Police officers launch legal challenge against chief constable over misconduct proceedings raised following recovery of private ‘WhatsApp’ messages

The petitioners are seeking court orders to the effect that the use of texts sent via the electronic private messaging system for the purpose of bringing misconduct proceedings over allegations of non-criminal behaviour is “unlawful” and/or “incompatible” with their rights to respect for their private and family life in terms of article 8 of the European Convention on Human Rights (ECHR).

The officers are also seeking interdict to prevent the respondents from conducting any misconduct proceedings against them on the basis of, or involving the use of, the WhatsApp group chat messages.

The respondents were seeking to have the petition for judicial review dismissed on the basis that it was “premature and incompetent”, but a judge in the Court of Session allowed the action to proceed to a full hearing.

‘WhatsApp group chats’

Lord Brailsford heard that in July 2016 a detective constable was engaged in an investigation into sexual offences, although none of the petitioners were persons of any interest to that investigation.

But in the course of the investigation the detective constable reviewed and recovered certain WhatsApp messages on a mobile phone belonging to the suspect, who was another constable within Police Scotland.

Having considered the messages, which were contained in “group chats” - messages shared privately among members of a closed group of individuals - the detective constable decided to pass them to other constables in the Professional Standards Department within the Police Service of Scotland.

Those messages were used and relied upon in order to bring misconduct charges against each of the petitioners under the Police Service of Scotland (Conduct) Regulations 2014 (SSI 2014/68).

However, the petitioners brought judicial review proceedings to invoke the “supervisory jurisdiction” of the Court of Session - the purpose of which is to control any “abuse or excess of power” - over what they described as an “infringement of their common law rights of privacy” and “breach of their rights to privacy in terms of article 8 ECHR”.

The respondents’ position was that the petition was “premature and incompetent” as the petitioners had an “alternative remedy” which they had failed to exhaust.

It was submitted that the competent and exclusive forum the determination of whether the proposed use of the messages breached any private law right or right of privacy under article 8 was the misconduct hearing, where all the arguments advanced by the petitioners were capable of being determined and could be appealed or reviewed.

But the petitioners argued that it would not be “effective remedy” to require them to participate in a process involving at least an evidential hearing and appeals before having judicial determination of a potentially determinative preliminary issue of a “fundamental complaint” of unlawful recovery and use of messages.

‘Substantive legal right’

Allowing the petition to proceed, the judge ruled that the issue raised was one of “fundamental right” which should be determined by a court rather than a police misconduct panel.

In a written opinion, Lord Brailsford said: “I am of the view that the issue of whether or not the messages can be made use of in misconduct proceedings which are essentially private proceedings brought by a police authority against a police constable raises issues of substantive law.

“Put shortly, can private communings lawfully acquired by a police officer in the pursuit of a criminal investigation, which communings are of no interest in the context of the criminal investigation being undertaken by the recovering police officer, be subsequently used for a purpose unconnected with the criminal investigation.

“That question is, in my view, wider than merely evidential in scope. In order to answer that question issues of confidentiality and privacy both at common law and, no doubt, under the provisions of ECHR require to be considered.

“If I am correct in my analysis it would follow that the police officer responsible for determining the misconduct proceedings would be required, in the course of an evidential hearing in the proceedings, to determine a difficult question of substantive law on the basis of an evidential challenge made by the officer, or officers, who were the subject of the proceedings.

“I would not regard that situation as satisfactory. Moreover, as was submitted by senior counsel for the petitioners, the nature of the challenge being to a substantive legal right is capable of determining whether or not the proceedings are lawfully brought.

“In my view the nature of the substantial issue which has emerged is, as was submitted by senior counsel for the petitioners, beyond the scope of what would normally be considered misconduct proceedings. The complaint is, or raises, an issue of fundamental right. I would not consider police misconduct proceedings as the appropriate forum to determine such issues.”

‘Effective remedy’

The judge also held that the 2014 regulation did not provide an “adequate or effective mechanism” for determination of the issue raised.

He said: “There is no provision in the regulations permitting a challenge on a point of law to the competency or validity of proceedings. There is no provision in the regulations for a preliminary challenge to an evidential matter…The proceedings are essentially a factual inquiry.

“Whilst it is correct that a challenge to the evidence on the lines envisaged by senior counsel for the respondents would be permissible it does not appear to me to constitute a satisfactory method for the raising and determination of important questions of law such as those raised in the circumstances surrounding the present misconduct proceedings. I would not regard the misconduct proceedings as constituting an effective mean of determining the substantive issue raised in the present proceedings.”

The judge further had regard to the fact that information claimed to be confidential to the petitioners had already been used for the purpose of investigating and instituting the misconduct proceedings.

“If the petitioners are correct that the information is confidential in respect of that there has already been an infringement of a right,” he observed, adding: “For this reason alone I do not regard the respondents argument on prematurity as being well-founded.”

Lord Brailsford concluded: “Having regard to these considerations I have formed the view that the present petition does raise a live question, of a significant or important nature, which does require to be determined. It follows that I do not consider the present petition to be premature.

“Primarily because of the fundamental nature of the challenge raised by the petitioners I consider that the appropriate method to determine the validity thereof is through the present petition for judicial review. It follows that I shall repel the respondents’ first, third and fourth pleas-in-law. The result of this decision will be that the petition will proceed and for that purpose a by order will be arranged to determine future procedure.”