BC AND OTHERS AGAINST CHIEF CONSTABLE POLICE SERVICE OF SCOTLAND AND OTHERS [2019] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> BC AND OTHERS AGAINST CHIEF CONSTABLE POLICE SERVICE OF SCOTLAND AND OTHERS [2019] ScotCS CSOH_48 (28 June 2019) URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_48.html Cite as: [2019] ScotCS CSOH_48, 2019 GWD 23-366, [2019] CSOH 48, 2019 SLT 875

[1] The petitioners are ten individual police officers against whom misconduct

proceedings have been brought under the Police Service of Scotland (Conduct)

Regulations 2014 (“the 2014 Regulations”). The compearing respondents are the Chief

Constable and Deputy Chief Constable of the Police Service of Scotland and a Chief

Superintendent of Police appointed under the 2014 Regulations to conduct misconduct

[2] The petitioners seek orders: finding and declaring that the use by constables in the

Police Service of Scotland of messages sent to, from, and amongst the petitioners via the

electronic WhatsApp messaging system (“the messages”) for the purpose of bringing

misconduct proceedings in respect of allegations of non-criminal behaviour on the part of

the petitioners is unlawful et separatim is incompatible with the petitioners’ right to respect

for their private and family life in terms of Article 8 of the ECHR (“the Convention”).

Second, interdicting the second and third respondents from conducting or maintaining any

misconduct proceedings against the petitioners in respect of allegations of non-criminal

behaviour on their part on the basis of, or involving the use of, the messages; and

[3] Following sundry procedure, the matter came before me for a substantive hearing.

[4] The factual background was not contentious and is adequately set forth in the

In July 2016 a detective constable was engaged in an investigation into sexual

offences. There is no suggestion any of the petitioners were of any interest to

In the course of this investigation, she reviewed the messages. The messages

had been sent via the “WhatsApp” messaging system and were present on a

mobile phone belonging to a suspect and recovered during the course of the

investigations. The suspect was a constable within the Police Service of

Scotland. The messages form the basis of the misconduct allegations against

the petitioners. They were contained in “group chats”, being messages

shared amongst members of the two WhatsApp groups. The first of these

groups had 15 members including the 5th, 7th and 10th petitioners. The second

group had 17 members including all of the petitioners. Having considered

the content of the messages the investigating officer (a detective constable)

decided to pass them to other constables in the Professional Standards

Department within the Police Service of Scotland. Those other constables

thereafter used and relied upon the messages in order to bring misconduct

charges against each of the petitioners under the 2014 Regulations.

[6] The petitioners’ position in respect to the use of the messages is that it amounts to an

infringement of their common law right of privacy et separatim their rights in terms of

[7] Against the above background the following issues arose at the hearing:

1. Does the respondents’ disclosure and use of the messages interfere with the

petitioners’ common law right to privacy et separatim Article 8 Convention

2. If so, does that disclosure and use have any clear and accessible legal basis so

4. What would constitute an effective remedy for the petitioners?

[8] The first issue contained a preliminary question: does the common law of Scotland

[9] Mr Sandison’s submissions on this preliminary point in summary were these. He

took as his starting point a general submission that in recent years, the Supreme Court has

repeatedly emphasised the importance of relying on fundamental common law rights, as

opposed to immediate resort to Convention rights. The submission was made under

reference to R (Osborn) v Parole Board [2014] AC 1115 at paragraphs 57 to 63 and A v British

Broadcasting Corporation (Scotland) 2014 SC (UKSC) 151 at paragraph 56.

[10] Mr Sandison then turned to look at the position in England where he submitted the

courts have recognised and developed the concept of a common law right to privacy, most

notably in developing the scope of delictual duties of confidence in relation to private

information. The development of this right was perhaps most clearly seen in Campbell v

MGN Ltd [2004] 2 AC 457. Mr Sandison accepted that this case was often referred to,

however, it had not been expressly approved by the Scottish Courts. Nevertheless, it was an

important case when considering the position in Scotland because the law of confidence is

generally considered to be the same in Scotland and England: see, Lord Advocate v Scotsman

[11] Moreover, there are Scottish authorities which implicitly recognise this right. He

directed my attention to Henderson v Chief Constable of Fife Police 1988 SLT 361 at page 367

and the discussion in Reid, Personality, Confidentiality and Privacy in Scots Law at

[12] For the foregoing reasons he submitted that there is a right of privacy in terms of the

[13] Turning to Article 8 of the Convention Mr Sandison began by saying this: private

diaries, communications, or correspondence, whether electronic or otherwise, are possibly

the paradigm example of something giving rise to an expectation of privacy.

Correspondence is expressly referred to in Article 8(1) and it plainly extends to electronic

[14] In advancing his argument under this head, Mr Sandison placed particular reliance

on the observations of Lord Toulson JSC at paragraphs 88 to 98 of In re JR38 2016 AC 1131.

[15] In particular he directed my attention to the observations of Lord Toulson at

paragraph 85 where having considered the leading European case of Von Hannover v

Germany [2005] 40 EHRR 1 sets out the test to be applied when considering whether there

exists a right of privacy which then requires the party interfering with it to justify the

“This passage highlights three matters: the width of the concept of private life; the

purpose of Article 8, ie what it seeks to protect; and the need to examine the

particular circumstances of the case in order to decide whether, consonant with that

purpose, the applicant had a legitimate expectation of protection in relation to the

[16] Thus the test is one of whether “the applicant had a legitimate expectation of

protection” or to use an expression which Lord Toulson says is synonymous “a reasonable

[17] So far as the issue of the scope of the Article 8 right, Mr Sandison again directed my

attention to the judgment of Lord Toulson in JR38 and in particular paragraph 86 thereof

where Lord Toulson adopts the analysis of Laws LJ in R (Wood) v Commissioners of Police of

the Metropolis [2010] 1 WLR 123 regarding the issue of the scope of the right:

“20. The phrase ‘physical and psychological integrity’ of a person (the Von

Hannover case 40 EHRR I, para 50; S v United Kingdom 48 EHRR 50, para 66) is with

respect helpful. So is the person’s ‘physical and social identity’; (see S v United

Kingdom, para 66 and other references there given). These expressions reflect what

seems to me to be the central value protected by the right. I would describe it as the

21. The notion of the personal autonomy of every individual marches with the

presumption of liberty enjoyed in a free polity: a presumption which consists in the

principle that every interference with the freedom of the individual stands in need of

objective justification. Applied to the myriad instances recognised in the Article 8

jurisprudence, this presumption means that, subject to the qualifications I shall

shortly describe, an individual’s personal autonomy makes him-should make him-

master of all those facts about his own identity, such as is name, health, sexuality,

ethnicity, his own image, of which the cases speak; and also of the ‘zone of

interaction’ (the Von Hannover case 40 EHRR I, para 50) between himself and others...

22. This cluster of values, summarised as the personal autonomy of every

individual and taking concrete form as a presumption against interference with the

individual’s liberty, is a defining characteristic of a free society. We therefore need to

preserve it even in little cases. At the same time it is important that this core right

protected by Article 8, however protean, should not be read so widely that its claims

become unreal and unreasonable. For this purpose I think there are three

safeguards, or qualifications. First, the alleged threat or assault to the individual’s

personal autonomy must (if Article 8 is to be engaged) attain ‘a certain level of

seriousness’. Secondly, the touchstone for Article 8(1)’s engagement is whether the

claimant enjoys on the facts a ‘reasonable expectation of privacy’ (in any of the senses

of privacy accepted in the cases). Absent such an expectation, there is no relevant

interference with personal autonomy. Thirdly, the breadth of Article 8(1) may in

many instances be greatly curtailed by the scope of the justifications available to the

state pursuant to Article 8(2). I shall say a little in turn about these three antidotes to

[18] It was Mr Sandison’ position that the messages fell within the scope of Article 8. The

exchanging of messages he submitted clearly forms part of the zone of interaction of the

[19] Mr Sandison went on to submit that the messages were sent in a confidential context

and that plainly would have given rise to an expectation of privacy on the part of the

[20] In development of this argument he relied first on the nature and characteristics of

[21] The important point he submitted regarding the messages is that they were

A person can only join the group on the basis of the administrator

introducing that person and all members of the group are told at that time of

the introduction and have the option to leave the group at the point of that

Someone joining the group cannot see messages which have been exchanged

[23] Beyond the issue of the nature and characteristics of WhatsApp, Mr Sandison

submitted that the following factors set out in the petitioners’ affidavits could be considered

in deciding whether there was a reasonable expectation of privacy. These matters could be

considered because a reasonable person in the position of the petitioners would have regard

The petitioners had a trust and confidence in other members of the groups.

[24] Taking all of the above factors together a reasonable expectation of privacy arose in

[25] Mr Sandison used this analogy to support his contention that a reasonable

expectation of privacy arose, namely: if a person invites a number of people to his house,

these people are friends, and thereafter this group of people has a discussion, he submitted

that it was plain that the terms of such a discussion were in a confidential context and there

would be a reasonable expectation of privacy on the part of those who took part in the

discussion. There was no material difference between this example and the circumstances of

[26] Mr Sandison emphasised that the content of the messages was not a relevant

consideration in respect to the question of whether there was a reasonable expectation of

privacy. He contended that a right of privacy that covers only good behaviour is not a right

at all. He relied in making this submission on the judgment of Lord Nicholls of Birkenhead

in Campbell v MGN Ltd. At paragraph 20 Lord Nicholls considers the issue of

proportionality which arises on a consideration of Article 8(2) of the Convention.

Article 8(2) recognises that there are occasions when intrusion into private and family life

may be justified. Lord Nicholls gives at paragraph 20 an example of such an occasion:

“One of these is where the intrusion is necessary for the protection of the rights and

freedom of others. Article 10(1) recognises the importance of freedom of expression.

But Article 10(2), like Article 8(2), recognises there are occasions when protection of

the rights of others may make it necessary for freedom of expression to give way.

When both these Articles are engaged a difficult question of proportionality may

arise. This question is distinct from the initial question of whether the published

information engaged Article 8 at all by being within the sphere of the complainant’s

[27] At paragraph 21 having identified the issue or proportionality which arises on

“Accordingly, 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 respect of the disclosed facts the person in question had a

[28] Mr Sandison took from the foregoing passages that the question of the nature and

content of the messages, is irrelevant at stage one ie in considering whether there is a

reasonable expectation of privacy. It only becomes relevant at stage two namely when a

consideration of Article 8(2) is being carried out and the issues of justification and

proportionality arise. It was his submission that the foregoing could not be read in any

other way, although Ms Maguire sought in her written and oral submissions to suggest to

[29] Mr Sandison went on to submit that the right of privacy was a particularly important

one. The importance arose at least in part from the increasing capabilities of technology

such as mobile phones to store vast amounts of information in a permanent and

reproducible form. In such circumstances issues such as access to and disclosure of such

information are acutely important. He submitted that they demanded a significant degree

of vigilance by the court as to the extent of the intrusions which the court will permit. This

submission was made under reference in particular to a decision of the Canadian Supreme

Court in R v Vu [2013] 3 SCR 657 at paragraphs 1 to 3 and 40 to 45 per Cromwell J.

[30] Mr Sandison then turned to look at the position advanced by the respondents in

respect to the issue of reasonable expectation of privacy both in their answers to the petition

and in their written submissions and began by saying this: it appeared that the respondents

sought to advance a proposition that the existence of the Standards of Professional

Behaviour contained in Schedule 1 to the 2014 Regulations (“the Standards”) to which the

petitioners as police officers were subject means the petitioners suddenly lose all

expectations of privacy, (see: Answer 14). He described this proposition as misconceived.

Mr Sandison accepted that there are standards of behaviour set out in the 2014 Regulations;

that the petitioners were informed of these Standards; swore on oath to behave in

accordance with these; and that they applied to the petitioners both when on and off duty.

However, that fell a considerable distance short of the petitioners having no reasonable

expectation of privacy in the circumstances of the present case. The Police Service of

Scotland Regulations 2013/35 (“the 2013 Regulations") set out the restrictions on the private

(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

“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; ...”

[32] It was his submission that the circumstances of the present case did not engage

paragraph 1 of schedule 1. This paragraph had no relevance to the circumstances of the

present case as nothing there prevents messages being exchanged in the context of a private

[33] Paragraphs 2 and 3 are not germane to the matters before the court. This was not a

[34] There are no other relevant statutory provisions in respect to restrictions on the

private life of a constable. The Standards accordingly have to be read in terms of the above

[35] Accordingly it was his position that there were no statutory restrictions on the

private life of a constable which were of relevance to the circumstances of the present case.

[36] In conclusion it was his position, that merely because the Standards can apply to

conduct in a constable’s private life it follows that the petitioners have no reasonable

expectation of privacy for any and all actions in their private life is clearly wrong. Rather, it

is plain that the petitioners do not lose all such expectations simply by virtue of being

subject to the Standards or being police constables. This final submission was made under

reference to R (Chief Constable of Cleveland Constabulary) v Police Appeals Tribunal 2017

[37] In further response to the respondents’ position, Mr Sandison noted that they

appeared to place some weight on analogy to Employment Tribunal cases involving first

work email (Garamukanwa v Solent NHS Trust [2016] IRLR 476 and Facebook posts,

Teggart v TeleTech UK Ltd [2012] NIIT 00704/11. He described such analogies as missing the

petitioners’ point. In both cases, the emails and Facebook posts were essentially public and

open communications. The petitioners’ point is that the messages at issue in the present

case were private messages shared confidentially amongst members of a closed group of

[38] Turning to the second issue he described the interference into the petitioners’ privacy

[39] He began by generally submitting that an intrusion into the petitioners’ privacy must

have a proper, clear and accessible legal basis. In support of this submission he directed the

courts attention to the following: R (on the application of P) v Secretary of State for the Home

Department [2019] UKSC 3 at paragraphs 12, 16, 17, and 24; Khan v United Kingdom 2001

31 EHRR 45; Sciacca v Italy 2006 43 EHRR 20 and Halford v The United Kingdom 1997

24 EHRR 523. He contended that importantly, for the purposes of the present case, because

an initial intrusion into private data is justified on a particular legal basis, that does not

provide a legal basis for all subsequent and further disclosure of that data. This submission

was vouched by Sciacca v Italy. In that case there was no suggestion that the initial

compiling of information on Ms Sciacca, including her photograph, the subject of the

intrusion into her privacy following her arrest was not in accordance with law, however,

that provided no clear or accessible legal basis for a different and collateral disclosure of her

photo to members of the press. Equally in the present case the initial legal intrusion for the

purposes of the criminal investigation gave no clear and accessible legal basis for the use of

the messages for a collateral purpose, namely: the disciplinary proceedings against the

[40] In expansion of the above submission he said that the relevant legal basis is not some

Rubicon that once passed becomes irrelevant and authorises all and any collateral uses of

the information or data recovered. The need for a clear link between the legal basis and the

particular use or disclosure is implicit in the whole structure of privacy rights and Article 8.

This finds its clearest expression in the structure of the Data Protection Act 2018 and most

notably for the purposes of the present case finds its clearest expression in the terms of

“Personal data collected for any of the law enforcement purposes may not be

processed for a purpose that is not a law enforcement purpose unless the processing

[41] Thus in R (Catt) v Association of Chief Police Officers of England, Wales and Northern

Ireland and another 2015 AC 1065, the Supreme Court made the following observation about

the potential disclosure of information gathered by police at common law to third parties:

“There has been no disclosure to third parties, and the prospect of future disclosure

is limited by comprehensive restrictions. It is limited to policing purposes, and is

subject to an internal proportionality review and the review by the Information

Commissioner and the Courts.” (See: paragraph 15 in the judgment of

This he said was consistent with the approach taken in other jurisdictions and he cited an

example from the Australian courts, namely Flori v Commissioners of Police and Another 2014

[42] Returning to the facts of the present case the petitioners’ position is that they do not

dispute that the investigating detective constable had a clear and accessible legal basis for

the initial intrusion into their privacy whether in the form of the consent of a suspect to a

search, exercise of common law powers of search, or exercise of a common law search

warrant. However, that only authorised intrusion for the purposes of the detection and

prevention of crime. What it did not do was to provide any clear or accessible legal basis for

the subsequent disclosure of that information to other constables within the Police Service of

Scotland for the quite different purpose of investigating non-criminal misconduct on the

[43] Looking at the respondents’ answer to this particular issue of clear and accessible

legal basis for the subsequent disclosure, he described it as wholly misconceived. The

argument was to this effect that the 2014 Regulations themselves provided such a legal basis.

He made a number of responses in relation to that contention: first, the 2014 Regulations

have nothing to do with the purposes for which the messages were recovered. Specifically

they say nothing expressly about disclosure of information. Secondly, the logical extent of

the argument advanced by the respondents is that police constables can never have any real

right to privacy. The police may be called upon to investigate any member of the public

with whom, at some point in time, another constable has communicated in private. The

argument advanced by the respondents would always apply. Thirdly, the disclosure is

utterly arbitrary and dependent upon the discretion of an investigating officer as to whether

he or she thinks the conduct inadvertently stumbled upon falls below the Standards within

the 2014 Regulations. That does not meet the test for being sufficiently accessible and

predictable as to amount to law for the purposes of Article 8. In making this submission he

referred back to R (on the application of P) v Secretary of State for the Home Department and in

particular to paragraphs 16 to 17 and also paragraphs 28 to 37 per Lord Sumption.

[44] In conclusion Mr Sandison submitted that the court could satisfy itself that there was

no clear or accessible legal basis for the disclosure of the messages for the purpose of

disciplinary proceedings by asking itself this question: if a constable were to seek advice

from a legal advisor as to what is the legal basis for a disclosure for disciplinary proceedings

following an initial legal intrusion into his privacy for other purposes, the legal advisor

would not be able to provide an answer. Thus there is no clear or accessible legal basis.

[45] Turning to the third issue namely whether the intrusion into the petitioners’ privacy

was justified or proportionate, it was his submission that it was neither.

[46] His general argument was that even if there were a legal basis for disclosure, the

disclosure would require to be justified as both necessary and proportionate and it was

[47] He submitted that the correct approach to this issue was to consider the following:

1. Whether the objective of the relevant legal basis is sufficiently important to

justify the limitation of the appellants’ right at common law or under

2. Whether there is a rational connection between the relevant legal basis and

3. Whether a less intrusive measure could have been used without unacceptably

4. Whether the impact of the right’s infringement is proportionate having

regard to the likely benefit of the relevant legal basis. These submissions

paragraph 24 and R (on the application of P) v The Secretary of State for the Home

[48] In developing the above Mr Sandison’s first argument was that the relevant legal

power relied upon by the respondents is the consent of the accused, common law search, or

search warrant. There is no rational connection between the objective of such powers,

namely: the prevention and detection of crime and the disclosure of information for a

[49] Moreover, Mr Sandison argued that the interference was not necessary in terms of

any of the factors set out in Article 8(2). Looking at each of these factors he submitted that

they were not engaged in the circumstances of the present case. In particular he argued that

the circumstances of this case had nothing to do with public safety. No identifiable issue of

public safety had been advanced. Equally no issue of crime or disorder was identifiable. He

argued that the test was one of necessity, which was a high one and clearly had not been

[50] He went on to argue that in any event the interference in the petitioners’ rights was

disproportionate. He referred to his earlier submissions where he had said that the courts

had recognised the very real problems and challenges to privacy that are presented by

mobile phone data. They can provide a complete permanent record of a person’s activities,

which can easily become destructive of any privacy. This he submitted requires the police to

handle collateral disclosure of such material exceptionally carefully. Even if there was a

proper legal basis, they cannot sensibly justify trawling through every line of

correspondence a constable has exchanged with an individual in private in order to see

whether it might be considered to demonstrate a lack of “courtesy” or “integrity”.

[51] Turning to the fourth issue of what would constitute an effective remedy for the

petitioners, he first turned to consider the declarator sought and argued that if the

petitioners are correct in their characterisation of what has already happened to them and

what the first and second Respondents propose to do to them, the decree of declarator first

prayed for should be granted as a matter of course. So far as the issue of interdict was

concerned Mr Sandison at the outset accepted the petitioners are not automatically entitled

to the further remedy of interdict. He conceded in his written argument that:

“40. … The mere fact that information and evidence has been gathered in breach of

Article 8 is not, of itself, sufficient to exclude its subsequent use in legal proceedings:

see, inter alia, Kinloch v HM Advocate 2013 SC (UKSC) 257 at paras. 17 – 19 and

HM Advocate v P 2012 SC (UKSC) 108 at para. 27. The question remains one of

fairness in all of the circumstances: Lawrie v Muir 1950 JC 19 at p.26, HM Advocate v

P, and Kinloch above. However, it has been recognised that the key to the resolution

of what fairness requires will often be determined by whether there has been an

Article 8 breach: cf. Kinloch, above, para. [17]. Further, a claim for an exclusionary

remedy such as interdict will often be strongest where the impugned evidence is the

direct fruits of infringement and of central importance to the case: see HM Advocate v

41. It is submitted that, if the Court is persuaded that the use of the Messages for

the purposes of disciplinary proceedings is a breach of the Petitioners’ common law

and Convention rights, fairness demands an exclusionary remedy. The Messages are

the entire sum and substance of the misconduct charges against the Petitioners.

Evidence of misconduct on the part of the Petitioners does not exist independently of

the Messages. They are not a mere adminicle of evidence. In such circumstances, it

is plainly unfair to permit their use notwithstanding the infringement of the

For these reasons the court should grant the declarator and interdict sought.

[52] In respect to the preliminary question of whether a right of privacy existed in terms

of the common law of Scotland Ms Maguire’s position was a short one: there is no

recognised standalone common law right to privacy in Scots law. None of the authorities

relied upon by the petitioners in this regard establish otherwise.

[53] In development of this position she argued first that Campbell v MGN Ltd is a case in

which the right to privacy was developed as part of the way in which the law protects

confidential information. In Campbell, Lord Nicholls of Birkenhead observed at

“The time has come to recognise that the values enshrined in Articles 8 and 10 are

[54] It was her position that applying Campbell to the present case, the content of the

messages could not be said to constitute private information which gave rise to a duty of

[55] Turning to the Henderson case she submitted that the petitioners’ reliance on this was

similarly misplaced. Contrary to the petitioners’ assertion it is not an authority which

implicitly recognises a fundamental common law right of privacy. Rather, it is a case which

is generally cited in connection with the right to liberty and security. In Henderson,

Lord Jauncey held that the removal of the pursuer’s bra by the police while she was

detained constituted “an interference with her liberty which was not justified in law” (at

page 367H to I). While the case heading refers to an “infringement of liberty and privacy”,

the reference to “privacy” was not reflective of the terms used in the judgment.

[56] Turning to Article 8, her position on the substantive issue of whether the petitioners

had a reasonable expectation of privacy, her answer to this question was a clear no.

[57] She took as her starting point that the nature of the material in the messages

informed the issue of the reasonable expectation of privacy. This argument was founded

upon the regulatory background to which each of the petitioners as police constables was

[58] In development of this core point in her argument she submitted this: it is a very

long established and incontrovertible principle that the public must have confidence in the

police service. This is the fundamental requirement of policing by consent. The policing

principles as set out in the Police and Fire Reform (Scotland) Act 2012 (‘2012 Act’) section 32

[59] The foregoing forms the background to the provisions contained in the

2014 Regulations. These regulations applied to the petitioners and in particular they must

Constables are honest, act with integrity and do not compromise or abuse their position.

Constables act with self-control and tolerance, treating members of the public and colleagues

Constables do not abuse their powers or authority and respect the rights of all individuals.

Constables act with fairness and impartiality. They do not discriminate unlawfully or

Constables use force only to the extent that it is necessary, proportionate and reasonable in all

Constables give and carry out only lawful orders and instructions.

Constables are diligent in the exercise of their duties and responsibilities.

Constables treat information with respect and access or disclose it only in the proper course of

Constables when on duty or presenting themselves for duty are fit to carry out their

Constables behave in a manner which does not discredit the Police Service or undermine

public confidence in it, whether on or off duty. [emphasis added]

Constables report any action taken against them for a criminal offence, any conditions

Constables report, challenge or take action against the conduct of other constables which has

[60] Moreover, the 2013 Regulations placed restrictions on the private lives of constables

such as the petitioners and she referred in particular to paragraph 4(1) and Schedule 1.

[61] Against that background she asserted that the nature of the material in the messages

establishes that no privacy or confidentiality rights arise on any basis. As is apparent from

the material produced, both the titles of the WhatsApp group and the content of some of the

messages relate to matters which arose during the professional lives of the petitioners as

police officers. An objective view of the material is such that the court would have no

difficulty in concluding that it is capable of bringing the police into disrepute with the

[62] Returning to the Standards she submitted, that they make it clear, that they apply to

the behaviour of officers such as the petitioners in their private lives as well as in their roles

as police officers. The 2013 Regulations also make that connection clear. In order for the

appointment as police officer to take effect it is essential that a declaration is made before a

sheriff or a justice of the peace. All of the petitioners have made this declaration “the oath of

office” in terms of section 10 of the 2012 Act,. namely that they –

“....solemnly, sincerely and truly declare and affirm that [they] will faithfully

discharge the duties of the office of constable with fairness, integrity, diligence and

impartiality, and that [they] will uphold fundamental human rights and accord equal

The reference to “according to law” includes adherence to the Standards as set out in

[63] Any expectation of privacy under Article 8 or at common law must be reasonable for

it to be protected and for any right to privacy to be engaged. This submission was made

under reference to Campbell v MGN Ltd, para 21 as applied in a police misconduct context in

R (Chief Constable of Cleveland Constabulary) v Police Appeals Tribunal at para 70:

“70 In Campbell v MGN Ltd [2004] 2 AC 457, para 21 Lord Nicholls of

‘Accordingly 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 respect of the disclosed facts the

person in question had a reasonable expectation of privacy.’”

[64] Turning to the use by the respondents of the messages she submitted this: use of the

messages has only ever been for proper policing purposes, namely: the detection and

investigation of crime and the obligation to fulfil the statutory duties to maintain Standards

and discipline. In this regard it does not conflict with Lord Sumption in R (Catt) v

Association of Chief Police Officers of England, Wales and Northern Ireland and another as

[65] She submitted that the fact that the messages were found on a mobile phone and that

such devices are nowadays capable of storing large amounts of data does not impact on the

conclusion that the messages do not engage any privacy right, whether at common law or

Article 8. Concerns similar to those raised by Mr Sandison were raised by two accused

before the Criminal Appeal Court in JL v HM Advocate 2014 JC 199 and dismissed.

[66] JL concerned the seizure of a “smartphone” during the detention of the accused. It

was argued that such seizure not only provided the police with access to the contents of the

phone but, by accessing the internet, it also provided access to email, internet and social

media sites and could be regarded as a “living filing cabinet” and an interrogation of the

accused’s “private cyberspace” for which the police had no authority.

[67] Notwithstanding the absence of any findings in fact by the Sheriff or ground of

appeal to support the submission for the accused, the court took a pragmatic approach

“...For all that we were told, in the present case, examining the iPhone 5 involved

little more than connecting the device to a power supply, switching it on and

touching the appropriate portions of the screen. In our opinion, so doing was clearly

within the powers conferred by sec 14(7) (of the 1995 Act). We are not satisfied that

there was any illegality or irregularity in recovering the evidence objected to. In our

opinion the evidence is admissible. We agree with the conclusion of the sheriff and

[68] The petitioners rely on the Canadian case of R v Vu to argue that the search of

modern technologies cannot be treated in the same way as ordinary filings cabinets and

cupboards. However, JL is the binding Scottish authority which states that you can, at least

[69] Ms Maguire then turned to consider JR38 and submitted that the following points

could be taken from that authority and in particular from the judgment of Lord Toulson: he

emphasised the need to examine the particular circumstances of the case in order to decide

whether, consistent with the purpose he had identified, the applicant had a legitimate

expectation of protection in relation to the subject matter of his complaint. If so, it is then up

to the defendant to justify the interference with the defendant’s privacy.

[70] Ms Maguire placed particular reliance on the analysis of Lord Toulson between

“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

98 I therefore do not agree with Lord Kerr JSC’s suggestion (para 56) that

the test of reasonable expectation of privacy (or legitimate expectation of

protection), excludes from consideration such factors as the age of the person

involved, the presence or absence of consent to publication, the context of the

activity or the use to which the published material is to be put. The

reasonable or legitimate expectation test is an objective test. It is to be applied

broadly, taking account of all the circumstances of the case (as Sir Anthony

Clarke MR said in Murray’s case) and having regard to underlying value or

values to be protected. Thus, for example, the publication of a photograph of

a young person acting in a criminal manner for the purpose of enabling the

police to discover his identity may not fall within the scope of the protection

of personal autonomy which is the purpose of Article 8, but the publication of

the same photograph for another purpose might. Nor am I persuaded by

Lord Kerr JSC’s reading of Von Hannover (in para 57 of his judgment) that the

commission and the court treated dissemination to the general public as a

99 The facts set out by Sir Declan Morgan LCJ at para 37 included the

interface was persistent, extending over a period of months, and was

exposing vulnerable people to fear and the risk of injury. (ii) There

was, therefore, a pressing need to take steps to bring it to an end by

identifying and dealing with those responsible. (iii) Detection by

arresting those at the scene was not feasible so use of photographic

identifying those involved short of publication of the photographs

100 These facts have obvious relevance to the issue of justification, but it is

also relevant to understand the nature of the activity in which the appellant

was involved in considering whether the scope of Article 8 extends to his

claim (or, to use language familiar to lawyers, whether Article 8 ‘is engaged’).

When the authorities speak of a protected zone of interaction between a

person and others, they are not referring to interaction in the form of public

riot. That is not the kind of activity which Article 8 exists to protect. In this

respect the case is on all fours with Kinloch v HM Advocate [2013] S AC 93.

Lord Hope DPSC’s words, at para 21, are equally applicable to the appellant:

‘The criminal nature of what he was doing, if that was what it was found to

be, was not an aspect of his private life that he was entitled to keep private.’

If, for example, members of the public gave descriptions of a rioter from

which an artist prepared an indentikit, would its use by the police for the

purpose of his identification be an infringement of his rights to privacy? I

[71] She submitted that there was a clear parallel between the circumstances as described

in JR38 and the present case. It was her position that the abhorrent nature of what the police

officers were doing and the breach of the Standards by which they are required to operate

was clearly not an aspect of their lives which they were entitled to keep private.

[72] She went on to take this further point from the JR38 case: whether there is a

reasonable expectation of privacy is fact sensitive. She then contended that in the present

case the facts and circumstances established that there was no such expectation. In fact to

expect privacy would be wholly unreasonable and untenable standing the role of a police

[73] In support of the foregoing submission she made a series of points.

[74] First, as she had submitted, both the titles of the groups, and the content of some of

the messages relate to matters arising during the petitioners’ professional lives as police

officers. Further, in respect of these direct links between the messages and the public office

of police officer, the content of the messages clearly engages the following Standards:

a. The ‘Confidentiality’ Standard – reference is made, for example to:

ii. the ninth petitioner’s posting of a police bulletin and also of

b. the ‘Authority, respect and courtesy’ Standard – reference is made, for

example to the third petitioner’s discussions about Constables AB and CD in

the ‘Discreditable conduct’ Standard – reference is made, for example to the

[75] Second, the Standards indicate that there is no privacy right or interest engaged in

this case. The public policy underlying them (viz. the preservation of public confidence in

the Police Service) militates against any claim to privacy in the circumstances of this case.

The fitness and judgement of the persons responsible for sending the messages was properly

brought into question and, once any question of criminality was ruled out, made subject to

the regime set out in the 2014 Regulations. In these circumstances, no right of confidentiality

attached to the messages and none attached to a third party such as the investigating

detective constable who reported the material, given the clear countervailing need for her to

do so. Even if the material were to be regarded as “confidential” it is not accepted that she

would not have a duty to disclose it. Reference is made to Attorney General v Guardian

Newspapers Ltd (No. 2) [1990] 1 AC 109 pp. 154-155. Following an analysis of the duty owed

by a third party who comes into possession of confidential information and may be under a

“But, on the other hand, there are cases where third parties coming into possession of

confidential information are not only entitled to use that information but may even

be under a duty to do so. A striking example of this is Reg. v. Tompkins (1977) 67

Cr.App.R. 181. A confidential note passed by the defendant to his counsel

fortuitously found its way into the hands of prosecuting counsel. It was held that

prosecuting counsel was entitled to use the note. The public interest in the

administration of justice outweighed the private interest of the defendant that the

confidentiality of his note should be preserved. By contrast in I.T.C. Film

Distributors Ltd. V. Video Exchange Ltd. [1982] Ch. 431, 440, a defendant who had

by improper means obtained confidential documents belonging to the plaintiff, was

held by Warner J. not to be entitled to use them in the action. He accepted the

‘balance the public interest that the truth should be ascertained, which is the

reason for the rule in Calcraft v. Guest [1898] QB 759 against the public

interest that litigants should be able to bring their documents into court

without fear that they may be filched by their opponents, whether by stealth

These cases show, in my opinion, that the duty of confidence owed by the original

confidant will not necessarily lie on every third party who comes into possession of

the confidential information. For it to do so, the circumstances must be such as to

raise ‘an obligation of conscience’ affecting the third party. Public interest factors

may apply to the information in the hands of the third party that did not apply to the

[76] Third, the fact that no confidentiality or expectation of privacy can be said to

reasonably arise is evidenced by the way in which WhatsApp operates. The relevant

matters regarding the operation of “WhatsApp” (as set out in her written note of argument)

“WhatsApp is a free to download mobile phone application that is available for use

3. WhatsApp allows users to communicate with other users via VOIPH

(voice over internet protocol) including to make voice and video calls and

send and receive texts and multimedia messages, through data or internet

individual users in a private session or, as part of a group. A group can

contain multiple individuals where any messages sent and received to that

7. In order to join a WhatsApp group an administrator of that group sends

an ‘invite’ to the other user to join it, this ‘invite’ is then ‘clicked’ by the user

8. The administrator of a group is someone within that group who, has

higher rights that (sic) other normal users as can promote others as admin as

10. If an administrator sends an invitation to an individual outside the group

and it is accepted, that existing members of the group have no control over

[77] In addition another important factor relative to the operation of the application is:

the “administrator” of the group controls its membership. New persons who are brought

into the group by the administrator may be people unknown to some or all of the other

members and are brought into the group without reference to those other members.

Members cannot prevent the addition of such new members or have control over the

membership. Assessed objectively, there can be no reasonable expectation of privacy in a

group where members have no such control. Not one petitioner has identified themselves

as the controller or has been able to name the extent of the membership of the group.

[78] Ms Maguire referred to a number of examples where group chats on WhatsApp or

similar applications resulted in a member of a group reporting the content of such group

discussions to disciplinary authorities. As I understand it these examples were referred to in

order to show the lack of privacy in such groups and thus the lack of expectation of privacy

in respect to messages exchanged on such apps. The examples referred to related to

students attending Warwick University, Exeter University, Glasgow University and Dundee

University and the reporting of the content of the chats to the relevant University

[79] She then referred to a case involving the discovery of discriminatory WhatsApp

messages exchanged among police officers following the seizure of a mobile phone

belonging to another police officer as part of a separate criminal investigation. This matter

was dealt with by Leicestershire Police and triggered misconduct proceedings as a result of

which four officers were dismissed without notice for gross misconduct and four other

officers were issued with a final written warning for misconduct. The report of the

Disciplinary Hearing was before the court and was titled Leicestershire Police, Police

[80] She submitted in light of the foregoing characteristics of “WhatsApp” the petitioners

[81] She went on to submit the lack of control that members have over the group is

exemplified in this case by the information provided in the petitioners’ affidavits. They all

profess in various ways that the group was set up with the purposes of keeping in touch and

providing professional and exam support. However, it is clear from the content of the

messages that that was not the intended purpose or, even if it was initially, it was

subsequently hijacked by other members for other purposes. The surprise at the way in

which the group was used is expressed by the second petitioner who states in paragraph 5

“At no time when I joined the group did I believe or expect that it would have been a

platform for my colleagues to share their inappropriate thoughts or comments

The first petitioner in his response in the misconduct pack stated:

“That group quickly became a group for ‘banter’ which was never the reason I

joined. ... ... there were numerous times when I would open the application on my

The sixth petitioner stated: “the tone and content of the chat no longer reflected my

[82] The lack of control is further evidenced by the fact that the name of one of the groups

was changed at one point without reference to any of the members. The fourth petitioner

mentions the name change at paragraph 4 of her affidavit and the sixth petitioner states at

“... I do recall that at some point whoever was administering for the group changed

the name to... I had no input into this at all and I considered that the name change

[83] The fourth and fifth petitioners are unable to remember the identity of the

administrator of the group, which belies the assertions made that there was any mutual

understanding implied or express about who could become members of the groups and how

[84] Indeed, the absence of any agreement or understanding about the way in which the

groups would operate is further evidenced by the fact that the fourth and sixth petitioners

appear to have been added after the groups were first established. The fourth petitioner

states at paragraph 4 of her affidavit: “... I was made aware of a private WhatsApp group

chat that had been created by colleagues from police college.” The sixth petitioner states at

paragraph 4 of her affidavit: “I was added once the group was already fully established and

could see it had already been in use before I was ‘added’”. None of the petitioners speak to

any agreement being reached at any point about the addition of new members to the groups.

There is no suggestion that the members of the groups were even friends with each other.

The sixth petitioner positively disavows that they were friends. “I do not class any of these

[85] Further, whether or not the messages were sent when the petitioners were “on” or

“off duty” or in the context of their private lives is irrelevant. Police officers can bring the

police service into disrepute by virtue of what they do in their private lives. This is clear

from the Standards and see, also, eg, the Cleveland Constabulary case and the Leicestershire

Police decision. However here, there is the fact that, in any event, that conduct consists of

messages which bear to relate – in some cases very closely and intimately – to aspects of the

performance of the role of a police officer and training as such.

[86] In relation to the Cleveland Constabulary case as set out in the rubric that case

“a police officer ...[who had] lied to fellow officers and members of the Crown

Prosecution Service about the cause of injuries which he had sustained when he was

assaulted by the husband of a female police sergeant with whom he was having an

affair. At a misconduct hearing, a disciplinary panel rejected the police officer’s

contention that he had been entitled to lie in order to protect his right to respect for

his private life under Article 8...finding that the lies had been promulgated, while he

was on duty, in a professional rather than a private capacity and that his Article 8

rights were, therefore, not engaged. The panel found the police officer guilty of gross

misconduct and concluded that the appropriate sanction was dismissal without

notice. Allowing an appeal by the police officer, the Police Appeals Tribunal found

that the panels decision was unfair and unreasonable...in so far as the panel had held

that there was no such thing as ‘private on-duty conduct’ and that exceptional

mitigation was required in the circumstances of the case. The tribunal held that the

police officer had been entitled to lie to protect his privacy and that, while his

conduct had amounted to misconduct, it was not gross misconduct and the

[87] The Chief Constable’s claim for judicial review of the tribunal’s decision was

dismissed. As can be seen from paragraph 112 of the decision, the court found the argument

made by Mr Yeo, for the police officer as an interested party, set out at paragraph 73 of the

decision to be well made. The relevant paragraphs are as follows:

“73 Mr Yeo’s position is that, based upon the jurisprudence in relation to privacy

issues and undertaking the balancing act, para 1.28 of the HOG should relate not to

questions as to whether the officer was off duty. The decision-maker should also

consider the relevant conduct on the basis of whether it related to the police officer’s

private life, i.e. whether it related to something in respect of which the officer had a

112 In terms of the issues surrounding para 3.8 of the panel’s decision, it has to be

said that it does seem to me to be clear that there is such a thing as ‘private on-duty

[88] Moreover, in any event, on an objective analysis, disclosure of the messages out with

“the group” was easily foreseeable. This is inherent in the fact that they were exchanged as

part of groups which included police officers (and others, some of whom remain unknown).

The Standards impose a legal duty on police officers to “report, challenge or take action

against the conduct of other constables which has fallen below the Standards”. That duty

clearly required each petitioner to report, challenge or take action against their colleagues

within the said WhatsApp groups given the content of the messages. Similarly, given that

the group names, in themselves, link the participant to an association with or involvement in

the police, it was wholly foreseeable that the messages might be seen by police colleagues

who would likely consider the content to breach the Standards. It was entirely foreseeable

that such a colleague would, as they should, standing the terms of the 2014 Regulations

consider it necessary to report the matter for investigation given that their failure to do so

could place them in breach of the Standards. In any event the following demonstrates

(1) In the group chat a member stated specifically in relation to the female officers

“right I say we don’t pound them anymore” and “Here we would (sic) sacked it’s

(2) The first petitioner states “I do admit that there are times when I was aware of

inappropriate comments in respect of Constables [ the 3 named female officers], and

I understand with hindsight that I should have challenged these”.

(3) The statement of the second petitioner in the misconduct pack includes the

following “I understand that as a Police Constable I have to hold higher Standards of

professionalism, integrity and honesty compared to the general public ... ..... I accept I

have fallen below those Standards... .... I completely accept I could have voiced my

(4) The statement of the sixth petitioner accepts the obligation “I understand that the

onus is on me to challenge those comments and behaviour and if necessary report

[89] Ultimately, it was a fellow officer (namely: the investigating officer) acting in the

course of her duties, who took the necessary action. She was obliged to report the messages

given their content and the Standards. The officer to whom she reported the messages in

turn was required to act in accordance with the Standards. In these circumstances and in

light of the Standards, neither the respondents nor their officers, including the investigating

officer, owed any duty to maintain any confidence (if it did arise, which is denied) which

may have arisen as between the petitioners as members of these groups. Improvement

notices were served on and accepted by three members of the group. The first, second and

sixth petitioners have substantially accepted their behaviour as part of the group(s) and

submitted reflective statement in their defence. This includes an acceptance on the part of

the sixth petitioner that she has a duty to report such messages.

[90] Lastly, separate from the fact that group membership included police officers subject

to the Standards, it was entirely foreseeable that messages on an “app” or on such groups

might be disclosed to persons not part of the relevant group by a group member by a range

of means and for any reason. As already stated, the identities of some of the members of the

group remain unknown. Such disclosure is separate and in addition to the fact that control

over membership of the group has been relinquished to the administrator. The

foreseeability of this was exemplified in a message by the fourth petitioner “see if this chat

ever gets leaked I’m changing my name”. The court may consider this as rather

contradictory to the approach as set out in this petitioners’ affidavit.

[91] Ms Maguire submitted that any person using a group messaging app would be

aware that there can be no expectation of privacy. It is a matter of simple common sense in

this day and age. If the objective analysis is carried out as per JR38 then there is no basis for

the expectation of it. The subjective views of the petitioners are not relevant/carry very little

weight. A useful question for the court might be to ask whether or not, if members of the

judiciary/ the bar/ a group of doctors were to set up such a group and exchange such

[92] In support of the foregoing submission she referred again to the finding in the

“30. Balancing these factors, the Panel concluded that Article 8 was not engaged in

the circumstances of this case. If, as is stated, the messages were sent from personal

mobile phones and also the messages were sent to a closed group of recipients, those

two factors taken individually or together are not determinative.

31. The alleged messages consisted of comments about third parties. As serving

police officers, the Officers are obliged to conduct themselves in accordance with the

Standards of Professional Behaviour. This obligation applies regardless of whether

they are on or off duty (see Paragraph 30 of the Guidance). Furthermore, officers

have a duty to challenge or take action against the conduct of colleagues which

might fall below the Standards of Professional Behaviour (see Paragraph 127 of the

Guidance). As was pointed out during submissions, Article 8 is not a ‘shield against

conduct which may result in adverse consequences. In Razgar, Lord Bingham

considered the scope and extent of the private life dimension to Article 8 and held:

‘Elusive though the concept is, I think one must understand ‘private life’ in Article 8

as extending to those feature which are integral to a person’s identity or ability to

32. In the view of the Panel, the above dicta is equally applicable to private

33. The Panel concluded that the messages that were allegedly sent by the

Officers are not features which are integral to their identity or role as a police officer

or their ability to function as such. It also concluded that in light of Regulation 6(1)

and Schedule 1(1) of the Police Regulations 2003, the context in which the messages

were sent and the fact that they were about third parties, including colleagues, the

34. If the Panel is wrong in that conclusion and Article 8(1) is engaged, it

considers that the derogations in Article 8(2) apply in this case, in arriving at that

35. Did the actions of Leicestershire Police and/or IPCC interfere with the

Officers right to respect of their private lives? Leicestershire Police and or the IPCC

did interfere with the Officers private lives by obtaining their private messages.

36. Does that interference have consequences of such gravity as to potentially

engage the operation of Article 8? Yes, the Officers have been referred to a

misconduct hearing, it is alleged that they are guilty of gross misconduct. As such,

their livelihood as police officers and their reputations are at risk.

37. Was the interference in accordance with the law? The Panel has already

taken the view that the seizure and investigation into PC F’s mobile phone was not

unlawful and that any subsequent investigations arising from information gleaned

from the mobile phone were legitimate. In any event, in Nakash supports the

proposition that in the Article 8 context at least, the interference does not have to be

in accordance with the law. The Court held that despite the fact that in that case, the

relevant material had been obtained as a result of an unlawful search, that did not

outweigh the legitimate aim served by its disclosure which was a proportionate

response to the legitimate aim. Similar consideration would apply to any breach of

38. Is such interference necessary in a democratic society in the interests of

national security, public safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of health or morals, or for the

protection of the rights and freedoms of others? In the view of the Panel, the

interference identified is necessary. One of the roles of police officers is to ensure

public safety: compliance with Standards of Professional Behaviour is an aspect of

preventing disorder as is treating others with respect and tolerance. The protections

of the rights and freedoms of others is an integral feature of these proceedings and

39. Is the interference proportionate to the legitimate public end sought to be

achieved? In the view of the Panel, the interference is entirely proportionate to the

legitimate aims. The public interest is a weighty factor in these proceedings and the

panel has accorded it significant weight. The Panel reminded itself that the purpose

of these proceedings is to serve the public interest. The public interest in this context

means protecting the public, maintaining proper professional Standards and

[93] In conclusion on this point Ms Maguire referred to two authorities: First R (Nakash) v

Metropolitan Police Service [2014] EWHC 3810 Admin) which was referred to at para 18 of the

Leicestershire Police decision. As can be seen from that paragraph, Nakash concerned:

“a criminal investigation into the conduct of a doctor, the police had obtained

material following an unlawful arrest and search. The General Medical Council

requested disclosure of some of the evidence arising from the police investigation.

The doctor disputed whether the Defendant police force concerned could

legitimately disclose the material. The Court held that the Defendant could disclose

the material from the unlawful search to the General Medical Council and this did

[94] Secondly she directed my attention to Garamukanwa v Solent NHS Trust at para 27.

“Accordingly, the case that the Tribunal was addressing and in which any Article 8

rights had to be addressed was a disciplinary investigation into matters that, whilst

they related to a personal relationship with a workplace colleague, were brought into

the workplace by the Claimant himself and were introduced into the workplace as

giving rise to work related issues. The emails of particular concern were published

to colleagues at work email addresses. The publication of those emails had an

adverse consequence on other employees for whom the Respondent had a duty of

care, and raised issues of concern so far as the Respondent’s own working

relationship with the Claimant or individual responsible was concerned. These are

all features that entitled the Tribunal to conclude that Article 8 was simply not

engaged and was therefore not relevant because the Claimant had no reasonable

The above passages she submitted supported the position she was advancing.

[95] For all of the above reasons Ms Maguire maintained her position that the petitioners

had no reasonable expectation of privacy in respect of the messages.

[96] In respect to the second issue of whether the disclosure and use of the messages had

any clear and accessible legal basis and was thus in accordance with law, Ms Maguire’s

argument was this: any interference (if there was any) was plainly lawful. The messages

were discovered during the forensic analysis of a mobile telephone lawfully seized and

examined as part of a criminal investigation (see the Criminal Procedure (Scotland)

Act 1995, section 14(7)). Access to the telephone was facilitated by the provision of the PIN

by the person from whom the phone had been seized. Having discovered the messages, the

investigating officer and her senior officers were obliged by the Standards to report them to

Police Scotland’s Professional Standards Department (“PSD”). She referred to the Standards

and submitted that they are “law” for the purposes of Article 8. Thereafter, the conduct

issues arising from the messages were addressed in accordance with the 2014 Regulations.

This is set out in the detailed and referenced chronology which forms part of the

respondents written submissions. It can be seen that they were properly recovered for the

misconduct process in line with Misconduct Procedures and the SOP.

[97] She then turned to the third issue. Is such interference necessary for a legitimate aim

in a democratic society? One of the primary purposes of the Standards as she had earlier

submitted is the preservation of public confidence in the police. Any interference (if there

was any) with the petitioners’ Article 8 rights was undertaken to ensure that all officers

uphold such Standards and, thus, was done in the public interest for a legitimate aim (see

the Leicestershire Police decision (above), para 38; Garamukanwa, para 31. She then asked this

question: If so, is such interference proportionate to the legitimate public end to be

achieved? Again, she submitted this question must be answered in the affirmative. Any

interference was plainly proportionate in light of the issue at stake - the public interest in the

conduct of police officers (see Leicestershire Police decision, para 39). Further, the handling of

the messages for the reasons she had advanced had been carried out at all times on a proper,

[98] On the final issue Ms Maguire’s position was this in terms of her written note of

“78. Esto there was a breach of any common law right of Article 8, it does not

follow that exclusion of the evidence is automatically required (see R v

Khan [1997] AC 558, p.581; Khan v United Kingdom (2001) 31 EHRR 45,

79. In Khan, the appellant appealed against the dismissal of his appeal against

conviction of being knowingly concerned in the importation of heroin. The

appeal turned on whether criminal evidence amounting to an admission

obtained by means of an electronic listening device installed by the police

was admissible, and if so whether it should have been excluded under the

Police and Criminal Evidence Act 1984 s.78. Mr Khan, who had visited a

private house which was under surveillance, argued that, as there was no

statutory regulation of the use of covert listening devices, statements made

during the course of a private conversation should not have been admitted,

especially in a case where the attachment of the device to a private house

without the knowledge of its owners or occupiers had given rise to damage to

property and trespass. It was further argued that the evidence was obtained

80. In R v Khan [1997] AC 558, at p. 581 Lord Nolan considered the approach

which had been taken in the ECHR case of Schenk v Switzerland. In Schenk the

applicant had complained that the making and use as evidence against him of

an unlawfully obtained recording of a telephone conversation violated his

right to a fair trial under Article 6 and his right to confidentiality of telephone

communications under Article 8. The ECrtHR rejected his claim. Lord Nolan

‘The submission put forward on behalf of Liberty suggests that the European

Court of Human Rights would not necessarily have reached the same

conclusion under Article 6 in the circumstances of the present case, first

because in the present case (unlike Schenk’s case) there was no evidence,

gainst the accused other than the tape-recorded conversation and secondly

because whilst the interception in Schenk was conceded by the Swiss

government to have been in breach of domestic law safeguards, in the present

case there are no domestic law safeguards and for that reason the breach is

arguably of a more fundamental character. I would, for my part, find it

difficult to attach very great significance to either of these distinguishing

features, but in any event we are not concerned with the view which the

European Court of Human Rights might have taken of the facts of the present

case. Its decision is no more a part of our law than the Convention itself.

What is significant to my mind is the court’s acceptance of the proposition

that the admissibility of evidence is primarily a matter for regulation under

national law, and its rejection of the proposition that unlawfully obtained

Further, it is to be noted in this connection that although the recording of the

relevant conversation in the present case was achieved by means of a civil

trespass and, on the face of it, criminal damage to property. Mr. Muller

accepted at the outset that these matters were not fundamental to his

argument. His submission would have been essentially the same if the

surveillance device had been lawfully positioned outside the premises, or, for

that matter, if the conversation had been overheard by a police officer with

This brings one back to the fact that, under English law, there is in general

nothing unlawful about a breach of privacy, The appellant’s case rests

wholly upon the lack of statutory authorisation for the particular breach of

privacy which occurred in the present case, and the consequent infringement,

81. At the European level, in Khan v United Kingdom (2001) 31 EHRR 45,

paras. 36-40 the ECrtHR also concluded that exclusion of the evidence was

’36. The Court notes at the outset that, in contrast to the position examined

in the Schenk case, the fixing of the listening device and the recording of the

applicant’s conversation were not unlawful in the sense of being contrary to

domestic criminal law. In particular, as Lord Nolan observed, under English

law there is in general nothing unlawful about a breach of privacy.

Moreover, as was further noted, there was no suggestion that, in fixing the

device, the police had operated otherwise than in accordance with the Home

Office Guidelines. In addition, as the House of Lords found, the admissions

made by the applicant during the conversation with B were made voluntarily,

there being no entrapment and the applicant being under no inducement to

make such admissions. The ‘unlawfulness’ of which complaint is made in the

present case relates exclusively to the fact that there was no statutory

authority for the interference with the applicant’s right to respect for private

life and that, accordingly, such interference was not ‘in accordance with the

law’, as that phrase has been interpreted in Article 8(2) of the Convention.

37. The Court next notes that the contested material in the present case was

in effect the only evidence against the applicant and that the applicant’s plea

of guilty was tendered only on the basis of the judge’s ruling that the

evidence should be admitted. However, the relevance of the existence of

evidence other than the contested matter depends on the circumstances of the

acknowledged to be very strong evidence, and where there was no risk of it

being unreliable, the need for supporting evidence is correspondingly weaker.

It is true, in the case of Schenk, weight was attached by the Court to the fact

that the tape recording at issue in that case was not the only evidence against

the applicant. However, the Court notes in this regard that the recording in

the Schenk case, although not the only evidence, was described by the

Criminal Cassation Division of the Vaud Cantonal Court as having ‘a

perhaps decisive influence, or at the least a not inconsiderable one, on the

outcome of the criminal proceedings’. Moreover, this element was not the

38. The central question in the present case is whether the proceedings as a

whole were fair. With specific reference to the admission of the contested tape

recording, the Court notes that, as in the Schenk case, the applicant had

ample opportunity to challenge both the authenticity and the use of the

recording. He did not challenge its authenticity, but challenged its use at the

‘voire dire’ and again before the Court of Appeal and the House of Lords. The

Court notes that at each level of jurisdiction the domestic courts assessed the

effect of admission of the evidence on the fairness of the trial by reference to

section 78 of PACE, and the courts discussed, amongst other matters, the

non-statutory basis for the surveillance. The fact that the applicant was at

39. The Court would add that it is clear that, had the domestic courts been of

the view that the admission of the evidence would have given rise to

substantive unfairness, they would have had a discretion to exclude it under

40. In these circumstances, the Court finds that the use at the applicant’s

trial of the secretly taped material did not conflict with the requirements of

82. Even if obtained in an irregular way the Messages were plainly relevant from

the standpoint of the Standards. The Respondents content that there was no

right of privacy or confidentiality in the Messages but, even if that contention

is incorrect, their use in disciplinary proceedings is not unfair to the

Petitioners. The Petitioners are serving, albeit probationary police officers.

The content of the Messages is inflammatory and shocking. It us a matter of

the utmost public interest and concern that serving police officers would

express such views. The Messages are, thus, on any view, relevant material

in the pending disciplinary proceedings having regard to the Petitioners’ said

83. In this regard, reference is made to the advice of the Judicial Committee of the

Privy Council delivered by Lord Hodge in the case of Baronetcy of Pringle of

‘In Scots law historically, the prevailing view was that in civil cases evidence

that was relevant to the issue before the court was admissible even if it had

been irregularly obtained (Rattray v Rattray). But that can hardly have been

an unqualified rule so as, for example, to permit the admission of evidence

obtained by torture. More recently, judges have asserted a discretion to

admit or exclude evidence having regard to whether it is fair in the

circumstances to admit it (Duke of Argyll v Duchess of Argyll; Martin v

McGuiness). In Duke of Argyll v Duchess of Argyll Lord Wheatley assessed

the fairness of admitting evidence from the Duchess’s diaries which the Duke

had stolen from her by breaking into her house. In assessing fairness in all

the circumstances Lord Wheatley looked at the nature of the evidence, the

purpose for which it would be used in evidence, and the manner in which it

had been obtained. He took into account whether the introduction of the

evidence was fair to the party from whom it had been illegally obtained and

also whether the admission of the evidence would throw light on disputed

84. Further, the context in which the analysis of admissibility is taking place is

that the first, second and sixth petitioners have accepted their behaviour as

[99] For the foregoing reasons she submitted that I should refuse the petition.

[100] The first issue is this: do the messages engage either or both a common law right of

[101] A preliminary question in respect of the first issue is this: does a right to privacy

[102] It is necessary to consider this question in that as argued by Mr Sandison the

Supreme Court has in recent cases to which he referred emphasised the importance of

relying on common law rights rather than turning immediately to the Convention.

[103] The starting point in consideration of this question is to understand the relationship

between the Human Rights Act 1988 and the Convention rights which flow from it and the

common law. Lord Reid in R (Osborn) v The Parole Board in considering this question gave

“The importance of the Act (the Human Rights Act) is unquestionable. It does not

however supersede the protection of human rights under the common law or statute,

or create a discrete body of law based on the judgments of the European Court.

Human rights continue to be protected by domestic law, interpreted and developed

[104] Accordingly in the present case (a) Article 8 does not supersede a right of privacy in

common law, if that right exists and (b) Article 8 and the European jurisprudence flowing

therefrom can be used to inform and develop the common law in the area of the right to

[105] Secondly, I believe it is important to ask the question: is there a justification for

protection of a right of privacy at common law? Lord Nicholls of Birkenhead in Campbell

when considering the aspect of invasion of privacy, namely: wrongful disclosure of private

“But it (respect for an individual’s privacy), too, lies at the heart of liberty in a

modern state. A proper degree of privacy is essential for the well-being and

development of an individual. And restraints imposed on government to pry into

the lives of the citizen go to the essence of a democratic state: see La Forest J in R v

[106] I would adopt Lord Nicholls’ characterisation of the importance of a right of privacy.

It is a right which can I think be described as a core value and one which is inherent in a

[107] It seems to flow from the centrality of the role of privacy in a democratic society and

particularly in a society where electronic storage of information and electronic means of

intrusion into the private lives of a citizen by government, private organisations and

individuals are growing exponentially the common law should recognise the right to

[108] Having made the above observations it has to be recognised as Lord Nicholls does at

“In this country, unlike the United States of America, there is no over-arching, all-

embracing cause of action for 'invasion of privacy': see Wainwright v Home

[109] Thus the question arises: has the common law developed to protect a right of

privacy first in England: the answer to that question is clearly yes. Lord Nicholl’s in

“The common law or, more precisely, courts of equity have long afforded protection

to the wrongful use of private information by means of the cause of action which

[110] He then explains how the cause of action, known as breach of confidence has been

developed by the English courts in order to protect a right of privacy. He observes at

“14. This cause of action has now firmly shaken off the limiting constraint of the

need for an initial confidential relationship. In doing so it has changed its nature. In

this country this development was recognised clearly in the judgment of Lord Goff of

Chieveley in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281.

Now the law imposes a ‘duty of confidence’ whenever a person received information

he knows or ought to know is fairly and reasonably to be regarded as confidential.

Even this formulation is awkward. The continuing use of the phrase ‘duty of

confidence’ and the description of the information as ‘confidential’ is not altogether

comfortable. Information about an individual’s private life would not, in ordinary

usage, be called ‘confidential’. The more natural description today is that such

information is private. The essence of the tort is better encapsulated now as misuse

[111] In the context of whether there is a right to privacy in Scots common law the above

analysis of the English position is of assistance. The English courts have developed the

cause of action of breach of confidence. In Scotland an action based on breach of confidence

is a well understood remedy and the law in that field in Scotland has been explicitly

accepted as being the same as in England (see: Lord Advocate v Scotsman Publications per the

[112] The English courts’ approach to the development of the common law of privacy in

Campbell has been to use the values which form the basis of Article 8 rights and to accept

that these should be reflected in the common law (see: Lord Nicholls in Campbell at

[113] This approach of developing the common law in light of Convention rights and in

particular the development of the common law by seeking to reflect in it the values which

underlie the Convention rights would in my view find favour in the Scottish courts.

[114] Accordingly taking as a starting point the cause of action: breach of confidence and

applying the above approach to Convention rights to that cause of action I am persuaded

that the Scottish courts would reach the same conclusion as the English courts in respect to

[115] The above analysis tends to support the view that there is a common law right of

[116] In addition I observe that given privacy is a fundamental right I think it highly likely

that it exists in the common law of Scotland. Beyond that if it does not exist in Scots

common law a very odd conclusion is reached that Scottish and English law in relation to

this fundamental matter are entirely different. I think that is an inherently unlikely result.

[117] Again the above tends to support the view that there is a right of privacy known to

[118] Lastly, and most importantly, I am persuaded that the case law in so far as there is

[119] First, there is the decision of Lord Jauncey in Henderson. In this matter Lord Jauncey

considered whether the removal of an undergarment against the will of a person lawfully

taken into custody was justified. He found it was not justified. For the purposes of the

present case it is his observations as to the basis on which he held it to be unjustified that are

“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 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

[120] Lord Jauncey goes on to expand on this analysis at page 368A to B where he

“I shall therefore sustain Mrs Henderson’s first plea-in-law in so far as it relates to

wrongful search. As I have concluded that her arrest and detention was neither

wrongful nor illegal it will be inappropriate to sustain the whole of the plea and the

word ‘search’ appears to be the most apposite to the interference with her privacy

and liberty which I have found to be justified.” (Emphasis added).

[121] In the above passage Lord Jauncey explicitly uses the word “privacy” to describe the

right of the pursuer which was invaded. Accordingly I think Ms Maguire is wrong in

asserting that in this case he does not recognise a right of privacy and that it is only in the

headnote of the case (prepared by the editor) that there is reference to the issue of privacy.

In any event it is clear that what Lord Jauncey is considering is privacy in that he held that

her being deprived of her liberty, namely: her arrest was lawful.

[122] It is interesting to note that one of the examples of an invasion of privacy given by

Lord Nicholls in the Campbell case at paragraph 15 is “strip searches” a very similar situation

[123] In addition there are the obiter and tentative views expressed by Lord Bonomy in

Martin v McGuinness 2003 SLT 1424 (referred to in Reid) where at para 28 he says this:

“it does not follow that, because a specific right to privacy has not so far been

recognised, such a right does not fall within existing principles of the law.

Significantly my attention was not drawn to any case in which it was said in terms

These observations again tend to support the view that there is a right of privacy in the

common law of Scotland. 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

[124] I therefore consider there is a nascent recognition of a common law right of privacy

[125] I also find it noteworthy that there is no case in Scots law to which I was referred or

to which Lord Bonomy was referred in Martin which either explicitly or implicitly is to the

[126] For all of the foregoing reasons I am satisfied that a right of privacy exists in terms of

[127] Turning next to a consideration of Article 8(1) of the Convention it was not a

contentious issue that the respondents are a public authority and subject therefore to the

[128] The first question in considering this issue is this: what constitutes private life and

therefore engages the provisions of Article 8(1)? It is not a matter of dispute that the test is

as explained by Lord Toulson in JR38 at paragraph 88. Thus the question the court must ask

is this: in the circumstances was there a legitimate expectation of privacy in relation to the

subject matter of the complaint? Or put another way, was there a reasonable expectation of

privacy? Thus in the present case the question becomes, was there a legitimate expectation

[129] So far as the scope of the Article 8 protection Lord Toulson at paragraph 86 in JR38

refers to and adopts the analysis of Laws LJ in R (Wood) v Commissioners of Police of the

“20. The phrase ‘physical and psychological integrity’ of a person (the Von

Hannover case 40 EHRR 1, para 50; S v United Kingdom 48 EHRR 50, para 66) is with

respect helpful. So is the person’s ‘physical and social identity’: see S v United

Kingdom, para 66 and other references there given. These expressions reflect what

seems to me to be the central value protected by the right. I would describe it as the

21. The notion of the personal autonomy of every individual marches with the

presumption of liberty enjoyed in a free polity: a presumption which consists in the

principle that every interference with the freedom of the individual stands in need of

objective justification. Applied to the myriad instances recognised in the Article 8

jurisprudence, this presumption means that, subject to the qualifications I shall

shortly describe, an individual’s personal autonomy makes him—should make

him—master of all those facts about his own identity, such as is name, health,

sexuality, ethnicity, his own image, of which the cases speak; and also of the ‘zone of

interaction’ (the Von Hannover case 40 EHRR 1, para 50) between himself and others

22. This cluster of values, summarised as the personal autonomy of every

individual and taking concrete form as a presumption against interference with the

individual’s liberty, is a defining characteristic of a free society. We therefore need to

preserve it even in little cases. At the same time it is important that this core right

protected by Article 8, however protean, should not be read so widely that its claims

become unreal and unreasonable. For this purpose I think that there are three

safeguards, or qualifications. First, the alleged threat or assault to the individual’s

autonomy must (if Article 8 is to be engaged) attain ‘a certain level of seriousness’.

Secondly, the touchstone for Article 8.1's engagement is whether the claimant enjoys

on the facts a ‘reasonable expectation of privacy’ (in any of the senses of privacy

accepted in the cases). Absent such an expectation, there is no relevant interference

with personal autonomy. Thirdly, the breadth of Article 8.1 may in many instances

be greatly curtailed by the scope of the justifications available to the state pursuant to

Article 8.2. I shall say a little in turn about these three antidotes to the overblown use

It is noteworthy for the purposes of this case that the scope of Article 8 covers the “zone of

interaction” between the individual and others. I consider that it is clear that

correspondence between individuals whether by means of paper or electronic

communication can form part of the zone of interaction and therefore part of the core right

protected by Article 8. As pointed out by Mr Sandison “correspondence” is expressly

referred to in Article 8. In respect to the three qualifications to the right listed above by

[130] First, there was no dispute in the present case that the alleged interference attained

“a certain level of seriousness” and thus to that extent Article 8 would be engaged.

[131] Rather the parties in the present case in the first place join issue in respect to the

second of Lord Justice Law’s questions, namely: having regard to the whole circumstances

[132] There is a helpful analysis as to how that question should be approached at

paragraph 88 in JR38 where Lord Toulson cites with approval the comments of Sir Anthony

Clarke MR in Murray at paragraphs 35 and 36 who on looking at the question of reasonable

“…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

[133] Sir Anthony Clarke then turns to consider the reason for what he describes as the

“touchstone” (the reasonable expectation of privacy test) and he explains:

“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

[134] It is clear from the above remarks that the test to be applied by the court is an

[135] I turn to consider whether in the circumstances of the petitioners they could have

had such a reasonable expectation of privacy in respect to the messages.

[136] The messages at the heart of this case were all made by way of a mobile phone app

known as “WhatsApp”. The first question which arises is this: given the characteristics of

[137] The characteristics of “WhatsApp” insofar as relevant to the issue of legitimate

Communication through WhatsApp can take place between two individual

users in a private session or, as part of a group. A group can contain multiple

individuals where any messages sent or received to that group can be read by

The administrator of the group is the only person who can admit others to the

If a new member is introduced to a group any existing member is advised of

If a new person is admitted to a group and any existing member does not

wish to continue to be a member then he can withdraw from the group.

A new member of a group cannot see the content of messages exchanged

I consider it can be taken from the foregoing characteristics that “WhatsApp” can be

contrasted with other social media platforms where any member of the public can gain

access to the content of the platform and thus messaging is entirely open and public. Rather

use of WhatsApp involves messaging within a group where the membership is controlled. I

think this can properly be described, as Mr Sandison did, as involving messaging among a

closed group of individuals. In addition I am persuaded that Mr Sandison’s description that

the messages were exchanged within a confidential context is also accurate.

[138] Ms Maguire argued that the characteristics of “WhatsApp” were such that there

[139] She first submitted that as a result of the use of the administrator the membership

relinquished control of the group. I do not agree with this. The use of such does not

undermine the essential controlled nature of group membership. Importantly if a new

member is appointed the existing membership is informed and can decide whether they

[140] Ms Maguire next argued that the ability to have “group chats” on WhatsApp

undermines the reasonable expectation of privacy. I think this is shown to be wrong by

consideration of the following situation: because one has a chat with eight friends in one’s

house rather than one friend I do not think that it follows that one no longer has a

reasonable expectation of privacy. Having a “group chat” within a defined group of persons

[141] Ms Maguire referred to a number of newspaper Articles involving “WhatsApp”

groups or similar groups where a member of the group had reported to university

authorities the content of the messaging. The newspaper reports involved four such groups

at four different universities. Following on from this whistleblowing there had been

disciplinary proceedings against members of the group. As I understood it the reference to

these newspaper Articles was to show nobody joining a “WhatsApp” group could have any

[142] I accept that it may happen that a person who joins a WhatsApp group makes public

the content of what has been exchanged within the group. However, equally in the example

I gave where confidences were exchanged in a house between friends one of those friends

may breach the confidence. That does not undermine the individual’s reasonable

expectation of privacy. The exchanging of any information in a private context always

carries with it the risk of breach of the confidence. Thus an individual’s reasonable

expectation may turn out to have been misplaced. However, it does not follow that the

[143] For the foregoing reason I do not find the reference to these four newspaper stories

where there has been the making public of the content of the WhatsApp messaging to be of

any assistance in deciding whether in this case the petitioners given the characteristics of

“WhatsApp” had a reasonable expectation of privacy. I also observe that there must be

many thousands if not millions of “WhatsApp” groups and therefore in my view four cases

where someone has decided to report what has been said does not of itself support the view

that there could be no reasonable expectation of privacy in such a group.

[144] In addition, Ms Maguire founded upon the decision in the Leicester Police case. In

this case it was argued that the messages were sent from “personal mobile phones” to “a

closed group of recipients” and thus there was a reasonable expectation of privacy. The

panel held that these factors were not determinative and thus made no decision in respect to

the question of whether the characteristics of a “WhatsApp” group when taken on their own

[145] In respect to the issue of whether, given the characteristics of “WhatsApp”, there was

a reasonable expectation of privacy, Ms Maguire also relied on the case of Garamukanwa. I

am of the view that this case does not support the respondents’ position. In proceedings for

unfair dismissal brought against the claimant’s employer the claimant argued that his

human rights in terms of Article 8 had been breached by examination of matters which

“A fake social media account was set up in [the name of a person with whom the

claimant had had a relationship], to which the names of approximately 150

colleagues were added, and anonymous emails were sent from various email

[146] It was held that some of these emails were sent by the claimant. It was found that

Article 8 was not engaged as he could not have had any reasonable expectation of privacy.

[147] The circumstances in the above case are entirely different from the present case. The

claimant intended that the emails he published would find a wide audience. In such

circumstances it can clearly be seen why there could be no legitimate expectation of privacy

in relation to these communications. Such circumstances are entirely different to the

situation of a “WhatsApp” group. This decision in no way advances the respondents’

[148] The respondents’ equally relied on the Teggart case. This once more does not

advance the respondents’ position. Again the context of the case was an employment

tribunal where various comments were placed by the claimant on a Facebook page. It was

the claimant’s position that he had a reasonable expectation of privacy relative to these and

these rights had been breached by the use of this information in disciplinary proceedings.

The tribunal held at para 17 as follows in relation to this argument:

“(a) when the claimant produced comments on his Facebook pages, to which

members of the public could have access, he abandoned any right to consider his

comments as being private and therefore he cannot seek to rely on Article 8 to

[149] Accordingly it was the fact that “members of the public could have access” which

was the critical finding. In the present case the public could not have such access.

[150] In conclusion it appeared to me that having regard only to the characteristics of

“WhatsApp” an ordinary member of the public using such could have a reasonable

[151] Looking beyond the mere characteristics of “WhatsApp” Mr Sandison sought to

persuade me that in considering the issue of the petitioners’ reasonable expectation of

privacy there was an additional factor to which regard should be had: it could be taken

from a reading of the petitioners’ affidavits when looked at as a whole that the genesis of the

group was during their training as police officers, the members of the group knew each

other and had a trust and confidence in each other. Although the test is an objective one

these are factors which I believe can be properly considered. The court in considering the

issue of reasonable expectation of privacy can have regard to the individuals with whom

messages are shared. This I think can be seen from the following scenario: there is a

substantial difference in respect to the objective reasonable expectation of privacy where

information is being shared with a group of friends and with a group of strangers. It seems

to me appropriate to consider that the petitioners did have trust and confidence in other

members of the group in respect to the petitioners’ reasonable expectation of privacy. It

seems to me that this factor would support a reasonable expectation of privacy on the part of

[152] Moving on from the foregoing factors it is important to observe that it is the whole

circumstances of the case that the court must have regard to when considering reasonable

expectation of privacy and Ms Maguire’s argument went on to contend that in considering

this question regard must be had to the nature of the content of the messages; that the

petitioners were subject to the Standards; and that the Standards applied both when the

[153] A number of arguments in respect to reasonable expectation of privacy were

[154] First, Ms Maguire placed reliance on part of Lord Justice Toulson’s analysis of the

approach to be taken when considering the issue of reasonable expectation of privacy in

JR38, namely: that section between paragraphs 97 and 100, which I have set out in full

[155] Her argument was this: in the present case there was a clear parallel to the

circumstances in JR38 as explained by Lord Justice Toulson. In development of that she

made a short sharp submission that the abhorrent nature of what the police officers were

doing and the breach of the Standards by which they require to operate is clearly not an

[156] Accepting for the purposes of the present argument that the nature of what was

being said and exchanged among the petitioners could be characterised in this way and

breached the Standards, I observe first that there is a substantial difference between the

circumstances of the present case and those being considered by Lord Justice Toulson and I

am not persuaded that there is a clear parallel between it and the present case. The activity

being considered by Lord Justice Toulson was described in this way: the child was taking

part in a “public riot”. It was the public nature of the behaviour which was photographed

which appears to me to have been the principal factor which was decisive in it being held by

Lord Justice Toulson that there was no reasonable expectation of privacy. It was not the

nature of the behaviour, namely “a riot” which was the relevant factor but the “public”

nature of that riot which was the telling factor. The context of the behaviour upon which he

was commenting is thus entirely different from that which is the subject of the present case.

What is being dealt with in the present case is messaging in what is, as I have held,

essentially a private context. That type of activity it is clear can form part of the zone of

interaction which engages Article 8. Whereas a public riot does not form part of the

“protected zone of interaction between a person and others” and therefore cannot engage

[157] As I have said Ms Maguire described the content of the messages as being of “an

abhorrent nature”, accepting that that is the case for the purposes of this argument, it does

not, I think, take the communings out of the zone of interaction which is clear from the

Von Hannover case is a matter which falls within the scope of Article 8. The zone of

interaction, I am persuaded, covers messages made in a private context even if they are of an

[158] It appears to me as a matter of principle, that as argued by Mr Sandison, if behaviour

in a private context which may be regarded by the general public as abhorrent does not

engage Article 8 then there is perhaps little point in there being such a right. It is in such a

[159] I am persuaded that normally the content of behaviour does not sound when

consideration is being given to the question of reasonable expectation of privacy. It is not

generally a relevant consideration when deciding whether the reasonable expectation of

privacy arises. Lord Nicholls of Birkenhead in Campbell considers the proper approach to

“Accordingly, 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 respect of the disclosed facts the person in question had a

[160] I believe what Lord Nicholls is saying in this passage is reasonably clear: that

considerations of the type on which the respondents’ seek to found, namely: the nature of

the messages do not normally form a part of the consideration at this first stage of deciding

whether there is a reasonable expectation of privacy. Such matters normally only arise as a

relevant consideration at the second stage where one is considering the issue of justification

[161] Accordingly, for the above reasons I am not persuaded by this particular argument

[162] The second argument advanced by Ms Maguire in summary was this: that the

Standards indicate that there is no privacy right engaged in the circumstances of this case.

[163] This argument, I think, seeks to put forward that as a consequence of their position

as police officers who are subject to the Standards the petitioners had no reasonable

expectation of privacy when exchanging messages of this type on “WhatsApp”.

[164] I consider that the argument comes to this: given the Standards and the regulatory

framework to which a police officer is subject then he or she is in a different category from

an ordinary member of the public and that because of their position as police officers their

reasonable expectation of privacy is different from an ordinary member of the general

public. As I understand it the argument is developed in this way: where the officer’s

private behaviour can be said to be disconform to the Standards then (because of his

position as a police officer) the officer does not have a reasonable expectation of privacy. I

consider there is some force in this argument. The starting place in considering this point is

“18. It is a very long established and incontrovertible principle that the public

must have confidence in the police service. This is the fundamental requirement of

policing by consent. The policing principles as set out in the Police and Fire Reform

(Scotland) Act 2012 (‘2012 Act’) section 32 makes this clear.”

The 2014 Regulations and thus the Standards flow from the 2012 Act. In addition explicit

regulations have been promulgated restricting the right to privacy of a constable namely

Regulation 4 and Schedule 1 of the 2013 Regulations. Thus if in his private life a constable

was to act in such a way that it “is likely to interfere with the impartial discharge of his

duties or is likely to give rise to the impression amongst members of the public” he has no

reasonable expectation of privacy. The officer has accepted by becoming a constable that his

right to privacy is limited to the extent as set out in the 2013 Regulations. It is an attribute of

constables that they are subject to this limitation in their right to privacy. In addition it is an

attribute of a constable that he is subject to the Standards. I think that when analysed 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. To take two examples, a constable who in messages evidenced attitudes showing an

inappropriate attitude towards various groups in society that would be likely to give rise in

the mind of the public that he could not impartially discharge his duties or where messages

showed disclosure of confidential material relative to his policing duties that could equally

be held to evidence an inability to impartially discharge his duties.

[165] Accordingly I am persuaded that because of these attributes of a constable the

content of the messages can inform the question of whether there was a reasonable

expectation of privacy. In the circumstances of this case where the members of the group

were not just members of the public but police officers the content is a relevant

[166] Ms Maguire in her written submissions characterised the content of the messages in

“It will be seen that it is, on any view, 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.”

I believe that is a characterisation which a reasonable person having regard to the content of

the messages would be entitled to reach. I conclude that the content of the messages can be

regarded as potentially informing the issue of breach of Standards in circumstances calling

into question the impartial discharge of the petitioners’ duties. The petitioners in these

circumstances had no reasonable expectation of privacy. This flows from the attributes

[167] That the attributes of the petitioners is one of the circumstances the court can have

regard in considering the reasonable expectation of privacy is made clear in JR38 where

Lord Toulson at paragraph 88 says this quoting the words of Sir Anthony Clarke MR in the

“’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

[168] The approach of having regard to the attributes of a constable in considering the

question of reasonable expectation of privacy does not mean that a police officer has no

reasonable expectation of privacy at all as argued by Mr Sandison. However, that

expectation is limited. The limitation can, I think, be described thus: if their behaviour in

private can 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 then they have no reasonable

expectation of privacy. The police officer in such a situation is in a different position from

an ordinary member of the public because of the attributes I have identified.

[169] In R (Chief Constable of Cleveland) v Police Appeals Tribunal counsel (Mr Yeo) in

addressing the issue of a police officer’s reasonable expectation of privacy in terms of

“Police officers have some restrictions on their private life. These restrictions are laid

down in the Police Regulations 2003. These restrictions have to be balanced against

the right to a private life. Therefore, in considering whether a police officer has acted

in a way which falls below the Standards while off-duty or otherwise relating to his

private life, due regard should be given to that balance and any action should be

proportionate taking into account all of the circumstances.” (see: para 74).

[170] I would respectfully adopt the succinct statement there put forward. There is a

restriction on police officers’ private life and therefore their expectation of privacy. That

restriction is in respect to the matters identified in the 2013 Regulations and the Standards

which the officer has sworn to uphold. It is only in relation to these matters that there is a

limitation on the officer’s privacy it is not a whole scale intrusion into his private life.

Accordingly to achieve the underlying purpose of the Standards, namely: the maintenance

of public confidence in the police, police officers have a limitation on their expectation of

[171] A further argument based on the Standards was advanced by Ms Maguire which

reading short is this: 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

[172] Looked at objectively in considering whether a reasonable person in the position of

the petitioners would have had a reasonable expectation of privacy in respect to the

exchanging of messages of this type, the duty incumbent on the members of the group

which consisted of not just the petitioners but others who were serving officers and thus

each subject to the above duty must materially undermine the contention of reasonable

expectation of privacy. 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. It is

not an answer to this point to say: no member of the group disclosed. The fact is there was

a duty to disclose incumbent on many of the members and in looking at the issue of

[173] In conclusion, drawing together all of the various strands of the argument and

having regard to all of the circumstances, I conclude that the petitioners had no reasonable

expectation of privacy in respect of the messages. In summary that they had no such

reasonable expectation of privacy arises from their holding the position of police officers and

what flows therefrom as I have explained above. Accordingly no right exists in terms of

[174] The next issue relates to whether there was a clear and accessible basis regarding the

circumstances in which disclosure could take place so as to be in accordance with law.

[175] The argument here in essence turned on this: there was no dispute that the

respondents had a right in terms of criminal law to look at the messages. However, it was

argued by the petitioners that there was no clear and accessible legal basis for it being

[176] The test of “in accordance with law” is most clearly set out in Halford v United

“The expression ‘in accordance with the law’ not only necessitates compliance with

domestic law, but also refers to the quality of that law, requiring it to be compatible

with the rule of law. In the context of secret measures of surveillance or interception

of communications by public authorities, because of the lack of public scrutiny and

the risk of misuse of power, the domestic law must provide some protection to the

individual against arbitrary interference with Article 8 rights. Thus, the domestic

law must be sufficiently clear in its terms to give citizens an adequate indication as to

the circumstances in and conditions on which public authorities are empowered to

[177] Putting the foregoing test into language appropriate to the circumstances of the

present case: 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

[178] Thus what the court is looking for is a clear and accessible legal basis for the use of

the messages initially legally recovered in terms of the criminal proceedings for a collateral

[179] Ms Maguire’s primary response to this matter was to rely on the 2014 Regulations

governing the procedure to be followed in the course of the disciplinary proceedings.

However, I agree with Mr Sandison that merely looking to the 2014 Regulations does not

give a clear and accessible basis for the disclosure of information obtained in the course of

criminal investigations involving one officer for use in disciplinary proceedings involving

[180] However, in the course of her submissions Ms Maguire referred to Nakash v

Metropolitan Police Service and the General Medical Council which case in turn made reference

to and followed Woolgar v Chief Constable of Sussex Police UKCC 1999 WL 477340, which was

described as the leading authority in this area. I believe that a consideration of these two

cases gives the clear and accessible basis for the use of material recovered in the above way

[181] The background to Woolgar was this: The appellant was a state registered nurse.

After the death of a patient in her care allegations were made to the police and she was

arrested. The evidence found did not meet the level for criminal charges. However, the

police reported the matter to the Registration and Inspection Unit of the relevant Health

Authority who reported the matter to the UKCC the regulatory body for nurses. The issue

“… whether, if the regulatory body of the profession to which the suspect belongs is

investigating serious allegations and makes a formal request to the police for

disclosure of what was said in interview, the public interest in the proper working of

the regulatory body is or may be such as to justify disclosure of the material sought.”

[182] Lord Justice Kennedy giving the judgment of the Court of Appeal considered from

paragraph 7 a number of authorities concerning the use by the police of information coming

into their hands from the public. In the course of considering these various authorities one

of the cases which he looked at was Marcel v Commissioner of Police 1992 2 AER 72. The issue

in that case was whether the police were entitled to disclose seized documents to a third

party for use in civil litigation. Dillon LJ at 81 cited with approval what had been said by

“In my judgment, subject to any express statutory provisions and other acts the

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 …. 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 regulatory authorities

[183] The above tentative remarks I believe indicate that there is a legal basis for

communication of information recovered by the police in criminal proceedings to bodies

such as the one in the present case for the purpose of disciplinary proceedings.

[184] Lord Justice Kennedy also refers to R v Chief Constable of North Wales ex parte AB 1999

QB 396. The background to this case in short was this: the police informed the owner of a

caravan site of the convictions of certain paedophiles. In the Divisional Court

“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 the 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

Again these remarks suggest that information recovered by the police can be used for a

collateral purpose of the type in the present case. Reference is also made by Lord Justice

Kennedy to the remarks in the same case of Buxton J at 415B where he says this:

“… 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.”

[185] The Divisional Court’s decision was upheld by the Court of Appeal and in giving the

judgment of the Court of Appeal Lord Woolf MR commented at 429B as follows:

“The issue here is not the same as it would be in private law. The fact that

convictions of the applicants had been in the public domain did not mean that the

police as a public authority were free to publish information about their previous

offending absent any public interest in this being done. As Lord Bingham CJ stated,

before this happens it must at least be a situation where in all the circumstances it is

desirable to make disclosure. Both under the convention and as a matter of English

administrative law, the police are entitled to use information when they reasonably

conclude that this is what is required (after taking into account the interest of the

applicants) in order to protect the public and in particular children.”

The above remarks clearly identify the basis upon which such collateral disclosure by the

police can be made, namely: where it is in the public interest and in order to protect the

public. This I think gives the clear and accessible basis on which such disclosure can take

[186] Having considered the various authorities Lord Justice Kennedy at paragraph 9

“… in my judgment, where a regulatory body such as the UKCC, operating in the

field of public health and safety, seeks access to confidential information 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. As Mr Horan said in paragraph 14 of his skeleton argument:

‘A properly and efficiently regulated nursing profession is necessary in the interest of

the medical welfare of the country, to keep the public safe, and to protect the rights

and freedoms of those vulnerable individuals in need of nursing care. A necessary

part of such regulation is the ensuring of the free flow of the best available

information to those charged by statute with the responsibility to regulate.’”

[187] Lord Justice Kennedy then sought to put the matter in Convention terms and in

“… disclosure is ‘necessary in a democratic society in the interests of … public safety

… or … for the protection of health or morals, or for the protection of the rights and

freedoms of others.’ 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

[188] Applying the foregoing analysis to the circumstances of the present case this I

consider gives a clear and accessible basis upon which the police could disclose to

regulatory bodies information which they recovered in the course of criminal investigations.

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).

[189] Lord Justice Kennedy in addition indicates the safeguards which should be applied

“It is, in my judgment desirable that where the police are minded to disclose, they

should, as in this case, inform the person affected of what they propose to do in such

time as to enable that person, if so advised, to seek assistance from the court.”

[190] Accordingly, to return to the question posed by Mr Sandison in the course of his

submissions: if a constable had asked a lawyer to advise in respect to the issues raised in

this case, then I believe the lawyer could have given advice as to the circumstances in which

information recovered in the course of a criminal inquiry, could in accordance with law be

disclosed for the purpose of disciplinary proceedings. He could do so by referring to the

[192] For the above reasons I am satisfied that there is a clear and accessible basis for the

disclosure in the circumstances of this case. The present case can clearly be distinguished

from the case of Sciacca relied on by Mr Sandison. In Sciacca it is apparent that there was no

such clear and accessible legal basis for the disclosure of the photograph. In Sciacca there

was no public duty incumbent on the police to disclose the photograph to the press. In the

present case there is a public duty which demands the disclosure for the collateral purpose

[193] Nor is the disclosure arbitrary in that it is based on a consideration of whether the

Disciplinary Body requires to consider such information in order to have a properly and

efficiently regulated police force and accordingly to protect the public.

[194] Having looked in terms of Article 8(2) as to whether the exercise of the right was in

accordance with the law, in the sense of there being a clear and accessible basis. The next

point argued was also in terms of Article 8(2). Mr Sandison contended that the second part

“... necessary in a democratic society in the interest of national security, public safety

or the economic wellbeing of the country, for the prevention of disorder or crime, for

the protection of health or morals, or for the protection of the rights and freedoms of

[195] In short his position was that the interference had not been shown to be necessary in

[196] Ms Maguire made a submission in reply that all of the matters set out in Article 8(2)

were engaged, however, she appeared particularly to rely on issues of “public safety” and

[197] I think it is plainly wrong that all of the matters listed in Article 8(2) are engaged. No

issue of “national security”, or “economic wellbeing of the country”, or “the protection of

[198] The following, however, I think are engaged: first, “public safety”. The principle

purpose of the police is the protection of the public. Officers behaving in the way set out in

these messages may be held to have contravened the Standards. An officer who fails to

meet the Standards, for the reasons put forward in the present case on the basis of the

messages, can 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

is essential for the purpose of successful policing that the police maintain the confidence of

the public. If the public loses confidence in the police in this way then public safety would

be put at risk as the police cannot operate efficiently without such public confidence. This

fits in with an intervention being necessary for “the prevention of disorder or crime”. The

police, if the public loses confidence in them, are likely to be less able to prevent disorder or

[199] I observe that certain aspects of the behaviour displayed in the messages shows a

mind-set where the public’s right to be treated fairly is called into question for example

depending on their race, religion or sexuality. Once more an officer who holds these types

of views is less likely to have the confidence of the public and the public safety would be put

at risk by having an officer of that type for the reasons I have set out.

[200] Thus for the foregoing reasons I believe Article 8(2) is engaged. The next question is

[201] The importance of public confidence in the police is clearly considerable. Equally the

protection of the public by the police is extremely important. In order to maintain public

confidence and to protect the public it is necessary for the police to be regulated by a proper

and efficient disciplinary procedure. I believe that a necessary part of this regulation is the

ability for the police where it lawfully obtains information which can inform the

proceedings before such a body that the police should be able to disclose it to such a

regulatory body as that set up under the 2014 Regulations. The information is being

disclosed only to that body and only for a limited purpose. In these circumstances had the

petitioners had a legitimate expectation of privacy the foregoing factors would have caused

me to consider that the messages could nevertheless be disclosed to the disciplinary body. I

believe the disclosure would have been proportionate. The balance I consider is heavily

weighted on the side of disclosure. I am unable to identify a less intrusive measure which

could have been used without unacceptably comprising the objectives I have identified.

[202] Finally there is the fourth question. I do not require to answer this given my answer

to the earlier questions. Had I been with the petitioners in respect to the earlier issues and

had to consider this issue: I would have found that nevertheless they were not entitled to

interdict. Having regard to all of the circumstances to which I have already referred I would

have considered it fair in all the circumstances for the material to be admitted for use in the

[203] For the foregoing reasons I find in favour of the respondents and refuse the petition.

Scottish Court of Session Decisions