BC AND OTHERS AGAINST IAIN LIVINGSTONE QPM, CHIEF CONSTABLE OF THE POLICE SERVICE OF SCOTLAND ANDOTHER [2020] ScotCS CSIH_61 (16 September 2020)

BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> BC AND OTHERS AGAINST IAIN LIVINGSTONE QPM, CHIEF CONSTABLE OF THE POLICE SERVICE OF SCOTLAND ANDOTHER [2020] ScotCS CSIH_61 (16 September 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_61.html
Cite as: 2020 SCLR 887, 2021 SC 265, 2020 GWD 30-393, [2020] CSIH 61, 2020 SLT 1021, [2020] ScotCS CSIH_61

[New search] [Context] [View without highlighting] [Printable PDF version] [Help]


Page 1 ⇓
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk
Lord Menzies
Lord Malcolm
[2020] CSIH 61
P105/18
OPINION OF LADY DORRIAN, the LORD JUSTICE CLERK
in the Petition
by
BC and OTHERS
Petitioners and Reclaimers
against
IAIN LIVINGSTONE QPM, CHIEF CONSTABLE OF THE POLICE SERVICE OF
SCOTLAND and OTHERS
Respondents
________________________
Petitioners and Reclaimers: Sandison QC and T Young; MacRoberts LLP
Respondents: Maguire QC and Lawrie; Clyde and Co (Scotland) LLP
16 September 2020
Introduction
[1]       The ten reclaiming police officers challenge the Lord Ordinary’s decision of 28 June
2019 to refuse their petition for judicial review. The respondents are the Chief Constable
and Deputy Chief Constable of the Police Service of Scotland and a Chief Superintendent of
Police appointed under the Police Service of Scotland (Misconduct) Regulations 2014 (“the
2014 Regulations”) to conduct misconduct proceedings brought against the reclaimers. The
Page 2 ⇓
2
petition sought (1) declarator that the respondents’ use of messages sent to, from and
amongst the reclaimers in private “WhatsApp” electronic message groups (“the Messages”)
to bring misconduct proceedings against them in respect of allegations of non-criminal
behaviour was unlawful et separatim incompatible with their ECHR article 8 rights; and (2)
interdict to prevent use of the messages in misconduct proceedings against them.
Background
[2]       The messages were discovered in July 2016 by a detective constable during an
investigation in to a serious sexual offence, in which the reclaimers were not persons of
interest. They were found on a mobile phone belonging to a suspect and recovered during
the course of the investigation. The suspect was a constable within the Police Service of
Scotland. The messages were contained in “group chats”, shared amongst members of two
WhatsAppgroups of which the suspect was a member. One was entitled Quality Polis
and the other “PC Piggies”. One of the groups had 15 members including the 5th, 7th and
10th reclaimers. The second group had 17 members including all of the reclaimers. Not all
of the members of the groups have been identified.
[3]       The Lord Ordinary considered that a reasonable person having regard to the content
of the messages would be entitled to reach the conclusion that they were 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
messages also included pictures of a police shift pattern, and a police bulletin.
[4]       Having considered their content the investigating officer, suspecting the users of the
group to be police officers, reported the matter to her supervisors, who in turn forwarded
the matter to the Professional Standards Department for investigation. Professional
Page 3 ⇓
3
Standards thereafter used and relied upon the messages to bring misconduct charges against
each of the reclaimers under the 2014 Regulations. Between 25 and 30 November 2017 the
reclaimers received notification from the second respondent that they required to appear
before misconduct hearings. The misconduct charges relate to alleged breaches of the
standards of professional behaviour as set-out in Schedule 1 to the 2014 Regulations (“the
Standards”).
The 2014 Regulations, Standards and associated legislative regime
[5]       The Standards provide as follows:
Standards of Professional Behaviour
Honesty and integrity
Constables are honest, act with integrity and do not compromise or abuse their position.
Authority, respect and courtesy
Constables act with self-control and tolerance, treating members of the public and colleagues
with respect and courtesy.
Constables do not abuse their powers or authority and respect the rights of all individuals.
Equality and diversity
Constables act with fairness and impartiality. They do not discriminate unlawfully or
unfairly.
Use of force
Constables use force only to the extent that it is necessary, proportionate and reasonable in all
the circumstances.
Orders and instructions
Constables give and carry out only lawful orders and instructions.
Duties and responsibilities
Constables are diligent in the exercise of their duties and responsibilities.
Page 4 ⇓
4
Confidentiality
Constables treat information with respect and access or disclose it only in the proper course of
their duties.
Fitness for duty
Constables when on duty or presenting themselves for duty are fit to carry out their
responsibilities.
Discreditable conduct
Constables behave in a manner which does not discredit the Police Service or undermine
public confidence in it, whether on or off duty.
Constables report any action taken against them for a criminal offence, any conditions
imposed on them by a court or the receipt of any penalty notice.
Challenging and reporting improper conduct
Constables report, challenge or take action against the conduct of other constables which has
fallen below the Standards of Professional Behaviour.”
It was accepted that the reclaimers were informed of these Standards, which applied
whether they were on or off duty, and that they had each sworn on oath to behave in
accordance with them.
[6]       The relevant oath was in the following terms:
I, do solemnly, sincerely and truly declare and affirm that I will faithfully discharge the
duties of the office of constable with fairness, integrity, diligence and impartiality, and that I
will uphold fundamental rights and accord equal respect to all people, according to law.
[7]       The Police Service for Scotland Regulations 2013 (the “2013 Regulations") set out,
inter alia, restrictions on the private life of a constable. Paragraph 4 provides:
“4. Restrictions on the private life of constables
(1) Schedule 1 has effect.
(2) No other restrictions except those designed to secure the proper exercise of the functions of
a constable may be imposed by the Authority or the chief constable on the private life of
constables.”
Page 5 ⇓
5
[8]       Schedule 1, paragraph 1 provides:
“RESTRICTIONS ON THE PRIVATE LIFE OF CONSTABLES
1. 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; and, in particular a constable must
not take any active part in politics.
The Lord Ordinary’s decision and reasoning
[9]       The Lord Ordinary considered that the following questions arose for consideration:
1. Whether the respondents’ disclosure and use of the messages interfered with a
common law right to privacy vested in the reclaimers et separatim their Article 8 rights under
the European Convention on Human Rights?
2. Whether that disclosure and use has a clear and accessible legal basis so as to be “in
accordance with law”?
3. If so, whether the interference was necessary and/or proportionate?
4. What would provide an effective remedy?
The Lord Ordinary answered the first 3 questions in the affirmative, his key findings being:
Issue 1
[10]       The Lord Ordinary was persuaded of the existence of a common law right of privacy,
the nature and scope of which he concluded was essentially a reflection of the rights
protected under Article 8 ECHR, save that it would apply to bodies other than public
authorities. “Correspondence” was expressly referred to in Article 8. Electronic
communication could form part of the zone of interactionbetween the individual and
others and was therefore part of the core right protected by Article 8. The remaining
arguments on this issue centred on the question whether the reclaimers had in the
circumstances a reasonable expectation of privacy such as would bring their rights of
Page 6 ⇓
6
privacy, at common law or under Article 8, into play, “a reasonable expectation of privacy”,
being the touchstonefor Article 8.1 engagement. Applying an objective test the Lord
Ordinary concluded that the reclaimers had no reasonable expectation of privacy in respect
of the messages. An ordinary member of the public could have a reasonable expectation of
privacy in respect of “WhatsApp” messages, having regard only to the characteristics of the
platform. The Lord Ordinary rejected the respondents’ argument that the very fact of chats
taking place amongst groups rather than between individuals, and the existence of an
administrator to control the group, and admit members, suggested that members of the
group relinquished control of the group. It was appropriate to consider that the reclaimers
did have trust and confidence in other members of the group, a factor supporting a
reasonable expectation of privacy. Whilst there was a possibility of a person joining a
WhatsApp group making public the content of group exchanges, this could happen
following any private occasion and did not undermine the individual’s reasonable
expectation of privacy.
[11]       The content of the messages would not normally sound when consideration was
being given to whether there existed a reasonable expectation of privacy, and the protected
“zone of interaction” would extend even to messages “of an abhorrent nature”. Content
was generally relevant to proportionality, not to the initial question whether a reasonable
expectation of privacy arose (Campbell v MGN Ltd [2004] 2 AC 457, para 21). However the
standards and regulatory framework to which a police officer was subject put him in a
different category from ordinary members of the public. These attributes were relevant to
the issue of reasonable expectation of privacy (In re JR38 [2016] AC 1131 para 88). A failure
to comply with many of the standards would be likely to interfere with the impartial
discharge of a constable’s duties or give that impression to the public. The content of the
Page 7 ⇓
7
messages was thus relevant to the question whether there was a reasonable expectation of
privacy. Because of the attributes attaching to a constable and the need, in a system of
policing by consent to maintain public confidence, the reclaimers could have no reasonable
expectation of privacy when exchanging messages of the character involved here.
Issue 2
[12]       For the disclosure and use in disciplinary proceedings of messages recovered in
criminal proceedings to be “in accordance with law” there had to be a clear and accessible
legal basis for that collateral use (Halford v United Kingdom 1997 24 EHRR 523 at 524). The
analysis adopted in Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25 at para 9 gave a
clear and accessible basis upon which the police could disclose to regulatory bodies
information which they recovered in the course of criminal investigations:
“Even if there is no request from the regulatory body, it seems to me that if the police
come into possession of confidential information which, in their reasonable view, in
the interests of public health or safety, should be considered by a professional or
regulatory body, then the police are free to pass that information to the relevant
regulatory body for its consideration”.
[13]       Under reference also to Nakash v Metropolitan Police Service and the General Medical
Council [2014] EWHC 3810 Admin), the Lord Ordinary concluded that in a case where the
police sought to refer the information recovered to their own internal disciplinary body for
the strictly limited purpose of disciplinary proceedings, the position must be the same.
There was a public interest in having a properly regulated police force in order to protect the
public. Directed to such an end, the disclosure could not be described as arbitrary. Sciacca v
Italy 43 EHRR 20 was clearly distinguishable, there having been no public duty
requiring or justifying the disclosure in that case.
Page 8 ⇓
8
Issue 3
[14]       The Lord Ordinary was of the view that public safetyand, separately, the
prevention of disorder or crimelisted in Article 8(2), were both engaged in the present
circumstances. In relation to the former, the principle purpose of the police was the
protection of the public. An officer behaving in the way reflected in the messages could
reasonably be inferred to be likely to be someone who would lose the confidence of the
public and cause a decline in confidence in the police. As the police could not operate
efficiently without such public confidence, public safety would be put at risk, and the police
would be less able to prevent disorder or crime. Furthermore certain aspects of the
messages showed a mind-set where the public’s right to be treated fairly and equally was
called into question. An officer who held these types of views was less likely to have the
confidence of the public and in turn public safety would be put at risk.
[15]       Turning to the issue of proportionality, the importance of public confidence in the
police was clearly considerable. Equally, the protection of the public by the police was
extremely important. To maintain public confidence and to protect the public it was
necessary for the police to be regulated by a proper and efficient disciplinary procedure.
Disclosure and use of information of the kind and in the circumstances recovered in this case
were a necessary part of that. Even if he had considered the reclaimers to have a legitimate
expectation of privacy, the foregoing factors would have caused him to conclude that
disclosure of messages would have been proportionate.
Grounds of Appeal
[16]       The grounds of appeal are that the Lord Ordinary erred:
Page 9 ⇓
9
1. In holding that the reclaimers had no reasonable expectation of privacy in the
communications.
2. In holding that there was a clear and accessible legal basis for the disclosure and use
of the content of the communications for the collateral disciplinary purpose.
3. In holding that any interference with the reclaimers’ right to privacy was necessary,
in a democratic society, in the interest of public safety or for the prevention of disorder or
crime, and that the proposed use was proportionate to a legitimate end.
4. In observing that in any event it would have been "fair" to allow the content of the
messages used in the disciplinary proceedings.
Submissions
[17]       Detailed notes of argument supplemented by further written submissions were
lodged by both parties. What follows is a summary of the main points.
Submissions for the reclaimers
[18]       This case concerned the implications of the increasingly vast capabilities of IT
devices to store and record private information in a permanent and reproducible form, even
if such storage and recording was not intended or even known by the individuals involved.
International juridical treatment of this issue recognised that, for the core value of privacy to
have practical content in this context, courts had to be vigilant to protect private information
stored on or generated by such devices, and to ensure that dealings with such information
were adequately controlled and regulated: Murdoch (ed) Reed and Murdoch (4 ed) at
para 6.107, R (Catt) v Association of Chief Police Officers of England and Wales and Northern
Ireland & Anor [2015] AC 1065 (Lord Sumption at para 2), the Canadian Supreme Court
decision of R v Vu [2013] 3 SCR 657, particularly at paras [1] - [3] and [40] -[45] (Cromwell J),
Page 10 ⇓
10
Riley v California 573 US (2014) at p17-22 (Roberts CJ), and Carpenter v Unites States No. 16-
402, 585 US (2018).
Ground 1- reasonable expectation of privacy
[19]       The Lord Ordinary correctly concluded that Scots law recognised a common law
right of privacy. He correctly identified that an ordinary member of the public using
“WhatsApp” would have a reasonable expectation of privacy. The reclaimers’ engagement
in correspondence with others with whom they shared a bond of friendship and confidence
was an obvious example of a situation in which a reasonable expectation of privacy would
normally arise. The Lord Ordinary erred in determining that the reclaimers had no such
expectation because of their particular "attributes" as constables. These attributes amounted
to no more than being in public service and subject to certain professional standards. The
Lord Ordinary confused the proportionality of a particular interference with private life
with the logically prior question of whether there was a reasonable expectation of privacy in
connection with any communication. This was evident from his reliance at [169] on R (Chief
Constable of Cleveland Constabulary) v Police Appeals Tribunal [2017] ICR 1212, in connection
with reasonable expectation when in fact the passage cited was addressing the subsequent
issue of proportionality. The respondents seek to gloss over this reliance by suggesting that
the Lord Ordinary was using the case to assess proportionality in relation to the application
of professional standards to private conduct rather than whether disclosure for the collateral
purpose was proportionate, but that is not what the Lord Ordinary said.
[20]       Despite referring to Campbell v MGN Ltd [2004] AC 457 (para 21), where the
importance of that distinction was emphasised, the Lord Ordinary failed to reflect that
distinction or apply the guidance that proportionality considerations should not be brought
Page 11 ⇓
11
into the assessment of reasonable expectation. Issues such as the extent to which publication
was a matter of proper public concern were only relevant to proportionality. The fact that
the Standards apply in private life, or the importance of maintaining public confidence are
not issues for consideration at the threshold stage, only when considering proportionality.
[21]       The Lord Ordinary’s reliance on general comments in In re JR38 [2016] AC 1131 and
Campbell that a person’s attributes were relevant to assessment of reasonable expectation
was misconceived. At issue in In re JR38 was whether a child had a greater expectation of
privacy than an adult. A person’s attributes in this context are things about that person
which affect his understanding of where the private/public divide may lie in relation to any
activity undertaken, for example capacity for understanding, or insight. They are not
something as ephemeral as a job or occupation. The Lord Ordinary's reasoning that
behaviour “said to be potentially in breach of the Standards” allowed the conclusion that
there was no reasonable expectation of privacy meant that no constable had any reasonable
expectation of privacy at all having regard to the general and aspirational nature of the
Standards, which exhorted officers to act with fairness and impartiality, self-control and
tolerance, integrity, and respect and courtesy. Something normally considered private
does not cease to be so because of the office or role of the individual. The respondents relied
on the requirement on police officers to challenge and report conduct which falls below the
Standards, but that is no more than a restatement of the “attributes” argument.
[22]       It was a non sequitur for the Lord Ordinary to say that, because the Standards applied
to conduct in private life, there was no reasonable expectation of privacy for any and all
actions that could potentially breach them. Such an approach would render assessment of
proportionality redundant. It would result in many employees and professionals in other
Page 12 ⇓
12
fields who were also subject to aspirational policies or rules about their conduct to lose any
reasonable expectation of privacy.
[23]       Even in cases where employees had been expressly made aware of potential
monitoring of their communications, the European Court of Human Rights has held that
employees still had a reasonable expectation of privacy and that such monitoring interfered
with or engaged Article 8 rights: Bărbulescu v Romania [2017] IRLR 1032 at paras 69- 81, and
Garamukanwa v United Kingdom [2019] IRLR 853 at paras 22-27. The concept of private life
includes interacting and corresponding with others. The argument that police officers
cannot be equated with ordinary employees is false: see Halford.
[24]       It was submitted that the Lord Ordinary ought properly to have determined that the
respondents' disclosure and use of the messages did interfere with the reclaimers’ common
law rights to privacy et separatim Article 8 Convention rights.
Ground 2 no clear and accessible legal basis for the disclosure and use of the messages
[25]       For an interference in the reclaimers’ private life and correspondence to be “in
accordance with law” it must have a proper, clear, and accessible legal basis: R (on the
application of P) v Secretary of State for the Home Department [2019] UKSC 3, Lord Sumption at
paras 12, 16 -17, and 24; Sciacca v Italy 43 EHRR 20, Khan v United Kingdom (2001)
31 EHRR 45 and Halford v United Kingdom (1997) 24 EHRR 523. It involved a dual test of
accessibility and foreseeability- Lord Sumption at para 17 in R (on the application of P). It is
not enough that the domestic law provides some basis for the impugned measure, the law
must provide protection against arbitrariness: R(T) v Chief Constable of Manchester Police
[2015] AC 49, Lord Reed, para 108 and 113-116.
Page 13 ⇓
13
[26]       The purpose limits the extent of legitimate use: a legal basis for interference for
purpose A did not justify interference for purpose B. In the context of the police, the
relevant purposes that justified interference into a person's private life were the prevention
and detection of crime, the investigation of alleged offences, and the apprehension of
suspects or persons unlawfully at large. It is for those purposes alone that the police were
trusted with such intrusive common law and statutory powers. The Courts had repeatedly
recognised that collateral use of information by the police for different purposes was
unacceptable: Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 810 (Laws J); Bunn
v British Broadcasting Corporation [1998] EMLR 846 at 852-853 (Lightman J); Taylor v Director
of the Serious Fraud Office [1999] 2 AC 177 at 198 (Millett LJ), 211B-D (Lord Hoffman) and
218H- 219D (Lord Hope); and also R (Catt) v Association of Chief Police Officers of England,
Wales and Northern Ireland and another [2015] AC 1065 at para 15 (Lord Sumption).
[27]       These purposes can, in some cases, justify disclosure to third parties, but only where
such disclosure is in pursuit of those purposes: R v Chief Constable of North Wales ex parte
Thorpe [1999] QB 396 at 410F - G and 411B- D (Lord Bingham). A similar approach had been
taken in other jurisdictions: eg see Attorney General v Yaya [2009] FJCA 60, and Flori v
Commissioner of Police & Anor [2014] QSC 284.
[28]       While it was accepted that the respondents had initially and justifiably infringed the
reclaimers’ privacy in the messages for a legitimate purpose, that initial purpose was not
relevant to the subsequent disclosure and use for the purpose of investigating and pursuing
non-criminal misconduct proceedings. The reclaimers accept that the police have a legal
power to disclose information gathered for policing purposes, so, for example, they are
justified in publishing photographs or disclosing information where necessary for the
apprehension of a suspect, or they may warn of the presence of known criminals for the
Page 14 ⇓
14
purpose of preventing crime. Disclosure for other purposes is not however permitted
Sciacca v Italy (2006) EHRR 20. To allow disclosure for collateral purposes would undermine
the likelihood of public co-operation in the detection of crime.
[29]       Contrary to the Lord Ordinary’s reasoning Woolgar and Nakash did not provide a
proper, clear, and accessible legal basis for disclosure of the messages for collateral
purposes. Woolgar predated many of the leading authorities on privacy and Article 8, in
particular Campbell, and was decided when the need to separate legality from
proportionality was poorly apprehended. There had been no argument about whether there
was a proper, clear, and accessible legal basis for disclosure: only proportionality was
considered: see p36E-H. In any event, there was a pre-existing disciplinary investigation in
the course of which a formal request for disclosure of information had been made. The case
of Nakash was even starker, there being in the relevant statutory scheme a specific power to
require information for disciplinary purposes. The respondents’ reliance on these cases rests
on an underlying proposition that the police have a common law power to disclose any
information where they consider that to be “in the public interest and in order to protect the
public”, without limitation by reference to traditional policing purposes such as prevention,
detection and investigation of crime, maintenance of public order, or the apprehension of
suspects or persons unlawfully at large. Such a test confers so wide a discretion on the
police as to be effectively unconstrained by law. In practice, it would be dependent on an
arbitrary exercise of will in virtually all instances. A measure was not legitimate if it
conferred a discretion so broad as to be dependent on the will of those applying it rather
than on the law itself: R(P), para 17.
[30]       The point had much wider significance than the particular facts of the present case.
It could easily arise in the case of any professional or other person holding a role which
Page 15 ⇓
15
engaged the public interest e.g. healthcare professionals, lawyers, accountants and teachers.
The Lord Ordinary's reasoning resulted in the proposition that a private communication
involving someone in the aforementioned categories could accidentally come to the
attention of a constable during the course of a criminal investigation (even where that
individual is not the subject of the investigation), and that the police may, or even must,
disclose it to an employer or regulatory body even if it had nothing to do with the
prevention or detection of crime. Such a generic and wide-ranging power was neither
accessible nor foreseeable in its application.
[31]       The Lord Ordinary's conclusion did not accord with recent decisions involving
statutory schemes for disclosure of information by and between public authorities
(including the police): R (T) v Chief Constable of Greater Manchester Police [2015] AC 49 at
paras 110- 121 (Lord Reed) and Christian Institute v Lord Advocate 2017 SC (UKSC) 29 at
paras 79- 85. If the police had an open-ended and vaguely defined power to disclose
information in the public interestsuch statutory schemes would not be necessary in the first
place.
[32]       A power to disclose for non-policing purposes material which had come to them for
such purposes might well be counter-productive see Lightman J in Bunn at 853.
[33]       The Lord Ordinary ought to have concluded that there was no proper, clear, or
accessible legal basis for the collateral use of the messages, which amounted to an illegal
interference with the reclaimers’ common law rights to privacy et separatim Article 8.
Ground 3- proportionality
[34]       The Lord Ordinary rejected the legal basis the respondents relied on to justify
disclosure and use but found an alternative legal basis. Since the respondents had not
Page 16 ⇓
16
identified the correct legal basis in the first place, they could not have even begun to
undertake a proper proportionality exercise. The Court was now being asked to approach
the whole issue in the abstract, without the benefit of any actual decision by the respondents
based on a correct legal understanding of their powers.
[35]       The Lord Ordinary identified that the correct approach to assessing proportionality
was to consider: (i) whether the objective of the relevant legal basis or measure was
sufficiently important to justify limitation of the appellant's right to private life; (ii) whether
there was a rational connection between that relevant legal basis and the legitimate aim or
objective; (iii) whether a less intrusive measure could have been used without unacceptably
compromising the achievement of the objective; and (iv) whether the impact of the right's
infringement was proportionate, having regard to the likely benefit of the relevant legal
basis: cf. AB v HM Advocate 2017 SC (UKSC) 101 at [24] (Lord Hodge) and R (on the
application of P) v Secretary of State for the Home Department [2019] UKSC 3, at paras 16-17, 24,
and 73 (Lord Sumption).
[36]       There was at best only a tenuous connection between the legal basis held by the Lord
Ordinary as justifying disclosure and use and any of the permissible objectives enumerated
in Article 8(2). The respondents themselves had still failed to identify any relevant legal
measure or the proper objective of that measure.
[37]       The public interests involved are not all on one side, or even weighted to one side.
The interest in the existence and efficient conduct of police disciplinary procedures is to be
balanced against the equally important public interest in maintaining privacy and
confidentiality in general and in respect of material gathered during a criminal investigation
in particular. Private communications which have never been published or shared
Page 17 ⇓
17
publically do not constitute a threat to public confidence in the police. There is nothing in
the messages which amounts to speech which the law has seen fit to criminalise.
[38]       There must be circumstances where conduct in private, or in relation to private life,
might amount to a breach of the Standards but where disclosure for disciplinary purposes
would be disproportionate : R (Chief Constable of Cleveland Constabulary) was an example. No
matter how important the maintenance of public confidence in the police it could not always
justify the destruction of private life.
[39]       It was submitted that the case concerned entirely private correspondence not
involving breach of the criminal law. The petitioners have never suggested that the content
of the messages is creditable or that they would have been acceptable if made in the course
of their duties to a member of the public or anyone with whom they did not share a bond of
confidence. However, privacy applied whether statements were banal or outrageous. The
respondents were trying to censor private conversations between officers.
[40]       The whole point of the law of privacy and of the rights in Article 8 was to ensure
personal autonomy; a space within which a person was free to develop and fulfil their own
personality: R (Catt), at paras 2 and 4 (Lord Sumption) and In re JR38, at para 86-88
(Lord Toulson). A presumption against interference with an individual's liberty, was a
defining characteristic of a free society. It needed to be preserved, even in the little cases: see
In re JR38. To seek to censor and punish wholly private and non-criminal conversations in
the name of public safety or maintenance of public confidence in the police, which the
respondent was doing, was entirely destructive of that principle.
[41]       It was submitted that the Lord Ordinary ought to have held that the use and
disclosure of the messages was plainly disproportionate in the circumstances of the present
case.
Page 18 ⇓
18
Ground 4- remedy
[42]       It was submitted that the Lord Ordinary's reasoning on this point was cursory, no
doubt because the issue was irrelevant to his ultimate determination. It was accepted that
the reclaimers were not automatically entitled to interdict. The fact that information and
evidence has been gathered in breach of Article 8 was not completely determinative, but will
usually be key: Kinloch v HM Advocate 2013 SC (UKSC) 257 at paras 17-19 (Lord Hope) and
HM Advocate v P 2012 SC (UKSC) 108 at para 27 (Lord Hope). The question remained one of
fairness in all of the circumstances: Lawrie v Muir 1950 JC 19 at 26, HM Advocate v P, and
Kinloch. A claim for a remedy such as interdict will be particularly strong where the
impugned evidence is the direct fruit of infringement and is of central importance to the
case: HM Advocate v P, at [26] - [27] (Lord Hope).
[43]       If the Court were persuaded that collateral use of the messages was a breach of the
reclaimers’ common law and Convention rights, fairness demanded an exclusionary
remedy. Evidence of alleged misconduct did not exist independently of the messages.
Submissions for the respondents
Ground 1
[44]       The reclaimers had no reasonable expectation of privacy in the circumstances;
context was everything. To assess whether they had such an expectation, the Lord Ordinary
correctly applied the broad, objective test, which required him to take account of all the
circumstances of the case, including the attributes of the reclaimers, the nature of the
activity, the place where it occurred and the nature and purpose of the intrusion and the
underlying values to be protected, as explained by Lord Toulson in In re JR38 at [86]-[100].
Page 19 ⇓
19
The assessment was to be done from the point of view of the sender, applying the
sensibilities of a reasonable person in that position.
[45]       The Lord Ordinary was thus correct to consider the content of the messages in the
context of the attributes of the reclaimers and all the circumstances. Having identified the
appropriate test, he gave due regard to the relevant factors. A key factor was the attributes
of a constable which, in combination with the content of the messages, “inform[ed] the
question of whether there was a reasonable expectation of privacy” (para [165]).
[46]       The Lord Ordinary’s reasoning was based soundly on the long established and
incontrovertible principle that a fundamental requirement of policing by consent is that the
public must have confidence in the police service. This was secured by the fact that police
officers: (a) must adhere to the Standards of professional behaviour; (b) are subject to
restrictions on their private lives; and (c) must make the constable’s declaration as set out in
section 10 of the Police and Fire Reform (Scotland) Act 2012. Applying the approach in In re
JR38, the Lord Ordinary had correctly held that these attributes were relevant because “a
failure to comply with many of the Standards would evidence that it would be likely to
interfere with the impartial discharge of that constable’s duties or give that impression to the
public”(at [167]). The Standards specifically required constables to behave in a manner
which did not discredit the Police Service or undermine public confidence in it, whether on
or off duty. Additionally, they must at all times abstain from any activity which is likely to
interfere with the impartial discharge of their duties or which was likely to give the
impression that it may do so. The Lord Ordinary was also right to also find that the content
of the messages was relevant in a context where those communicating were not members of
the public but police officers.
Page 20 ⇓
20
[47]       The Lord Ordinary’s approach was firmly based in authority and the statutory
provisions to which the reclaimers were subject and which were properly identified as
“attributes” which differentiated them from the ordinary member of the public. The
Lord Ordinary did not seek to rely on In re JR38 and Campbell for anything other than
general statements regarding the correct legal test to apply. The reclaimers’ argument was
based on their own misreading of these cases.
[48]       The reclaimers were not employees but holders of a public office which involved a
significant degree of curtailment of private life. Records required to be kept of their
marriages or civil partnerships, children and dependants; their DNA and fingerprints were
kept on file; their ability to engage in businesses, directly or indirectly was restricted; their
finances were subject to scrutiny; they could not engage in politics; vetting was required;
and relationships with third parties had to be notified if such persons had questionable
histories.
[49]       However, it was not the case that any breach of the Standards meant that there was
no reasonable expectation of privacy; the test takes into account all the circumstances, the
context of the activity and whether an expectation of privacy would be reasonable. The
Lord Ordinary held that only where the conduct was likely to interfere with the impartial
discharge of the officer’s duties or was likely to give rise to that impression amongst
members of the public would there be no expectation of privacy.
[50]       The Lord Ordinary did not confuse questions of proportionality and reasonable
expectation of privacy. His positive reference to arguments made in R (Chief Constable of
Cleveland Constabulary) was to controvert the reclaimers’ unfounded assertion that having
regard to the aforementioned attributes would mean “that a police officer has no reasonable
expectation of privacy at all”. Rather, the correct position, was that the “expectation is
Page 21 ⇓
21
limited”. Constables had no reasonable expectation of privacy if their behaviour in private
could be said to be potentially in breach of the Standards in such a way as to raise doubts
regarding the impartial performance of their duties ([168]-[170]). This limitation was
ignored by the reclaimers in their arguments.
[51]       Issues of the proportionality of the application of professional standards to private
conduct were discussed by the Lord Ordinary at this stage, not in respect of whether the
disclosure of the messages to the disciplinary body was proportionate. Proportionality in
respect of that issue was properly addressed at the third stage of the Lord Ordinary’s
analysis and once the question of whether there was any reasonable expectation of privacy
had been determined.
[52]       The conclusion that the reclaimers could have no reasonable expectation of privacy
in respect to the messages was not inconsistent with recent decisions of the European Court
of Human Rights: the reasonable expectations of ordinary employees could not be equated
to the reasonable expectations of police officers.
[53]       The Lord Ordinary was right to agree with the respondents’ submission on the
characterisation of the messages. What any reasonable person would be entitled to regard
the messages as demonstrating was directly relevant to the question of the underlying value
or values to be protected. These factors had relevance as to whether or not Article 8 was
engaged and not simply to justification (see Lord Toulson in In re JR38 at para 100). It was
inevitable that involvement in such messages engages and informs the issue of whether the
Standards may have been breached by the reclaimers, all serving officers, and calls into
question the impartial discharge of their duties.
[54]       It was important to recognise the additional basis on which the Lord Ordinary held
that the reclaimers had no reasonable expectation of privacy, namely that, on an objective
Page 22 ⇓
22
analysis, “there could be no reasonable expectation of privacy given that the group
contained police officers whose duty in terms of the Standards was to ‘report, challenge or
take action against the conduct of other constables which has fallen below the Standards’”
([171]-[172]      ) and the “Challenging and reporting improper conduct” standard in Schedule 1
of the 2014 Regulations. The reclaimers did not advance any argument as to why the
Lord Ordinary was wrong to found on this clear, unambiguous legal duty imposed on all
officers by the Standards.
[55]       The reclaimers’ submission that the messages were correspondence amongst
individuals with whom there was a shared bond of friendship and confidence was not borne
out by the facts. The membership of the groups extended beyond the reclaimers, who were
unaware of the whole membership. There was no evidence that members shared a bond of
friendship and confidence or even all knew each other.
Ground 2
[56]       It was submitted that esto it was determined that the Lord Ordinary erred and the
reclaimers had a reasonable expectation of privacy, the use of the messages was justified
under Article 8(2).
[57]       There was a clear and accessible legal basis for the messages to be passed to the
disciplinary branch of Police Scotland and, thus, such disclosure and use was “in accordance
with the law”. The reclaimers, as police officers, were being made the subject of disciplinary
procedures partly because of their alleged use of confidential information from crime scenes
and a picture of a female in a police cell. If this conduct were established, the reclaimers
were using this material, to which they had access professionally for their own purposes of
“amusement and support”, which were patently nothing to do with policing purposes. The
Page 23 ⇓
23
respondents required to take action to deal with such apparent disregard for the
confidentiality of information in the possession of the police.
[58]       The reclaimers’ argument (at paragraphs [33] to [35] of their Note) that information
can only be disclosed to third parties where such disclosure is for the limited purposes of the
prevention and detection of crime, the investigation of alleged offences and the
apprehension of suspects or persons unlawfully at large ignored the authorities supporting a
broader duty of disclosure where that is in the public interest. It also ignored the mandatory
obligations on police officers to report and act on alleged improper conduct. As Scott J said
in Attorney General v Guardian Newspapers Ltd (No .2) [1990] 1 AC 109 at page 154-155, third
parties may not only be entitled to use information but may, in the public interest, “even be
under a duty to do so”. The reclaimers took an unduly narrow approach to “policing
principles” which are stated in the 2012 Act section 32.
[59]       The maintenance of a police service involves maintenance of standards and
discipline. A policing purpose could be administrative or the fulfilment of a public law
duty. In Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 the court noted an
exception to a bar on disclosure where the overall interests of justice required the
documentation to be made available in other proceedings.
[60]       The authorities cited by the reclaimers to support their assertion that “[t]he Courts
have repeatedly recognised that collateral use of information by the police for different
purposes is unacceptable”- inter alia Hellewell; Bunn; Taylor and R (Catt) - had to be
considered against the facts of those cases and the specific questions they were determining.
[61]       Contrary to the reclaimers’ argument, the nub of the issue in Woolgar was whether,
and in what circumstances, the police could disclose otherwise confidential material to a
regulatory body (see para 6 of the decision), something which the Lord Ordinary expressly
Page 24 ⇓
24
recognised (at [181]). In Woolgar, the court was determining the legal basis on which
disclosure could be made in circumstances where there was no express statutory power
permitting the United Kingdom Central Council for Nursing, Midwifery and Health Visiting
to obtain transcripts of police interviews. In Woolgar, the court did not proceed straight to a
proportionality assessment. In Nakash it was recognised that no specific request from “the
relevant regulatory body” was required to trigger disclosure by the police. The evidence
deemed admissible in Nakash had in fact been obtained in an unlawful search.
[62]       The reclaimers’ argument that the Lord Ordinary’s decision “confers such a wide
discretion on the police as to be effectively unconstrained by law” and, thus, would “be
dependent on an arbitrary exercise of will in virtually all instances” was unfounded. The
Lord Ordinary held that, in accordance with authority rooted in Woolgar and followed more
recently in Nakash, collateral disclosure by the police can be made to a regulatory body, such
as its own disciplinary body, where it was in the public interest and in order to protect the
public. It was submitted that that conclusion was “reasonably predictable” and fell within
Lord Sumption’s dicta in R (Catt) at para 11. Whilst the Lord Ordinary did not find that the
disciplinary framework under the 2014 Regulations of themselves was sufficient, the rules
did provide a clear pathway for the use of the information and the purposes for that use and
should be part of the analysis.
[63]       Safeguards existed when the information was given to the relevant regulatory body
for a strictly limited purpose and the person affected was notified about the proposed
disclosure. The same decision was made in respect of communications between police
officers in Leicestershire Police (unreported).
Page 25 ⇓
25
Ground 3
[64]       It was submitted that esto, the reclaimers’ had a reasonable expectation of privacy,
any interference with that right was necessary, proportionate and aimed at ensuring the
legitimate interests of public safety and the prevention of disorder and crime. As the
Lord Ordinary observed, these matters were a particular focus of the respondents’
submissions (at [196]), a fact which was ignored by the reclaimers. The Lord Ordinary’s
reasoning was adopted. No error of law or fact was made by him. In relation to the
engagement of the legitimate interests of “public safety” and “the prevention of disorder or
crime”, the Lord Ordinary’s conclusion was fairly and properly built on a number of
propositions:
(a) the purpose of the police was the protection of the public;
(b) those acting as set out in the messages may be held to have contravened the
Standards;
(c) such officers can reasonably be inferred to be individuals who would lose public
confidence and cause a decline in the general public’s confidence in the police;
(d) maintaining public confidence was essential for policing by consent; and
(e) if the public lost confidence in the police, public safety would be put at risk as the
police could not operate efficiently without such confidence and the prevention of disorder
or crime would be compromised.
[65]       Having identified the relevant interests at issue, the Lord Ordinary correctly turned
to consider the necessity and proportionality, including the considerable importance of: (i)
maintaining public confidence in the police; and (ii) the protection of the public by the
police. It was reasonable for him to conclude that to maintain both, it was necessary for the
police to be regulated by a proper and efficient disciplinary procedure with the ability for
Page 26 ⇓
26
the police, where it lawfully obtains information which can inform disciplinary proceedings,
to disclose it to the relevant regulatory body. The respondents submitted that “… one of the
primary purposes of professional misconduct proceedings is to ensure the preservation of
public confidence in the profession in question”- under reference to R (Chief Constable of
Wiltshire Police) v Police Appeals Tribunal and Woollard [2012] EWHC Admin 3288, para 53. It
was necessary to recognise the link between public confidence and public safety in the
policing context.
[66]       The Lord Ordinary correctly found that Article 8(2) was engaged in respect of the
issues of public safety and the prevention of disorder or crime. Having made that finding, it
was a short step to find that a constable, if involved in the drafting and/or sending and/or
approving of the messages, could reasonably be inferred as someone who would lose the
confidence of the public and cause a decline in public confidence in the police. This
followed upon a careful analysis of how such an officer could be considered incapable of
carrying out his/ her duties impartially. It was an inevitable conclusion that public safety
was then at risk and the prevention of disorder or crime compromised.
[67]       Even if the reclaimers did have a reasonable expectation of privacy the
Lord Ordinary’s conclusion on proportionality would still be correct, because: (1) the
objective of the relevant legal basis was sufficiently important to justify the limitation
because public confidence in the police was of great importance- a point emphasised in
Woollard; (2) there was a clear rational connection between the aim and the objective since
the 2014 Regulations were an essential part of maintaining an effective police force and
public confidence in that force; (3) there was no less intrusive measure and the reclaimers
did not point to one; and (4) the intrusion was proportionate because it was limited and for
a purpose which clearly favoured disclosure in the public interest having regard to the
Page 27 ⇓
27
ensuing damage if the public felt that improper behaviour went unchecked and officers
could behave without accountability.
[68]       The reclaimersreliance on R (Chief Constable of Cleveland Constabulary) failed to
address the fact that misconduct was established, notwithstanding that the issue concerned
an aspect of the officer’s private life. In Leicestershire Police (unreported), it was also
determined in identical circumstances that the public interest required the disclosure of the
material.
[69]       It was disputed that the messages were understood as darkly humorous or a way of
forming meaningful relationships with friends. In fact the first, second and sixth reclaimers
had submitted reflective statements and accepted their behaviour was unacceptable; and the
sixth reclaimer had said she would not class any of the group as friends.
[70]       The reclaimers’ arguments were, in effect, asking the court to sanction conduct which
might, objectively construed, breach the Standards simply because the conduct was
undertaken in, what the reclaimers stated was a closed WhatsApp group. There was no
evidence before the Lord Ordinary that all the group members were known to one another.
The respondents were not seeking to censor behaviour but rather uphold the Standards and
the limitation set out in schedule 1 of the 2013 Regulations.
[71]       The messages spoke for themselves and raised the legitimate question of whether the
conduct could be such as to lead to a finding of misconduct or gross misconduct. It would
be a matter for the decision maker in the disciplinary proceedings to determine the
appropriate findings. The reclaimers would have the opportunity to explain the messages,
their meaning and their context in respect of the issues of whether there has a) been
misconduct; b) the level of that conduct; and c) the appropriate disposal.
Page 28 ⇓
28
[72]       It was not necessary for the development of the reclaimers’ police careers for them to
be allowed to disclose highly confidential and sensitive material to which they only had
access by virtue of their position as police officers or for them to be allowed to fail to treat
others with respect and tolerance. The titles of the two WhatsApp groups made it clear that
these communications were being entered into by virtue of their position as police officers.
Ground 4
[73]       It was fair for the messages to be used in the disciplinary proceedings and an
exclusionary remedy was neither appropriate nor necessary. The reclaimers failed to
articulate on what basis the Lord Ordinary erred. There was no justification for interfering
with his decision. The significance of the interests of public confidence, public safety, public
protection and the prevention of disorder and crime was such that, had there been any
breach of the reclaimers’ rights, it did not follow that exclusion of the evidence was
automatically required (Khan v United Kingdom (2001) 31 EHRR 45, paras 36-40).
[74]       The messages were, on any view, relevant material in the pending disciplinary
proceedings having regard to the reclaimers’ status as serving officers (see In the matter of the
Baronetcy of Pringle of Stichill [2016] SC (PC) 1, [2016] UKPC 16, para 77). In the words of Lord Hodge, the
admission of the evidence would “enable justice to be done”. In the context in which the
analysis of admissibility was taking place it was important to note that the first, second and
sixth reclaimers had accepted their behaviour as part of the group(s) and submitted
reflective statements. In all the circumstances, the use of the messages in disciplinary
proceedings was not unfair to the reclaimers.
Page 29 ⇓
29
Analysis and Decision
A general right of privacy?
[75]       Having concluded that there was a common law right of privacy in Scotland the
Lord Ordinary proceeded to address the issues only in terms of Article 8. That there were
stateable arguments for bringing the case within the terms of Article 8, and that the issues
between the parties fell to be determined according to principles applicable to Article 8
rights, was not disputed. No doubt for that reason there was no cross appeal questioning
the Lord Ordinary’s conclusion as to the existence and scope of a common law right of
privacy. I regard that as somewhat unfortunate, because it means that the issue was not a
live one for determination in this case. In the absence of a cross reclaiming motion we were
not addressed on the point at all. However, whilst I would be unwilling to decide the
matter without having the benefit of detailed submissions, I do not feel that the Lord
Ordinary’s conclusions on the matter can pass without comment.
[76]       The Lord Ordinary stated (para 124) that he considered there to be “a nascent
recognition of a common law right of privacy in the case law”, going on to confirm that in
his view it is a right which exists in the common law of Scotland. The process by which the
nascent right became fully established is not developed, at least in terms which specify the
nature, degree and scope of the right, or how it has progressed over time. The reasoning
which led to the Lord Ordinary’ conclusion was: (i) his assessment that the English courts
have developed a law of privacy by extension from the law providing a cause of action for
breach of confidence; (ii) the law on breach of confidence in Scotland is the same as that in
England; and (iii) the idea of a right of privacy was supported by observations in Henderson
v Chief Constable of Fife Police 1988 SLT 361 and Martin v McGuinness 2003 SLT 1424. The
Lord Ordinary does not examine in any detail what the precise nature and scope of such a
Page 30 ⇓
30
right might be, and has not recorded submissions as to these matters. His conclusion that
“the nature and scope of that right would I believe be the same as that protected in terms of
article 8 except that it would apply to bodies other than public authorities” is unexplained,
although one might deduce that it is a conclusion drawn from the influence of Article 8 on
the development of the law in respect of breach of confidence.
[77]       It seems to me that the reasoning which led the Lord Ordinary to conclude that there
is a fully developed right of privacy in Scots law concomitant in range and scope with
Article 8 may be questioned.
[78]       The foundation of his reasoning is the decision in Campbell v MGN Ltd [2004] 2 AC
457, but whether that case justifies the Lord Ordinary ’s conclusion is another matter. As I
read it the case was one which essentially rested on the use of confidential information,
namely details of therapy and treatment which were akin to the confidential material which
might be contained in medical records, and which gave rise to a duty of confidentiality.
There is an overlap between confidential information and privacy, since the former is clearly
an aspect of the latter, but the case was very focused on the former issue rather than on
developing some generally applicable right of privacy. As Lord Nicholls pointed out,
(para 12) Campbell concerned “one aspect of invasion of privacy: wrongful disclosure of
private information”, a wrong which he felt was better encapsulated (para 14) in the modern
phrase “misuse of private information”. The case had initially featured a claim asserting a
general invasion of privacy claim, but that had been abandoned at an early stage and the
case proceeded only on the confidential information point (see para 130, Lady Hale). Other
remarks making it clear that this was the basis of the case can be found in the speeches of
Lord Nicholls (para 11), Lord Hoffman (para 43), Lord Hope (para 82-83) and Lord Carswell
(para 162).
Page 31 ⇓
31
[79]       The extent to which the effect of the ECHR, specifically articles 8 and 10, had
significantly influenced the courts’ approach to the issue of misuse of confidential
information was an issue, and the court took the opportunity to confirm that the values
enshrined in articles 8 and 10 were now part of the cause of action for breach of confidence,
and were applicable between private individuals as much as against public authorities
(Lord Nicholls, paras 16-18), (Lord Hoffman, para 50), (Lord Hope para 86),
(Lady Hale, 132). The practical effect of this was that in common law actions relating to
misuse of private information the balancing exercise which a court may require to carry out
in weighing the public interest in maintaining confidence against a countervailing public
interest favouring disclosure was essentially aligned with the familiar proportionality test
which would arise between the competing interests under articles 8 and 10.
[80]       Campbell thus elaborated on, or explained, the extent to which private information
may be protected at common law, but did not go as far as to say that a fully protected right
of privacy had been established. Lord Nicholls said this at para 11:
“In this country, unlike the United States of America, there is no overarching, all-
embracing cause of action for "invasion of privacy": see Wainwright v Home Office
[2004] 2 AC 406. But protection of various aspects of privacy is a fast developing area
of the law, here and in some other common law jurisdictions. The recent decision of
the Court of Appeal of New Zealand in Hosking v Runting [2004] NZCA 34 is an
example of this. In this country development of the law has been spurred by
enactment of the Human Rights Act 1998.”
[81]       Observations to similar effect were made by Lord Hoffman (para 52), who noted that
the changes resulting from (a) modern recognition that a requirement for a confidential
relationship before private information could be protected was illogical; and (b) the
influence of the ECHR in this area,
“must influence the approach of the courts to the kind of information which is
regarded as entitled to protection, the extent and form of publication which attracts a
remedy and the circumstances in which publication can be justified.
Page 32 ⇓
32
[82]       In Campbell, however, it was “unnecessary to consider these implications” (para 53).
Lady Hale echoed the words of Lord Nicholls (para 133) under reference to Wainwright v
Home Office:
“That case indicates that our law cannot, even if it wanted to, develop a general tort
of invasion of privacy. But where existing remedies are available, the court not only
can but must balance the competing Convention rights of the parties.”
It seems to me therefore that the Campbell does not reach the conclusions which the
Lord Ordinary attributed to it.
[83]       The existence in Scotland of an obligation of confidence has long been recognised,
and here too the need for a confidential relationship has given way to a focus on the
knowledge of those possessing the information that it had been imparted in confidence
(Lord Advocate v Scotsman Publications 1988 SLT 490). I see no reason to think that the effect
of articles 8 and 10 in respect of this area of the law in Scotland is any different to that in
England, but it does not mean that there has thereby been created a widely applicable
general right of privacy.
[84]       The Lord Ordinary sought to strengthen his conclusions by reference to Henderson v
Chief Constable of Fife Police and Martin v McGuinness but again, I beg leave to doubt whether
these cases have that effect. Henderson was essentially about the liberty of the subject and
the extent to which it had been justifiable for a police officer to remove an intimate item of
clothing from a person in police custody. The whole analysis was related (as were the
submissions) to the issue of liberty and the limits of police authority. Lord Jauncey’s
conclusion on this aspect of the case was that the pursuer had:
“established that the request to remove her brassiere was an interference with her
liberty which was not justified in law, from which it follows that she has a remedy in
damages. I should perhaps add that the researches of counsel had disclosed no
Scottish case in which it had been held that removal of clothing forcibly or by
Page 33 ⇓
33
requirement could constitute a wrong but since such removal must amount to an
infringement of liberty I see no reason why the law should not protect the individual
from this infringement just as it does from other infringements and indeed as the law
of England did in very similar circumstances in Lindley v Rutter.
[85]       The only appearance of the word “privacy” occurs in the concluding paragraphs
dealing with damages where reference is made to the interference with, or invasion of
“privacy and liberty”. I do not see this case as advancing matters. The case of Lindley v
Rutter [1981] 1QB 128, a similar case on its facts, contains general references to the
desirability of protecting the personal freedom, privacy and dignity of citizens but was in
reality determined on the basis of action taken in excess of authority.
[86]       In Martin v McGuinness Lord Bonomy, in an entirely obiter section, summarised
submissions made to him about the possibility that there existed a general right of privacy.
The submissions were largely based on the extended approach being developed in respect of
misuse of information cases such as Campbell, with a side excursion into the actio iniuriarum.
His Lordship reached no decision on the issue, concluding [para 30]:
“I have done no more than reflect the submissions made. Whether an infringement
of art 8 by one private individual causing loss to another, which has not in the past
given rise to a successful claim, should now have that result, and the basis on which
such a claim may be made remain to be determined in a case where these questions
arise as live issues.”
I have difficulty in seeing that either of these cases supports the Lord Ordinary’s reasoning.
There is no doubt that the law in this area continues to evolve, and that the scope of
protection given to private information has expanded considerably, but I beg leave to doubt
that it has reached the absolute stage suggested by the Lord Ordinary.
WhatsApp
[87]       It is uncontentious to observe that correspondence, including electronic
correspondence, is within the area of private life which is protected by Article 8, or that such
Page 34 ⇓
34
protection may be afforded even within the context of an individual’s professional life. The
Lord Ordinary considered that the general characteristics of WhatsApp were such that,
compared with other social media platforms, an ordinary member of the public using it
could have a reasonable expectation of privacy. Again, this determination was not the
subject of challenge, or detailed submissions, and I propose therefore to restrict my
comments to two specific areas of the Lord Ordinary’s reasoning.
[88]       The first relates to the Lord Ordinary’s conclusion that “the messages were
exchanged within a confidential context”. Although referring to “the messages” this
comment (para 137) appears to relate to the generality of messaging in WhatsApp; it is not
apparent to me that this can be said of WhatsApp messaging as a generality. The factors
referred to by the Lord Ordinary for his decision that there would be a reasonable
expectation of privacy do not seem to justify this further conclusion as to the confidentiality
of information thus exchanged. The extent to which the test for a reasonable expectation of
privacy applied for the purposes of Article 8 is the same as that applied to misuse of
confidential information at common law does not appear to have featured in the
submissions. The Lord Ordinary’s comments about confidentiality appear to be more
relevant to the latter, which requires at the least the identification of some private matter
which the claimant wishes to protect (Campbell, Lord Hope, para 92). The approach of the
Lord Ordinary may give rise to the risk of confusion between two separate issues.
[89]       The second point is a related one, because the Lord Ordinary also concluded that the
reclaimers all “had trust and confidence in other members of the group” which seemingly
enhanced the likelihood of their having a reasonable expectation of privacy. I find it difficult
to understand how such a conclusion could be reached having regard to the affidavits and
written statements which were contained in the material before the court. Moreover, it is
Page 35 ⇓
35
difficult to see how such trust and confidence could exist when the members of the group
knew that each one of them was bound to report, challenge or take action against any of the
others who exhibited behaviour which was below that expected in the standards applicable
to police officers. However, since neither of these matters was the subject of attack in the
hearing before this court, (although touched on in submissions for the respondents) I shall
say no more and simply proceed to address the remaining issues as arising in the grounds of
appeal.
Ground 1 - Reasonable expectation of privacy
[90]       The basic point advanced here is that the Lord Ordinary erred (a) in deciding that the
reclaimersattributes as constables were relevant to whether they had a reasonable
expectation of privacy and (b) in considering that these attributes allowed the contents of the
messages to be taken into account. It was submitted that neither the content of the messages
nor the attributes of an individual would normally fall to be taken account of at the stage of
the threshold question.
[91]       The Lord Ordinary considered that the zone of interaction covered messages in a
private context even if their content is of an abhorrent nature. Whilst that appears to be an
absolute proposition, it seems that the Lord Ordinary may not have intended it to be taken
as such, since his eventual conclusion was that “normally the content of behaviour does not
sound when consideration is being given to the question of reasonable expectation of
privacy” (para 159), drawing that conclusion from the judgment of Lord Nicholls in Campbell
(para 21):
“in deciding what was the ambit of an individual's "private life" in particular
circumstances courts need to be on guard against using as a touchstone a test which
brings into account considerations which should more properly be considered at the
later stage of proportionality. Essentially the touchstone of private life is whether in
Page 36 ⇓
36
respect of the disclosed facts the person in question had a reasonable expectation of
privacy.”
[92]       The examples he went on to give in para 22 were the degree of intrusion into private
life and the extent to which publication was a matter of proper public concern. I have little
difficulty in agreeing with the Lord Ordinary that the content of correspondence is of much
greater relevance in addressing the question whether its use is justified, and that unpleasant
or unworthy content does not necessarily, or even usually, mean that the protection of
Article 8 cannot be invoked. I accept also that the balancing exercise necessary under a
proportionality assessment is not part of the threshold question. I am less able to see that
content is of no relevance at all to the question of whether there is a reasonable expectation
of privacy. For example, the fact that material relates to medical treatment of an individual
may be sufficient to make it obviously private; and even where the assessment of reasonable
expectation arises the content may be relevant to that question. In Campbell Lord Nicholls
appears to have addressed the nature of the material himself when asking the threshold
question: see paras 24-27. See also Lord Carswell at para 165.
[93]       In In Re JR38 2016 AC 1131 the UKSC indicated that the touchstone test was an
objective one, to be applied broadly having regard to all the circumstances of the case. One
of those circumstances would surely be the content of the material in question, as would the
means by which the material came into the hands of those seeking to use it. Counsel for the
respondents was correct in my view to highlight the fact that there was no question in this
case of covert or underhand behaviour in the recovery of the material, or any issue of
surveillance. In any event, the Lord Ordinary did take into account the content, since he
considered it open to him to do so having regard to what he described as the attributes of
the reclaimers as police officers. In my opinion he was entitled to do so. I do not accept the
Page 37 ⇓
37
reclaimers’ submission that “attributes” is limited to matters specifically personal to an
individual and cannot reflect their status. This does not seem to me to accord with either In
Re JR38 or Murray v Express Newspapers [2009] Ch 481. It is true that in both cases amongst
the attributes under discussion was the fact that the claimant was a child but I do not think
the observations can thereby be deprived of general application when one considers the
context in which they were made. The passage in Murray, quoted in In Re JR38, at para 36 is
as follows:
“As we see it, the question whether there is a reasonable expectation of privacy is a
broad one, which takes account of all the circumstances of the case. They include the
attributes of the claimant, the nature of the activity in which the claimant was
engaged, the place at which it was happening, the nature and purpose of the
intrusion, the absence of consent and whether it was known or could be inferred, the
effect on the claimant and the circumstances in which and the purposes for which the
information came into the hands of the publisher.”
[94]       This seems to me to be of general application, setting out a broad test. It is not
limited to the fact of the claimant being a child, since that difference was addressed in what
followed:
“37. In the case of a child the position is somewhat different from that of an adult.”
[95]       In In Re JR38 images of a child involved in rioting had been captured on CCTV. At
the request of police images were published in local newspapers to assist in identification of
those involved. The central issue in the case was whether there had been a reasonable
expectation of privacy. At para 88, Lord Toulson said:
“Applying Campbell’s case, Sir Anthony Clarke MR said in Murray’s case at para 35
that The first question is whether there is a reasonable expectation of privacy’. He
said at para 36 that the question is a broad one which takes account of all the
circumstances of the case, including the attributes of the claimant, the nature of the
activity in which the claimant was involved, the place at which it was happening,
and the nature and purpose of the intrusion. The principled reason for the
“touchstone” is that it focuses on the sensibilities of a reasonable person in the
position of the person who is the subject of the conduct complained about in
considering whether the conduct falls within the sphere of article 8.”
Page 38 ⇓
38
He added:
“97 In considering whether, in a particular set of circumstances, a person had a
reasonable expectation of privacy (or legitimate expectation of protection), it is
necessary to focus both on the circumstances and on the underlying value or
collection of values which article 8 is designed to protect.”
[96]       Lord Clarke was to similar effect:
“The law is to be applied broadly, taking account of all the circumstances of the case.
In Lord Steyn’s famous phrase, in law context is everything.”
[97]       The circumstances of the case would include the nature of the activity, or in this case,
the content of the correspondence. I recognise that In Re JR38 was concerned with behaviour
which had taken place in public, and criminal behaviour at that, but I do not think that the
relevance of the factual matrix to the question of reasonable expectation of privacy is limited
to circumstances where the activity takes place in a public context.
[98]       The suggestion that a person’s status as a public official, or as here the holder of a
public office, is a relevant factor in assessing the threshold test is in my view consistent with
Sciacca v Italy (2006) 43 EHRR 20 where the fact that the claimant was an "ordinary person",
and not a public figure or politician, was said to enlarge the zone of interaction which could
fall within the scope of private life. The fact that the reclaimers are holders of a public office
by virtue of which they have accepted certain restrictions on their private life is relevant to
the question of whether they may in the circumstances be said to have had a reasonable
expectation of privacy. As counsel for the respondents submitted, the reclaimers are not in
the position of mere employees: they are the holders of a public office who are subject to a
strict regulatory framework which is essential for the preservation of public confidence and
the proper discharge of their duties as police officers.
Page 39 ⇓
39
[99]       Moreover, the nature of the material in question is relevant to that question. The
Lord Ordinary accepted that a reasonable person would be entitled to agree with the
respondents’ description of the content of the messages as being
“blatantly sexist and degrading, racist, anti-Semitic, homophobic, mocking of
disability and includes a flagrant disregard for police procedures by posting crime
scene photos of current investigations”.
[100]       That is in my view a categorisation that the messages are capable of bearing.
Furthermore, the Lord Ordinary considered that, when examined against the standards to
which the reclaimers were subject they were capable of calling into question the reclaimers’
ability impartially to discharge their duties. The messages do not contain material which is
personal to the reclaimers, although it does touch on material which may be personal to
other individuals. Apart from the many messages which call into question the extent to
which the reclaimers recognised their duty, reflected in their oath, to uphold fundamental
rights and accord equal respect to all people according to the law, there were other messages
which were a clear breach of the duty to keep confidential information obtained in the
course of their duties, such as the sharing of photographs of weapons recovered, or of an
individual in police custody. As the Lord Ordinary noted (para 172):
“The petitioners were exchanging messages within a group of people whom they
knew were under a positive obligation to report messages of the type above
described where originating from other constables. This must, when viewed
objectively, have greatly increased the risk of disclosure of the messages by a
member of the group.”
The Lord Ordinary did not conclude that there could be no private life for a serving police
officer, 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. In addressing the issues he
applied the appropriate broad, objective test. In all the circumstances I consider that the
Page 40 ⇓
40
Lord Ordinary was entitled to reach the conclusion that in the circumstances the reclaimers
could have had no reasonable expectation of privacy in respect of the messages in question.
There was thus no interference with the reclaimers’ rights under Article 8(1) ECHR.
Ground 2 was there a clear and accessible legal basis for disclosure and use of the
messages
[101]       The Lord Ordinary proceeded on the basis that the requirement for a clear and
accessible basis for disclosure and use of the material meant, under reference to Halford v
United Kingdom (1997) 24 EHRR 523, that:
“the domestic law must be sufficiently clear in its terms, to give police officers an
adequate indication, as to the circumstances and the conditions on which a public
authority “the police”, who recover information in the course of lawful criminal
investigations in respect of one member of the police force, can disclose to the police
for the purposes of considering the bringing and thereafter the use in disciplinary
proceedings in respect of other officers.”
[102]       In concluding that there was an accessible and foreseeable legal basis for the
intended use the Lord Ordinary relied heavily upon Woolgar v Chief Constable of Sussex Police
UKCC [2000] 1 WLR 25 which concerned a registered nurse, interviewed under caution by
police following the death of a patient. The matter having otherwise been referred to the
relevant regulatory body, that body sought release from the police of the information in
question. Rejecting the argument that the material, which had been gathered for the
purpose of the criminal investigation, could not be used for a collateral disciplinary purpose,
the court decided that:
“where a regulatory body such as UKCC, operating in the field of public health and
safety, seeks access to confidential material in the possession of the police, being
material which the police are reasonably persuaded is of some relevance to the
subject matter of an inquiry being conducted by the regulatory body, then a
countervailing public interest is shown to exist which, as in this case, entitles the
police to release the material to the regulatory body on the basis that, save in so far as
it may be used by the regulatory body for the purposes of its own inquiry, the
confidentiality which already attaches to the material will be maintained.”
Page 41 ⇓
41
[103]       I think there is some merit in Mr Sandison’s submission that in Woolgar the court
went straight to the issue of proportionality, and did not really address the question with
which this ground of appeal is concerned. However, the Lord Ordinary did not rely solely
on Woolgar. He referred to Marcel v Commissioner of Police for the Metropolis [1992] Ch 225
where a question arose whether documents seized under statutory police powers for
investigating crime could be used for an ancillary purpose. Sir Nicholas Brown-Wilkinson
V-C observed (p234):
“there manifestly must be some limitation on the purposes for which seized
documents can be used. Search and seizure under statutory powers constitute
fundamental infringements of the individual’s immunity from interference by the
state with his property and privacy - fundamental human rights ... the Act has to be
interpreted having regard to its subject matter, i.e., provisions conferring police
powers for police purposes. Powers conferred for one purpose cannot lawfully be
used for other purposes without giving rise to an abuse of power. Hence, in the
absence of express provision, the Act cannot be taken to have authorised the use and
disclosure of seized documents for purposes other than police purposes.”
[104]       At p 235 the passage which found particular resonance with the Lord Ordinary
states:
“police are authorised to seize, retain and use documents only for public purposes
related to the investigation and prosecution of crime and the return of stolen
property to the true owner. Those investigations and prosecutions will normally be
by the police themselves and involve no communication of documents or
information to others. However, if communication to others is necessary for the
purpose of the police investigation and prosecution, it is authorised. It may also be,
though I do not decide, that there are other public authorities to which the
documents can properly be disclosed, for example to City and other regulatory
authorities or to the security services. But in my judgment the powers to seize and
retain are conferred for the better performance of public functions by public bodies
and cannot be used to make information available to private individuals for their
private purposes.”
[105]       The Lord Ordinary also relied upon R v Chief Constable of North Wales ex parte
AB 1999 QB 396 and the following observations:
Page 42 ⇓
42
“When, in the course of performing its public duties, a public body (such as a police
force) comes into possession of information relating to a member of the public, being
information not generally available and potentially damaging to that member of the
public if disclosed, the body ought not to disclose such information save for the
purpose of and to the extent necessary for performance of its public duty or enabling
some other public body to perform its public duty” (Lord Bingham of Cornhill CJ at
409H)
“… information acquired by the police in their capacity as such, and when
performing the public law duties that Lord Bingham CJ has set out, cannot be
protected against disclosure in the proper performance of those public duties by any
private law obligation of confidence. That is not because the use and publication of
confidential information will not be enjoined when such use is necessary in the
public interest, though that is undoubtedly the case. Rather, because of their
overriding obligation to enforce the law and prevent crime the police in my view do
not have the power or vires to acquire information on terms that preclude their using
that information in a case where their public duty demands such use.” (Buxton J,
p415B
[106]       These comments were approved on appeal:
“information having come into the police's possession to enable them to perform
their functions, as a public body they were only entitled to use that information
when this was reasonably required to enable them to properly carry out their
functions.” (Lord Woolf, MR, p429)
[107]       The Lord Ordinary drew from these observations the conclusion that there was a
clear and accessible basis upon which the police could disclose to regulatory bodies
information which they recovered in the course of criminal investigations. He added:
“It seems to me that this must be the position in a case such as the present one where
the police are referring the information recovered to their own internal disciplinary
body. There is a public interest in having a properly regulated police force in order
to protect the public and thus it is lawful that information recovered in criminal
proceedings by the police can be passed to its own disciplinary body for that strictly
limited purpose (and there is no suggestion in the present case that it will be used for
any other purpose).”
[108]       In my view the Lord Ordinary was correct in reaching this conclusion. The
discretion to use the material is limited by nature of the public interest which the disclosure
is to meet. I should not be taken as suggesting that any amorphous or vague public interest
may be sufficient to provide the clear and accessible basis necessary. On the contrary, in the
Page 43 ⇓
43
present case it seems to me that there is a very clear, specific public interest in the
maintenance of a properly regulated police force and its importance to the retention of
public confidence and the proper discharge of police duties.
[109]       In addition, it is in my view an interest which falls within general policing purposes,
such that the fact that the police would be entitled to forward the information would be
accessible to the reclaimers and the consequences of doing so foreseeable. Mr Sandison
submitted that the encapsulation of policing purposes could be found in para 9 of R (Catt) v
ACPO per Lord Sumption:
“’police purposes’ … are defined … as protecting life and property, preserving order,
preventing crime, bringing offenders to justice and performing any legal duty or
responsibility of the police”.
He accepted that if disclosure were for such a purpose then such a measure would be
capable of being in accordance with law. In my view Mr Sandison, in suggesting that the
use for which the material was intended in this case fell outwith the definition of “police
purposes” viewed the matter through too narrow a prism. The definition which he himself
submitted includes references to any legal duty or responsibility of the police. That in my
view is wide enough to include the responsibility of maintaining police discipline in order
that all wider policing purposes may properly be carried out.
[110]       In R v Chief Constable of North Wales ex parte AB at p410, Lord Bingham quoted
Lord Parker CJ in Rice v Connolly [1966] 2 QB 414 that whilst the obligations and duties of a
police officer would include the obvious ones of keeping the peace, preventing or detecting
crime and bringing an offender to justice, “There is no exhaustive definition of the powers
and obligations of the police”.
[111]       In this respect section 32 of the Police and Fire Reform (Scotland) Act 2012 Act is
relevant:
Page 44 ⇓
44
32 Policing principles
The policing principles are
(a) that the main purpose of policing is to improve the safety and well-being of
persons, localities and communities in Scotland, and
(b) that the Police Service, working in collaboration with others where
appropriate, should seek to achieve that main purpose by policing in a way which
(i) is accessible to, and engaged with, local communities, and
(ii) promotes measures to prevent crime, harm and disorder.”
[112]       The maintenance of a properly regulated police force is in my view something which
squarely falls within an identifiable policing purpose. The disclosure of the information at
issue would not be arbitrary but would be dictated by consideration of the relevant policing
standards and breaches thereof. Disclosure is for that limited purpose and no other. I am
satisfied that the Lord Ordinary reached the correct conclusion on this matter and that this
ground of appeal must be rejected.
Ground 3 whether the Lord Ordinary erred in finding that the intended disclosure and
use was necessary and proportionate
[113]       Esto the circumstances had amounted to an interference with the reclaimersArticle
8(1) rights, the Lord Ordinary concluded that the disclosure was necessary in the interest of
public safety and prevention of disorder or crime, and would thus be justified according to
Article 8(2). He considered that an officer who behaved in the way revealed in the messages
could reasonably be inferred to be likely to be someone who would lose the confidence of
the public and cause a decline in the general public confidence in the police. It was essential
for the purpose of successful policing that the police maintain the confidence of the public,
without which public safety would be at risk - the police could not operate efficiently
without such public confidence, and would be less able to prevent disorder or crime.
Page 45 ⇓
45
Certain of the messages showed a mindset where the public’s right to be treated fairly is
called into question for example depending on their race, religion or sexuality. That officers
hold these views is likely to weaken the confidence of the public and put public safety at
risk.
[114]       On the issue of proportionality, the importance of public confidence in the police was
considerable. To maintain public confidence and to protect the public it was necessary for
the police to be regulated by a proper and efficient disciplinary procedure. The
Lord Ordinary considered the matter to be heavily weighted on the side of disclosure. It
was submitted that in reaching that conclusion he had given insufficient weight to the
counterbalancing interest which would lie in protecting the Article 8 rights of the reclaimers.
It is true that the Lord Ordinary did not repeat the issues which bear on this matter but he
clearly understood that what was involved was not a one sided assessment but a balancing
exercise, having regard to the detailed submissions on the matter which were made to him.
In any event, in my view the Lord Ordinary reached the correct conclusion on this matter.
Had the reclaimers had a reasonable expectation of privacy their Article 8 rights would be
an important factor in the balancing exercise, worthy of preserving “even in the small
cases”. Their protection would be an important competing public interest. The fact of the
messages having been exchanged amongst a select group of participants would be relevant.
Equally relevant however, would be the content of the messages in the context of the
responsibilities of individual police officers. There is a strong public interest in knowing
that officers who behave in this way will be subject to disciplinary proceedings. Other
factors which would be relevant would be that the messages came to the attention of the
police in a legitimate way in the course of a criminal investigation, and not by any covert
means. An important aspect of the duties of a police officer is “to maintain order” (section
Page 46 ⇓
46
20(1)(b) of the 2012 Act). Their ability to do so depends largely on being able to maintain
public confidence in the holders of their office. Public confidence that police officers will
approach their duties fairly and impartially across all communities is critical to the notion of
policing by consent. We can see from recent examples in this country and elsewhere what
can happen when that public confidence is placed at risk. The objective of maintaining it is
sufficiently important to justify the restriction on the reclaimersArticle 8 rights. The
information would be disclosed only to the regulatory body and only for a limited purpose.
The information, as noted above, does not contain material of a personal nature in respect of
any of the reclaimers. There is a clear rational connection between the aim and the objective.
The level of intrusion is limited to the extent necessary for the maintenance of public
confidence.
Ground 4 whether it would in any event be fair for the messages to be used in
disciplinary proceedings
[115]       It was recognised by the reclaimers that the issue here was a matter for the Lord
Ordinary to determine as a matter of fairness having regard to all the circumstances. As the
Lord Ordinary noted, he did not require to deal with this matter, and he did so by reference
back to the whole circumstances as he had determined them to be. It is not suggested that
the Lord Ordinary left out of account any element which bore on the question of fairness, or
included any irrelevant consideration. I can detect no error in his approach and I would
refuse also this ground of appeal.
Addendum
[116]       Shortly after the court made avizandum in this case, and the preparation in draft of
this opinion, the UKSC issued its decision in Sutherland v HM Advocate [2020] UKSC 32 (now
Page 47 ⇓
47
reported 2020 SLT 745). We accordingly invited parties to make short submissions in
writing on the potential impact of that decision.
Additional submissions for the reclaimers
[117]       The reclaimerssubmissions were to the effect that the differing circumstances of
Sutherland meant that it had no impact on the submissions already made or the correct
outcome of the case. There were five points of material distinction.
i.
This case, unlike Sutherland, involved state interference. It involved police constables
interfering with the petitioners’ communications in exercise of their statutory powers. The
collateral use of information gathered for an initially legitimate purpose of investigating
crime is fundamentally different from the context of Sutherland where the disclosure was
voluntary and from an entirely private individual. The case of Sutherland confirms that
Article 8 may be engaged even where the conduct in question is not in itself worthy of
respect in accordance with the scheme of the ECHR, supporting the contention that Article 8
is engaged in the present circumstances, and that the content of the messages is not usually a
relevant consideration.
ii. The case did not involve communication with a child, or someone who was believed
to be a child.
iii. The conduct in Sutherland was criminal, which was not the case here.
iv. Unlike Sutherland this is not a case of messages being sent ‘out of the blue’; rather it is
a case of messages being sent in a closed group of individuals who shared a pre-existing
bond of trust and confidence, and none of whom voluntarily disclosed the content.
v. Sutherland did not involve any new statements of principle or any other analogous
factual context. The discussion of the authorities on reasonable expectation of privacy is
Page 48 ⇓
48
orthodox and refers to many of the same authorities as were mentioned in the petitioners’
primary submissions.
Additional submissions for the respondents
[118]       The Lord Ordinary’s decision that the petitioners had no reasonable expectation of
privacy in the circumstances is consistent with the decision in Sutherland which applied the
same broad, objective test as the Lord Ordinary had, following In re JR38. Sutherland
concerned two compatibility issues, the first of which was: “whether, in respect of the type
of communications used by the appellant and the PH [“paedophile hunter”] group, article 8
rights may be interfered with by their use as evidence in a public prosecution of the
appellant for a relevant offence”. The court held that there was no interference with the
appellant’s Article 8 right for two reasons, first that the nature of the communications from
the appellant to the person whom he believed to be a child, was not worthy of respect, and
second that the appellant had no reasonable expectation of privacy in relation to the
communications. The UKSC noted that Article 8(1) may be engaged when the conduct itself
is not worthy of respect under reference to Benedik v Slovenia
CE:ECHR:2018:0424JUD006235714. Benedik did not establish that the nature of the conduct is
irrelevant as this was a matter which depended on context. At para 60 the UKSC noted that
there was “an area of overlap between the issue of reasonable expectation of privacy and the
issue of the nature of the communications by the appellant…”. What was at issue in Benedik
was not the abhorrent conduct but the systematic storage of subscriber information
associated with specific dynamic IP addresses assigned at certain times and from which the
applicant’s identity could be determined. It was the interest in having his identity protected,
in respect of online activity, which merited protection.
Page 49 ⇓
49
[119]       The factual circumstances in Sutherland were markedly similar to the present case:
the messages were on WhatsApp which is protected by end-to-end encryption and were not
shared with others; there was no surveillance or interception by the state; the appellant
participated fully in the communications and was aware that they were reaching the
intended recipient; by the time the police were informed, the activity had already been
carried out.
[120]       There were three points of particular relevance. First, in applying the broad objective
test under In re JR38, the court held that in addition to factors such as the nature of the
relationship between sender and recipient, and absence of state surveillance, regard could
also be had to the content of the communications. Second, at para 58 the court stated that:
“In the present context, the appellant may have enjoyed a reasonable expectation of
privacy in relation to his communications for the purposes of article 8(1) so far as
concerned the possibility of police surveillance or intrusion by the wider public, but
he had no reasonable expectation of privacy in relation to the recipient of his
messages. He could not reasonably expect that, where his messages constituted
evidence of criminal conduct on his part, the recipient would not pass them on to the
police”
This was a relevant finding in the present case which involved police officers whose
recognised and accepted statutory duty was to report, challenge or take action against the
conduct of other constables which had fallen below the relevant standards, a duty which
took precedence over any relationship of trust and confidence. Given that the content of
the messages was open to interpretation as conduct in breach of the relevant standards the
senders could have no reasonable expectation that they would be kept private. Finally, in
para 60 the UKSC noted In Re JR38 as authority for the proposition that “the nature of the
information in question is relevant as part of the context in which an assessment whether a
reasonable expectation of privacy exists is to be made”. The value(s) which the petitioners
seek to uphold are essentially their right as police officers to exchange messages between
Page 50 ⇓
50
them which are not only offensive to communities they should serve and their fellow
officers but also infringe the rights of others by breach of their own duty of confidentiality in
respect of information they hold only by virtue of their privileged status as police officers.
They could not in these circumstances have any reasonable expectation of privacy.
Sutherland confirms that the Lord Ordinary’s interpretation of the case of In re JR38, was
correct.
Conclusions
[121]       The extent to which the present case involved interference by the state relates to the
use by the state of material which came into its hands for another, legitimate purpose. There
is no question of surveillance, covert operations, bugging or the like. To that extent the
circumstances are more similar to those of Sutherland than to such cases, even though the
information was discovered by police in the course of an inquiry, rather than handed over to
them for the purpose to which it is now intended to be put. The real question is the extent to
which collateral use of information properly obtained for a legitimate investigative purpose
may be permitted.
[122]       The present case turns to a significant extent on the question whether the reclaimers
had a reasonable expectation of privacy. Sutherland has not in my view innovated on the test
to be applied in such circumstances or altered the factors which are relevant to that issue.
On the contrary, it is a decision in line with the well-established authorities referred to
above, in particular Campbell and In Re JR38 already referred to. In particular, Sutherland
emphasises that whether there is a reasonable expectation of privacy is a question requiring
an objective assessment on all the facts. In addition, the content of the messages in question
was seen as a relevant factor in that assessment (para 56, and in particular paras 60-61).
Page 51 ⇓
51
Para 58 also suggests that the attributes of those involved in the communication may be a
relevant factor. Accordingly, I see nothing in Sutherland which is inconsistent with the views
which I have expressed above. In conclusion therefore I consider that the reclaiming motion
must be refused.
Page 52 ⇓
52
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 61
P105/18
Lord Justice Clerk
Lord Menzies
Lord Malcolm
OPINION OF LORD MENZIES
in the Petition
by
BC and OTHERS
Petitioners and Reclaimers
against
IAIN LIVINGSTONE QPM, CHIEF CONSTABLE OF THE POLICE SERVICE OF
SCOTLAND and OTHERS
Respondents
________________________
Petitioners and Reclaimers: Sandison QC and T Young; MacRoberts LLP
Respondents: Maguire QC and Lawrie; Clyde and Co (Scotland) LLP
16 September 2020
[123]       I am grateful to your Ladyship in the chair for setting out so clearly the background,
issues & submissions in this matter. I am in such complete agreement with the conclusions
which you have reached, and the reasoning behind these, that there is little need for me to say
anything further. However, in view of the importance of the subject, I should like to add a
few observations of my own, largely by way of emphasis.
Page 53 ⇓
53
[124]       Your Ladyship expresses concerns (at paragraphs [75]-[86] above) about the
foundation for the Lord Ordinary’s conclusion that there exists a common law right of
privacy in Scotland. I share these concerns. However, in the absence of any cross-appeal on
this point, and so without our having had the benefit of hearing any submissions on it, I
express no views on the subject.
[125]       The first Ground of Appeal, relating to whether the reclaimers had a reasonable
expectation of privacy, is of central importance in the case. As senior counsel for the
reclaimers put it in his submissions to this court, this is the threshold question – if he doesn’t
get over it, that is the end of the reclaimers’ case. He argued that there had to be a “private
zone” for police officers – a room for private discourse off the record, for informal discussion
between friends. In this regard he referred us to Bărbulescu v Romania, [2017] IRLR 1032,
particularly at para 71. While he accepted that the regulations required to be given due
weight, they were not determinative of the question of whether the reclaimers had a
reasonable expectation of privacy.
[126]       For my part I do not suggest that the regulations are inevitably determinative of the
question, but they are a factor of very considerable weight in deciding whether the
reclaimers had a reasonable expectation of privacy. When deciding this issue the court
should have regard to all the circumstances of the case, including the attributes of the maker
of a statement (In re JR38, particularly at para 88; Murray v Express Newspapers). In this
regard, I do not accept the submission by senior counsel for the reclaimers that an
“attribute” in this context is nothing so ephemeral as a mere job or occupation – I consider
that the fact that a person holds a particular office, with recognised responsibilities, duties
and restrictions, may well form part of an “attribute”. However, it is well settled and
established by these authorities that the court, when deciding whether or not there is a
Page 54 ⇓
54
reasonable expectation of privacy, should not limit its consideration only to the attributes of
the person making the statement, but should consider all the circumstances of the case.
These may include the attributes of the person to whom the statement or communication has
been made.
[127]       In the present case the reclaimers were aware that not only they themselves but also
some, if not all, of the recipients of the messages were serving police officers who were
subject to the Police Service of Scotland Regulations 2013 (SSI 2013/35), and the Police
Service of Scotland (Conduct) Regulations 2014 (SSI 2014/68), the relevant passages of which
are set out above at paragraphs [5]-[8]. They were therefore aware that some or all of the
recipients of the messages were under a sworn duty to report, challenge or take action
against the conduct of other constables which had fallen below the Standards of Professional
Behaviour.
[128]       If a person makes a statement to a journalist who explains that he is recording their
conversation and will publish it verbatim, any reasonable expectation will, in general, fly off.
The attributes of the recipient of a message or statement are one of the relevant
circumstances for the consideration of the court. Similarly, if a person sends messages to
others whom he knows to be under a sworn duty to report them, this will be a relevant
circumstance of some weight in the court’s consideration.
[129]       The phrase “all the circumstances of the case” includes the attributes of the
reclaimers (including their status as the holders of a public office), the attributes of the
recipients, and the content of the messages, and may well include other relevant
circumstances. I can find no error of law by the Lord Ordinary in his consideration of the
issue of whether there was a reasonable expectation of privacy. I agree that there was no
interference with the reclaimers’ rights under Article 8(1) ECHR.
Page 55 ⇓
55
[130]       That is sufficient to dispose of the reclaiming motion senior counsel for the
reclaimers accepted that issues as to whether the use of the messages was not in accordance
with law, proportionality, and the appropriateness of an exclusionary remedy, would only
arise if the reclaimers succeeded on the threshold issue. However, as we were favoured
with careful submissions on these other points, I shall comment briefly on some of them.
[131]       With regard to the second Ground of Appeal, it is clear from the authorities to which
the Lord Ordinary and your Ladyship in the chair have referred that it may be in accordance
with law, in certain circumstances, for the police to pass information which they have
obtained in the course of a criminal investigation to a regulatory body. It is worthy of note
(as the Lord Ordinary noted at para [188] of his opinion, quoted above at para [107]) that in
this case there is no question of disclosure to an external body the information was
referred to Police Scotland’s own internal disciplinary body.
[132]       The maintenance of a properly regulated police force is important in retaining public
confidence in the police, which is itself of great importance in the proper discharge of police
duties.
[133]       Senior counsel for the reclaimers accepted the summary given by Lord Sumption at
paragraph 9 of his opinion in R (Catt) v ACPO [2015] AC 1065 of “policing purposes”, as
these are defined in paragraph 2.2 of the Code of Practice on the Management of Police
Information, issued by the Secretary of State in July 2005 under section 39A of the Police Act
1996 in relation to England, namely “protecting life and property, preserving order,
preventing crime, bringing offenders to justice and performing any legal duty or
responsibility of the police”. It seems to me that the duties imposed by the 2013 & 2014
Regulations are of importance when considering the last element of this summary.
Page 56 ⇓
56
[134]       Mr Sandison submitted that as a matter of practicality it was necessary for police
officers to be able to determine the sphere of application of rules relating to disclosure of
information, and that the result of the Lord Ordinary’s decision was to confer a discretion on
the police authorities so vague as to depend on the will or whim of the respondents. I do
not agree. I consider that the accessibility test, as discussed in R(P) v Justice Secretary
[2019] 2 WLR 509, particularly by Lord Sumption at paras 16 & 17, has been met here. If the
reclaimers had sought professional legal advice, they would have been able to discover that
it would be open to the respondents to make use of these messages in disciplinary
proceedings against them. I can find no error of law in the Lord Ordinary’s consideration of
this issue.
[135]       In terms of his third Ground of Appeal, Mr Sandison accepted that the court had
some margin of appreciation as to whether any interference with the reclaimers’ Article 8(1)
rights was proportionate or not. He submitted that in this case disclosure of the messages
was disproportionate, for 4 broad reasons (1) the public interests are not all on one side
although a general public interest in the efficient conduct of police disciplinary proceedings
was accepted, there was also a substantial public interest in maintaining privacy &
confidentiality generally; (2) private communications that have never been published
cannot rationally be a substantial threat to public confidence in the police; (3) although it
was accepted that the messages were unguarded and not carefully expressed, there was
nothing in them which amounted to criminal conduct; and (4) in a properly balanced and
nuanced balancing exercise the decision to disclose was disproportionate.
[136]       I am not persuaded by these submissions for the reclaimers. The Lord Ordinary
carried out a careful balancing exercise, and concluded that the public interest in effective
disciplinary proceedings outweighed other interests. I am unable to say that he was wrong
Page 57 ⇓
57
in reaching this conclusion. Public confidence in the police is central to effective policing.
Such restriction on the reclaimers’ Article 8 rights as there might have been (but which, for
the reasons given above, I have concluded did not occur in this case) was in my view
proportionate.
[137]       I have no additional comments to make regarding the fourth Ground of Appeal.
[138]       With regard to the recent decision of the UKSC in Sutherland v HM Advocate 2020
SLT 745, I agree with the views expressed by your Ladyship in the chair in the addendum to
your opinion. The decision in Sutherland supports my view that the reclaimers did not have
a reasonable expectation of privacy in all the circumstances of the present case. It is
consistent with the approach taken in In re JR38, and with my view that “all the
circumstances of the case” includes the attributes of both sender and recipient, the nature of
the relationship between them, and the content of the messages. I consider that this decision
supports the position of the respondents, and is consistent with the reasoning of this court. I
do not think it provides any support for the reclaimers’ position, so I need say no more
about it.
[139]       I agree that the reclaiming motion should be refused.
Page 58 ⇓
58
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk
Lord Menzies
Lord Malcolm
[2020] CSIH 61
P105/18
OPINION OF LORD MALCOLM
in the Petition
by
BC and OTHERS
Petitioners and Reclaimers
against
IAIN LIVINGSTONE QPM, CHIEF CONSTABLE OF THE POLICE SERVICE OF
SCOTLAND and OTHERS
Respondents
________________________
Petitioners and Reclaimers: Sandison QC and T Young; MacRoberts LLP
Respondents: Maguire QC and Lawrie; Clyde and Co (Scotland) LLP
16 September 2020
[140]       While I am in full agreement with the opinions of your Ladyship and your Lordship,
I wish to add a few observations on whether article 8 is engaged. Before doing so I would
comment that even if our law mirrored developments south of the border, I would not have
been persuaded that the recipients of the various communications at the heart of this case
were under a duty of privacy, the breach of which would constitute a civil wrong on their
Page 59 ⇓
59
part. That said, I agree that as matters have developed it is not necessary to dwell on either
this or the current state of our common law on privacy.
[141]       As to article 8 engagement, it is important to note that this is not a case concerning
questionable police surveillance or data storage, nor the abuse of search or other police
powers. If it was, and given that article 8 controls the arbitrary use of state power, different
considerations might arise.
[142]       The question is whether disclosure of the material described by your Ladyship, for
the sole purpose of possible disciplinary proceedings, would disrespect either the officers’
private lives or their correspondence, both of which raise essentially the same factors. The
relevant authorities establish that a case such as the present can be approached by asking
whether the petitioners could have a reasonable expectation of privacy, sometimes described
as a legitimate expectation of protection, in respect of the messages and photographs
forwarded to their colleagues. If the answer is no, disclosure does not offend against the
values of autonomy, dignity, and personal integrity which article 8 was designed to protect
and promote. The matter is not within the sphere of the individual’s private life.
“Essentially the touchstone of private life is whether in respect of the disclosed facts
the person in question had a reasonable expectation of privacy.” (Lord Nicholls in
Campbell v MGN Ltd [2004] 2 AC 457 at paragraph 21)
[143]       All of those involved were police officers. Each had solemnly sworn to uphold
certain professional responsibilities and standards in both their public and private lives, and
had promised, in effect, to take action if informed of the misconduct of others. This was
known to each participating officer. To take perhaps an extreme example, if a constable (or
indeed any public official) writes to a colleague stating that he accepts bribes, he might hope
that it will be treated in confidence; he might even have such an expectation, but if so, it is
neither reasonable nor legitimate.
Page 60 ⇓
60
[144]       The above illustration demonstrates that the nature of the information
communicated is of importance. For example, if it were sensitive personal information, a
claim under article 8 may well succeed. In Campbell v MGN it was the nature and
consequences of the proposed disclosure which created the quality of privacy. The present
case does not involve the use of personal information. Notwithstanding the refusal of the
petition, there will remain an extensive zone of interaction in which police officers can
communicate in reasonable expectation of privacy.
[145]       Mr Sandison submitted that police officers should enjoy the opportunity to have “off
the record” communications between each other in whatever terms they consider to be
appropriate. As he put it, the petitioners should be “free to be persons”, presumably as
opposed to being members of the police force. The difficulty is that they are both. Whatever
else, the proposition requires that their status, privileges, and responsibilities as police
officers be laid aside when it comes to the test of “reasonable expectation of privacy”;
whereas the case law states that all relevant surrounding circumstances should be taken into
account. If and in so far as the underlying suggestion is that the petitioners’ status is not a
relevant factor, I am unable to agree.
[146]       Mr Sandison was driven to submit that if one of the recipients forwarded the
messages to the police disciplinary authorities, they would have to be ignored, however
unpalatable that might seem. This brings to mind the observations of Laws LJ in R (Wood) v
The Commissioner of Police of the Metropolis [2010] 1 WLR 123 at paragraph 22 to the effect
that the legitimate expectation test is one of the safeguards against the “unreal and
unreasonable” use of article 8. (See also In re JR38 [2016] AC 1131, Lord Toulson at
paragraph 87.)
Page 61 ⇓
61
[147]       Where, as here, there is a clear justification for the proposed disclosure, it might
reasonably be thought that it matters little whether one analyses the case in terms of no
interference under article 8(1), or vindication by virtue of article 8(2). However the approach
of non-engagement is appropriate and can be supported; and particularly so when the
reason for the justification has throughout been known to those claiming the benefit of
article 8. That is one of the special features of this case. In any event, there is no affront to
human autonomy, identity, or dignity, and thus no disrespect for private life or
correspondence when the circumstances disclose no good reason for an expectation that a
statement or other communication will be kept private, either by its immediate recipient or
anyone else. Whatever mutual understandings and assurances might have been in play, and
the evidence for such was less than compelling, none of the group could reasonably expect
blanket secrecy in respect of all messages, whatever their nature, not least given the
disclosure obligations each was under. The scope of article 8 and the quality of privacy for
these purposes is not the product of subjective desire or intent. After quoting the broad test
set out by Lord Toulson in Re JR38 at paragraph 88, the Lord Ordinary noted that he
required to apply an objective test focussing on the sensibilities of a reasonable person in the
position of the officer concerned (paragraphs 133/4 of his opinion). In common with many
other professional people and public servants, no police officer can reasonably or
legitimately expect article 8 to provide a shield against the consequences of any and all
communications to fellow officers, however inimical they might be to the standards he or
she is expected to uphold.
[148]       In Re JR38, Lord Kerr of Tonaghmore said (in a dissenting opinion) that:
“The test for whether article 8 is engaged is, essentially, a contextual one, involving
not merely an examination of what it was reasonable for the person who asserts the
right to expect, but also a myriad of other factors… and any other circumstance
Page 62 ⇓
62
peculiar to the particular conditions in which publication is proposed.”
(paragraph 56)
I can identify no factors or circumstances which on any objective evaluation support the
view that the state is interfering with an article 8 right. Whatever the position might be in
relation to private claims of breach of confidence had the disclosure come from a fellow
member of the group, in my view no real issue of lack of respect for the private life or
correspondence of the petitioners as covered by article 8 arises from the respondents’
proposal to refer the material concerned for internal disciplinary purposes. (For the
avoidance of doubt, the final categorisation of the messages and the outcome of any
disciplinary proceedings will be for the appropriate body in due course; the refusal of this
petition does not prejudge that determination.)
[149]       In the recent decision of the UK Supreme Court in Sutherland v HMA
[2020] UKSC 32, the “reasonable expectation of privacy” yardstick was reaffirmed. The discussion
also acknowledged the potential importance of the nature and content of the
communications, and in particular whether they “involve the expression of an aspect of
private life or an aspect of correspondence which is capable of respect within the scheme of
values inherent in the ECHR.” – Lord Sales at paragraph 40. That was a case of clearly
criminal conduct; nonetheless his Lordship’s comments as to an area of overlap between the
issues of reasonable expectation of privacy and the nature of the communications
(paragraphs 60/61) are apposite in the circumstances of this petition.
[150]       I am of the view that the respondents’ proposed use of the messages does not breach
the petitioners’ article 8 rights. It follows that I agree that the reclaiming motion should be
refused.



BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_61.html