The petitioners were ten police officers who appealed against the refusal of their judicial review.  The case centred upon messages that were discovered during an investigation into a series of sexual offences.   The petitioners were not suspects, but another police officer was.   There were two group chats that the petitioners were involved in and there were messages which were regarded as sexist, degrading, racist, anti-Semitic, homophobic as well as showing a flagrant disregard for police procedures.   The petitioners were seeking a declaration that the use of the messages to bring misconduct proceedings was unlawful and incompatible with Article 8 of the ECHR (right to family and private life).

The misconduct charges were brought under the Police Service of Scotland (Conduct) Regulations 2014.  It was held at first instance that there was a common law right of privacy that existed but when it came to policing there were other factors such as maintaining public confidence which meant they could have no reasonable expectation of privacy.  There was a public interest in ensuring that the police force was properly regulated to protect the public and so the disclosure made could not be regarded as arbitrary.   This decision was appealed.

The Inner House of the Court of Session upheld the decision that there was no reasonable expectation of privacy.   As a result, there was no interference with their rights under Article 8 of the ECHR.   Lord Menzies held that when considering whether there was a reasonable expectation of privacy the attributes of the person and the circumstances of the case must be considered.  This included the content of the messages but also the duty to report and/or take action against constables who have fallen below the Standards of Professional Behaviour.

The second question was whether there was a clear legal basis for disclosure of the messages.  The answer was yes, based upon the public policy grounds that had been outlined in the first instance decision.    It was then a matter as to whether the disclosure, on those grounds, was necessary and proportionate.  It was held that it was, on the basis that it was only disclosed to the regulatory body for a limited purpose and did not contain material of a personal nature.   The level of intrusion was limited to the extent necessary to ensure public confidence in the police service. Accordingly, the petitioners’ appeals were dismissed.

Practical Lessons

The notion that there is a common law right to privacy is one that is founded in Scots Law. However, the application in this case to the principles within Article 8 is interesting from the perspective of where private life and work life coalesce. The disclosure was allowed on the basis that it was limited to a particular purpose coupled with the fact that there was a strong public interest in ensuring confidence in the police.  Employers need to tread carefully when disclosing what may be private information, but this case demonstrates the range of factors that may be considered in allowing such a disclosure.
https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csih61.pdf?sfvrsn=0