SPF General Secretary who posted comedy GIF in Twitter debate over Sheku Bayoh death loses challenge against misconduct proceedings

A judicial review petition by the General Secretary of the Scottish Police Federation challenging a decision of the Deputy Chief Constable of Police Scotland to institute misconduct proceedings against him has been refused by a judge in the Outer House of the Court of Session.

Calum Steele, who sought reduction of a particular decision taken by the respondent in September 2020, argued that the decision was unlawful at common law and incompatible with his right to freedom of expression under Article 10 of the ECHR.

The petition was heard by Lord Fairley. The petitioner was represented by Dean Faculty, Roddy Dunlop QC, and the respondent by Ross QC.

Discredited police service

The conduct that was complained of related to posts the petitioner had made on Twitter following the announcement by the Lord Advocate on 11 November 2019 that the police officers involved in an incident in which a member of the public, Mr Sheku Bayoh, died in police custody shortly after he was arrested. He initially described this decision in a post as “completely unsurprising” and said that it showed that “no amount of innuendo would ever be a match for evidence”.

Later that day the petitioner responded to posts made by a solicitor who represented Mr Bayoh’s family describing the decision not to prosecute as “deeply disappointing” and based on a flawed investigation, linking to newspaper articles describing the injuries to Mr Bayoh. In his responses, the petitioner linked to other articles describing how Mr Bayoh had allegedly been fighting with a third party shortly before his arrest, justifying this by saying it gave context to a highly publicised image of injuries to Mr Bayoh’s body.

The final post made by the petitioner, in which he downplayed the seriousness of his dispute with Mr Bayoh’s lawyer, included a GIF image taken from the comedy film Napoleon Dynamite in which the title character taps another man on the cheek before running away. Following this post, the petitioner received negative comments from other Twitter users, several of whom called for his resignation.

An investigating officer was appointed by the respondent in December 2019 to investigate a potential allegation of misconduct, concluding that the posting of the GIF fell short of the standards expected of a police constable and that the linking of this image to the death of Mr Bayoh had discredited the police service. A Misconduct Form under Regulation 15 of the Police Service of Scotland (Conduct) Regulations 2014 was issued against the respondent in September 2020.

It was submitted for the petitioner that, while the instigation of misconduct proceedings did not of itself constitute an interference with Article 10, the deterrent effect of such proceedings was a disproportionate interference regardless of the outcome. The respondent had not adequately explained why the institution and maintenance of proceedings in this case was necessary in a democratic society, and no reasonable reader of the post could reach the conclusion that the posting of the GIF was intended to mock the death of Mr Bayoh.

Offensive in context

In his decision, Lord Fairley noted generally: “It is essential for successful and effective policing that the public should have confidence in the police. If the public loses confidence in the police then public safety would be put at risk. The police cannot operate efficiently without such public confidence. If public confidence is lost, the police will be less able to prevent disorder or crime.”

He said of the application of Article 10: “It may be proportionate for states to impose restrictions on the Article 10 right in the case of public officials, including police officers, to ensure that the right is exercised with ‘moderation and propriety’ or with ‘reserve and discretion’.”

Assessing the investigating officer’s decision, he said: “Whilst the views of members of the public who choose to engage in debate on social media could never be determinative of the issue, there were clearly some members of the public who regarded the use of the GIF by a police officer as inappropriate and offensive in the context of a discussion about a death in police custody.”

He continued: “Quite apart from the negative comments that the Tweet received, the view of the respondent that the use of a clip from a comedy film in that context might constitute discreditable conduct was tenable and one that [the investigating officer] was entitled to reach – at least to the standard of there being a ‘case to answer’.”

Lord Fairley concluded: “In considering the issue of expression by police officers, there is a range of conduct where a case to answer of discreditable conduct may properly be found to exist. The conduct with which this petition is concerned is within that range. It is clear that in reaching the view that there was a case to answer in this case the respondent took into account the petitioner’s Article10 right.”

For these reasons, the petition was refused.

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