In BC v. Chief Constable of the Police Service of Scotland, the Inner House of the Court of Session in Scotland has held that the Police Service of Scotland was entitled to use WhatsApp messages as a legal basis for bringing misconduct proceedings against chat members. This follows the Outer House’s decision a year earlier.
The messages, that a reasonable person may describe as being sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability and included a flagrant disregard for police procedures by posting crime scene photos of current investigations, were found on a police officer’s phone during an unrelated criminal investigation. Although the messages were not used in that investigation, they were passed to the Police Standards Department who brought the misconduct proceedings. The charges related to alleged breaches of the standards of professional behaviour.
The officers involved in the chats sought a declaration from the Outer House that the use of the messages was contrary to their human rights under article 8, right to a private life. However, the Outer House considered the oaths that officers take and the professional standards regulations by which they are bound. In particular, the oath confirms that officers will uphold “fundamental rights and accord equal respect to all people, according to law”, and the regulations state “constables behave in a manner which does not discredit the Police Service or undermine public confidence in it, whether on or off duty”. Furthermore, constables are expected to “report, challenge or take action against the conduct of other constables which has fallen below the Standards of Professional Behaviour”.
The Outer House found that the officers therefore had no reasonable expectation of privacy given the required professional standards and the specific point to off-duty behaviour. The individuals appealed to the Inner House.
The Inner House’s judgment upheld the reasoning from its court below. It held that in many cases an officer will have an expectation of privacy; however, that expectation can be lost in the cases that question an officer’s ability to carry out their duties in an impartial manner. The Inner House confirmed that there was a legal basis on which to bring proceedings as it is perfectly within the public interest to know that the police force is regulated and can maintain public confidence.
This case serves as a warning to those who are required to comply with professional and regulated standards as employers may now be able to take action against messages which the sender/recipient assumed were private, especially if the private messages are discovered through a legitimate means.
Look out for our in-depth piece on this case in our upcoming newsletter.