Court rules that misconduct proceedings against police officers can be brought on basis of WhatsApp group messages

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Following a recent case heard in the Scottish Courts, the Police Service of Scotland has been permitted to use the content of an officer’s WhatsApp messages as the basis on which to bring misconduct proceedings against other officers who participated in chat groups with him.

The messages posted among the group were of an inappropriate and offensive nature, including some that were of a sexist, racist and homophobic nature. They were sent despite the requirement for the officers to adhere to professional standards, which apply at all times, by acting with honesty and integrity and their obligation to challenge and report improper conduct.

In light of this, the Inner House of the Court of Session held in BC and ors v Chief Constable of the Police Service of Scotland and ors that the officers involved could not have reasonably expected privacy in relation to the messages. Crime scene photos from ongoing investigations were also shared among the group, blatantly breaching police procedures.

The messages, which formed part of two group chats between officers, were discovered on the phone of a suspect during a 2016 investigation into sexual offences within the Police Service of Scotland (PSS). The PSS’s professional standards department subsequently brought misconduct charges against the officers involved in the group chats.

Ten of the officers petitioned the Court of Session (Outer House) seeking a declaration that using the messages to bring misconduct proceedings for non-criminal behaviour was unlawful and contravened their rights to privacy under Article 8 of the European Convention on Human Rights.

Their petition was refused by the Court which held that, in taking up their role, an officer accepts their privacy is limited by the professional standards they are expected to uphold. The Police Service of Scotland Regulations 2013 state that a constable must at all times abstain from any activity which could interfere with them discharging their duties impartially or which is likely to give rise to the impression of such interference. Therefore, the Outer House held that the content of messages was relevant in determining whether there was a reasonable expectation of privacy.

As there was a professional obligation on the officers to report improper conduct, there was a higher probability that the messages would be disclosed by a member of the group, the officers had no reasonable expectation of privacy in this regard.

The officers’ appeal to the Inner House was dismissed as it rejected their argument that the Outer House should not have considered the message content or their professional obligations when deciding whether they had a reasonable expectation of privacy.

This is a very interesting case concerning the further breakdown in boundaries between the use of social media and misconduct in the workplace.  Whilst there are clearly a number of factors here that are only relevant to police officers, this is an area of the law that will continue to adapt to the challenges posed by social media.