Scotland’s Inner House of Court of Session has declined to overrule a lower court’s refusal to issue an injunction to stop disciplinary action against police officers involved in racist and sexist WhatsApp conversations.
During an unrelated investigation into a police officer’s alleged misconduct, senior police officers discovered two private WhatsApp groups of ten police officers sharing evidently racist, sexist, homophobic and anti-Semitic content with each other. In addition, they shared images of crime scenes concerning live investigations.
The officers attempted to block disciplinary action through the courts claiming that their right to privacy under Article 8 of the European Convention on Human Rights (ECHR) had been breached by senior officers accessing the private conversations.
The Court upheld the decision of the lower court to refuse the injunction. Lord Bannatyne affirmed that the WhatsApp messages did represent a “confidential context” within the meaning of Article 8 of the ECHR but the officers had no “reasonable expectation of privacy” in respect of the messages because they occupied public positions and, upon entering the force, they subjected themselves to particular standards of conduct. If their behaviour in private was to breach these standards and to question their ability to discharge their duties, their privacy rights would be limited.
Lord Bannatyne further stated that police officers were under a positive obligation to report potential violations of the standards by other police officers.
Lord Bannatyne also outlined, obiter, that the messages could undermine public confidence that police in Scotland were unbiased, and respected people’s race, sexuality and disabilities.
Lady Dorian in the Inner House of Court of Session, agreeing with Lord Bannatyne’s findings, added that the onus on those officers to uphold the police force’s rules and protect the public overrode their right to privacy, and it was proportionate for the senior officers of the force to use the messages in disciplinary action.
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