B C And Others Against Chief Constable Police Service Of Scotland And Others
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2019] CSOH 48 |
| Date | 28 June 2019 |
| Docket Number | P105/18 |
| Court | Court of Session |
| Published date | 28 June 2019 |
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 48
P105/18
OPINION OF LORD BANNATYNE
In the petition
B C AND OTHERS
Petitioners
against
CHIEF CONSTABLE POLICE SERVICE OF SCOTLAND AND OTHERS
Respondents
Petitioner: Sandison, QC, Young; Kennedys Scotland LLP
Respondents: Maguire, QC, Lawrie; Clyde & Co (Scotland) LLP
28 June 2019
Introduction
[1] The petitioners are ten individual police officers against whom misconduct
proceedings have been brought under the Police Service of Scotland (Conduct)
Regulations 2014 (“the 2014 Regulations”). The compearing respondents are the Chief
Constable and Deputy Chief Constable of the Police Service of Scotland and a Chief
Superintendent of Police appointed under the 2014 Regulations to conduct misconduct
proceedings brought against the petitioners.
[2] The petitioners seek orders: finding and declaring that the use by constables in the
Police Service of Scotland of messages sent to, from, and amongst the petitioners via the
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electronic WhatsApp messaging system (“the messages”) for the purpose of bringing
misconduct proceedings in respect of allegations of non-criminal behaviour on the part of
the petitioners is unlawful et separatim is incompatible with the petitioners’ right to respect
for their private and family life in terms of Article 8 of the ECHR (“the Convention”).
Second, interdicting the second and third respondents from conducting or maintaining any
misconduct proceedings against the petitioners in respect of allegations of non-criminal
behaviour on their part on the basis of, or involving the use of, the messages; and
interdicting the same ad interim.
[3] Following sundry procedure, the matter came before me for a substantive hearing.
Background
[4] The factual background was not contentious and is adequately set forth in the
petition and answers.
[5] In short the core of the factual background is this:
In July 2016 a detective constable was engaged in an investigation into sexual
offences. There is no suggestion any of the petitioners were of any interest to
that investigation.
In the course of this investigation, she reviewed the messages. The messages
had been sent via the “WhatsApp” messaging system and were present on a
mobile phone belonging to a suspect and recovered during the course of the
investigations. The suspect was a constable within the Police Service of
Scotland. The messages form the basis of the misconduct allegations against
the petitioners. They were contained in “group chats”, being messages
shared amongst members of the two WhatsApp groups. The first of these
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groups had 15 members including the 5th, 7th and 10th petitioners. The second
group had 17 members including all of the petitioners. Having considered
the content of the messages the investigating officer (a detective constable)
decided to pass them to other constables in the Professional Standards
Department within the Police Service of Scotland. Those other constables
thereafter used and relied upon the messages in order to bring misconduct
charges against each of the petitioners under the 2014 Regulations.
[6] The petitioners’ position in respect to the use of the messages is that it amounts to an
infringement of their common law right of privacy et separatim their rights in terms of
Article 8 of the Convention. The respondents deny this.
The issues
[7] Against the above background the following issues arose at the hearing:
1. Does the respondents’ disclosure and use of the messages interfere with the
petitioners’ common law right to privacy et separatim Article 8 Convention
rights?
2. If so, does that disclosure and use have any clear and accessible legal basis so
as to be “in accordance with law”?
3. If so, is that interference necessary and/or proportionate.
4. What would constitute an effective remedy for the petitioners?
Submissions for the petitioners
[8] The first issue contained a preliminary question: does the common law of Scotland
recognise a right of privacy?
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2 cases
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The King on the Application of David Humpherson v The Police Appeals Tribunal
...of privacy under Article 8, as set out in the Scottish authority BC & Others v Chief Constable Police Service Of Scotland & Others [2019] CSOH 48; and g) the Chief Constable erred in stating that the image was unwanted by Ms A (“ The sharing of the image, whilst following the sexualised con......
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Calum Steele For Judicial Review
...the aims of public safety and the prevention of disorder or crime (BC and others v Chief Constable of the 7 Police Service of Scotland [2019] CSOH 48, Inner House [2020] SLT 1021). Maintenance of the two aims required the police to be regulated by proper and efficient disciplinary procedure......