Ministerial Statement: A Strategic Review of Undercover Policing
Cabinet Secretary for Justice Michael Matheson
07 February 2018
Thank you Presiding Officer.
Before I turn to undercover policing, I would like to update Members on recent policing developments.
As members will be aware, Phil Gormley has today tendered his resignation from the post of Chief Constable and will leave Police Scotland with immediate effect.
I respect the decision of the Chief Constable and hope this enables policing in Scotland to move forward with a clear focus on delivering the long term strategy, Policing 2026, that Phil Gormley helped to develop.
While the management of the police service has been the subject of close scrutiny in recent months I would like to pay tribute to all those officers who have continued to serve the people of Scotland every day, helping to keep crime at historically low levels and making our communities safer.
I have spoken with Susan Deacon, Chair of the Scottish Police Authority, which will undertake the process of appointing a new Chief Constable.
Professor Deacon informed me yesterday that the Scottish Police Authority were in discussions with the Chief Constable’s representatives regarding his future and provided assurance that the appropriate processes were being followed.
Going forward, I am encouraged by the commitment she has made to improving the robustness of decision-making in the Scottish Police Authority.
Today I laid before Parliament the HMICS report on undercover policing. I would like to thank HMICS for this strategic review, which I directed to be undertaken in September 2016.
The report makes 19 recommendations and Police Scotland has undertaken to implement all of these.
I received HMICS’s report on the second of November and have taken my time to consider carefully all of the report and what it has to say. Members may be aware of the ongoing judicial review into these matters. This has also had a bearing on the time taken to consider the report.
The report says and I quote:
‘The use of undercover officers is a legitimate policing tactic and has been used effectively in Scotland. Operational activity has primarily focused on drug related offences, child sexual abuse and exploitation, human trafficking and exploitation, and serious organised crime.’
The report makes clear that since 2000 the use of the undercover policing tactic has not been widespread in Scotland. It states and I quote:
‘… the number of undercover deployments by Scottish policing lead us to the conclusion that the use of undercover policing in Scotland cannot be considered to be widespread. Indeed, we believe that undercover advanced officers and undercover online officers have been underutilised.’
The report also goes on to note notes that, and I quote:
‘There was no evidence that undercover advanced officers from Police Scotland had infiltrated social justice campaigns or that officers had operated outwith the parameters of the authorisation.’
Members will be aware of the Undercover Policing Inquiry – the UCPI - which is taking place in England and Wales.
Its stated purpose is to investigate and report on undercover police operations conducted by English and Welsh police forces in England and Wales since 1968, including the full scope of undercover policing, the work of the Special Demonstration Squad – the SDS - and the National Public Order Intelligence Unit – The NPOIU.
A number of issues led to the instigation in 2014 of this inquiry by the then Home Secretary. These included:
- Mark Kennedy, a former Metropolitan Police officer attached to the NPOIU had infiltrated protest groups between 2003 and 2010.
- In 2011 a Guardian article claiming that undercover officers routinely adopted a tactic of promiscuity. We have heard in previous debates in this chamber about undercover officers having long-term relationships with members of the groups they had infiltrated.
- In 2012, Theresa May appointed Mark Ellison QC to carry out a review of the police investigation into the murder of Stephen Lawrence for the purpose of examining allegations reported in the media that the investigation had been tainted by corruption.
- In 2014, Theresa May told the House of Commons that the findings of Mark Ellison and of Operation Herne, a review of the Special Demonstration Squad, had persuaded her of the need for a judge-led public inquiry into undercover policing.
The accumulation of revelations of highly questionable and unethical behaviours eventually led to the establishment of the Undercover Policing Inquiry. They all relate to English police forces which fall within the ultimate responsibility of the Home Secretary.
Despite the evidence that the SDS and the NPOIU had been active in Scotland, the terms of reference for the Undercover Policing Inquiry did not and do not extend to Scotland.
I wrote on a number of occasions to Theresa May and Amber Rudd stating that I was disappointed that the terms of reference of the Undercover Policing Inquiry would not be extended to allow it to consider the evidence of these English and Welsh units’ activity in Scotland. In her letter of January 2016, Theresa May wrote that the Inquiry is and I quote ‘…interested in the whole story and are bound to encourage those coming forward to provide a complete picture when submitting their evidence.’
Despite that response, neither Mrs May nor her successor saw fit to amend the terms of reference in order to allow that ‘whole story’ to be considered.
The HMICS report confirms that undercover officers from the SDS and the NPOIU, were active in Scotland. This activity, however, was not, as we understand it, standalone and not self-contained within Scotland. Nor did it have any particular Scottish focus. There was nothing that set it aside as something distinctive from the units’ activities which were being considered by the Undercover Policing Inquiry.
These units’ undercover officers required to be authorised. The HMICS review confirmed that, with the exception of a number of authorisations made around G8, it was authorised under the Regulation of Investigatory Powers Act 2000 - RIPA. This is the appropriate statute for the authorisation of activity by law enforcement bodies in England and Wales.
The review comments that a number of G8 authorisations were dual authorised, under RIPA and the Regulation of Investigatory Powers (Scotland) Act 2000 - RIP(S)A.
My understanding is that this was done as a ‘belt and braces’ approach and that the RIP(S)A authorisations – which were made by Tayside Police - were effectively a subset of the wider RIPA authorisations. Those authorisations would have been subject to oversight at the time by the Office of Surveillance Commissioners.
RIPA allows for authorised activity to cross the border north into Scotland. But it does so with one important caveat. It can only do so, so long as not all the activity authorised takes place in Scotland.
In simple terms, the activity of these English and Welsh undercover officers in Scotland was authorised as part of an operation that began, or mainly took place, south of the border.
In 2005 the SDS and NPOIU officers were deployed in support of the Scottish police operation for the G8 Summit at Gleneagles. The HMICS review states and I quote:
“The SDS, the NPOIU and other deployments of undercover officers at the G8 Summit were undertaken with the full knowledge, co-operation and authorisation of Tayside Police. Outwith the policing of the G8 summit, the undercover deployments by the SDS and the NPOIU to Scotland were the responsibility of the SDS and NPOIU.”
The report makes clear that, outwith G8, Scottish police forces were unsighted on SDS and NPOIU operations in Scotland.
I welcome the HMICS recommendation that Police Scotland should, in partnership with the relevant UK bodies, establish a formal process for the reciprocal notification of cross‑border undercover operations.
Members in this chamber and others have called on the Scottish Government to establish a Scottish inquiry.
Both the Scottish and UK Governments are currently subject to a judicial review relating to the UCPI. This case is currently in court, so I cannot go into detail about that but the basis of the case is a matter of public record.
It challenges the UK Government on its decision not to extend the Undercover Policing Inquiry to cover Scotland, and it challenges the Scottish Government because we have not held a 2005 Act inquiry with similar terms of reference in Scotland.
The HMICS strategic review was always going to be instrumental in informing my decision on how to respond to calls for a separate Scottish inquiry.
We have seen no evidence of the sort of behaviours by Scottish police forces that led to the establishment of the Undercover Policing Inquiry.
The HMICS review provides reassurance to the public and to this Parliament around the extent and scale of the use of undercover police officers since 2000, identifies room for improvement and makes a number of recommendations that Police Scotland have committed to implement in full.
I have considered carefully whether I should establish a separate Scottish Inquiry under the Inquiries Act. In all the circumstances I am not satisfied that establishing a separate inquiry is necessary or in the public interest.
There is some legitimate public concern around undercover policing activity in Scotland and I had regard to those concerns in reaching a decision on this matter. However, on balance, I consider that establishing a Scottish inquiry under the 2005 Act into undercover policing is not necessary or justified. The factors that have led me to that view include:
The lack of evidence of any systemic failings within undercover policing in Scotland, and in light of the limited scale of the activities of SDS and NPOIU police officers in Scotland, I believe setting up a further inquiry would not be a proportionate response.
I believe such an inquiry would inevitably create a measure of duplication with the Undercover Policing Inquiry by involving many of the same core participants, law enforcement officers and has the potential to overlap in its conclusions and remedies. It could, because of the scale and duration of the Undercover Policing Inquiry, be subject to potential delay in obtaining Metropolitan Police Service participation and documentation, and would be disproportionate in terms of cost.
Responsibility for the actions of English and Welsh police units sits with the UK Government, London’s Deputy Mayor for Policing and Crime, and the relevant Chief Officers.
The Scottish Government’s position remains that the clearest and most effective way of addressing concerns about what may have happened in Scotland as a result of actions of English and Welsh police officers is for the terms of reference of the UCPI to be amended to allow it to look at the activity of English and Welsh police operations which took place across Great Britain.
Accordingly, I have today written again to the Home Secretary to ask her to reconsider those terms of reference and have provided her with a copy of HMICS’s strategic review.
I can provide Parliament with the assurance that any recommendations that arise from the UCPI will be considered and, where appropriate and necessary, will be implemented in Scotland.
I have every sympathy for individuals if they have suffered due to the actions of undercover police officers who have behaved in ways that are entirely unethical and unacceptable.
However, I am clear, on the basis of the evidence that we have, that such behaviours by police officers in English and Welsh units is properly a matter for the Home Secretary and that the most effective way for the Undercover Policing Inquiry to see the ‘whole story or complete picture’ that the current Prime Minister referred to previously is for that Inquiry to be allowed to consider all of the relevant evidence.