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A barrister reviews the implications of a highly significant ruling on police misconduct law in relation to online behaviour and messaging apps.

Date - 23rd January 2020
By - Kevin Baumber 

Never has a judgment by the Scottish Court of Session been of such interest to police misconduct law in England and Wales as that given last summer in BC and others v. Chief Constable Police Service of Scotland [2019] CSOH 48, easier to refer to as the ‘Scottish WhatsApp case’.

In that case officers had exchanged offensive messages in a private encrypted WhatsApp group, the messages were found during a completely separate investigation on the phone of one of the group. The defence argued that the use of this private WhatsApp correspondence to found misconduct proceedings was unlawful and a breach of their Article 8 rights (right to private and family life). The court disagreed.

The court said where, as here, the messages were sufficiently abhorrent to call into question a constable’s ability to impartially discharge their duties, there was not a reasonable expectation of privacy. As there was a duty in the Standards of Conduct incumbent on constables to report any behaviour falling below what is expected of a constable, police officers are in a different position from ordinary members of the public.

The duty to challenge which attached to people in the group made the private group not private after all – or at least made it one with no reasonable expectation of privacy, and no right at common law or in Article 8 terms. The court effectively reasoned that an officer failing to meet the required standards of conduct in such a chat might decrease public confidence, which is to say public will lose confidence in the police force even if the officer only ‘privately’ made jokes or remarks that were improper.

The Court also found ‘even if the petitioners had possessed a reasonable expectation of privacy, it would have been proportionate to disclose the messages’ and that it would have been ‘fair in all the circumstances for the material to be admitted for use in the disciplinary proceedings’. So having said there was no reasonable expectation of privacy, the court found that even if there was then it would (in this case) be overridden (there is a query whether less offensive messages would have given a different result). The competing interest against free speech and private life of upholding police standards made using the messages for misconduct proceedings proportionate and fair. In short, officers are placed at risk for anything said in a private encrypted WhatsApp group.

The Scottish WhatsApp case considered the helpful decision from this jurisdiction in The Queen on the application of the Chief Constable of Cleveland Constabulary v Police Appeals Tribunal v Lee Rukin [2017] EWHC 1286 (Admin) which had recognised that a person's private life does not necessarily end when the individual enters the workplace and there was such a thing as ‘private on-duty conduct’ (in that case lying to supervisors was protected where to tell the truth would have entailed an unjustified intrusion into private life). Nevertheless, from a case establishing protection of a private life on duty (Rukin), the result was no private life off duty in respect of WhatsApp messages with colleagues (Scottish WhatsApp case).

This decision is under appeal, but that appeal may not matter so much as it is anticipated that the Guidance to the new conduct regulations of 2019 not only picks this first instance Scottish decision up, it runs with it to new places.

In future, it may be argued that it is irrelevant whether the officer was off duty when the message was sent, and rather than consider it in the context of a private encrypted joke between known limited individuals, to ask instead whether it would be considered appropriate in the workplace. That is, to consider it in a different context from that in which it was actually delivered. I have my doubts as to whether this is fair. WhatsApp groups with officers or police staff may become an extension of the office. Whatever the result of the Scottish WhatsApp case appeal, online behaviour is likely to come more sharply into focus, and courtroom battles over preserving private life and correspondence may be necessary.

Kevin Baumber

3 Raymond Buildings is recognised as the leading specialist set of barristers nationally in representing police officers in misconduct, criminal and inquest proceedings, and police forces and officers in associated judicial reviews and public inquiries. Further details are at 3rblaw.com. Any opinions expressed in articles in The Brief are those of the individual author.

 

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