Wednesday, 12 August 2015

Willie McRae Part 34: FOI Risk of Criminal Offence


In Part 33 I wrote about Paul Delamore’s victory in having the Scottish Information Commissioner decide that Police Scotland should release the information he had requested.

My analysis was incomplete.  I had ignored a key part of the Freedom of Information (Scotland) Act 2002 – FOISA.  I hadn’t even read the relevant section.  I must also say that I didn’t recognise my omission: a friend had to point this out to me.

The crucial part is Section 65
FOISA S65
Basically this says that if an applicant is not given all the information to which he/she is entitled then, if the act is deliberate, the person responsible is guilty of a criminal offence.  The highlighted paragraph lists ways in which a person may prevent full release:
alters, defaces, blocks, erases, destroys or conceals”
The penalty for conviction?  A fine not exceeding £5000!

Now how MIGHT this apply to Delamore’s case?  I am being very careful here.  I allege no wrong-doing. All I do is to highlight what hypothetically might have happened.

In Part 33, I said that I did not believe that Police Scotland would tell a lie to Delamore but I said that I could imagine the whole truth not being revealed.  If my reading of Section 65 is correct then a person who did not reveal the entirety of the relevant part(s) of the police records would be guilty of a criminal offence.

Now let’s look again at the two questions I considered in Part 33.

Delamore’s Question 5
P33 I1
In the response there is no mention of what, if anything, happened on 7 April. 
Section 65 makes a huge potential difference here.
Imagine that the car was removed on 7 April as well as on 6 April and this fact was in the police records.  Under these circumstances, the person responsible for not revealing the details of the 7th would be guilty of a criminal offence.

Delamore’s Question 4
P33 I1
Delamore’s interest was to find out if the photographs were taken on the 7th.  If they were, then the car must have been returned to the scene.  All that is said in response is that the photographs were NOT taken before 1.50pm on 6 April.  There is no end time or date.  There is nothing about whether they were taken on the Saturday or Sunday or even, ridiculously, if they were taken in 2000.
Now imagine that, within the police files, there was information which indicated an end date or time.  Under these circumstances, the person responsible for not revealing the details of the 7th would be guilty of a criminal offence.

Has a criminal offence been committed?
I have no evidence of any crime and I hope none has been committed because the reputation of our justice system would be in tatters.  If lies could be told about a 30-year-old case what might be happening elsewhere?

I do hope, though, that Delamore will challenge the release of information to him if he hasn’t already done so.

Delamore’s victory has created a new situation in which Police Scotland and the Crown Office can no longer rely (automatically) on their claimed exemptions being upheld.  The door has been opened and I and others are trying to pour through. 

That same door brings Section 65 into play. 

I hope that none fall foul of it and all that should be revealed is.

Time will tell.

Interesting times!

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