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A group of police officers exchange off-duty, sexist, degrading, racist, antisemitic, homophobic and disability-mocking WhatsApp group chat messages, as well posting crime scene photographs of current investigations. No crime was committed. That’s a private matter, isn’t it? No. It isn’t. So held the Second Division of the Inner House of the Court of Session in BC v Chief Constable of the Police Service of Scotland Livingstone [2020] CSIH 61; [2020] SLT 1021 (Lord Justice Clerk (Lady Dorrian), & Lords Menzies and Malcolm).

The reclaimers (i.e. appellants) were ten police officers who were the subject of misconduct proceedings pursuant to the Police Service of Scotland (Conduct) Regulations 2014. They petitioned the (Outer House of the) Court of Session for judicial review, seeking declarator that the use of their WhatsApp group chat messages in the misconduct proceedings against them was unlawful and incompatible with their Article 8 ECHR rights. They lost at first instance before the Lord Ordinary (i.e. the judge at first instance), Lord Bannatyne.

Like many people, the officers were members of a WhatsApp group chat. Another officer, who was a member of the group, was suspected of a serious sexual offence and his mobile phone was seized and analysed by detectives. They discovered that the suspect was a member of two WhatsApp groups: “PC Piggies” and “Quality Polis”. So were the reclaimers. There were other members who had not (yet) been identified.

The Lord Ordinary considered that a reasonable person would be entitled to conclude that the messages were sexist and degrading, racist, antisemitic, homophobic, mocking of disability and included a flagrant disregard for police procedures by posting crime scene photos of current investigations.

The investigating officer suspected that the members of WhatsApp groups with names like “PC Piggies” were police officers and she reported the messages to her supervisors who reported them to the Professional Standards Department. PSD referred the officers to (gross) misconduct hearings.

The Inner House disagreed with the Lord Ordinary that the law of Scotland contained a common law right of privacy. He had based his conclusion on the decision of the House of Lords in Campbell v MGN Ltd [2004] UKHL 2; [2004] 2 AC 457, but it did not bear the weight which he had put on it for this conclusion, being a case about the (English and Welsh) common law obligation of confidence. The same obligation existed in Scotland. The better view was that the law of England and Wales similarly did not contain a common law right of privacy. 

It was therefore necessary to examine the conclusions of the Lord Ordinary in relation to the officers’ Article 8 rights. They disagreed with him in relation to two matters. The first was that “the messages were exchanged within a confidential context”, this holding creating a risk of confusion between privacy and confidentiality. The second matter was in relation to his conclusion that the reclaimers all “had trust and confidence in other members of the group”. They appear to have relied partly on the fact that the police officer members of the group were each duty bound to report, challenge or take action against any of the other officers whose behaviour fell below the Standards of Professional Behaviour – which is applicable whether the officer is on- or off-duty But these two matters were not part of the challenge on appeal.

Was there a reasonable expectation of privacy?

If not, then Article 8 was inapplicable (or not “engaged”) and the reclaimers fell at the first hurdle.

In determining this question, it was necessary to focus both on the circumstances and on the underlying value or collection of values which Article 8 was designed to protect. The circumstances of the case included the nature of the activity and, in a case like this, the content of the correspondence. The fact that the person claiming a reasonable expectation of privacy was the holder of a public office or a public official, was part of the relevant circumstances.

Police officers hold public office by virtue of which they had accepted certain restrictions on their private life and this was relevant to the question of whether they could in the circumstances be said to have had a reasonable expectation of privacy The nature of the material said to be private was also relevant to the question whether there was a reasonable expectation of privacy. Here the material was “blatantly sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability and includes a flagrant disregard for police procedures by posting crime scene photos of current investigations”.

The offending messages did not contain material personal to the officers. They did call into question the extent to which they recognised their duty to uphold fundamental rights and accord equal respect to all people according to the law and some messages constituted a clear breach of the duty to keep confidential information obtained in the course of their duties (e.g. photographs of weapons recovered or of an individual in police custody). The officers knew they were messaging people who were under a positive obligation to report such messages and, viewed objectively, this must have greatly increased the risk of disclosure of the messages by a member of the group.

The Court held that, in the circumstances, the reclaimers could have had no reasonable expectation of privacy in respect of the WhatsApp messages described above.

What follows is therefore icing on the cake and is strictly not necessary to consider.

Was any interference such as was in accordance with the law?

If the reclaimers’ Article 8 rights were applicable, i.e., if they had a reasonable expectation of privacy in respect of the WhatsApp messages, then any interference had, first, to be such as was in accordance with the law. As to this, Halford v United Kingdom [1997] ECHR 32; (1997) 24 EHRR 523 stated:

“[T]he domestic law must be sufficiently clear in its terms, to give police officers an adequate indication, as to the circumstances and the conditions on which a public authority ‘the police’, who recover information in the course of lawful criminal investigations in respect of one member of the police force, can disclose to the police for the purposes of considering the bringing and thereafter the use in disciplinary proceedings in respect of other officers.”.

There must therefore be an accessible and foreseeable legal basis for the intended use of material. 

Marcel v Commissioner of Police of the Metropolis [1992] Ch 225 (CA), concerned the question whether documents seized under statutory police powers for investigating crime could be used for an ancillary purpose. Sir Nicholas Brown-Wilkinson V-C said (p.234):-

“there manifestly must be some limitation on the purposes for which seized documents can be used. Search and seizure under statutory powers constitute fundamental infringements of the individual’s immunity from interference by the state with his property and privacy — fundamental human rights … the Act has to be interpreted having regard to its subject matter, i.e., provisions conferring police powers for police purposes. Powers conferred for one purpose cannot lawfully be used for other purposes without giving rise to an abuse of power. Hence, in the absence of express provision, the Act cannot be taken to have authorised the use and disclosure of seized documents for purposes other than police purposes."

In R v Chief Constable of North Wales Ex p AB [1998] EWCA Civ 486; [1999] QB 396 at 409H, Lord Bingham of Cornhill CJ said (at first instance – sitting as a divisional court with Buxton J):-

“When, in the course of performing its public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to that member of the public  if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for performance of its public duty or enabling some other public body to perform its public duty.” 

And per Buxton J, at p415B:-

“… information acquired by the police in their capacity as such, and when performing the public law duties that Lord Bingham CJ has set out, cannot be protected against disclosure in the proper performance of those public duties by any private law obligation of confidence. That is not because the use and publication of confidential information will not be enjoined when such use is necessary in the public interest, though that is undoubtedly the case. Rather, because of their overriding obligation to enforce the law and prevent crime the police in my view do not have the power or vires to acquire information on terms that preclude their using that information in a case where their public duty demands such use.”

The Court of Appeal upheld the decision of the Divisional Court, Lord Woolf MR holding, at p.429D:- 

“information having come into the police’s possession to enable them to perform their functions, as a public body they were only entitled to use that information when this was reasonably required to enable them to properly carry out their functions.”

These cases show that there is a clear and accessible basis upon which the police may disclose to regulatory bodies information which they recover in the course of criminal investigations. That logic extends to internal disclosure to a police force’s own internal disciplinary body.

The Inner House held 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” (per the Lord Justice Clerk, at §108. Lady Dorrian cited the well-known observation of Lord Parker CJ in Rice v Connolly [1966] 2 QB 414, 419C that:-

“There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.” 

She held (§112) that:- 

“The maintenance of a properly regulated police force is … something which squarely falls within an identifiable policing purpose. The disclosure of the information at issue would not be arbitrary but would be dictated by consideration of the relevant policing standards and breaches thereof. Disclosure is for that limited purpose and no other.”

Was the intended disclosure and use necessary and proportionate?

The locus classicus of the proportionality test is to be found in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 38; [2014] AC 700. At §20 of his judgment (p 771D), Lord Sumption JSC (with whom Baroness Hale of Richmond, Lord Kerr of Tonaghmore and Lord Clarke of Stony-cum-Ebony agreed) indicated his agreement with the formulation of what is required in an assessment of proportionality of a measure by Lord Reed (who dissented on other matters) at §§68 – 76 (in particular, at §74 (p791A–C)).

In essence, combining the two formulations, an assessment of proportionality of a measure requires consideration of the following questions which – importantly – often overlap:-

1. whether the objective is sufficiently important to justify the limitation of a fundamental right;

2. whether it is rationally connected to the objective;

3. whether a less intrusive measure could have been used without unacceptably compromising the objective; and

4. whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community – if the former outweighs the latter, then the measure is disproportionate.

The Lord Ordinary concluded that the disclosure was necessary in the interest of public safety and prevention of disorder or crime. An officer who behaved in the way revealed in the messages could reasonably be inferred to be someone who would likely lose the confidence of the public and cause a decline in the general public confidence in the police. It was essential for the purpose of successful policing that the police maintain the confidence of the public, without which public safety would be at risk — the police could not operate efficiently without such public confidence, and would be less able to prevent disorder or crime. Some of the messages showed a mindset where the public’s right to be treated fairly was called into question, e.g., depending on their race, religion or sexuality. That serving police officers held these views was likely to weaken the confidence of the public and put public safety at risk.

The Inner House essentially agreed with the reasoning of the Lord Ordinary, the Lord Justice Clerk at §114 holding that:-

“There is a strong public interest in knowing that officers who behave in this way will be subject to disciplinary proceedings”

It was also relevant that the messages came to the attention of the police in a legitimate way in the course of a criminal investigation, and not by any covert means.

Implications for future similar cases

The decision of the Inner House is a strong one for police forces who come into possession of messages between police officers where a reasonable person, having regard to the content, would be entitled to reach the conclusion that they are discriminatory or show a flagrant disregard for police procedures and which would be likely to undermine public confidence in the police if they came to light. Article 8 will provide no shelter to such officers. The judgment is also of considerable assistance in cases where, e.g., the police discover serious misconduct on the part of officers through legitimate covert activity, which misconduct would undermine public confidence in the police were it to become known. 

Members of the policing profession (like many other professions) have to accept restrictions on their private lives and obligations which apply to them outside their performance of their duties, because of the nature of their office and their duties.