Unpublished reports from the Office of the Surveillance Commissioner show that Police Scotland has been ordered to make improvements to the way it undertakes covert activity.
The Ferret has obtained two recent Police Scotland inspection reports from the Office of the Surveillance Commissioner (OSC). The OSC provides independent oversight of public bodies that have powers to conduct covert surveillance and place staff undercover as “human intelligence sources,” through the RIPA and RIPSA laws.
Although the reports are heavily redacted in places, they nevertheless reveal several previously undisclosed failings at the national police force.
The Ferret is publishing extracts from the reports today along with renewed calls from politicians and campaign groups for further independent investigations into police surveillance.
After the “Spycops” scandal revealed that some UK police officers involved in long-term undercover operations had had sexual relationships, and in one instance fathered a child, with people they were supposed to be monitoring professionally, mechanisms were put in place to give some independent oversight of this work.
In Scotland, this meant that from February 2, 2015, police officers had to notify OSC when they began an undercover operation. For any that last for longer than a year, Police Scotland had to seek prior approval from commissioners to continue.
Yet in the most recent OSC inspection report, dated 20 September 2015, the commissioners found that key recommendations from the OSC on two undercover operations were not recorded in the relevant files or passed on to the chief constable. This meant that there was no way that OSC staff could establish whether their recommendations had been followed by Police Scotland.
It also meant that evidence generated by the covert operations could be at risk of challenge from defence lawyers if it were to be subsequently used in court. This was not the only problem the OSC probe found.
Commissioners also identified a “significant issue” over the way Police Scotland handled material generated by surveillance operations.
In some parts of the country material from concluded investigations was stored for three years, but in other places, it could be kept by Police Scotland for as long as 12 years, even when the material was not required as evidence.
The OSC inspectors found that the storage and movement of information gathered using covert methods was taking place “without reference to clear and concise policy guidance” on what officers should do with surveillance material when operations end. They also found a “lack of understanding and consistency of approach by a significant number of staff.”
In another instance referred to in the report the commissioners found that they could not establish whether material gathered as part of a concluded undercover investigation had been destroyed by police. The surveillance in this case was said not to have generated any evidence a crime had been committed.
There were also other areas where Police Scotland surveillance records were not maintained properly.
Inspectors found records relating to some “urgent oral” authorisations given by senior officers for covert surveillance were not complete. This meant that the commissioners could not always establish whether the urgent surveillance authorisations were justified.
They also noted “a lack of detail” relating to several of the urgent authorisation cases when it came to recording the activity that was actually undertaken.
Poor quality paper trails were also identified at the air support unit, which operates the Police Scotland helicopter.
The commissioner found that it was unclear who was authorising the use of surveillance tools such as the thermal imaging camera in the helicopter, and found that some evidence gathered by the unit could be “vulnerable” in court unless procedures were improved.
— PoliceScotlandAir (@polscotair) March 5, 2015
The failings at Police Scotland identified by the OSC in their reports took place in the same year that the force was found to have unlawfully intercepted the communications of a Scottish journalist. Ultimately this led to Police Scotland being ordered to pay £10,000 in damages by the Investigatory Powers Tribunal.
The deployment of undercover police officers in Scotland is also to be investigated by HMICS, after the Westminster government turned down a request by the Scottish Government to extend the Pitchford “spycops” enquiry to cover covert activity north of the Border.
But campaign groups such as the Undercover Research Group that have worked to expose wrongdoing and political policing by undercover officers throughout the UK, are calling for a fully independent inquiry in Scotland into undercover policing. They have already dismissed the HMICS probe proposed by the Scottish Government as a “whitewash.”
After being shown the OSC reports, Donal O’Driscoll of the Undercover Research Group said: “Flawed though it is, the OSC is there to provide at least some trust in the system, to affirm there is some accountability.
“This blatant disregard of OSC recommendations by Police Scotland shows once again that when it comes to covert operations the police are a law onto themselves, an attitude that has clearly persisted for many years.
“It is yet further evidence as to why Scotland needs to be included in the Pitchford inquiry into undercover policing or the SNP Government needs to order its own independent inquiry.
Scottish Greens’ justice spokesperson John Finnie MSP called on Police Scotland “to do everything it can to maintain public confidence in its covert activity.” He said he would continue his bid to persuade Holyrood politicians to probe more deeply into the force’s covert activity.
He added: “Rank and file cops are tired of being discredited on the back of a small, cavalier group of elites who’ve paid scant regard to rules and regulations.
“The new practice guidance set out by the OSC will no doubt take time to be met entirely, but I’d expect Police Scotland to have implemented these improvements in full by this time next year. In the meantime, I will continue to push for the justice or police committees to enquire into the whole area of surveillance.”
A Police Scotland spokesperson said: “As the annual 2015 OSC inspection report of Police Scotland makes clear: ‘The quality of both applications and authorisations was very good’.
“The OSC is the external UK governance body for the use of RIPA and RIPSA and since the 2015 inspection Police Scotland has completed all the recommendations contained in this report and agreed these with the OSC.”
The Ferret has previously used freedom of information laws to show that the OSC has also demanded improvements from several Scottish local authorities.
Extracts of the redacted 2014 and 2015 OSC reports are available in The Ferret archive.