Police can use WhatsApp messages in misconduct proceedings against officers
Wednesday 23rd September 2020
In BC v Chief Constable of the Police Service of Scotland, the Inner House of the Court of Session held that the Police Service of Scotland was entitled to use WhatsApp messages found during, but not used for, a criminal investigation as the basis for bringing misconduct proceedings against officers involved in the group chats.
During an investigation into sexual offences within the Police Service of Scotland, a detective reviewed group WhatsApp messages found on a suspect’s phone. These messages were not ultimately used in the criminal investigation, but the messages were subsequently given to the Professional Standards Department. The messages included content which was sexist, racist, anti-Semitic and homophobic. The messages also mocked the disabled and contained crime scene photographs.
Misconduct charges were brought against the officers involved in the group chats for breach of Standards of Professional Behaviour. Ten of the officers petitioned to the Court of Session (Outer House) seeking a declaration that the use of the messages for the purposes of bringing misconduct proceedings in respect of non-criminal allegations was unlawful and incompatible with Article 8 of the European Convention on Human Rights, entitling them to a private life.
The Outer House refused the petition holding that the officers were subject to the Standards of Professional Behaviour, which apply both on and off duty and therefore their expectation of privacy was limited. The Standards of Professional Behaviour provide that officers must abstain from activity which is likely to interfere, or give rise to the appearance of interference, with the impartial discharge of their duties. Additionally, all of the officers knew they were under a positive obligation to report the content of the messages. The officers appealed.
The Inner House, also denying the petition, agreed that the Outer House was entitled to take account the content of the messages and the individuals’ status as police officers. As holders of public office, the officers had accepted certain restrictions on their private life, and this was relevant to the question of whether in the circumstances they could be said to have a reasonable expectation of privacy.
The messages were offensive and contained confidential information which called into question the officers’ ability to carry out their role. The Inner House concluded that the Outer House had only restricted the officers’ right to a private life to the extent that the messages suggested that they were not capable of discharging their duties in an impartial manner.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.