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Cite as: 2022 SLT 443, 2022 SCLR 136, [2022] ScotCS CSIH_10, 2022 GWD 9-149, [2022] CSIH 10

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2022] CSIH 10

P925/20

Lord Justice Clerk

Lord Malcolm

Lord Turnbull

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in the Reclaiming Motion

CALUM STEELE

Petitioner and reclaimer

for

JUDICIAL REVIEW

Petitioner and reclaimer: Dean of Faculty QC; T Young; MacRoberts

Respondent: Ross QC; Irvine; Clyde & Co

4 March 2022

Introduction

[1]

The petitioner and reclaimer is the General Secretary of the Scottish Police

Federation, and a serving police officer, albeit he does not undertake operational duties. The

respondent is the Deputy Chief Constable of the Police Service of Scotland. Although not

operational the reclaimer remains subject to the misconduct procedures under the Police

Service of Scotland (Conduct) Regulations 2014 (SSI 2014/68). In this reclaiming motion he

challenges the Lord Ordinary's decision refusing his petition seeking declarator that a

decision to institute and maintain misconduct proceedings against him was unlawful at

common law and incompatible with his right to freedom of expression in terms of Article 10

of the European Convention on Human Rights, and reduction of the decision to institute

such proceedings. In a cross-appeal the respondent challenged the Lord Ordinary's finding

that there was no effective alternative remedy available to the petitioner. The proceedings

allege misconduct by the reclaimer in the form of certain tweets.

Misconduct by police officers

[2]

The following is an extract from the opinion of the Lord Ordinary summarising

issues concerning allegations of misconduct by police officers, including in the context of the

use of social media.

"[4]

Issues of alleged misconduct by police officers are regulated principally by

the 2014 Regulations. In terms of Regulation 2 "misconduct" is defined as "conduct

which amounts to a breach of the Standards of Professional Behaviour". The

"Standards of Professional Behaviour" are set out in Schedule 1. Under the heading

"Discreditable conduct", it is provided that:

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

undermine public confidence in it, whether on or off duty.'

[5]

Police Scotland's Guidance relating to the operation of the 2014 Regulations

states inter alia (at paragraph 3.10.3):

"Discredit can be brought on the police service by an act itself or because

public confidence in the police is undermined. In general, it should be the

actual underlying conduct of the police officer that is considered under the

misconduct procedures, whether the conduct occurred on or off duty."

[6]

Specific Guidance is also given to police officers about their use of social

media. A document entitled "Online Safety Guidance for Police Officers and Police

Staff" states that constables must:

`when interacting online or using any social media channel ... be aware and

consider the impact their actions might have, not only on themselves, but on

Police Scotland.'

Constables are advised carefully to manage which images/videos they upload, and

are cautioned that:

`any images should not reflect badly on Police Scotland or you as Police

Scotland personnel'.

Police Scotland Standard Operating Procedure in relation to e-mail and internet

security states inter alia:

`in terms of professional advice and guidance, staff should consider the

following [...] staff must not publish or exhibit anything textual or

photographic that would be considered disrespectful to others and detract

from the dignity of their public office.'

and

"Police Scotland recognise that constables have a right to use social media. Provided

they adhere to the statutory standards of professional behaviour and behave in a

manner that does not discredit the Police Service or undermine public confidence in

it, the use of social media is consistent with holding public office and with the oath

taken by all constables.""

Background

[3]

On 3 May 2015 Sheku Bayoh died in police custody shortly after being arrested in

Kirkcaldy. On 11 November 2019 the Lord Advocate confirmed that the police officers

involved would not face any criminal prosecution. The decision attracted much public

debate and commentary. The issue with which the court is concerned relates to a tweet

posted by the reclaimer in the course of an exchange of tweets involving the solicitor for

members of the Bayoh family. On 11 November the solicitor posted on Twitter what bore to

be a quotation from a third party. It read:

"This decision not to prosecute the police at an individual or corporate level is

deeply disappointing & is based on a fundamentally flawed investigation. A public

inquiry is now needed."

[4]

At 4.18pm, the reclaimer responded to that post stating:

"Thankfully wholly independent decisions to prosecute or otherwise are made on

the basis of evidence and not innuendo, speculation, or smear."

[5]

A further post by the solicitor stated:

"Sheku Bayoh died in police custody 3 May 2015, up to 50 separate injuries, broken

rib, lacerations, with over 50 stones bodyweight on him, cuffed, ankle & leg cuffs,

restrained by up to 9 officers today he was described to his family of being like a

`toddler having a tantrum!'"

[6]

The post included a picture of members of Mr Bayoh's family and an image taken

from a newspaper article. The latter was headed "Sheku: The Injuries" and bore to be a

body map showing, inter alia, the sites of various injuries which had been found on

Mr Bayoh's body at post-mortem examination.

[7]

The reclaimer responded at 4.53pm in these terms:

"Anyone looking at `the injuries' image might want to read this alongside it and

consider if something relevant has been missed in the innuendo laden accompanying

report."

The reclaimer's post contained a link to an online newspaper article in a different newspaper

about a fight that Mr Bayoh was alleged to have had with a third party shortly before his

arrest by police officers.

The reclaimer posted again at 5.06pm:

"Lots of people who follow me also follow [the Bayoh family's solicitor] (well we are

both interesting chaps) but whilst many of you will see the image on the left [the

body map] ... you won't be shown the somewhat more than relevant story on the

right."

The "story on the right" was again a link to the newspaper article about the alleged earlier

fight. Another user of Twitter, a political journalist, responded to the 5.06pm post by

posting:

"What an appalling tweet. The article ... has no bearing on whether or not the police

used appropriate force. Drawing attention to it could well be seen as simply an

attempt to damage the character of a dead man and remove focus from the police."

At 6.17pm, the petitioner responded on Twitter to the post by the journalist, saying:

"Or an attempt to bring much needed context to a much used image that otherwise

lacks it or maybe the earlier well reported fight was like this and everyone else is

wrong?"

[8]

The 6.17pm post included a graphics interchange format image (also known

colloquially as a "GIF") showing one man lightly tapping another man on the cheek once

before running away. The GIF image was apparently a clip taken from a comedy film called

"Napoleon Dynamite".

[9]

A report by an inspector of police under Regulation 13 concluded that in terms of the

regulations the petitioner had a case to answer for misconduct in relation to the posting of

the message which included the video clip. The Inspector recommended that the charge be

advanced in the following terms:

"Between 11 and 12 November 2019 at [an address in], Glasgow or elsewhere, you

acted in an inappropriate manner by posting to Twitter, in reference to an alleged

fight reported in the media between Sheku Bayoh and another individual, which you

referred to as `the earlier well reported fight', a video clip of approximately

3 seconds' duration from the 2004 comedy film `Napoleon Dynamite'. Two of the

characters are the titular Napoleon Dynamite and his brother Kip Dynamite. The

video clip apparently shows Napoleon striking Kip on the face with Napoleon's left

hand to Kip's right cheek. An otherwise unknowing person viewing the foot age

would reasonably take it not to be a real fight. Your conduct in posting this video

clip and linking it to the death of Sheku Bayoh has discredited the Police Service."

The Inspector set out the reasons for her recommendation, noting that:

"The Police Service of Scotland (Conduct) Regulations 2014 underpin the Standards

of Professional behaviour and set out the high standards the service and the public

expect of police officers in Scotland. Failure to meet these standards may undermine

the important work of the police service and public confidence in it. Even when off

duty, police officers should not behave in a manner that discredits the police service

or undermines public confidence. Maintaining public confidence in the police

service is a legitimate aim not just for reputational reasons but also to protect public

safety and prevent crime and disorder."

[10]

She observed that the officer posted the message on a Twitter account which could

be viewed by anyone and that it could be inferred that the post was from a serving police

officer. If proven the allegations could amount to discreditable conduct by posting the GIF

"in the circumstances outlined". She added:

"The death of Sheku Bayoh occurred following his arrest by police officers and there

have been serious allegations made against those officers. It is the Investigating

Officer's opinion, considering the whole circumstances alleged, and notwithstanding

the subject officer's role in representing Scottish Police Federation members, that the

general public would expect Police Scotland to fully examine the conduct of the

subject officer and that failure to do so would discredit Police Scotland or undermine

public confidence in it ...

Improvement action would not be appropriate in this case because the subject officer

does not accept that he acted in an inappropriate manner by posting to Twitter, a

message which included a video clip (in reference to the alleged fight reported in the

media between Sheku Bayoh and another individual which he referred to as `the

earlier well reported fight') of approximately 3 seconds' duration from the 2004

comedy film `Napoleon Dynamite'. Two of the characters are the titular Napoleon

Dynamite and his brother Kip Dynamite. The video clip apparently shows Napoleon

striking Kip on the face with Napoleon's left hand to Kip's right cheek. An otherwise

unknowing person viewing the footage would reasonably take it not to be a real

fight. His conduct on (sic) doing so has discredited the Police Service..."

[11]

The Inspector's report was, as required under the regulations, considered by a Chief

Inspector who also concluded that the reclaimer had a case to answer, and that the matter

should be referred to a misconduct meeting.

Decision of the Lord Ordinary

[12]

The Lord Ordinary accepted that the making of a formal allegation could amount to

an interference with the reclaimer's Article 10 rights because of the "chilling effect"

highlighted in the authorities cited by the petitioner (eg Akcam v Turkey (2016) 62 EHRR 12,

at paras 67-68 and 72-75). The respondent, in line with Ahmed and others v UK (2000)

29 EHRR 1, required to show that there was a legitimate aim, and that the interference was

(i) proportionate and (ii) supported by reasons which are relevant and sufficien t. The issue

of maintaining public confidence in the police represented the link between the aims of

public safety and the prevention of disorder or crime (BC and others v Chief Constable of the

Police Service of Scotland [2019] CSOH 48, Inner House [2020] SLT 1021). Maintenance of the

two aims required the police to be regulated by proper and efficient disciplinary procedures.

[13]

It was important to acknowledge that the issue here was not whether the imposition

of a disciplinary penalty or sanction was necessary and proportionate because no such

sanction had been issued. The decision to institute proceedings could not be said to be

irrational. Clear reasons were provided, and the respondent's view of the GIF as potentially

constituting discreditable conduct was tenable.

Analysis and decision

[14]

It was notable that the submissions for the reclaimer placed little focus on the

opinion of the Lord Ordinary, the reasons he gave for reaching it or any alleged error of law.

In some respects this is not surprising, because the substantive issue which the

Lord Ordinary had to decide was one of assessing the reasonableness of the respondent's

decision, rather than any significant matter of law. In fact the Lord Ordinary agreed with

the reclaimer on all points of law. He accepted - or at least proceeded on the basis - that the

decision to institute proceedings could be viewed as constituting an interference with the

reclaimer's Article 10 rights (see below for some further observations on this issue). He

recognised that any interference with the right must have a legitimate aim, be prescribed by

law, and be necessary in a democratic society, all of which was for the respondent to

establish. There was no dispute about the first two issues, so the core question he had to

address was the third one. The Lord Ordinary interrogated the justification and reasons

provided and carried out an assessment of whether any interference could be said to be

proportionate. He observed that it was important to recognise that the issue in this case was

not whether the imposition of a disciplinary penalty or sanction was, or would be, necessary

and proportionate, but simply whether the respondent had established that, in order to

maintain public confidence in the police, it was a necessary and proportionate interference

with the petitioner's Article 10 right for the petitioner to be invited to attend a disciplinary

meeting. The Lord Ordinary held that the conclusion that the reclaimer had a case to

answer was not irrational. The reasons for that decision were clearly expressed and were

neither ambiguous nor difficult to understand. The view that the use of a clip from a

comedy film in the specific context might constitute discreditable conduct was tenable. The

decision fell within the relevant margin of appreciation recognised in relation to the

legitimate scope of interference with the Article 10 rights of civil servants, including police

officers. On this issue there was a range of conduct where a case to answer of discreditable

conduct may properly be found to exist, and the conduct in question was within that range.

In our view the Lord Ordinary was entitled to reach these conclusions.

[15]

In the reclaiming motion, the parties joined issue on whether the mere institution of

disciplinary proceedings constituted an interference with the respondent's right to freedom

of expression. In the context of a police officer, in respect of whom it is acknowledged that a

degree of proportionate restriction must be placed on the exercise of the right to free

expression, and in the context of a disciplinary system which is acknowledged to be capable

of enforcing that restriction in an Article 10 compliant way, we understand why the

respondent argued that there may be an issue about treating the mere initiation of

disciplinary proceedings as constituting interference; there is undoubtedly an issue in being

able reasonably to assess the issues which come within the scope of Article 10(2), when the

facts are yet to be determined, and when the nature of any eventual sanction, which is

relevant to the question of proportionality, is not known. As the Lord Ordinary pointed out,

the issue is not whether the facts justify a finding of misconduct, but whether they are

sufficient to justify a finding of a case to answer for alleged misconduct. These matters are

intertwined, but they are not the same. If the apparent facts would allow a disciplinary

committee to address whether they come within the scope of the kind of restriction on

Article 10 rights of police officers permitted by operation of Article 10(2), then it is hard to

see that any issue arises other than the question whether, as the reclaimer asserts in his note

of argument, the apparent facts, if established, would be quite incapable of bearing the

characterisation used in the charge made against him in the disciplinary proceedings.

[16]

The central issue upon which this reclaiming motion hinges is thus whether, as

submitted for the reclaimer, the post could not, on any objective view reasonably arrived at,

constitute misconduct, and that the reasoning that it could, and that there was a case to

answer, was irrational. The Lord Ordinary concluded that it was not irrational to consider

that it might constitute misconduct, that the view that there was a case to answer was one

the senior officers were entitled to reach, and that the reasons given were sufficient.

[17]

This is not an appeal on the merits of the allegations. The reclaimer seeks to prevent

further action being taken in the disciplinary proceedings. Before this court could even

consider whether he might be entitled to such a remedy, it would have to be satisfied that no

reasonable person, objectively construing the post, could consider that it was a

communication which could come within the proportionate degree of restriction which may

be placed on the right to freedom of expression by a police officer, and thus potentially be

capable of being classified as misconduct.

[18]

Only if satisfied of that would the respondent's cross-appeal about alternative

remedies arise. If the reclaimer does not satisfy the court of this, the cross-appeal becomes

academic. Had it been necessary to determine the point, we have some sympathy with the

Lord Ordinary's view that it would not seem to be a remedy against unlawful disciplinary

proceedings to insist that those proceedings continue on the issue of alternative remedies

much turns on the nature of the respective remedies which may be available, the basis upon

which they may be advanced, and the result which may be achieved under each.

[19]

However, this is not an issue which arises for determination because we are satisfied

that the reclaiming motion must fail on its primary argument.

[20]

The reclaimer recognises that the post in question must be construed in the context of

the twitter conversation of which it forms part. However, the submissions for the reclaimer

repeatedly failed to do that, focussing not on the whole context, but on the post itself in

isolation. Admittedly, it is the posting of the message and the use of the GIF which forms

the nub of the charge, but the character and quality to be attached thereto comes not from

the post in isolation, but from the context in which it appears, as part of a lengthier

conversation.

[21]

Senior counsel for the respondent conceded that the use of the GIF was central to the

decision to bring proceedings, and that proceedings would not have been brought

otherwise. This led to a submission on behalf of the reclaimer to the effect that if one

substituted in words the message which the GIF was intended to convey, it could be seen

that on no possible view could it be characterised as it had been in the charge. It was

submitted that the message which the GIF was intended to convey was that the fight which

Mr Bayoh had allegedly been involved in prior to his arrest was not a trivial one. We do not

accept that we can assess the matter by examining what the position would be were the GIF

substituted by a hypothetical message. We have no way of knowing how such a message

might have been expressed, and the construction to be placed thereon would depend on the

actual words used. The fact is that rather than express himself in words the reclaimer chose

a GIF for the task, and selected one from a comedy film. A message conveyed visually may

have more force, or may be more open to nuanced interpretation, than a simple message

stated in words. That the right to freedom of expression involves the right to choose the

medium of expression does not assist: it would still necessary to consider what the message,

expressed in that medium, may reasonably be said to convey.

[22]

It was not the GIF only which formed the basis of the Inspector's conclusion that

there was a case to answer, but the posting of the GIF "in the circumstances outlined" in the

report, which includes the written message and the other exchanges of which it was part.

The reasons given for the assessment that there was a case to answer should not be subjected

to detailed linguistic analysis. The reasons given are sufficient to justify the conclusion, and

to enable the reader to understand why it had been reached.

[23]

It was submitted that the use of GIFs such as this one is a common place means of

expression on twitter and that it would be wrong to make much of the use of a GIF on this

occasion. No doubt it is true that the use of GIFs is commonplace on twitter but that is of

little assistance in determining whether the use of this particular GIF, in the context of the

exchange of which it was a part, may be capable of bearing the characterisation suggested in

the disciplinary proceedings. The fact that it is a common method of expression on twitter

will no doubt be recognised by the decision maker in due course, as part of the whole

circumstances which require to be taken into account. Those circumstances would include

the position within the police federation held by the reclaimer, but that position does not

give him a latitude to exceed the bounds of what may be expected from the holder of the

office of constable.

[24]

It was submitted that it was not possible, would indeed be irrational, to suggest that

the post and the GIF were used in a way which "linked" them to the death of Mr Bayoh. In

other words, it was said that the fact that the post did not make specific and direct reference

to the death of Mr Bayoh meant that it could not be said to be linked to it. That submission

must be rejected. The word "linked" used in the charge must be given the normal meaning

of being related to or connected with something. In this respect the context of the

conversation is important. It was commenced by a tweet from a solicitor commenting on the

Lord Advocate's decision not to take criminal proceedings against police officers arising out

of Mr Bayoh's death. The whole context related to Mr Bayoh's death in custody, the injuries

found on his body after death, and the reports of his allegedly having been involved in a

fight prior to his arrest. Of course the observations in the post in question were designed to

comment directly on the issue of the possible source for the injuries found on the body, but

we do not think that this can be isolated from the conversation of which it was part; it is not

unreasonable to form a view that the post and GIF were "linked" to the death in the way in

which that word is commonly used. We have already noted that the use of a visual aid as a

form of expression may convey more than mere words, and may be more open to nuance

and interpretation. The visual aid, in this case the comedy GIF, is part of the tone of the

comment. In the context in which it was used, it could be open to construction as trivialising

the subject matter of the conversation. Whether this is so would be a matter for the fact

finder in light of all the circumstances. It is important to stress that the court is expressing

no view on the merits of the charge facing the reclaimer nor pre-judging any defence thereto.

It has simply rejected the challenge to the legality of the proceedings themselves. For the

reasons given above we are satisfied that the reclaiming motion must be refused.