The Inner House of the Court of Session in Scotland has upheld a decision that the Police force did not breach its officers’ rights to privacy when it brought disciplinary proceedings against them based on messages from two private WhatsApp chat groups they were members of. The messages were discovered on a colleague’s phone during an unrelated criminal investigation. The Court ruled that the officers did not have a reasonable expectation of privacy in the messages taking into account its inappropriate content and the fact that the officers were bound by professional conduct rules which they had clearly breached. The Court made clear that it considered that the standards and regulatory framework to which police officers are subject put them in a different category from ordinary members of the public; the usefulness of this judgment to employers is likely limited to situations where the regulatory backdrop has reduced expectations of privacy. Ordinary employees who are not subject to the same degree of professional conduct standards will have a higher expectation of privacy.
Article 8 of the European Convention of Human Rights (ECHR) gives individuals a right to respect for their private and family life, home and correspondence. A public authority cannot interfere with the exercise of this right unless it accords with the law and 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. Previous cases have clarified that what is “private life” depends on all the circumstances of the particular case including whether the conduct is in private premises, and, if not, whether it happens in circumstances in which there is a reasonable expectation of privacy for conduct of that kind.
Facts and decision
In July 2016, a detective constable found a number of WhatsApp group chat messages on a suspect’s phone during a criminal investigation. The messages were described as “sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability and included a flagrant disregard for police procedures by posting crime scene photos of current investigations”. The detective constable considered that the members of those groups were police officers and the matter was reported to the Professional Standards Department. Following investigation, misconduct claims were brought against the officers in those groups for breaching the Standards of Professional Behaviour under Schedule 1 to the Police Service of Scotland (Conduct) Regulations 2014 (“Professional Standards”). All police officers are bound by the Professional Standards which include acting in a way that does not discredit the Police Service or undermine public confidence in it, whether on or off duty, as well as obligations of confidentiality. A number of the officers petitioned the Outer House of the Court of Session seeking a declaration that the use of the messages to bring misconduct proceedings in respect of allegations of non-criminal behaviour was unlawful and incompatible with their right to a private life under Article 8 ECHR.
The Outer Court rejected the petition. The Court accepted that an ordinary member of the public could have a reasonable expectation of privacy in respect of the messages. However, the officers here were not ordinary members of the public. They were subject to the Professional Standards and were also under a positive obligation to report the messages. This must, when viewed objectively, have greatly increased the risk of disclosure of the messages by a member of the group resulting in the Court concluding that the officers had no reasonable expectation of privacy.
The Inner Court upheld the decision. The Outer Court was entitled to take into account the nature of the messages and the fact that the recipients were officers bound by the Professional Standards when deciding whether the reasonable expectation of privacy arose. The Outer Court did not conclude that there could be no private life for a serving police officer or that they had no private zone of interaction with others; what he concluded was that the restriction was limited to those matters which were capable of suggesting that the officer was not capable of discharging his duties in an impartial manner. Its decision was based on an objective assessment of the relevant issues.
This decision is a useful reminder that Article 8 ECHR will be engaged where the information being accessed relates to the employee’s conduct in their private capacity. The question of whether an employee has a reasonable expectation of privacy will be key as this case shows the analysis around expectations of privacy will be highly fact specific. If the employees here had been ordinary employees rather than police officers subject to the Professional Standards, the decision may well have been the reverse.