Sunday, 23 August 2015

Willie Macrae: Calum Retires

 I've decided that I'm retiring from active service.

 It's time for a different approach with newer participants.

 I've been thinking about this for some time but I decided yesterday.

 

I realised that I was writing for headlines.  I pride myself on my neutrality.  I couldn’t continue like this.  It's better I opt out now rather than battling this drift. Had I continued I would simply have been putting off the necessary decision.

 I have enjoyed my investigations, enjoyed the time - massive time - I've spent immersed in this, but I've done my bit.

 So, I walk away
 .... sad that there is so much to be done;
 .... delighted I've made a contribution;
 .... and delighted again that there is a team moving forward towards justice.

Saturday, 15 August 2015

Willie McRae Part 35: FOI Criminal Offence Committed?


A few days ago, in Part 34, I considered the possibility that public bodies might, in their handling of FOI requests, commit a criminal offence by deliberately not releasing all the relevant information to which the applicant is entitled.

I have come across an example so apparently blatant a breach of the law that I am incredulous that no offence was committed.

How can this be?

Let me backtrack to my last post,

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




Basically this says that if an applicant is not given all the information to which he or 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!


My reading of this section was that if relevant information, which was known by the public body to exist, was deliberately withheld from the applicant then a crime was committed.


I suspect the actual meaning is that if a person, for example, deliberately conceals information so that it cannot be found by another public body official who is fulfilling an FOI request then a crime has been committed. 

If this were the correct interpretation then, shockingly, a person who deliberately concealed the existence of information from the applicant would be guilty of no offence.

Let me tell you about Northern Constabulary deliberately concealing the existence of information from an applicant and, as far as I can see, no crime was committed.

You will not be surprised that this case involved Willie Macrae and you’ll be pleased that we don’t have to delve into many details.

David Leslie and the Chief Constable of Northern Constabulary
Death of William MacRae [Source]


David Leslie, a journalist, took his request in 2007 to the Scottish Information Commissioner because he was dissatisfied with the response from Northern  Constabulary.


He lost on every important point, winning only the small victory of Northern Constabulary having to show him their collection of press cuttings of the case!

Mr Leslie’s request was simple but very wide-ranging,

Mr David Leslie emailed Northern Constabulary requesting all documents, reports and relevant material concerning any investigations by Northern Constabulary into the death in April 1985 of William MacRae.

My reading of this is that Mr Leslie wanted to see the entire Macrae file.

Northern Constabulary’s first response was,
Northern Constabulary responded, advising Mr Leslie that the information was otherwise accessible via the Northern Constabulary Publication Scheme, citing section 25(1) of the Freedom of Information (Scotland) Act 2002 (FOISA).
In 2005, Northern Constabulary released limited information – here - about which this blog is replete.  They tell Mr Leslie that the released information is the entirety of the information they hold which is relevant to Mr Leslie’s request.  To anyone familiar with the released information this is clearly nonsensical.

Mr Leslie, as he was due, asked Northern Constabulary to carry out an internal review.  They then responded,
Northern Constabulary contacted Mr Leslie again and elaborated on the earlier response. This advised that not all the information relating to Mr Leslie's request had been disclosed and concluded by citing various exemptions to justify not releasing that information.

What was this additional information?
Northern Constabulary advised that, in addition to the information already published on the website, the following items had not yet been released:
1) Book of photographs of deceased;
2) List of thirty four witnesses and thirty two witness statements;
3) Post Mortem report;
4) Newspaper cuttings;
5) Six documents relating to the investigation.
In their first response, Northern Constabulary concealed the existence of all this information from Mr Leslie.  That this was corrected during the internal review should be irrelevant: the initial concealment must have been deliberate, surely?


A crime was committed, surely?

Apparently not! The Commissioner wrote,

I find that the Chief Constable of Northern Constabulary generally complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding [sic] the information request made by Mr Leslie.


No crime despite information being concealed initially!

How can this be?

There are two possible reasons. 

One I gave earlier

I suspect the actual meaning is that if a person, for example, deliberately conceals information so that it cannot be found by another public body official who is fulfilling an FOI request then a crime has been committed.  

If this were the correct interpretation then, shockingly, a person who deliberately concealed the existence of information from the applicant would be guilty of no offence.


The other possible?  No crime was committed because the initial concealment was reversed by the internal review.

If either of these reasons is correct then FOISA is NOT fit for purpose …..

….. BUT that is the system we have and we’ll use it to our fullest ability.


We will not be deflected.



_______________________________________________________________
If you have thoughts, or more, feel free to:
email me at calumsblogATgmailDOTcom or
tweet me at @calumcarr
© CalumCarr 2015
_______________________________________________________________
COPYRIGHT
Copyright over this article is retained by me, CalumCarr.
Please feel free to reproduce extracts and images provided you attribute the words and images to me taking into account the provisos below.
If you wish to use more than one quarter of the article then contact me for permission at calumsblogATgmailDOTcom

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!

_______________________________________________________________
If you have thoughts, or more, feel free to:
email me at calumsblogATgmailDOTcom or
tweet me at @calumcarr
© CalumCarr 2015
_______________________________________________________________
COPYRIGHT
Copyright over this article is retained by me, CalumCarr.
Please feel free to reproduce extracts and images provided you attribute the words and images to me taking into account the provisos below.
If you wish to use more than one quarter of the article then contact me for permission at calumsblogATgmailDOTcom

Friday, 7 August 2015

Willie McRae Part 33: Delamore’s FOI Victory ….


….  shatters the credibility of Police Scotland! poses important questions for Police Scotland.

Perhaps not.  It is Police Scotland’s response to the victory, rather than the victory itself, which shatters their own credibility asks the questions. 

I have quite deliberately left my original words visible because I am finding it very difficult to maintain the neutral stance which is crucial if I am to make the most of the evidence available.
__________________________________________________
Before I go further, I must thank and congratulate Paul Delamore for the work he has put into this subject but especially for making the FOI case to the Information Commissioner which led her to decide that Police Scotland was to release the information which he had requested.

I must also point out that Paul has written about Police Scotland’s response here and it is from the information in his post that I write today.

Well done and thanks, Paul!

__________________________________________________

I wrote about the background to this victory here.

Firstly, let’s look at Paul’s questions and Police Scotland’s response and then I’ll focus on two questions and their respective responses.

It is worth remembering that twice Police Scotland refused to release any information to Paul and it is only because Paul won his appeal to the Information Commissioner that Police Scotland were forced to release the necessary information.

P33 I1
[Paul’s questions in black and Police Scotland’s responses in blue]

You can read Paul’s thoughts on all 6 responses but I want to focus on only two: questions 5 and 4.

Delamore’s Question 5
P33 I1
Let me explain why I believe Paul asked this particular question but first I need to give a little background. Apologies if you know this already.

[Note: you will notice throughout this post that I am not definite about Delamore’s thinking or motives. Although he replied helpfully to my first two emails in April, he has neither replied nor acknowledged any email since, even when an email were congratulatory. I work within that constraint.]

Macrae and his car were found off-road during the morning of Saturday 6 April 1985.  He was taken to hospital, in Inverness and then in Aberdeen. His car was removed from the site and was in the West End garage in Fort Augustus at 3.30pm on the Saturday afternoon.  That time is confirmed by a signed, dated and timed police document.  Delamore knows of this timing. From information revealed under Question 1 we know that the car was removed to the garage before there was any knowledge that Macrae had been shot. 

For many years there have been rumours that, having been removed, the car was returned to the crash site, possibly so that the car could be photographed in situ.  As far as I am aware this rumour has never been confirmed or denied by the authorities.  Delamore and Semple in their recent, April 2015, Scotland on Sunday article claim to have three witnesses who state that the car was at the crash site on Sunday 7 April.

I think that Delamore, already knowing that the car was removed on the Saturday, strongly believed that the car was returned to the crash site on Sunday 7 April.  Therefore, I believe Delamore carefully and deliberately asked when the car was removed on Sunday 7 April.  I am convinced that Police Scotland would know the thinking behind Delamore’s question BUT Police Scotland ignored his question and answered a different one.

Note again how Police Scotland responded,
Records indicate that the car was moved some time between 2.00pm and 3.30 pm on 6 April 1985.
There is no mention of Sunday 7 April.  We already knew the car was removed on Saturday.  What we wanted to know was about the Sunday.  A straightforward response would have addressed Delamore’s question directly.

If, once the car was removed on the Saturday afternoon, it was never returned to the site Police Scotland could have said,
The car was not at the site on Sunday 7 April and, therefore, could not have been removed on that day.  Records indicate that the car was moved some time between 2.00pm and 3.30 pm on 6 April 1985..
Would this not have been a normal way to answer if the original premise [once the car was removed on the Saturday afternoon, it was never returned to the site]  were correct? 

BUT they didn’t.

Their answer leaves unaddressed totally the issue in which Delamore was interested.

Why would Police Scotland do this?

Even if the original premise were incorrect might we not have expected Police Scotland to have replied as I suggest a few lines above up?

No!

A public body might omit the whole truth in an answer; they may avoid answering a particular question but I believe that telling an outright lie is far too big a risk for any to take.

Therefore, if Police Scotland knew that the car was returned to the site and then removed again on Sunday 7 April they could NOT say otherwise.

Therefore, their only two options were to tell the truth or to side-step the question.

Police Scotland side-stepped Delamore’s question BUT this does not mean that the car was on site on Sunday and was removed later that day.  We might think this, believe this, be certain of this but we do not know why they avoided the simple question.

That Police Scotland chose to answer in the way they did reflects very poorly on them.  They have allowed doubts over the investigation and the openness of the authorities to grow when a simple answer would have helped their public image.

Delamore’s Question 4
P33 I1
Again, I can’t know Delamore’s exact reasoning for asking this question but I would imagine that it is aimed at uncovering whether or not the car was returned to the site.  We know the car was in Fort Augustus by 3.30pm on Saturday, 6 April.  Therefore, if the photographs were taken of the car in its original unmoved position then they must have been taken BEFORE 3.30pm.

If, however, the photographs were taken after 3.30pm on the Saturday, whether it be the Saturday, Sunday or other day, then the car was returned to the site.

When I read that Delamore had won his appeal to the Information Commissioner, I believed that we would know for certain if the car had ever been returned to the site but still we await clarity.

For his other questions Police Scotland has given either a specific time or a range of times between which an event occurred …. but not here. 

Police Scotland’s response is mind-boggling in its ambiguity!
Records indicate that the photographs were taken some time after 1.50pm on 6 April 1985.

What might their answer mean?

Is there confirmation that the photographs were taken on Saturday 6 April?  No!

We know they were NOT taken BEFORE 1.50pm on Saturday.  That is all we can say with certainty.  Noting else is ruled out. 

There is no certainty about the day.  Any time on Sunday or Monday, 7 and 8 April respectively, fit with the answer given.

There is no certainty about the month nor ridiculously about even the year.

The photographs were published in 2005 and so we know they were taken before then but the answer doesn’t rule out 2015 or even 2085.  This is obviously not credible.

Are Police Scotland really saying that there is nothing in their files which gives a latest possible date and time for the photographs?

Perhaps their answer is simply badly constructed and they meant that the photographs were taken on the Saturday at some time after 1.50pm.  That is possible but we can’t put that meaning into their answer.  We can’t put specificity into a vague reply.

But even if they meant that the photographs were taken on the Saturday at some time after 1.50pm their answer would be incomplete.  There is evidence which they have ignored.

Remember the reply to Delamore’s 5th question,
Records indicate that the car was moved some time between 2.00pm and 3.30 pm on 6 April 1985.” [Emphasis added]
The car was NOT at the crash site after 3.30pm on Saturday UNLESS it was returned to the scene.

If the car was NOT returned to the scene, the ONLY available slot for the photographs was between 1.50pm and 3.30pm on Saturday.

If the photographs were NOT taken within that slot then the car was returned to the scene

BUT there is no mention of this.

We have vagueness where we should have clarity.

We have doubt where we should have certainty.

That Police Scotland chose to answer in the way they did reflects very poorly on them.  They have allowed doubts over the investigation and the openness of the authorities to grow when a simple answer would have helped their public image.


Finally, let me recap where I believe we are after looking at only two of Delamore’s questions.

We know:
- the car was removed from the site between 2.00pm and 3.30pm on Saturday 6 April
- the photographs were taken some time after 1.50pm on Saturday 7 April
- Police Scotland did not answer Delamore’s 5th question but did answer a question of their own choosing
- Police Scotland left open-ended the timeframe for the photos
- Police Scotland gave specific times or time ranges for other events
- there is an unspecified event in the records which allows the police to state that the photos were taken after 1.50pm on the Saturday
- there is an unspecified event in the records which allows the police to state that the car was removed after 2pm on the Saturday

BUT we do NOT know
- if the car was returned to the scene
- the day on which the photos were taken
- what are the unspecified events (from above)
- why the answer to Delamore’s 4th question is as vague as it is when other evidence is available
- why Police Scotland did not answer Delamore’s 5th question but did answer a question of their own choosing

You may think that
- Police Scotland have answered the questions as fully as they could
- the lack of clarity is unintentional
- Police Scotland will contact Delamore with clarification
- when Police Scotland reply to my FOI they will remove all doubt
- the lack of clarity is deliberate
- Police Scotland did not want to say that the car was returned to the scene and that, therefore, the lack of clarity was necessary
I couldn’t possibly tell you what I think.

I must remain neutral.


_______________________________________________________________
If you have thoughts, or more, feel free to:
email me at calumsblogATgmailDOTcom or
tweet me at @calumcarr
© CalumCarr 2015
_______________________________________________________________
COPYRIGHT
Copyright over this article is retained by me, CalumCarr.
Please feel free to reproduce extracts and images provided you attribute the words and images to me taking into account the provisos below.
If you wish to use more than one quarter of the article then contact me for permission at calumsblogATgmailDOTcom