26/04/2021 Briefing

The messages in question were inappropriate and offensive in nature, and included sexist, racist, ableist, homophobic and anti-Semitic content. Moreover, in a fundamental breach of procedure, photographs of crime scenes were also shared by officers in the WhatsApp groups.

Interestingly, the judgment also examines the existence or otherwise of a common law right to privacy in Scotland, something that the court of first instance had concluded was now recognised under Scottish law.

Background

The messages, contained in two WhatsApp groups were uncovered during a criminal investigation into a serious sexual offence alleged to have been committed by a suspect who worked as a police officer for the PSS. The suspect was a member of both WhatsApp groups, both of which included some of the Plaintiffs.

The officer conducting the criminal investigation reported the contents of the WhatsApp groups to her superiors, who referred the matter to the PSS’s Professional Standards Department. The Department thereafter sought to rely on the messages to bring misconduct proceedings against the Plaintiffs, on the grounds that the messages breached the PSS’s Standards of Professional Behaviour, as set out in the Police Service of Scotland (Conduct) Regulations 2014.

First Instance

In judicial review proceedings before the Outer House of the Court of Session (broadly equivalent of the Irish High Court), the Plaintiffs sought an Order declaring that the reliance by the PSS on the WhatsApp messages in order to ground misconduct proceedings against them was unlawful, and incompatible with their right to a private life under Article 8 of the European Convention on Human Rights (the “ECHR”).

In the alternative, the Plaintiffs sought a declaration that the PSS’s reliance on the messages was at the very least a disproportionate interference with their right to privacy under the ECHR. The Plaintiffs also sought an Order prohibiting the PSS from continuing with the internal misconduct proceedings on the basis of, or including any reference to, the content of the WhatsApp groups.

In refusing to grant the Order, the Outer House concluded that the standards expected of a police officer (both on and off duty), and the regulatory framework to which officers are subject, have the effect of placing police officers in a different category to the public at large, and that as such, the Plaintiffs could not reasonably claim an expectation of privacy in relation to the messages and content in the WhatsApp groups.

It held that, on becoming a police officer, an individual accepts certain limitations on his/her right to privacy, as prescribed in the 2014 Regulations. The Outer House noted that those limitations require officers to refrain from any act or omission likely to interfere with the unbiased discharge of their duties, or which may lead to a perception of any such interference. It held that the nature of the messages was such that the members of the WhatsApp groups had positive obligations to report them. That finding alone heavily influenced the Outer House’s conclusion that the Plaintiffs had no reasonable expectation of privacy in relation to the messages.

  • Common law right to Privacy: In addition, and importantly, the Outer House also concluded that a common law right to privacy exists in Scotland. This was the first occasion on which a Scottish court had issued a definitive ruling on the matter.

Appeal

On appeal, the Plaintiffs argued that the Outer House had erred in concluding (a) that they did not have a reasonable expectation of privacy in relation to the WhatsApp messages; and (b) that the interference with their right to privacy was necessary and justified in the interest of public safety.

Rejecting the appeal, the Inner House (broadly similar to the Irish Court of Appeal/Supreme Court) held that the Outer House acted properly in considering the content of the messages, and the standards applicable to the officers, when determining whether they (the officers) could be said to have a reasonable expectation of privacy. It noted that the officers were public officeholders, that they had accepted certain restrictions on their private life as a result, and that those factors were indeed relevant to the issue of whether they could legitimately claim to have had a reasonable expectation of privacy.

Quite apart from the sexist, racist, ableist, homophobic and anti-Semitic content, which the Inner House said called into question the officers’ duty to accord equal respect to all people regardless of inter alia their sex, race, disability, sexuality or religion, it noted that the photographs shared in the groups from crime scenes were a flagrant breach of the officers’ duty of confidentiality.

The Inner House stressed that the Outer House had not concluded that a police officer did not have any right to a private life; rather, the restriction on an officer’s right to a private life was limited to matters that were capable of interfering with the unbiased discharge of their duties, or that could give rise to a perception of such an interference.

The Lord Justice Clerk, Lady Dorrian, stated clearly that there was no doubt that a private citizen using WhatsApp has a reasonable expectation of privacy. However, given the Plaintiffs’ positions, she concluded that:

“The fact that the [Plaintiffs] 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. As counsel for the respondents submitted, the [Plaintiffs] are not in the position of mere employees: they are the holders of a public office who are subject to a strict regulatory framework which is essential for the preservation of public confidence and the proper discharge of their duties as police officers.”

As to whether there was a legal basis for the PSS to rely on the messages in the context of the internal investigation, Lady Dorrian concluded:

“…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.”

  • Common law right to Privacy: Despite not being at issue in the appeal before the Inner House, Lady Dorrian stated that she could not allow the Outer House’s conclusions in relation to the existence of a common law right to privacy to “pass without comment”. That statement in itself casts considerable doubt on the existence of such a right, which the Outer House had definitively recognised in Scottish common law for the first time. Specifically, Lady Dorrian noted that the nature, degree and scope of the right, or how it has progressed over time, was not clearly set out in the Outer House’s analysis. On that basis, Lady Dorrian expressed doubt as to whether the common law right to privacy under Scottish law had reached the ‘absolute’ stage suggested by the Outer House.

Conclusions

This case serves as a reminder of the standards by which that public servants and officeholders will be judged, not only in relation to their conduct in the workplace but also, as highlighted by this case, in relation to their postings on social media and communication platforms.