Police officers in offensive WhatsApp group lose appeal against decision to investigate them

Ten police officers who brought a petition for judicial review of the decision by their superior to conduct misconduct proceedings against them using WhatsApp messages sent to and from them have had their reclaiming motion against the refusal of the Lord Ordinary of their petition refused by the Inner House of the Court of Session.

The petition of BC and others was opposed by the Chief Constable and Deputy Chief Constable of the Police Service of Scotland and a Chief Superintendent of Police appointed under the Police Service of Scotland (Misconduct) Regulations 2014.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Malcolm. Opinions were given by all three judges.

“Quality Polis”

The messages in question were found during an investigation into a serious sexual offence where the suspect was a constable within Police Scotland. The suspect was a member of two WhatsApp groups named “Quality Polis” and “PC Piggies,” the latter of which contained all the reclaimers and the former of which contained the 5th, 7th, and 10th reclaimers, among others.

The Lord Ordinary considered that a reasonable person having regard to the content of the messages would view them as including racist, sexist, homophobic, and ableist comments, among other things. The group chat also contained pictures of crime scenes from current investigations.

The investigating officer reported this to her supervisors, who in turn forwarded the matter to the Professional Standards Department for investigation. Professional Standards thereafter used and relied upon the messages to bring misconduct charges against each of the reclaimers under the 2014 Regulations.

The reclaimers argued before the Lord Ordinary that the use of the messages to bring proceedings against them constituted a violation of their privacy rights under article 8 of the ECHR, or alternatively that the use of the messages was a disproportionate interference in those rights.

In his decision, the Lord Ordinary considered that the standards and regulatory framework to which a police officer was subject put him in a different category from ordinary members of the public, and thus the reclaimers had no reasonable expectation of privacy when exchanging messages of that character.

On appeal, the reclaimers submitted that the Lord Ordinary erred in holding that they had no reasonable expectation of privacy, and any interference with their rights was necessary in the interest of public safety. The attributes they possessed as constables only amounted to being in public service and subject to certain professional standards.

Accepted certain restrictions

In her opinion, Lady Dorrian remarked that it was uncontentious that an ordinary member of the public using WhatsApp had a reasonable expectation of privacy. However, in relation to the reclaimers she said: “The fact that the reclaimers are holders of a public office by virtue of which they have accepted certain restrictions on their private life is relevant to the question of whether they may in the circumstances be said to have had a reasonable expectation of privacy.”

She continued: “Apart from the many messages which call into question the extent to which the reclaimers recognised their duty, reflected in their oath, to uphold fundamental rights and accord equal respect to all people according to the law, there were other messages which were a clear breach of the duty to keep confidential information obtained in the course of their duties, such as the sharing of photographs of weapons recovered, or of an individual in police custody”

She concluded on the matter: “The Lord Ordinary did not conclude that there could be no private life for a serving police officer, no private zone of interaction with others; what he concluded was that the restriction was limited to those matters which were capable of suggesting that the officer was not capable of discharging his duties in an impartial manner. In addressing the issues he applied the appropriate broad, objective test.”

On whether there was a legal basis for disclosing the messages, she said: “The discretion to use the material is limited by nature of the public interest which the disclosure is to meet. I should not be taken as suggesting that any amorphous or vague public interest may be sufficient to provide the clear and accessible basis necessary.”

She continued: “On the contrary, in the present case it seems to me that there is a very clear, specific public interest in the maintenance of a properly regulated police force and its importance to the retention of public confidence and the proper discharge of police duties.”

On whether the use of the messages was proportionate, she said: “Certain of the messages showed a mindset where the public’s right to be treated fairly is called into question for example depending on their race, religion or sexuality. That officers hold these views is likely to weaken the confidence of the public and put public safety at risk.”

She continued: “Public confidence that police officers will approach their duties fairly and impartially across all communities is critical to the notion of policing by consent. We can see from recent examples in this country and elsewhere what can happen when that public confidence is placed at risk. The objective of maintaining it is sufficiently important to justify the restriction on the reclaimers’ Article 8 rights.”

Following the UK Supreme Court’s decision in Sutherland v HM Advocate, Lady Dorrian added in an addendum: “The present case turns to a significant extent on the question whether the reclaimers had a reasonable expectation of privacy. Sutherland has not in my view innovated on the test to be applied in such circumstances or altered the factors which are relevant to that issue.”

For these reasons and others, the appeal was refused. Other observations as to the engagement of article 8 and the existence of a common law right to privacy were made in the opinions of Lord Menzies and Lord Malcolm, who fully agreed with Lady Dorrian in respect of the main arguments.

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