BC v Chief Constable, Police Scotland
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Judgment Date | 16 September 2020 |
| Court | Court of Session (Inner House) |
| Docket Number | No 16 |
[2020] CSIH 61
Second Division
Lord Bannatyne
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Administrative law — Judicial review — Electronic messages exchanged by police constables recovered in course of criminal investigation — Messages used for subsequent disciplinary proceedings against constables — Whether reasonable expectation of privacy — Whether clear and accessible legal basis for disclosure and use of messages — Whether disproportionate interference — Whether exclusionary remedy appropriate — European Convention on Human Rights and Fundamental Freedoms, Art 8
BC, and nine other police constables, presented a petition under the judicial review procedure in the Court of Session seeking to bring under judicial review the decision of constables of Police Scotland to recover, interrogate and use electronic messages sent to, from, and among the petitioners via a messaging platform, for the purpose of bringing misconduct proceedings against them. Following sundry procedure, the petition and answers called before the Lord Ordinary (Brailsford), on 19 July 2018, for a substantive first hearing on certain preliminary matters. At advising, on 13 November 2018, the Lord Ordinary repelled the respondent's preliminary first, third and fourth pleas in law and put the petition and answers out by order to determine further procedure ([2018] CSOH 104). Following sundry procedure, the petition and answers called before the Lord Ordinary (Bannatyne), on 21 and 22 February 2019, for a substantive first hearing. At advising, on 28 June 2019, the Lord Ordinary refused the prayer of the petition ([2019] CSOH 48). The petitioners reclaimed.
In the course of a criminal investigation in 2016, a detective constable recovered data from a mobile phone. Upon inspection, the mobile phone contained certain electronic messages exchanged in ‘group chats’ on the WhatsApp messaging platform among a number of other constables within Police Scotland. The investigating officer reported the messages to her supervisors and they were passed to the Professional Standards Department for investigation. The Professional Standards Department, thereafter, used and relied upon the messages to bring misconduct charges against the constables in respect of the content of the messages under the Police Service of Scotland (Conduct) Regulations 2014 (SSI 2014/68). The constables brought proceedings challenging the use of the messages as being unlawful et separatim incompatible with their rights in terms of Art 8 of the European Convention on Human Rights and Fundamental Freedoms.
The Lord Ordinary held that, due to the particular attributes of the constables and, in particular their being subject to the 2014 Regulations, and having regard to the content of the messages, the constables did not have a reasonable expectation of privacy. He held that there was a proper, clear and accessible legal basis for the disclosure and the use of the messages, that the use was proportionate, and that, in any event, fairness in the circumstances did not demand an exclusionary remedy. The constables reclaimed.
The constables argued that: (1) they had a common law right of privacy and a right to privacy under Art 8 ECHR; (2) they had a reasonable expectation of privacy in the electronic messages and that the content of the messages was irrelevant to the existence of that expectation; (3) there had been no proper, clear, and accessible legal basis for the disclosure and use of the messages either in statute or at common law; (4) even if there had been a legal basis, the interference in their private life was disproportionate; and (5) while a breach of their right to privacy would not automatically entitle them to an exclusionary remedy such as interdict, fairness in this case demanded an exclusionary remedy.
The respondent argued that: (1) the constables had no reasonable expectation of privacy in the circumstances, having particular regard to the attributes of the constables as constables which differentiated them from an ordinary member of the public; (2) there was a clear and accessible legal basis for the messages to be used in a common law power to disclose material where it was in the public interest and also in terms of the obligation under the 2014 Regulations to challenge misconduct; (3) any interference in the rights of...
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