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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> BC AND OTHERS, (FIRST) BC AND OTHERS AGAINST CHIEF CONSTABLE POLICE SERVICE OF SCOTLAND AND OTHERS [2018] ScotCS CSOH_104 (13 November 2018)
URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_104.html
Cite as: [2018] CSOH 104, [2018] ScotCS CSOH_104, 2018 SLT 1275, 2018 GWD 36-451
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OUTER HOUSE, COURT OF SESSION
[2018] CSOH 104
P105/18
OPINION OF LORD BRAILSFORD
In the petition
(FIRST) BC AND OTHERS
Petitioners
against
CHIEF CONSTABLE POLICE SERVICE OF SCOTLAND AND OTHERS
Respondents
Petitioners: Sandison QC, Young; Kennedys Scotland LLP
Respondents: Sheldon QC; Clyde & Co (Scotland) LLP
13 November 2018
[1] The petitioners are ten individual police officers against whom misconduct
proceedings have been brought under the Police Service of Scotland (Conduct)
Regulations 2014 (SSI 2014/68) (“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
proceedings brought against the petitioners.
[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 for the purpose of bringing misconduct
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proceedings in respect of allegations of non-criminal behaviour on the part of the petitioners
is unlawful et separatim is incompatible with the petitioners’ rights to respect for their private
and family life in terms of article 8 of the European Convention on Human Rights (“ECHR”)
and, further, 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
interdicting the same ad interim. Permission to proceed was granted on 15 May 2018 and
after sundry procedure by interlocutor dated 4 July 2018 Lord Arthurson ordered that a
substantive hearing set down for 19 July 2018 be restricted to matters raised in paragraphs 1,
2 and 10-22 of the petitioners’ note of arguments and paragraphs 1-4 on the respondents’
note of argument. The effect of this interlocutor was that the substantive hearing before me
was confined to discussion of the respondents’ first, third and fourth pleas-in-law. These
were, first, that the petition did not challenge any act, omission or decision amenable to the
supervisory jurisdiction. Second, that the petitioners had not availed themselves of rights of
appeal conferred on them under or by virtue of statute and, third, that the petition was
directed to matters which have yet to be determined and was accordingly premature. For
these reasons it was submitted that the petition fell to be dismissed.
The 2014 Regulations
[3] The 2014 Regulations form the regulatory basis upon which the misconduct
complaints which gave rise to this petition proceed. Part 2 of the Regulations contained in
Regulations 10-14 set forth procedures to be adopted if misconduct allegations come to the
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attention of a deputy chief constable designated to exercise functions under the Regulations.1
Thereafter Part 3 of the 2014 Regulations, entitled “Misconduct Proceedings” deal with the
arrangements for misconduct proceedings and thereafter the procedure to be followed at
misconduct proceedings. The relevant regulations are 15-23. It is not necessary to repeat
the provisions at length. Regulation 15 applies if the designated deputy chief constable has
referred a case for misconduct proceedings. The constable who is the subject of the
allegation of misconduct must be served with a misconduct form and thereafter, within a
stipulated time limit, the constable must in terms of Regulation 15(5):
“... provide the deputy chief constable written notice of whether the constable
accepts that –
(a) the conduct which is the subject matter of the misconduct allegation is
conduct of the constable; and
(b) that conduct amounts to misconduct or (as the case may be) gross
misconduct.”2
If misconduct is not accepted by the constable Regulation 16 provides for the appointment
of a person to conduct misconduct proceedings. Regulation 17 provides for the agreement
of lists of witnesses, failing which the submission by each side to the proceedings of lists of
witnesses, all within stipulated time periods. Procedure at misconduct proceedings is set
forth in Regulation 18 and provides for evidence to be heard from any witness in attendance
(Regulation 18(2)(b)) and, further, stipulates that “[W]hether any question is to be put to a
witness is to be determined by the person conducting the proceedings”, (Regulation 18(3)).
Regulation 21 provides for the determination by the person conducting the proceedings as
to whether or not the subject matter of the misconduct allegation is conduct of the constable.
Part 4 of the Regulations deals with appeals from such a determination.
1 Regulation 5(1)
2 Regulation 15(5)
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Background
[4] The factual background was not contentious and is adequately set forth in
paragraphs 4-7 of the petitioners’ Note of Argument. That material may be summarised as
follows. In July 2016 a detective constable was engaged in an investigation into sexual
offences. None of the petitioners were persons of any interest to that investigation. In the
course of the investigation the detective constable reviewed certain electronic messages sent
via the “WhatsApp” private messaging system present on a mobile phone belonging to a
suspect and recovered during the course of the investigation. The suspect was a constable
within Police Scotland. The messages which form the basis of the misconduct allegations
against the petitioners were contained in “group chats”, being messages shared privately
amongst members of a closed group of individuals. Having considered the messages the
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.
[5] The petitioners’ contention is that the use of the messages in the manner described
amounts to an infringement of their common law rights of privacy et separatim their rights in
terms of article 8 ECHR. The respondents deny this but also take preliminary points that the
issues in the petition are hypothetical, premature or academic and, further, that in any event
the petitioners have an effective alternative remedy. In terms of the interlocutor of 4 July
2018 already referred to the substantive hearing was confined to the preliminary points
noted in paragraph [2] hereof.
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Petitioners’ submissions
(a) Live practical question
Senior counsel for the petitioners submitted that the general purpose
of the supervisory jurisdiction is to control any abuse or excess of power.3
The proper concern of judicial review is any action or event that has, or will
have, substantive legal consequences. It was said that review may be either
prospective of the proposed event or action or retrospective.4 The submission
was developed by the observation that the court will not consider
hypothetical, premature or academic questions being only concerned with
live practical issues. What constituted a live practical issue was dependent
upon the circumstances of each case.5
It was submitted that as a matter of fact, which fact was not
contentious, each of the petitioners were subject to misconduct proceedings.
It was also a matter of fact, again accepted as non-contentious, that the
respondents had used and proposed to make further use of the messages for
the purposes of the misconduct proceedings. The petitioners’ position was
that these actions infringed both common law rights and are in breach of
ECHR rights to privacy. It followed that the matter was not hypothetical. In
any event it was, as a matter of expediency, appropriate that the complaint
raised by the petitioners should be determined at this stage. This line of
4 Shrewsbury & Atcham Borough Council & Another v Secretary of State for Communities & Local
Government [2008] EWCA Civ 148 at paragraph 33 per Carnwath LJ
5 Wightman & Others v Secretary of State for exiting the European Union [2018] CSOH 61 at paragraphs
[47] and [51]; and now see decision in the reclaiming motion at [2018] CSIH 62 at paragraphs [24] and
[25] per the Lord President [Carloway]
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argument was developed by submitting that the respondents erred in
attempting to treat the present petition as if it were only a complaint about a
prospective decision of the third respondent in the course of the misconduct
proceedings and thereby to treat the messages as merely part of the evidence
to be used at any misconduct hearing.
(b) No effective alternative remedy
It was accepted on behalf of the petitioners that the existence of an
effective alternative remedy will normally bar recourse to the supervisory
jurisdiction of the court.6 The general principle was said however to be
subject to the qualification that an alternative remedy must be effective.7
Having regard to that consideration it was submitted that it was likely
to be deeply unsatisfactory for someone to have to wait for actual disciplinary
proceedings to be brought, for a finding of misconduct to be made and appeal
rights exhausted before presenting a fundamental challenge to the process.8
It was observed that this process of reasoning had been applied in respect of
fundamental challenges in the specific context of police misconduct
proceedings9. The underlying rationale behind the submission was that it
would be unsatisfactory if substantive hearings proceeded with the
8 Rossi v Magistrates of Edinburgh [1904] 7 FHL 85 at 89-90, and Pharmaceutical Society of Great Britain v
Dickson [1970] AC 403 at page 420, 429-430, 433
9 R (on the application of Wilkinson) v Chief Constable West Yorkshire Police [2002] EWHC 2353 (Admin)
at paragraphs 45-48, R (on the application of Redgrave) v Metropolitan Police Commissioner [2002] EWHC
1074 (Admin) at paragraphs 10-15, and R v Chief Constable of Merseyside ex parte Calveley [1986] QB 424
at pages 4340-435 and 439-440
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associated costs in circumstances where a process was fatally flawed.
Support for this essentially pragmatic approach was said to be found in Lewis
“Judicial Remedies in Public Law”.10
In applying these principles to the present petition it was submitted
that the alternative remedy suggested by the respondents, an application at
misconduct hearings to request the decision maker to exclude the messages,
constituted neither an effective nor realistic remedy. The reasons advanced
for this were first, that the nature of the complaint was a fundamental one of
unlawful recovery and use of messages. The nature of the complaint made
by the petitioners would not usually be regarded as the type which the
statutory code on police disciplinary procedures was intended to
accommodate. It would not be effective to require the petitioners to
participate in that process involving at least potentially a lengthy evidential
hearing and appeals before having judicial determination of an obvious and
potentially determinative preliminary issue.
Second the petitioners contended that their privacy had already been
unlawfully infringed and as a consequence they are being subjected to
unlawful disciplinary proceedings based upon that infringement. These
disciplinary proceedings will form part of the petitioners’ permanent
professional records.
Third, it was submitted that the structure of the 2014 Regulations did
not provide an effective remedy. They did not provide for effective
preliminary challenges on the issue of exclusion of evidence. Even before any
10 5th edition at paragraphs 12-044 and 12-046 et seq
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8
evidence was adduced or lodged the petitioners were compelled by the
Regulations to admit or deny whether the conduct referred to was their
conduct (Regulation 15(5)(a)). It was further advanced that the ability to
challenge witnesses was circumscribed and time limited (Regulation 17) and
the person conducting the proceedings had no discretion but to admit
evidence from any witness in attendance (Regulation 18(2)(b)). Lastly in this
regard it was submitted that there was no ability to challenge by way of
appeal or review any preliminary ruling on admissibility.
Respondents’ submissions
[6] The primary position of the respondents was that the petitioners had failed to
exhaust the statutory remedies open to them in terms of the 2014 Regulations. Pending any
determination of the use to be made of the messages by the third respondent in the
misconduct proceedings the matters complained of in the petition were premature and
incompetent. It was said the determination of the substantive matters raised in the present
petition would add nothing to any determination by the misconduct hearing and any appeal
proceedings following therefrom. Having regard to the fact that the petitioners themselves
maintain that the messages are the entire sum and substance of the misconduct charges
brought against them it was said to be “highly likely that the misconduct charges would be
dropped in the event that messages are found to be inadmissible as evidence”.
[7] In development of this it was submitted that the competent and exclusive forum at
this stage for the determination of whether the proposed use of the messages breached any
private law right or right of privacy under article 8 was the misconduct hearing and that all
the arguments advanced by the petitioners were capable of being determined at any
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misconduct hearing. Further those issues were, if appropriate, capable of being appealed or
reviewed. Specific provision was made in the 2014 Regulations for appeals.11
[8] Having regard to those considerations the submission of the respondents was that
the present petition was incompetent and fell to be dismissed.
Conclusion
[9] There is no dispute that a detective constable acting in the course of his or her duties
came across electronic messages posted by the petitioners on a messaging system. The
messaging service used was private and the petitioners had no intention of publishing the
contents of their messages to the public at large. It was, further, not disputatious that the
messages themselves were of no interest to the investigating police officer who recovered
them in the context of the inquiry into possible offences. The inference to be drawn from
this is that the messages did not disclose criminal conduct.
[10] One issue which may arise out of the foregoing facts is whether the detective
constable who recovered the messages was under any obligation to pass them on to an
appropriate officer for consideration as potential misconduct under the 2014 Regulations.
That question is not however before the court. The messages were passed to an officer for
the purposes of investigation under the 2014 Regulations and it is plain from what has
occurred following therefrom, and the misconduct proceedings now challenged, that use has
been made of the messages. Given that the messages were circulated on a private messaging
system with known and identified participants so far as the petitioners sending the
messages were concerned it is tolerably clear that they were, and were intended to be, of a
private nature. The private nature of the messages is not disputed by the respondents.
11 Regulation 24
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[11] Having regard to the foregoing consideration I am of the view that the issue of
whether or not the messages can be made use of in misconduct proceedings which are
essentially private proceedings brought by a police authority against a police constable
raises issues of substantive law. Put shortly can private communings lawfully acquired by a
police officer in the pursuit of a criminal investigation, which communings are of no interest
in the context of the criminal investigation being undertaken by the recovering police officer,
be subsequently used for a purpose unconnected with the criminal investigation. That
question is, in my view, wider than merely evidential in scope. In order to answer that
question issues of confidentiality and privacy both at common law and, no doubt, under the
provisions of ECHR require to be considered.
[12] If I am correct in my analysis it would follow that the police officer responsible for
determining the misconduct proceedings would be required, in the course of an evidential
hearing in the proceedings, to determine a difficult question of substantive law on the basis
of an evidential challenge made by the officer, or officers, who were the subject of the
proceedings. I would not regard that situation as satisfactory. Moreover, as was submitted
by senior counsel for the petitioners, the nature of the challenge being to a substantive legal
right is capable of determining whether or not the proceedings are lawfully brought.
[13] In my view the nature of the substantial issue which has emerged is, as was
submitted by senior counsel for the petitioners, beyond the scope of what would normally
be considered misconduct proceedings. The complaint is, or raises, an issue of fundamental
right. I would not consider police misconduct proceedings as the appropriate forum to
determine such issues.
[14] Beyond that there is the consideration that the 2014 Regulations do not provide an
adequate or effective mechanism for the determination of issues of the nature of the
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challenge which has now arisen. There is no provision in the Regulations permitting a
challenge on a point of law to the competency or validity of proceedings. There is no
provision in the Regulations for a preliminary challenge to an evidential matter.
Regulation 18 stipulates procedure at misconduct proceedings. Regulation 18(2) provides,
inter alia, that:
“[T]he person conducting the misconduct proceedings must permit - ...
(b) Evidence to be heard from any witness in attendance ...”
The implication of this is clearly that the proceedings will simply proceed to hear evidence
once convened. The scope of challenging questioning is limited and contained in
Regulation 18(3) which provides: “[W]hether any question is to be put to a witness is to be
determined by the person conducting the proceedings.” Again the emphasis is, in my view,
on the functional. The proceedings are essentially a factual inquiry. Whilst it is correct that
a challenge to the evidence on the lines envisaged by senior counsel for the respondents
would be permissible in terms of Regulation 18(3) it does not appear to me to constitute a
satisfactory method for the raising and determination of important questions of law such as
those raised in the circumstances surrounding the present misconduct proceedings. I would
not regard the misconduct proceedings as constituting an effective mean of determining the
substantive issue raised in the present proceedings.
[15] I further have regard to the fact that information claimed to be confidential to the
petitioners has already been used for the purpose of investigating and instituting the
misconduct proceedings. If the petitioners are correct that the information is confidential in
respect of that there has already been an infringement of a right. For this reason alone I do
not regard the respondents argument on prematurity as being well-founded.
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[16] Having regard to these considerations I have formed the view that the present
petition does raise a live question, of a significant or important nature, which does require to
be determined. It follows that I do not consider the present petition to be premature.
Primarily because of the fundamental nature of the challenge raised by the petitioners I
consider that the appropriate method to determine the validity thereof is through the
present petition for judicial review. It follows that I shall repel the respondents’ first, third
and fourth pleas-in-law. The result of this decision will be that the petition will proceed and
for that purpose a by order will be arranged to determine future procedure.