28 June, 2019
Lord Bannatyne acknowledges common law right to privacy in Scots common law
Case comment by Michael Way, advocate
Lord Bannatyne acknowledges in the Petition of C v Chief Constable of the Police Service of Scotland  CSOH 48 a common law right to privacy in Scots common law.
The petitioners were ten police constables. Misconduct proceeding had been brought against them following the discovery of messages contained within private WhatsApp group chats. A police officer, who was investigating alleged sexual offences in a matter otherwise unrelated to the petitioners, saw the messages, passed them on to the police Professional Standards Department and misconduct proceedings followed. The petitioners sought declarators that the use of this private correspondence to found misconduct proceedings was unlawful and a breach of their Article 8 rights, and accordingly interdict preventing their unlawful use should follow.
The Court identified 4 key issues:
- Does the respondents’ disclosure and use of the messages interfere with the petitioners’ common law right to privacy et separatim Article 8 Convention rights?
- If so, does that disclosure and use have any clear and accessible legal basis so as to be “in accordance with law”?
- If so, is that interference necessary and/or proportionate.
- What would constitute an effective remedy for the petitioners?
Issue 1 – Interference with common law/Article 8 privacy rights
The first issue required the Court to consider (at  – ) a logically prior question – does a right to privacy exist in the common law of Scotland?
The Supreme Court has emphasised in recent years (notably in Lord Reid’s speech in R.(Osborn) v Parole Board  AC 1115) that there is no need to immediately resort to ECHR jurisprudence when considering fundamental rights; the common law protects such rights.
Lord Bannatyne took as a start that a right to privacy is a “core value and one which is inherent in a democratic and civilised state” (at ). This right had already been recognised as forming part of the common law of England in Campbell v MGM Ltd  2 AC 457 and had developed by reference to Article 8 jurisprudence since then. It was “inherently unlikely” that the courts in England and Scotland would come to opposite conclusions on the recognition of a fundamental right (at ). Further, there was Scottish authority which (tentatively) appeared to recognise a right to privacy such as Henderson v Chief Constable of Fife 1988 SLT 361 and Martin v McGuinness 2003 SLT 1424, and no authority which explicitly or implicitly excluded such a right. Accordingly, the Court was satisfied that a right of privacy exists in terms of the common law of Scotland (at ).
The Court turned to consider whether Article 8 was engaged in the petitioner’s situation. There was no dispute that the method of communication was within Article 8’s ambit and the alleged interference was sufficiently serious (at -). The dispute turned on whether, viewing the particular circumstances objectively, the petitioners had a “reasonable expectation of privacy”.
Lord Bannatyne considered the nature of WhatsApp, noting that its private character can be contrasted with much more open and public modern messaging and social media platforms. The Court rejected the submission that because WhatsApp allowed moderated group chats this inherently undermined any expectation of privacy (at -). The fact that the content of WhatsApp group chats had been divulged and had led to administrative/disciplinary action in other contexts was similarly of no assistance to the respondent; the fact that a person might breach confidence does not undermine any reasonable expectation of privacy (at ). In conclusion the Court found that an ordinary member of the public using WhatsApp would have a reasonable expectation of privacy (at ).
The Court rejected a submission that the “abhorrent” nature of the messages removed any reasonable expectation of privacy in general terms. This was not generally a relevant consideration at this stage (at ); a right to privacy would have little point if it did not protect private expression that some might find abhorrent (at ).
However, Lord Bannatyne then considered the position of the petitioners as police officers, subject to particular regulations and Standards of Conduct, and against a background where public confidence in the police must be maintained.
Constables’ private lives are explicitly restricted by police regulations. When acting in a manner “likely to interfere with the impartial discharge of his duties or is likely to give rise to the impression amongst members of the public”, a constable can have no reasonable expectation of privacy. Thus, the content of the messages could inform a constable’s reasonable expectation. Where, as here, the messages were sufficiently abhorrent to call into question a constable’s ability to impartially discharge their duties, there was not reasonable expectation of privacy (at 166]). Moreover, there was a duty in the Standards of Conduct incumbent on constables to report any behaviour falling below what is expected of a constable. Police officers are in a different position from ordinary members of the public. Accordingly, the petitioners had no reasonable expectation of privacy in relation to these messages and so no right at common law or in Article 8 terms.
Issue 2 – In accordance with law?
There was no dispute that there was a legal basis, within the context of a criminal investigation to review the messages. The dispute was whether there was a basis to use them for the collateral purpose of misconduct proceedings.
Lord Bannatyne recalled that to be in accordance with law required a measure not only to have a basis in domestic law, but be able adequately accessible and foreseeable in its operation to guard against arbitrariness and to comply with the rule of law.
The Court considered that there was a sufficient recognition within the case law cited to him that the police could share information with regulatory agencies where necessary for them to perform their public duty. The test was whether disclosure was in the public interest and in order to protect the public. Given the public interest in a properly regulated police force (which in turn protected the public), there was a lawful basis for the material to be disclosed in the circumstances (at ).
Issue 3 – Necessary/proportionate
The Court considered that “public safety” and “the prevention of disorder and crime” were potentially relevant justifications for any interference in terms of Article 8(2) (at ). An officer failing to meet the required standards of conduct might decrease public confidence. Public safety relies on public confidence in the police – without it the police cannot efficiently prevent disorder and crime. To uphold confidence requires proper disciplinary procedures. A necessary part of this is the use of otherwise lawfully obtained information which would be of relevance to such disciplinary procedures (at ).
Balancing all the factors, Lord Bannatyne considered that even if the petitioners had possessed a reasonable expectation of privacy, it would have been proportionate to disclose the messages (at .
Issue 4 – Effective Remedy
Given the foregoing analysis, this question became academic. Had Lord Bannatyne been with the petitioners on their earlier submission, he would have refused interdict in any event. It would have been “fair in all the circumstances for the material to be admitted for use in the disciplinary proceedings” (at ).
This decision has attracted attention because of the explicit acknowledgment of a right to privacy at Scots common law. That said, data privacy campaigners may be concerned that the Court nevertheless quite comprehensively refused the petition.
The crucial turning point against the petitioners appeared to come when Lord Bannatyne considered their position as police constables. This will no doubt be taken as a point to distinguish the decision. However, it is arguable that the analysis could be applied to any professional or similarly regulated person. Further, given Lord Bannatyne’s view on proportionality, it might be that in practice any division between police officers and “ordinary” citizens is a distinction without a difference.