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A POLICE chief stands accused of misleading MSPs over his force’s hunt for Sunday Mail sources .

Acting Deputy Chief Constable Ruaraidh Nicolson’s testimony to Holyrood’s Justice Committee is under scrutiny after we obtained internal emails undermining his evidence.

Despite his repeated denials to MSPs, the emails reveal officers were given specific warnings that seizing phone data to find the source of our stories would be illegal but went ahead anyway.

One committee member said: “This is of concern. It must be investigated.”

Secret emails have revealed how senior officers behind the spying operation to find Sunday Mail sources were repeatedly warned they would be acting illegally.

Emails in a confidential report by watchdogs detail how chiefs were explicitly told they needed a judge’s approval to seize phone data of Mail reporters, suspected sources or intermediaries but did it anyway.

Their attempts to access landline and mobile phone information from two serving officers and two former officers were later ruled unlawful and reckless by the Interception of Communications Commissioner’s Office (IOCCO).

The Investigatory Powers Tribunal are now considering complaints from three of the four targets.

The previously confidential report by IOCCO confirms senior officers ordered the inquiry to find our sources at a meeting on April 7, 2015 – two days after we revealed a forgotten suspect in the murder investigation into the death of Emma Caldwell 10 years earlier.

Police chiefs, who remain unidentified, met on the Tuesday after our reports – the Monday was a bank holiday – but did not reopen the murder inquiry for another seven weeks and only then because they were ordered to by the Lord Advocate.

Today’s revelations have provoked new criticism of their rush to launch a molehunt instead of a manhunt.

They also raise serious questions about the evidence given by Acting Deputy Chief Constable

Ruaraidh Nicolson to Holyrood’s Justice Committee when he insisted no specific warnings had been given to suggest the spying operation would be unlawful.

Five applications – involving two serving officers and two former officers – were authorised covering nine “subscriber datasets”, thought to refer to mobile phones or landlines, and 32 days’ worth of communications.

Detective Superintendent David Donaldson, who authorised three of the five unlawful applications,

was clearly warned they could be unlawful after changes to the Regulation of Investigatory Powers Act (RIPA). These are meant to protect journalistic sources by demanding judicial approval before police can seize their communications data.

In a series of phone calls and emails on April 16, 2015, he had asked for guidance on applications relating to the Sunday Mail reports that revealed the forgotten suspect and exposed other serious concerns about the running of the inquiry. One of the proposed applications would cover the billing data of a reporter’s phone. It was intended to establish a mobile number for an alleged source of our stories. Data from that number would have then been used to try to find others.

But Donaldson was told by specialist officers, trained in RIPA legislation, that without judicial approval the applications would breach new regulations.

One email from a senior staff member in the Communications Intelligence Unit, whose name has been blacked out in the partially redacted emails, states the application breaches all three elements of the new regulations making it harder to seize communications data while trying to identify sources.

These include a journalist’s communications, those of suspected sources and those of suspected

intermediaries.

It said: “Hi Sir, I think in all the circumstances this would be construed as determining a journalistic source, in fact, in this set of circumstances, it ticks all three boxes…”

Detective Chief Superintendent Clark Cuzen, head of the Counter Corruption Unit (CCU) ordered to find our sources, was also warned to take great care.

In an email on the same day, Detective Superintendent Brenda Smith, who was in charge of ensuring officers were aware of the new regulations, told him: “I understand some discussions have taken place with Davie Donaldson, re an ongoing enquiry where you intend to seek traffic data on a journalist’s phone even though you know the identity of the source? I would suggest this falls into the category of requiring judicial authorisation.”

It is not thought that the application to grab data from the reporter was authorised but another five applications relating to our stories were approved.

In his report, Sir Stanley Burnton, the Interception of Communications Commissioner, noted: “I consider it extremely significant that Detective Superintendent Donaldson had, during his determination of these applications, been given clear and accurate advice i.e. that the acquisition of the data required judicial approval.

“Despite receiving that advice, it was not referred to in any of the three subsequent applications considered by Det Supt Donaldson, nor is it apparent that he sought to follow that advice…He appears to have closed his mind to the obvious risks.”

Detective Inspector Joanne Grant, who authorised the other two applications trying to identify our sources, was also criticised for failing to realise the regulations had changed and not knowing she could only approve the applications if she was not involved in the investigation.

Sir Stanley said: “I am particularly concerned by her lack of consideration of the key issues in this case.”

He also slated the “poor state of affairs” in the CCU where officers charged with advising colleagues on how to apply the new regulations had not been trained in them.

The commissioner concludes the human rights of the four men were breached, adding: “The articles

published in the Sunday Mail contain matters of significant public interest, reporting on alleged deficiencies in a murder investigation.

“This makes violation of Article 10 ECHR [the right to freedom of expression under the European

Convention on Human Rights] ever more serious.”

He said the investigation would help deter other potential sources from talking to journalists about stories in the public interest.

Holyrood’s Justice Committee launched an inquiry after a summary of the IOCCO report findings were issued, revealing Police Scotland had breached the new regulations but had been “reckless” not “wilful”, which would have been a deliberate breach and far more serious.

Senior officers, including then Deputy Chief Constable Neil Richardson, gave evidence but the committee were criticised for failing to establish who, specifically, had ordered the molehunt.

Richardson retired on Friday after failing to be appointed as successor to Chief Constable Sir Stephen House, a failure some sources link to the CCU, which he led, and their unlawful hunt for our sources.

Giving evidence in December, he blamed the “aggressive pace” at which the new regulations were introduced for officers failing to be trained properly. He said Donaldson, who has also now retired, had made a simple “error of judgment”.

At a hearing on January 12, then Assistant Chief Constable Nicolson told the committee he had spoken to all the officers involved while carrying out an internal inquiry into the breaches.

But in his evidence, he repeatedly insisted any warnings given before the Sunday Mail-related applications were approved had been general.

And he repeatedly denied there were specific warnings despite having seen the trail of emails. When asked the specific question – were officers warned in writing that the applications would be unlawful? – he said: “There was discussion that this kind of application may indeed require judicial approval. There is communication in terms of that but not specifically about the applications we’re talking about.”

ACC Nicolson gave evidence at the committee after the force refused to allow other officers involved in the unlawful applications to give evidence.He denied specific warnings were given about the legality of the applications in response to questioning by John Finnie MSP, a former police officer.

Yesterday, Finnie, who is to return to Holyrood as a Green MSP, said concerns around Nicolson’s

evidence should be addressed.

He said: “Mr Nicolson was offered to the committee because of his expertise and awareness of the issue.

“He chose his language carefully and any suggestion his answers were inaccurate or intended to mislead is something I would hope the incoming Justice Committee would want to investigate.

“The integrity of every police officer must be above reproach and those in senior ranks and positions of authority and influence even more so.”

Gerry Gallacher, a retired detective whose reinvestigation of the Emma Caldwell inquiry revealed the forgotten suspect, was one of the former officers targeted.

He says the detailed account of the police actions contained in the IOCCO report provokes new questions that must be answered. He said: “We now know for a fact what we have suspected to be true for some time.

“The officers who approved these applications were explicitly told beforehand they would be unlawful. They were told that and ignored it.

“I would hope the Justice Committee will review Mr Nicolson’s evidence and ask why, more than a year later, facts are still being dragged out of Police Scotland like blood out of a stone.

“We still do not know, for example, who ordered this molehunt or which senior officers were at the meeting, called two days after the Sunday Mail reports, when they decided trying to identify the paper’s sources was more important than trying to find a murderer.”

Judicial approval was introduced in March after the RIPA 2000 was overhauled amid mounting concern that police were using surveillance powers designed to combat terrorism and other serious crimes to launch molehunts to find journalists’ sources.

DCC Richardson has been replaced as Police Scotland chief Phil Gormley’s number two by Iain Livingstone, who had been a deputy chief constable with responsibility for crime and operational support.

ACC Nicolson, who is expected to retire later this year, has stepped into Livingstone’s former role

temporarily while the job is advertised.

The third of three officers with the title of Deputy Chief Constable is Rose Fitzpatrick, who is responsible for local policing.

A Police Scotland spokesman said: “Proceedings in relation to an investigatory powers tribunal are

pending and therefore we cannot comment further at this time.

“Police Scotland fully accepted that they did not adhere to the new guidelines and there were deficiencies in the applications.

“Immediate steps were put in place to ensure such a breach could not occur again and IOCCO were made fully aware of that course of action.

“IOCCO have also commented on the robust and rigorous steps taken to ensure processes for all applications for communications data are fully compliant with the Code of Practice and all legislative requirements.”

Watchdog condemns failures as counter-corruption cops ignore right to privacy and free speech

Sir Stanley Burnton’s full report, until now secret, lays bare his concerns about Police Scotland’s attempts to identify Sunday Mail sources.

He slates officers for failures in the applications to seize phone data from two former and two serving police officers and questions why they were unaware the law had changed.

He also heavily criticises the applications – which were “deficient in every regard” – for failing to explain why officers believed the information had leaked from Police Scotland; what damage, if any, the alleged leak had caused; and why they considered the alleged leak might be in any way criminal.

He highlighted several areas of serious concern, including: A lack of specific detail about the information that was published in the Sunday Mail, how it had allegedly been leaked and by whom.

Whether there was a pressing need to identify and sanction any source within Police Scotland.

Insufficient consideration of whether the conduct was criminal and serious enough to interfere with the right to freedom of expression.

A lack of detail in the five applications as to how the data would be analysed, processed and retained.

Insufficient consideration of any actual damage the leaked information had caused or was likely to cause. In fact, noted Sir Stanley, “The information highlighted in the Sunday Mail highlighted deficiencies in the investigation.”

Insufficient consideration of whether the material was in the public interest.