In BC and others v Chief Constable Police Service of Scotland and Others  CSOH 104 the Court of Session held that, in occupations which require regulatory oversight, and where it is in the public interest to do so, private communications (including WhatsApp messages) may be used as evidence in disciplinary proceedings.
The facts in BC and others v Chief Constable Police Service of Scotland and Others
In 2016 a detective constable led an investigation into sexual offences within the Police Service of Scotland. In the course of the investigation, the detective found messages sent via WhatsApp on a phone belonging to a suspect, who was a police officer. The detective considered the content of the messages and passed them to constables in the Professional Standards Department. The WhatsApp messages included sexist, racist, homophobic and other discriminatory content and also included crime scene photos of current investigations.
Misconduct charges under The Police Service of Scotland (Conduct) Regulations 2014 (the “2014 Regulations”) were brought against a number of officers. The 2014 Regulations apply when an officer is on or off duty and cover areas such as honesty and integrity, equality and diversity, discreditable conduct and challenging and reporting improper conduct.
The Police Service of Scotland Regulations 2013/35 (“2013 Regulations”) set out the restrictions on the private life of a constable. The 2013 Regulations state “A constable must at all times abstain from any activity which is likely to interfere with the impartial discharge of that constable’s duties or which is likely to give rise to the impression amongst members of the public that it may so interfere.”
Those officers brought a petition in the Outer House of the Court of Session complaining that using their WhatsApp messages to bring non-criminal misconduct proceedings against them was unlawful and a breach of their Article 8 rights.
Article 8 of the European Convention on Human Rights (“ECHR”) provides that:
- Everyone has the right to respect for their private and family life, their home and their correspondence (Article 8(1)).
- There shall be no interference by a public authority with the exercise of this right except as accords with the law and as is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others (Article 8(2)).
It is unlawful for public authorities to act in a way that is incompatible with the ECHR. Courts and tribunals must, as far as possible, give effect to primary and subordinate legislation in a way that is compatible with the ECHR.
The decision of the Court of Suspension
The Outer House of the Court of Session refused the police officer’s petition.
The first question that the Court addressed was whether a right to privacy even exists in Scotland. Lord Bannatyne was persuaded that there does exist a common law right of privacy in Scotland as it is a “core value inherent in a democratic and civilised state”.
The next question was whether the officers could have a reasonable expectation of privacy in relation to the messages. Lord Bannatyne found that any ordinary member of the public using WhatsApp could have a reasonable expectation of privacy. However, unlike the general public, the officers are subject to the 2014 Regulations and 2013 Regulations. When becoming an officer, they accepted that their right to privacy is limited to the extent set out in the 2013 Regulations.
The final question was whether interference in the officers’ right to privacy was justified under Article 8(2). Lord Bannatyne took the view that it was on the basis that it was necessary for public safety. Since maintaining public confidence is essential for successful policing, anything which exposes a mind-set where the public’s right to be treated fairly is called into question, would put public safety at risk.
Our solicitors’ views on the case of BC and others v Chief Constable Police Service of Scotland and Others
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comments on the case ‘This is an important case as it is the first time that a Scottish court has expressly declared that there is a common law right to privacy in Scotland. It is also one of the first decisions in England and Wales or Scotland considering how the content of WhatsApp messages might be used in a work context. For individuals subject to professional standards or working there will be limits on the right to keep such messages private. This includes solicitors, barristers, doctors, and financial services workers but may extend to individuals working in many other sectors.’
The decision of the Court of Session in  CSOH 104 can be found here.