor indicating, amongst other things, that the inquiry concerning the administration period and sale to Mr Green was a live police investigation. On 26 August 2015 the Crown applied to the sheriff at Glasgow for an extension of the time limit set out in section 65 of the 1995 Act.

[12] At dawn on Tuesday 1 September 2015 the pursuer was again detained at his home in Cheshire by officers of Police Scotland. He was conveyed to Helen Street Police Office in Glasgow where he was interviewed, arrested and charged. He was told that he would be held pending a court appearance the following day. It is averred that the Crown directed the police to keep the pursuer in custody. He appeared on petition at Glasgow Sheriff Court on 2 September when he was committed for further examination and admitted to bail. It is stated that at no point were there any reasonable grounds to suspect that the pursuer had committed an offence and that his detention was in any event unnecessary. There was insufficient evidence to justify a charge. Other suspects, specifically Craig Whyte and Charles Green, were permitted to attend police stations by arrangement.

[13] On behalf of the chief constable it is averred that there was an investigation into the acquisition of the club by Charles Green and the possible involvement of Craig Whyte in that transaction. Police inquiries established a reasonable suspicion that the pursuer, along with Mr Clark, Mr Whyte, Mr Green and a Mr Ahmad, had formed a fraudulent scheme or conspired to enable Mr Whyte to acquire the club from the administrators. The pleadings set out the alleged circumstances relied upon, for example it is said that when

DCI Robertson asked the pursuer about his knowledge of Charles Green and any links he had to Craig Whyte, the officer formed the view that the pursuer was evasive. The fee for the exclusivity agreement with Sevco 5088 Limited signed by the administrators was partly funded by Mr Whyte. In April 2013 Mr Whyte was quoted in a newspaper saying, amongst other things, that Mr Green acted as a “frontman” for him in connection with the purchase of the club. It is averred that Mr Whyte had introduced Mr Green to the administrators. These are but examples of the various factors said to have been relied upon at this time. The pursuer was charged with involvement in a fraudulent scheme in terms of which the club had been acquired by Craig Whyte at an undervalue as a result of a false pretence, namely the concealment of the connection between Mr Whyte and Mr Green. Again reference is made to section 22 of the 1995 Act and to the decision of the custody sergeant on duty.

[15] In answer, amongst other things, the pursuer avers that in respect of the offer from Sevco 5088 Limited, there was nothing to suggest any involvement of Craig Whyte. The pursuer provided three witness statements to the police, all in 2012. He was not asked about Charles Green, other than in relation to proof of funds checks carried out by the administrators, nor about any links Green may have had to Whyte. The subject report submitted by DCI Robertson to the Crown in on or about 20 August 2015 made no reference to him having formed the view that the pursuer had been evasive in interview or that he had regarded the pursuer’s responses as suspicious. Again these are but examples of the counter-averments made on behalf of the pursuer, all of which will form the context of any evidential hearing. It is said that the totality of the evidence ingathered by the police prior to the second detention clearly demonstrated that Whyte’s claim to ownership of Sevco 5088 Limited was false. In any event, there was no evidence to suggest that the pursuer was aware of any involvement by Whyte in the Green bid; rather the evidence available to the police suggested the reverse. In any event there was no evidence that the true market value of the club at the point of the sale of the business and assets to Green was greater than had been represented.

[16] On Wednesday 2 September 2015 the pursuer appeared on a petition at Glasgow Sheriff Court containing charges of conspiracy to defraud and a contravention of section 28 of the 2010 Act. The procurator fiscal’s motion for committal was opposed on the basis that the charges did not represent new allegations, but were reformulations of those which had appeared in the November 2014 petition. The procurator fiscal insisted that the charges were distinct and had arisen from a separate police investigation. In the result the sheriff granted the Crown motion, and admitted the pursuer to bail. It is stated that there was insufficient evidence to place the pursuer on petition. On behalf of the second and third defenders it is averred that the service of the second petition was a considered and appropriate response to the further information being uncovered in relation to the acquisition of the club, its management, the conduct of its administration, and the disposal to Charles Green. Its service at this point avoided the risk of having two trials on related issues involving the same parties. The decision to include the pursuer was taken by experienced fiscals in good faith and in light of the evidence available against him. They had a reasonable suspicion that the pursuer had participated in the alleged crimes.

[17] The above summarises the first 100 pages of the pleadings. The next chapter concentrates, in the main, on the conduct of the second and third defenders. From time to time these defenders are referred to in a composite manner as “the Crown”. It is averred that on 3 September 2015 the court considered a Crown application for an extension of statutory time limits in which it was asserted that Duff & Phelps had recently produced a large quantity of material to the police which ought to have been made available during the August 2013 searches. At a continued hearing the advocate depute intimated that, having checked matters, there had been no such late production of material by Duff & Phelps. Instead it was asserted that Clyde & Co, a firm of solicitors who had acted for Collyer

Bristow, had recently produced 39 boxes of material that ought to have been produced in response to a warrant executed in August 2013. The sheriff granted the Crown’s application, but restricted the extension to a period of three months. The defence then sought further information about the 39 boxes, the existence of which had not previously been disclosed. In answer it is averred that the reference to the 39 boxes was made in error on the basis of internal misunderstandings within Crown Office and in communications with the police. The court was advised of this at the preliminary hearing on 16 October 2015 and an apology was tendered. At an appeal against the extension the appeal court was provided with a full explanation as to the mistaken reference to 39 boxes. Relying upon other factors the appeal court considered that the extension was justified. In response the pursuer avers that it is believed that the second petition was brought in order to influence the outcome of the contested section 65 application.

[18] On 16 September 2015, within the original time limits, the Crown issued an indictment (the first indictment) charging the pursuer with conspiracy to defraud and attempting to pervert the course of justice, and citing him to appear at a preliminary hearing on 16 October 2015. Several of the charges related to the matters dealt with in the second petition. The pursuer lodged a range of preliminary minutes, including an objection to the relevancy and competency of the charges, and a plea in bar of trial on the grounds of oppression and abuse of process. The judge continued the preliminary hearing to 11 January 2016 and fixed a debate on the preliminary minutes for the week commencing 7 December 2015. On behalf of the Lord Advocate it is averred that the decision to serve the first indictment was made because it was reasonably anticipated that the pursuer, Mr Clark, or both, might appeal the grant of the section 65 extension and, if the appeal was successful, there would be a real risk that the matters covered in the first petition would have become time barred. The Crown had recovered relevant evidence in relation to the period of administration. The indictment was drafted on the basis of this and other relevant evidence by experienced indicters acting in good faith. The pursuer avers that until the preliminary hearing the Crown adhered to the representations as to the 39 boxes.

[19] On 2 December 2015, which was the day before the appeal hearing in respect of the extension of time limits, the Crown served another indictment. At the hearing the advocate depute explained that it was to supersede the first indictment. He submitted that if the appeal was allowed, it would cause the new indictment to fall, meaning that the new charges would no longer be before the court. It is averred that no prior notice of this indictment was given. It replicated the charges on the first indictment and included additional charges. The pursuer faced a total of seven charges. The Crown states that including all charges on the second indictment was designed to ensure that the accused faced only one trial.

[20] At a preliminary hearing on 5 January 2016 the court assigned a debate on all preliminary pleas for the week commencing 1 February. After submissions were made on the pursuer’s behalf the Crown sought leave to make substantial amendments to the indictment. It was accepted that the first charge did not clearly set out the alleged criminality. In the result five of the seven charges directed against the pursuer were deleted, including all of those derived from the November 2014 petition. The advocate depute unequivocally renounced the Crown’s right to prosecute the pursuer on those charges, and the remaining charges were the subject of further debate. On 22 February the court upheld the pursuer’s plea to the relevancy and dismissed the remaining charges against him. The advocate depute informed the court that the Crown would consider whether to bring a further indictment against the pursuer. Later that day Crown Office issued a press statement, carried in the national and business press, that further proceedings would be brought against the pursuer. On 3 June 2016 the Crown confirmed that all proceedings against the pursuer were at an end. It is averred that at no point was there any justification for the detention, committal, prosecution or indictment of the pursuer. The second and third defenders never had a sufficient evidential basis for any of the charges directed against him. The Crown avers that the press statement was corrected the day after its publication to reflect the terms of the advocate depute’s advice to the court.

[21] The pursuer pleads that throughout the course of the prosecution, the conduct of the second defender’s deputes and of the third defender was marked by a disregard for their obligations. This is denied and it is explained that at all times the third defender’s predecessor in office, his deputes and procurators fiscal were aware of their obligations and sought to discharge them in good faith. In response to certain averments concerning the Crown’s disclosure obligations it is stated that the prosecution of the pursuer and his co-accused was an exceptional case involving quantities of documents and issues of legal and practical complexity not encountered in an ordinary case. The pursuer complains that disclosure was limited and sporadic. By the end of May 2015 only a third of all available productions had been disclosed to the defence. By the time of the debate in February 2016 approximately 1,000 Crown productions remained undisclosed. Certain undertakings were given in this regard on 19 April 2016, however by the time of the conclusion of the criminal proceedings several key witness statements and labels remained undisclosed, including recordings of police interviews of Charles Green, emails and other documents relating to the actions of Mr Whyte’s associate Aidan Earley, and statements of solicitors involved in the sale of the clubs assets out of administration, all of which, it is said, the pursuer reasonably anticipated would be supportive of his defence. The defence was never made aware of the total number of productions held by the Crown; such disclosure schedules as were provided were incomplete. The Crown contends that at all times it endeavoured to meet its disclosure obligations. At no point was any material wrongfully withheld. Various issues with the disclosure process made it unusually lengthy and complex, including competing claims of legal professional privilege and existing and anticipated civil actions in England. The number of documents involved necessitated the purchase of industrial scanners and the employment of additional staff members.

[22] The next chapter concerns non-disclosure of what are described as the “Charlotte Fakes” recordings. They are said to be part of a wider group of recordings made by Craig Whyte, and include conversations involving Craig Whyte and Charles Green. For the Crown it is averred that there were technical difficulties in opening and listening to the recordings which impeded assessment. Transcripts were disclosed on 29 January 2016. The pursuer avers that no audio recordings were provided nor any information as to provenance. The recordings had been in the possession of the police from at least July 2014, several months before the pursuer’s first appearance on petition. Transcripts had been available to the defenders by 2 December 2015, which was before the first preliminary hearing, and were put to Charles Green in his police interview on that date. On behalf of the first defender it is admitted that the recordings had been in the possession of the police. The Crown states that there were issues of admissibility in respect of the recordings. The pursuer avers that the recordings of conversations between alleged conspirators at the time of the alleged offences were material. They were exculpatory of the pursuer. They demonstrate that essential information, including Mr Whyte’s proposed participation in the Green bid, was withheld from the administrators; that Whyte was anxious about whether the administrators would accept the Green bid; and that third parties were to be encouraged to put financial pressure on the Club to encourage the administrators to accept the Green proposals. It is said that the recordings cannot be reconciled with the Crown’s claim that the pursuer was party to a conspiracy. The allegations in the second petition were entirely predicated upon a claim by Craig Whyte that he had acquired the business and assets of the club out of administration under the proxy of Green. It is also averred that on 4 May 2018 the pursuer’s agents recovered a series of subject sheets – communications from the police to the Crown – relating to the criminal investigation. These revealed that by June 2014 the police had recovered – as part of the Charlotte Fakes materials and from other sources – the contents of email accounts belonging to Craig Whyte. The police estimated the accounts to contain approximately 100,000 emails. On 19 June 2014 the reporting officer advised the Crown of the recovery of the emails, and as to their extent. On 4 August 2014 he advised the Crown that the emails related, inter alia, to the periods around the acquisition and administration of the Club. On 9 February 2015 the reporting officer advised the Crown as to the terms of certain emails which were assessed as being incriminatory of Craig Whyte. It is said that these emails were of central relevance to the allegations against the pursuer, and in particular his knowledge of and participation in any criminal conduct by Craig Whyte. On behalf of the Crown it is claimed that much of the Charlotte Fakes material did not impact upon the pursuer but, to the extent that it did, it included incriminating material. In response it is averred that the discussions involving the pursuer were in no way incriminatory, but were indicative of nothing more than the pursuer discharging his obligations as administrator.

[23] The pleadings continue by reference to disclosure issues surrounding a report by Pinsent Masons solicitors and the evidence of Aidan Earley, a business associate of Craig Whyte. For example it is averred that in July 2015 the defence asked the Crown for disclosure of various witness statements provided by Mr Earley. On 28 April 2016, after the dismissal of the remaining charges against the pursuer, the Crown disclosed a transcript of a series of text messages taken from Earley’s phone. These included a number of communications between himself and Craig Whyte at the time of the administration of the Club, which are said to be entirely exculpatory of the pursuer. The source material for the transcripts had been in the possession of the police since at least 13 April 2015, well before the September 2015 petition and the service of the first indictment. The text messages were put to Charles Green in his police interview on 1 September 2015, details of which were never disclosed to the pursuer.

[24] The pursuer then sets out various issues concerning what is described as the Crown’s obligation to pursue all reasonable lines of inquiry. For example, it is said that before indicting the pursuer, the Crown failed to interview staff of the pursuer and his co-administrator who had worked on the administration, the preparation of valuations, and the sale negotiations with other parties. It is averred that at no time did the Crown have an evidential basis for the claim that the assets of the club had been sold at an undervalue.

[25] The pursuer avers that the Crown failed to respond to requests for information and other correspondence from his agents. On several occasions the Crown was careless as to the accuracy of information given to the pursuer and to the court. Statements were made to the court which were misleading and lacked candour. DCI Robertson acted recklessly and without reasonable cause at various stages during the investigation and the criminal prosecution. He made unwarranted accusations to solicitors. He told Duff & Phelps that he would “shut down the Shard” (a reference to their headquarters in London) if they did not produce required material. Again by way of example of the complaints in this section of the pleadings, it is averred that the court was invited to grant a warrant on the basis of one-

sided information. The exercise of the warrant in London involved officers wearing bulletproof vests and tasers interrupting a client reception. An emergency injunction was then granted to the firm of solicitors concerned by the High Court in London. On 5 February 2016 the High Court of Justiciary granted suspension of the warrant on grounds of oppression. On 6 October 2016 the Queen’s Bench division of the High Court of Justice ordered the first and third defenders to pay the firm of solicitors’ costs on an indemnity basis, the court noting that the actions of the first and third defenders were “an abuse of state power”.

[26] It is averred that DCI Robertson sought to interfere with legitimate defence investigations. For example, it is stated that he threatened witnesses with imprisonment unless they changed their accounts. He amended draft statements provided by witnesses.

In response, amongst other things it is said that DCI Robertson did not consider that he received full cooperation from a number of witnesses. In order to progress the investigation applications were made properly by the Crown for warrants to recover documentation. The warrant relating to the solicitors’ premises had been drafted by the Crown. It was granted by a sheriff in Glasgow. Steps were taken to minimise disruption. DCI Robertson and his officers were not in uniform, and he had not requested uniform presence, but this is what was provided by the local police. At all times he acted in good faith. He was required to investigate matters robustly, probe inconsistencies, require truthful answers from witnesses, recover evidence, and be authoritative when executing court orders.

[27] It is averred that the Crown instructed forensic accountants to prepare reports in the hope that they would provide an evidential basis for the charges against the pursuer, however they were not given all of the relevant factual material, in particular material which did not support the Crown case. The experts were invited to reach conclusions on the basis of “one sided information”.

[28] In addition to the common law claim, the pursuer avers infringements of his rights under articles 5 and 8 of ECHR. So far as article 5 is concerned, it is stated that the actings of the defenders and each of them was a disproportionate interference with the pursuer’s liberty. A time bar plea is taken in respect of the events in November 2014.

[29] The pursuer’s pleadings then revert to general averments as to wrongful conduct, for example that the detentions were “outwith the competence of the officers” and accordingly unlawful; that they lacked probable cause; that the instructions from the Crown were actuated by an ulterior motive, namely the desire to allow evidence over which privilege had been asserted to be relied upon in the erroneous belief that detention would allow the criminal purpose exception to be invoked; and that the absence of reasonable grounds for suspicion demonstrated a degree of recklessness on the part of the Crown amounting to malice. It is averred that the timing of instructions was related to concerns about the whereabouts of Craig Whyte. Similar averments as to lack of probable cause and ulterior motives are made in respect of the second detention, for example a desire to maintain a purported justification for the proceedings against the pursuer. Similar averments are made in relation to the alleged wrongful prosecution in terms of petitions, committals, and the service of indictments. For example it is averred that in the first petition, the only matter directed against the pursuer on charge one, relating to fraud in respect of the acquisition and management of the club, was that he, together with two colleagues, had prepared a letter in the knowledge that it would be used to induce Ticketus to pay out a sum in excess of £18 million. However there was no evidence to show that the pursuer had been involved in the preparation of that letter, nor that it was in any way inaccurate or misleading, and nor that it had been relied upon by Ticketus. The evidence showed that Ticketus had already paid out the sum by the time the letter was issued, and that they had taken advice on all relevant matters from their solicitors. Again by way of example, charge six stated that the pursuer had made false statements in a report to the Court of Session; however the charge materially misrepresented the wording of the report. On various occasions the pursuer’s agents wrote to the Crown detailing errors in the charges, referring to the absence of supporting evidence, and pointing to exculpatory material which had been disclosed, however no substantive response was received.

[30] In response to the Crown’s plea of absolute privilege, the pursuer avers that if any such privilege is enjoyed (which is denied) it extends only to the actions of the third defender in prosecuting crimes on indictment and to the actions of the second defender in conducting a prosecution on indictment in the name of the third defender. Any such privilege does not extend to events prior to the service of an indictment. In any event, the second and third defenders have “surrendered” any right to claim absolute privilege by virtue of their conduct. In the event that their actings do not attract absolute immunity (which is denied) the second and third defenders plead that there can be no liability at common law unless acts were done maliciously and without probable cause. It is averred that at all times the second and third defenders, and those acting on their behalf, acted in good faith on the evidence available to them.

[31] As to the article 8 claim, the pursuer avers that his private life was interfered with by his detention and subsequent bail conditions. In the whole circumstances the interference was neither necessary nor in accordance with the law. As a result of the defenders’ actions he was unable to practice as an insolvency practitioner. He has suffered financial and reputational loss. In response it is averred that if article 8 is engaged (which is denied) any interference was necessary, in accordance with the law, and proportionate. Again a time bar plea is taken in relation to the earlier events. For present purposes it is not necessary to refer to the averments concerning the pursuer’s alleged loss, injury and damage.

PASS THE PARCEL: Court of Session judges merry go round on case involving Lord Advocate James Wolffe

In January of this year it was reported that a series of judge swaps on this case, from Lady Sarah Wolffe, to Lady Morag Wise, then Lord Paul Arthurson – led to a FOURTH judge – Lord Sidney Neil Brailsford – presiding over hearings in a case which could also decide the fate of the Lord Advocate’s immunity from legal action in cases of wrongful arrest.

The NINE million pound damages claim against Scotland’s top cop and top prosecutor was lodged in the final months of 2017 by David Whitehouse – a former administrator at Rangers FC – who is seeking financial damages from Police Scotland’s Philip Gormley and Lord Advocate James Wolffe QC.

However, it emerged at a hearing in November the Scottish Courts and Tribunals Service (SCTS) had quietly scheduled Lady Wolffe to preside over a crucial hearing in the case against her own husband – James Wolffe QC.

A copy of the Court Rolls handed to the media revealed Lady Sarah Wolffe QC – an outer house senator of the Court of Session – was scheduled to hear the case involving the claim involving the Lord Advocate – her own husband – A295/16 David Whitehouse (represented by Urquharts) v Liam Murphy &c (represented by Ledingham Chambers for SGLD – Scottish Government Legal Directorate) – on November 15 2017.

Prosecutor Liam Murphy  who is named in the action – is currently listed as a Crown Office Procurator Fiscal on “Specialist Casework”.

However, Lady Wolffe was removed from the hearing with no official comment from the Judicial Office.

Claims surfaced at the time Lady Wolffe was suddenly dropped from the case when it ‘emerged at the last minute’ her husband – Lord Advocate James Wolffe – was involved in the case.

A second Court of Session Judge – Lady Morag Wise QC – was then scheduled to hear the case.

For reasons which have not been fully explained, Lady Wise was also dropped from the hearing on Wednesday 15 November which saw the case handed to a third judge – Lord Paul Arthurson QC – who set dates for  a four day hearing of legal arguments.

However, when the £9m damages claim returned to court in mid December, yet another judge – Lord Sidney Neil Brailsford had been assigned to the case, replacing Lord Arthurson.

During a hearing at Edinburgh’s Court of Session on 14 December 2017, judge Lord Brailsford arranged for a debate on legal issues surrounding the case to take place over four days in May 2018.

Lord Brailsford said: “I acknowledge that this is a very serious litigation relating to matters of substance.”

After Lord Brailsford departed from the case, Lord Malcolm took the case.

Lord Malcolm is chiefly known for failing to reveal a conflict of interest in relation to a £6million damages claim against construction firm Advance Construction Ltd (Scotland) – who was represented by none other than the judge’s own son – Ewen Campbell, a suspended but now reinstated Sheriff – Peter Watson, and the Glasgow based law firm – Levy and Mcrae who were previously accused in connection with a £28million pound writ by the liquidators of Heather Capital.

A full report on Lord Malcolm’s conflict of interest in the claim against Advance Construction (Scotland) Ltd can be found here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders

The trail of judge swapping – leading to at least four judges who have now heard this case in the Court of Session, and the silent replacement of Lady Wolffe with Lady Wise, and then Lord Arthurson – continues to raise serious questions as to why there are no written references to any note of recusal made by Lady Wolffe in the Register of Recusals published by the Judicial Office.

Given the fact Lady Wolffe clearly holds a conflict of interest in the case – in which one of the core participants in the action is her own husband – the Lord Advocate – the public are entitled to see a note of recusal entered into the Register of Recusals referring to a case in which she was scheduled to hear and decide on legal action against her own husband.

Both the Judicial Office and Scottish Courts and Tribunals Service did not issue any comment prior to DOI’s report on developments in the case, which can be viewed here: CRY WOLFFE: Judicial Office hit with new conflict of interest claims as Court of Session papers reveal £9 million damages claim against Chief Constable & Lord Advocate James Wolffe QC was set to be heard by the Lord Advocate’s wife – Judge Lady Wolffe

A report on Lady Sarah Wolffe’s role in the sequence of events and her initial appointment to decide on the claim against her own husband, featured in aSunday Mail newspaper investigation, here:

Lord Advocate’s judge wife was set to oversee case brought against him by former Rangers administrator

Lady Sarah Wolffe was originally scheduled to oversee a hearing in David Whitehouse’s £9m lawsuit against Lord Advocate James Wolffe.

By Craig McDonald 24 DEC 2017

A former Rangers administrator’s £9million lawsuit against Lord Advocate James Wolffe was given an emergency judge swap – after it emerged the case was originally handed to his wife.

David Whitehouse, 51, is suing Wolffe, Police Scotland chief Phil Gormley and prosecutor Liam Murphy amid claims he was “unlawfully detained” during an investigation into Craig Whyte’s doomed 2011 club takeover.

Court officials had to draft in a replacement judge when they realised Wolffe’s wife Lady Sarah Wolffe was scheduled to sit on the bench for a procedural hearing at the Court of Session in Edinburgh last month.

The late switch from Lady Wolffe was ordered after the conflict was discovered.

Lady Morag Wise was asked to take her place, although the hearing eventually went ahead in front of Lord Paul Arthurson.

Yet another judge, Lord Neil Brailsford, was on the bench when the case was called again earlier this month. It is scheduled to go ahead next year.

The removal of Lady Wolffe is not noted in the official list of judicial recusals – where a judge declines jurisdiction – as it was reallocated before it was called in court.

A Scottish courts spokesman said: “Lady Wolffe was assigned to hear procedural matters in a number of cases on November 15.

“One of those cases was listed on the court rolls as David Whitehouse v Liam Murphy and others.

“Subsequently, when the papers were checked by the Keeper’s office, it became apparent the Lord Advocate was the third defender and, accordingly, the case was reallocated to a different judge.

“The case was initially reallocated to Lady Wise but, having regard to the level of business and in order to avoid unnecessary delay to the parties, was ultimately dealt with by Lord Arthurson.”

Whitehouse and colleague Paul Clark were arrested during the Rangers probe but charges against the pair were later dropped.

They worked for Duff & Phelps, who were appointed as administrators of the club in February 2012. The business and assets of The Rangers Football Club plc, who entered liquidation later that year, were sold to a consortium led by Charles Green for £5.5million.

Police launched an investigation into the circumstances surrounding the takeover. Whyte was cleared of fraud by a jury at the High Court in Glasgow in June.

Lawyers acting for Whitehouse claimed their client was “unlawfully detained” by detectives in November 2014. They also said that, throughout the period of detention, there were no reasonable grounds to suspect he had broken the law.

Whitehouse claims police and prosecutors didn’t follow correct legal procedure and his arrest damaged his reputation and caused him significant loss of income.

The defenders in the action, including the chief constable and Lord Advocate, claim correct legal procedure was followed and want his case to be dismissed.

 

 

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THE COP FACTOR: Scottish Police Authority refuse to release documents on sex assault case top cop who wants to be Chief Constable – now, new info said to contain more complaints & references to ‘interaction with another officer’

SPA block files release on sex case cop who wants top job. DOCUMENTS detailing new, and serious complaints against a senior cop previously linked to a case involving five allegations of sexual assault, and now, fresh details of an additional ‘interaction with another officer’, are being kept secret by the Scottish Police Authority (SPA).

The secrecy move by the Scottish Police Authority, under their new chair of ex MSP & former Health Minister Susan Deacon – comes as three senior Police officers – including current Deputy Chief Constable Iain Livingstone – submitted their applications to be considered for the £216,549 a year role as Chief Constable of Police Scotland.

Material in relation to new complaints made against DCC Iain Livingstone was sought from the Scottish Police Authority in February of this year, after information was received with regards to further serious complaints made against Police Scotland’s current ‘interim’ Chief Constable.

However, the SPA under Susan Deacon deliberately delayed releasing their response to the Freedom of Information request – by a number of months, as members of the Scottish Police Federation and Scottish Government ministers bolstered DCC Livingstone’s position as front runner for the top job – despite the grim details of a case involving 5 allegations of serious sexual assault which were dismissed by a tribunal composed of Livingstone’s male cop colleagues.

The Scottish Police Authority were asked to provide details of :

  • The 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
  • The status, and outcomes of these complaints.

It should be noted Information in relation to a number of these complaints, has recently been shared with MSPs, and the media.

However, and some time after discussions over the Freedom of Information request had taken place, inside & outside the SPA – the Scottish Police Authority responded to the FOI request four months late, in early June – denying access to all of the information sought in relation to DCC Livingstone.

In their response, issued months late and outwith Freedom of Information timescales, the Scottish Police Authority wrongly claimed the material sought was “personal data of a third party” in a concerted attempt to conceal further details of complaints against DCC Livingstone from the public.

The Scottish Police Authority stated in it’s letter of response, dated 8 June 201:

The SPA considers that this request constitutes personal data of a third party and is, therefore, exempt in terms of Section 38 (1)(b) of the Freedom of Information (Scotland) Act 2002.

Furthermore this information is exempt under Section 34 (3)(a) of the Freedom of Information (Scotland) Act 2002 – Investigations by Scottish public authorities and proceedings arising out of such investigations.

Both are absolute exemptions and as such no public interest test has been applied.

A request for review has been lodged, and material also sent to the Scottish Information Commissioner with regards to the SPA’s refusal to disclose the information.

The Scottish Police Authority’s eagerness to conceal information in relation to a senior Police Officer – who has been previously accused of 5 allegations of serious sexual assault, and has faced further complaints including an ‘interaction’ with another officer – raises questions about the impartiality of the recruitment round to appoint a new Chief Constable to Scotland’s crisis hit single Police service.

With reference to the five allegations of serious sexual assault, Iain Livingstone was cleared of sexual impropriety or intent – by a tribunal headed by a male top cop colleague – Assistant Chief Constable John McLean.

The former lawyer and Raith Rovers footballer had been suspended for 17 months after the WPC claimed she had been sexually assaulted during the party.

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, Livingstone – who had also once played for Raith Rovers – had clearly been fast tracked, reaching the rank of superintendent.

At the time of the allegations and ‘internal’ investigation by his Police colleagues, Livingstone was not prosecuted by the Crown Office over the claims.

Instead, Livingstone admitted a less serious allegation about being in the woman’s room overnight and falling asleep.

It should be noted that during the time of the investigation & tribunal, handled by Police, the Lord Advocate was Colin Boyd, Baron Boyd of Duncansby – now a judge in the Court of Session, and the Solicitor General was Elish Angiolini – recently appointed by Nicola Sturgeon a Scottish Minister to investigate how complaints are handled against Police in Scotland.

Asked about the sexual assault allegations during a recent BBC Scotland documentary, DCC Iain Livingstone said he “fell asleep in the wrong place and that was wrong”.

Although he admitted that he ‘shouldn’t have done that’, he insisted that he still has the right attributes for the job.

During the BBC Scotland documentary PoliceScotland A Force In Crisis, investigative journalist Sam Poling asked Mr Livingstone about the ‘allegations of sexual assault’ and about him being ‘bumped down from superintendent to constable and suspended’.

Quotes from DCC Livingstone’s responses when questioned about the allegations of sexual assault reveal the following remarks by the Police Officer:

Mr Livingstone said: “There was a set of circumstances in 2000 whereby at a social event at Tulliallan, at a training event I had too much to drink.”

“I fell asleep in the wrong place and that was wrong and I shouldn’t have done that, and clearly I accept that.”

‘I was suspended, I spent time off work. There was a hearing convened where I did accept I fell asleep.I was cleared of any sexual impropriety.”

‘I was cleared of any level of sexual intent and at that hearing, initially, I was then demoted from superintendent to constable. I immediately appealed against that and I was reinstated.”

MSPs at the Scottish Parliament also questioned his suitability for the job after his response to the claims in a BBC documentary this week – saying only that he ‘fell asleep in the wrong place and that was all’.

However, Livingstone’s application for the top job – which appears to be backed by Scottish Ministers, and the Scottish Police Federation has been called into question after a former Assistant Chief Constable said Livingstone should not get the top job.

COPS TURN ON THEIR OWN: Scottish Police Federation boss launches twitter attack on ex colleague:

Following criticisms by former Assistant Chief Constable Angela Wilson – of Iain Livingstone’s bid to become Chief Constable, Calum Steele – General Secretary of the Scottish Police Federation (SPF) launched a highly personalised attack on his female former colleague – on the twitter social media platform.

The Sunday Mail reported that Calum Steele – a Police Constable with an honorary rank as Chief Inspector due to his Police Federation duties –  also branded ex ACC Wilson “useless” and a “buffoon” and wrongly claimed in tweets that a corruption inquiry in her former force Tayside “extended” to her.

Steele is general secretary of the Scottish Police Federation (SPF) who have 18,500 members and represent 98 per cent of police officers.

Steele posted a string of six tweets last week after Wilson spoke out on the prospect of DCC Iain Livingstone gaining the top job as Chief Constable of Police Scotland.

The first of Calum Steele’s tweets said she was “one of the most incompetent imbeciles ever to have held rank in the police service”.

It claimed she was continuing “a smear on one of the very best”, adding: “You really need to ask – who is driving this?”

He went on to say that Wilson had served in Thames Valley Police as did Claire Gormley, the wife of Phil Gormley who quit as head of Police Scotland in February following bullying allegations against him.

Steele added: “AW [Angela Wilson] and the Gormleys have an axe to grind. It’s frankly pathetic.”

He also described Livingstone as “one of the most talented, able, skilled and resilient police officers”.

Scottish Tories justice spokesman Liam Kerr said: “Mr Steele has a position of responsibility and should probably have thought more carefully before embarking on this chain of tweets.

“The result of this is now a potential legal case which will drag the force and its associated bodies through the mud at a time it never needed it less.”

Angela Wilson subsequently lodged a formal complaint with Police Scotland and the SPF.

It was then reported in the Sunday Mail newspaper that – as a result of the complaint raised by ex ACC Wilson, Constable Calum Steele was found guilty of posting “inappropriate and offensive” online comments about a female ex-police chief.

Upholding the complaint, Chief Inspector Jacqui Campbell, of the Professional Standards Department (PSD), ruled the comments were “inappropriate and offensive” and that Wilson was “never investigated for corruption”.

Steele claimed to be off duty when he launched the Twitter tirade on May 3 but the Professional Standards Department probe discovered that he was working.

Campbell said: “The record revealed Constable Steele’s duty for that date was 0900 to 1700 hours, therefore, at the time the tweets were posted he was on duty.”

Campbell has issued Wilson a “sincere apology for the undoubted upset Constable Steele’s actions have caused”.

But Steele – who heads the federation representing 98 per cent of Police Scotland officers – “makes no apology” and refuses to delete the messages.

Campbell said: “We have asked Constable Steele to remove the relevant tweets from his Twitter account. Unfortunately, it is his own personal Twitter account and, as such, we are unable to order him to remove or delete them.”

Despite Steele’s messages being from a personal account, Campbell found “they are directly related to his role as a police officer and particularly his role as general secretary” of the SPF.

Mr Livingstone has been regarded as the favourite to replace Phil Gormley, who quit in February after being accused of bullying by colleagues.

Following Gormley’s leave of absence last year, a campaign of suspensions, bitter infighting dubbed ‘backstabbing cops’ in the media, and now scrapped criminal investigations into colleagues of the ousted Chief Constable then took place over a number of months – setting the stage for DCC Livingstone to conveniently scrap his retirement plans, and campaign, along with vested interests in the Scottish Police Federation to replace the ousted Chief Constable.

Steele, who spoke to PSD officers through a lawyer, now faces a further hearing which may result in disciplinary action. His lawyer quoted a dictionary definition of “imbeciles” as meaning “a fool” and that it was “a fair and honest comment that represents Constable Steele’s honestly-held belief”.

Scottish Conservative justice spokesman Liam Kerr said: “Calum Steele should really back down, apologise and delete the offending tweets. Otherwise this row will rumble on.”

Chief Superintendent Mark Hargreaves, head of the Professional Standards Department, said: “The investigation into this complaint has concluded and as this is an internal matter it would be inappropriate to comment further.”

THE MSP & SEX CASE TOP COP: Ex cop MSP failed to declare link to sex case cop Livingstone:

In an earlier report in the Sunday Mail newspaper, it was also revealed that while DCC Iain Livingstone was giving evidence to the Scottish Parliament’s Justice Committee in January, Justice Committee member & former police officer John Finnie had failed to tell fellow MSPs he had represented Iain Livingstone when he was cleared of sexual misconduct.

At Holyrood’s justice committee in January, John 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 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.

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.

SCOTLAND’S NEXT TOP COP:

There are three shortlisted candidates for the Chief Constable role at Police Scotland.

Deputy Chief Constable Iain Livingstone, whose past & current complaints records are being kept secret by the Scottish Police Authority, and Police Scotland.

A second candidate – Police Scotland Deputy Chief Constable Johnny Gwynne – a former head of the National Crime Agency’s (NCA) Child Exploitation and Online Protection command – has also applied for the job.

Gwynne, a former Royal Ulster Constabulary (RUC) officer also previously held the post of former deputy director-general of the Scottish Crime and Drug Enforcement Agency – which was absorbed into Police Scotland in 2014.

The third candidate is Lincolnshire Police Chief Constable Bill Skelly, who joined Devon and Cornwall Police from Police Scotland as Deputy Chief Constable in 2013 and was appointed as chief Constable of the force last year.

The shortlisted candidates will undergo a selection process including two panel interviews, chaired by the Scottish Police Authority’s own boss Susan Deacon.

And the selection panel will also include SPA board member Mary Pitcaithly, NHS Scotland chief executive Paul Gray, Professor Lorne Crerar, – chairman of legal firm Harper MacLeod; and National Crime Agency Director General Lynne Owens.

Gill Imery – the current Her Majesty’s Chief Inspector of Constabulary in Scotland will also act as an ‘advisor’ to the team.

According to the job information pack: “Shortlisted candidates will be invited to participate in a psychometric and personality profile exercise, an Assessment Centre, and an interview with the Selection Panel.”The assessment centre will include a scenario exercise and a mock media interview.

Final interviews of the three candidates are expected to take place on 13 and 14 August.

A report on the allegations of sexual assault against Iain Livingstone by a female Police Officer, allegations which were dismissed by a tribunal headed by male Police Officer colleagues of Livingstone was reported earlier by DOI here: 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

 

 

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PROBE CONFLICT: £604K public cash inquiry magnate Ex Lord Advocate appointed to investigate Police complaints – linked to lawyers who represent cops facing complaints

Ex Lord Advocate conflict of interest in inquiry role. A FORMER Lord Advocate who has links to lawyers and a suspended judge who represent the Scottish Police Federation (SPF) and cops facing complaints – has been appointed to review how complaints are handled against cops.

However, details released of the review fail to mention that Dame Elish Angiolini (nee McPhilomy) – hired Levy and Mcrae – who have been paid hundreds of thousands of pounds by Police Scotland & the Scottish Police Authority (SPA) – to get cops off the hook from complaints – including probes into deaths.

One of the lawyers linked to ex Lord Advocate Elish Angiolini – is suspended Sheriff Peter Watson.

Watson, who was suspended from the judicial bench by  Lord Brian Gill in 2015, after being named in a £28m writ linked to bust hedge fund Heather Capital – represents Police officers facing complaints and investigations by the Police Investigations and Review Commissioner.

Links between Angiolini and Watson are revealed in documents obtained from an investigation by Audit Scotland into payments of public cash by the Crown Office to Levy and McRae and Peter Watson.

Meanwhile Watson and his now former law firm Levy and Mcrae – also scoop up public cash for representing cops who are being investigated over complaints.

A recent report in the Scottish Sun found Police paid £187,000 to Peter Watson’s law firm PBW law for legal fees for representing cop clients facing complaints and other ‘issues’.

The newspaper also reported Police Scotland also paid £364,830 in charges over three years to Watson’s former law firm Levy & McRae – who are also linked to Angiolini.

Records also show Peter Watson represents Police Officers on behalf of the Scottish Police Federation – who assign Watson to officers facing difficult complaints investigations.

One of the high profile cases where Watson represents cops being investigated over complaints – includes  the three year investigation of Police Officers involved in the death of Sheku Bayoh.

Sheku, 31, died after being restrained by nine officers responding to reports of a man carrying the knife in the street in Kirkcaldy. Officers used CS spray, pepper spray and batons, after it was claimed Sheku struck Short. Dad-of-two Sheku lost consciousness and died in hospital shortly afterwards.

The Daily Record reported that Days after Sheku’s death in Police custody, the very same lawyer linked to Angiolini –  Peter Watson – who now has his own law firm PBW Law – issued a statement on behalf of the Scottish Police Federation and the officers involved.

He claimed Sheku “punched, kicked and stamped on” a female officer. However, none of this has been proved and a probe into the death is still underway.

The paper also reported Watson threatened the family of the deceased Mr Bayoh, in relation to a facebook posting, claiming the contents were a ‘breach of criminal law’.

A recent report in the Sunday Mail newspaper revealed PC Alan Paton, 44, has been paid about £75,000 to remain at home while the inquiry into the death of Mr Bayoh in Police custody, continues – three years after the events occurred.

A second officer involved in the investigation, PC Nicole Short, is also being paid similar amounts while off duty since Sheku’s death in 2015.

Now, an investigation by journalists into Elish Angiolini’s lucrative inquiry jobbing has revealed the former Lord Advocate has scooped well over half a million pounds of public cash – writing reports on policy areas which in reality have seen little change over the years, and are mainly used by ministers for PR purposes.

Details of large amounts of public cash payments to Elish Angiolini obtained by journalists using Freedom of Information legislation reveal Angiolini has received at least £603,985.41 for a handful of reports.

Payments of public cash from the City of Edinburgh Council to Elish Angiolini reveal the former Lord Advocate received large payments of public cash totalling £123,450 broken down to £40,350.00 in 2013-2014 and £83,100.00 in 2014-2015 – for the Mortonhall Crematorium Investigation and report.

However, the City of Edinburgh Council bitterly resisted releasing details of the payments, and the figures were only eventually disclosed after the intervention of the Scottish Information Commissioner.

Details obtained from the Scottish Government – who also resisted initial disclosure of what are listed as separate payments to Angiolini for a report into National Investigation into Infant Cremation Practices reveal Angiolini received even larger sums of public cash from the Scottish Government totalling at least £240,000 – broken down to £60,000 in 2014/15, £120,000 in 2015/16, and £60,000 in 2016/17

Expenses paid to Angiolini for the exact same report – which were claimed to involve meals for ‘other team members’ totalled £437.13 in 2014/2015, £621.18 in 2015/2016, and £292.05 2016/2017

A response from the UK Home Office disclosed the total amount paid to Dame Elish for work done on the review of Independent Review of Serious Incidents and Deaths in Police Custody was £116,667.

The Metropolitan Police, who paid Angiolini for a Report of the Independent Review into The Investigation and Prosecution of Rape in London – initially refused to release details of their huge payments to Angiolini,.

It then took over five months before the figures were released, and only after the matter had been reported to the Information Commissioner who began an investigation into the Metropolitan Police handling of the FOI request.

The response from the Metropolitan Police, received earlier this week stated: I can confirm the amount paid to Dame Elish Angiolini was £122,518.05 – £120,715.30 for the review and report; and £1802.75 for travel and hotel expenses.

Angiolini, who was Lord Advocate from 2006 to 2011, was appointed ten days ago by the now ousted Justice Secretary Michael Matheson – to look at how complaints are handled against the very same cops her own former lawyer now represents.

However, Angiolini had a chequered career as Lord Advocate, and was once accused of deliberately undermining the judiciary by Scotland’s top judge, the well respected Lord Hamilton.

In a letter released to the media, Lord Hamilton hit out at Elish Angiolini’s use of her Ministerial rank to tell a story of different sorts to the Scottish Parliament, for the collapse of the World’s End murder trial in 2007.

In her address to MSPs in 2007, Lord Advocate Angiolini attempted to blame the court for failures in the collapse of the high profile murder trial, failures which were clearly of her own Crown Office.

Taking issue with Angiolini’s statement in Holyrood’s main chamber, Lord Hamilton said in his letter to Angiolini at the time: I am of the clear opinion that the evidence that was made available to the court was sufficient to put before the jury to allow it the opportunity to decide on the case against Angus Sinclair. Let me set out the Crown case presented to the court.”

You then set out, in a detailed and carefully crafted narrative, the evidence apparently adduced by the Crown and conclude at column 1769 –

“It was the Crown’s position that the evidence in this case allowed … an inference [of guilt] to be drawn.”

It is clear that you were, as Lord Advocate, stating to the Parliament that in your “clear” opinion there was sufficient evidence to go to the jury. The plain implication from that statement was that you were publicly asserting that the decision of the trial judge was wrong.

Although I have read the whole of your statement to Parliament and the statement which the trial judge issued giving detailed reasons for his decision, I have formed no view as to whether or not that decision was sound in law. I am, however, concerned that you have thought it appropriate to challenge, in a public and political forum and in the way which you have, a final decision of the court (whether that decision be right or wrong).

Section 1(1) of the Judiciary (Scotland) Bill provides that certain office holders, including the Lord Advocate, must uphold the continued independence of the judiciary. That section, I believe, reflects an existing recognition that the Lord Advocate, among others, has such a duty. The independence of the judiciary depends, in my view, not only on freedom of individual judges from prior interference with decisions they have to take but a preparedness by the Lord Advocate and others to recognise, in all public pronouncements, that final decisions made by judges, whether on points of law or on applications of the law to particular facts or to particular evidence, reflect the law as it stands and must be respected as such. If such respect is not afforded, the independence of the judiciary as the final arbiter of legal issues is put at risk. An open challenge to the correctness of a final decision does not afford the requisite respect. Rather, it tends to undermine for the future the confidence which judges, faced with difficult decisions in controversial cases, can reasonably expect to have that their decisions will not be openly criticised by other organs of government.

The public prosecutor may of course entertain private views as to the soundness of legal decisions. In the light of experience steps may be taken to amend the law or in a legal forum to challenge the soundness of an earlier decision. But public criticism in a political forum of particular decisions, especially in controversial and sensitive areas, is in my view inappropriate.

My concern is not restricted to this case. The same situation might well arise in any case in which a trial judge sustained a submission under section 97. It might also arise where, on an appeal against conviction, the court held that there had been insufficient evidence in law to warrant it. While such events commonly occur without public interest, they may well occur in controversial cases. It would be most unfortunate were the Lord Advocate to adopt a practice of publicly criticising such decisions.

I can readily understand that, given the issue which had arisen as to whether the Advocate depute had properly exercised his discretion as to what evidence he should lead (or not lead), you would find it appropriate publicly to support him. But such support could have been afforded without public criticism of the judge. In particular, respect for what was treated as being a final decision of the High Court of Justiciary might have been expressly afforded.

I have discussed this letter with the Lord Justice Clerk. He agrees with its terms. He also agrees with my view that the letter should be made public.

The review of PIRC News comes after the PIRC Commissioner Kate Frame spoke out on the subject of who should investigate the Police in a recent Sunday Post article, here: So who should police the police? In her first interview in four years, Police Scotland watchdog breaks her silence

In the interview, Kate Frame called on MSPs to review who probes misconduct claims against officers and said whistleblowers should be able to turn to investigators outside the force.

Ms Frame said: “There is a discussion to be had about whether the police should investigate themselves.

“I think that from the public’s position, they would feel an independent investigation which has not been undertaken by the police would be preferable.”

In an earlier article it was revealed Police Complaints watchdog Kate Frame had accused Scottish Ministers of interfering in her functions as Scotland’s independent Police watchdog, reported by the Sunday Post here: Emails reveal police commissioner accused Scottish government of interfering after Justice Secretary’s aide asks her to delay scathing report

In the article,the Sunday post reported “the Police Investigations and Review Commissioner had to warn one of Justice Secretary Michael Matheson’s senior civil servants to back off after he attempted to persuade her to delay the publication of a damning report.”

“Ms Frame responded to the civil servant’s suggestion that her report might be delayed by writing: “My perception of your remarks is governmental interference with my independence.”

In the wake of the recently announced review to be conducted by the former Lord Advocate, legal insiders view the Scottish Government inquiry run by Angiolini move as an attempt to intimidate further outspoken views against Scottish Ministers interference in the Police Investigations and Review Commissioner and Police Scotland – which has been hit by multiple scandals used by senior officers & ministers in government to set their own agenda for Scotland’s single national Police force.

Angiolini’s glowing fanpage on Wikipedia records she was also working at the Crown Office as Solicitor General during the time in which prosecutors refused to look into 5 allegations of serious sexual assault against Scotland’s now current top cop, Deputy Chief Constable Iain Livingstone.

A report on the allegations of sexual assault against Iain Livingstone by a female Police Officer, allegations which were dismissed by a tribunal headed by male Police Officer colleagues of Livingstone was reported earlier by DOI here: 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

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.

The Crown Office has refused to disclose any material in connection with their consideration of allegations of sexual assault again Iain Livingstone – and this would include material during the time which Elish Angiolini was Solicitor General.

Among the raft of appointments to write reports & reviews, including the position of Principal of St. Hugh’s College of the University of Oxford – where she wrote a glowing appraisal of Aung San Suu Kyi, Angiolini is also listed as an Honorary Professor of  The Chinese University of Hong Kong.

Angiolini’s biography on the Honk Kong university site claims “As Lord Advocate she is seen as a moderniser, immediately announcing plans to speed-up justice and clear court congestion, including a scheme to quickly fine minor offenders and require them to pay compensation to victims.” – but makes no mention of significant failures during her time as Lord Advocate, including the episode where she was accused of undermining Scotland’s judiciary.

Michael Matheson’s announcement of Angiolini’s appointment by the Scottish Government was made in the Scottish Parliament:

Ministerial Statement on Police Complaints and Conduct Review

The written transcript of Michael Matheson’s statement:

Cabinet Secretary for Justice – Parliamentary Statement on review of complaints handling, investigations and misconduct issues in relation to Policing.

19 JUNE 2018

Thank you Presiding Officer.   

When I addressed the Chamber in November, on the leadership and performance of policing, I set out my intention to reflect on the operation of police complaints and conduct with key partners.   As I said then, I am open to considering whether there is scope for further improvement.

It is of the utmost importance to me and the public that parliamentary confidence in the police is high – and independently justifiably so – but equally that our systems provide suitable protection for the vast majority of police officers and staff who work hard to keep us safe.

Over recent months, I have listened to a range of different perspectives from those directly involved.  It is clear to me that complex issues have emerged in relation to the existing framework, operational responsibilities and procedures that need to be looked at afresh.

Five years on from the creation of Police Scotland, the Scottish Police Authority and the Police Investigations and Review Commissioner, the time is right to look at how the structures and processes are working.

To do that effectively will require an independent and authoritative assessment and that is why I, together with the Lord Advocate, have commissioned Dame Elish Angiolini QC to take this work forward.

I am delighted that Dame Elish has agreed to lead that Review.  As members will be aware, she is exceptionally well qualified to scrutinise these issues, as a former Procurator Fiscal, Solicitor General and Lord Advocate.

Her outstanding record of public service in Scotland is well known, having chaired the Commission on Women Offenders, as well as the Mortonhall Crematorium Investigation for the City of Edinburgh Council and National Cremations Investigation for the Scottish Government.

More recently, she led the independent Review into Serious Incidents and Deaths in Police Custody in England and Wales for the UK Government.

Under Dame Elish’s leadership, the Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing will bring independent scrutiny to the framework and processes for handling complaints against the police and investigating serious incidents and alleged misconduct.

As well as assessing the current framework, the Review will report on the effectiveness of structures, operational responsibilities and processes. It will also make recommendations for improvements to ensure the system is fair, transparent, accountable and proportionate, in order to strengthen public confidence in policing in Scotland.

The Review will consist of two phases:

    The first phase will include a consideration of current procedures and guidance to identify areas for immediate improvement;
The second phase will include a wider assessment of the frameworks and practice in relation to complaints handling, investigations and misconduct issues. It will cover the work of the Police and Investigations Review Commissioner, the Scottish Police Authority and Police Scotland.

The Review will take evidence from a broad range of stakeholders, including the Scottish Police Federation, the Association of Scottish Police Superintendents, the Scottish Chief Police Officers Staff Association, Unison, Unite, as well as the PIRC, SPA, Police Scotland and the Crown Office. Dame Elish may also wish to speak with those who have had experience of the current system to hear their views and understand where further improvement could be made.

Recommendations in the final report should take into account human rights considerations, as well as seeking to identify longer term improvements.

Presiding Officer, I am aware that the Justice Committee has invited evidence as part of its post-legislative scrutiny of the Police and Fire Reform (Scotland) Act 2012.  I welcome this scrutiny of the landmark legislation that enabled the creation of single police and fire services.

I am also aware that evidence has been submitted on the provisions within the Act that underpin our current system of police conduct, complaints and investigations. Those provisions were intended to strengthen the governance, accountability and scrutiny arrangements for policing and created a clear statutory framework for independent review and investigation.

It is only right that the Committee considers this evidence as part of its broader scrutiny of the Act and I look forward to seeing the outcomes of that process.

However, as the Cabinet Secretary with responsibility for the overall framework for dealing with police complaints and conduct issues in Scotland, which includes other primary and secondary legislation, I have a duty to ensure that the whole system is working well.  And the Lord Advocate has an independent interest, as head of the system for the investigation and prosecution of crime in Scotland.

The arrangements for complaints handling, investigations and misconduct issues in relation to policing, have seen a period of intense parliamentary, media and public scrutiny.

It is a framework that must ultimately build public confidence in policing and the events of recent months have raised questions about the way the system works and whether it could be improved.

It is only right that I listen to those questions and act decisively to address them, which is why the Lord Advocate and I have commissioned this Review.

The key outcomes of the Review will be to ensure that:

    roles and responsibilities at all levels are clear;
there are agreed protocols that balance transparency with an appropriate level of confidentiality; and
the framework and processes are fair, transparent, accountable and proportionate, upholding fundamental human rights.

Fairness. Transparency.  Accountability. Proportionality. These are the guiding principles of the Review and go to the very heart of what any system, which holds public services to account, should deliver.

The commitment to upholding fundamental human rights is embedded in police training, in the oath taken by officers and is central to Police Scotland’s Professional Ethics and Values. This is to ensure that policing operations respect the human rights of all people and officers, who in turn should have their rights respected.  This must also be central to the process for handling police complaints, conduct issues and investigations.

It is vital that the police are held to account when things go wrong.  Policing by consent depends upon that accountability.  And it is essential that lessons are learned and improvements made to prevent mistakes, bad practice – and criminality – recurring in the future.

In order to do that effectively, our systems must treat all parties fairly and justly if they are to earn the trust and respect of those involved and of the wider public.

Let me also be clear about what the Review will not do.  It will not consider the role of the Lord Advocate in investigating criminal complaints against the police.  Nor will it look at the role of HMICS in scrutinising the state, effectiveness and efficiency of Police Scotland and the Scottish Police Authority.

It is also important to emphasise that the Review will not re-examine specific cases or review specific decisions, although they may provide evidence for an overall assessment of the efficacy of current systems and processes. 

There are a number of high profile criminal investigations relating to serious incidents involving the police, currently underway. Those investigations are a matter for the Lord Advocate and it would be wrong to suggest that this Review should examine those cases – or pre-empt the investigation process.

Presiding Officer, I am confident that this Review, under the authoritative leadership of Dame Elish Angiolini will bring fresh scrutiny to the framework and structures we established 5 years ago, to ensure they are robust and true to the principles that I have outlined.

It is essential that our systems for complaints handling, investigations and misconduct issues in relation to policing are fair, transparent, and accountable, respecting the rights of all those involved.  Systems that police officers, staff and the public can have confidence in.

Let me finish, by putting on record my thanks and appreciation for the work of Police Scotland, the SPA, the PIRC, HMICS and the Crown Office, commending all those who work to keep our communities safe.

The Scottish Government’s announcement of Angiolini’s appointment makes no mention of her involvement with lawyers who also represent Police Officers facing complaints – including probes into deaths in custody: Police conduct review; Former Lord Advocate to consider investigation processes.

Former Lord Advocate Rt Hon Dame Elish Angiolini QC is to review the processes for handling complaints against the police and investigating serious incidents and alleged misconduct.

The independent review, jointly commissioned by Justice Secretary Michael Matheson and Lord Advocate James Wolffe QC, will assess the current framework and report on the effectiveness of structures, operational responsibilities and processes.

It will also make recommendations for improvements to ensure the system is fair, transparent, accountable and proportionate, in order to strengthen public confidence in policing in Scotland.

Mr Matheson said: “Most of us recognise and welcome the diligent, expert and often courageous work of the many thousands of police officers and staff who help keep Scotland’s communities safe.  That public confidence is also sustained by knowing that when things go wrong, the police are held to account, lessons are learned and improvements made.

“Given some of the questions raised in recent times about the processes for police complaints-handling, investigations and misconduct issues, and whether they could be improved, the time is right for this independent review, which will be ably led by Dame Elish.

“The review will seek to ensure that roles and responsibilities are clear, agreed protocols will balance transparency with appropriate levels of confidentiality, and that the processes are fair, transparent, accountable and proportionate, upholding fundamental human rights.”

Dame Elish said: “I am pleased to be invited to undertake this important independent review.  It is vital that systems for handling complaints, investigating serious incidents and alleged misconduct in relation to the police is both robust and fair, and trusted by all those involved.

“I look forward to engaging with those with direct involvement and experience of the current system – from all perspectives – to understand how it is working in practice and to identify areas for improvement.”

Background:

The independent review will formally begin in the autumn.

The Right Honourable Dame Elish Angiolini QC served as both Solicitor General for Scotland and, in 2006 was appointed Lord Advocate, the first to serve two different Scottish Government administrations.  She was appointed Dame Commander of the British Empire in 2011 for services to the administration of Justice.  In 2012, Dame Elish was elected Principal of St Hugh’s College, Oxford, and is both visiting Professor at the University of Strathclyde and Chancellor of the University of the West of Scotland.

Dame Elish has chaired a number of ground-breaking reviews in the fields of law and criminal justice, as well as public health.  In June 2011 she was appointed as Chair of the Commission set up to examine the issue of how female offenders are dealt with in the Criminal Justice System in Scotland.  She led the Independent Review into the Investigation and Prosecution of Rape in London, which reported in 2015 and also chaired the Mortonhall Review for Edinburgh Council and the National Cremation Investigation for the Scottish Government, which reported in June 2016.  Dame Elish’s report into deaths in police custody in England and Wales, commissioned by the UK Home Secretary, was published in October 2017.

Previous article in relation to Police Scotland can be found here: Police Scotland – Previous articles

Previous articles in relation to the Crown Office & Lord Advocate can be found here: Crown Office – Previous articles & Lord Advocate – Previous articles

 

 

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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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