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 [2019] CSOH 48 a common law right to privacy in Scots common law.
Facts
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.
Issues
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?
Decision
Issue 1 – Interference with common law/Article 8 privacy rights
The first issue required the Court to consider (at [100] – [126]) 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 [2014] 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 [106]). This right had already been recognised as forming part of the common law of England in Campbell v MGM Ltd [2004] 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 [116]). 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 [126]).
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 [129]-[130]). 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 [139]-[140]). 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 [142]). In conclusion the Court found that an ordinary member of the public using WhatsApp would have a reasonable expectation of privacy (at [150]).
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 [160]); a right to privacy would have little point if it did not protect private expression that some might find abhorrent (at [158]).
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 [188]).
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 [198]). 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 [201]).
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 [201].
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 [202]).
Analysis
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.
Representation
Ampersand’s Craig Sandison QC and Timothy Young appeared for the petitioners; Ampersand’s Maria Maguire QC appeared for the respondent.
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C v Chief Constable of the Police Service of Scotland [2019] CSOH 48
Case comment by Michael Way, advocate
Lord Bannatyne acknowledges common law right to privacy in Scots common law
Facts
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.
Issues
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?
Decision
Issue 1 – Interference with common law/Article 8 privacy rights
The first issue required the Court to consider (at [100] – [126]) 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 [2014] 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 [106]). This right had already been recognised as forming part of the common law of England in Campbell v MGM Ltd [2004] 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 [116]). 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 [126]).
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 [129]-[130]). 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 [139]-[140]). 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 [142]). In conclusion the Court found that an ordinary member of the public using WhatsApp would have a reasonable expectation of privacy (at [150]).
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 [160]); a right to privacy would have little point if it did not protect private expression that some might find abhorrent (at [158]).
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 [188]).
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 [198]). 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 [201]).
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 [201].
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 [202]).
Analysis
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.
Representation
Ampersand’s Craig Sandison QC and Timothy Young appeared for the petitioners; Ampersand’s Maria Maguire QC appeared for the respondent.
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Shane Dundas
Shane Dundas called to the Bar in 2019 having completed his traineeship with one of Scotland’s leading litigation firms.
He has experience in the areas of professional liability, commercial litigation, personal injury and industrial disease. He has appeared regularly in the Sheriff Court, having conducted several proofs and debates. During devilling, he built upon his experience in these areas, as well as gaining exposure to clinical negligence, professional regulation and public law issues.
Shane has a particular interest in professional (including clinical) liability, commercial law, information technology and media law.
He completed his LLB and Diploma in Professional Legal Practice at the University of Edinburgh, where he was President of the University of Edinburgh Mooting Society.
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Michael Way
Michael Way’s principle areas of practice are public & administrative law, commercial disputes and civil liberties/human rights.
Michael is listed as a ‘Rising Star’ in the 2021/22 Legal 500 in both Commercial Disputes and Administrative and Public Law.
“A brilliant advocate – insightful, thorough and refreshingly convincing on his feet, he is approachable and easy to work with.” – Legal 500 2021/22 ‘Administrative and Public Law’
After spending several years as a performer in the music industry, Michael trained with one of Scotland’s leading commercial law firms and undertook a six month secondment to the Scottish Government Legal Directorate. Shortly after qualifying as a solicitor Michael began devilling, during which he won the Mike Jones Excellence in Advocacy prize and was the Faculty Scholar 2018/19.
Since calling, Michael has appeared regularly in courts and tribunals throughout Scotland. In particular, he has:
- appeared for Serco defending over 150 interdict actions, including appearances in the Sheriff Appeal Court and instruction during the related Inner House reclaiming motion process;
- been instructed by petitioners in a number of successful Court of Session judicial review actions in immigration and housing matters;
- instructed by child respondents in nobile officium petitions seeking recognition of English High Court deprivation of liberty orders;
- appeared frequently for the Advocate General as a standing ‘junior junior’ in the First-tier Tribunal (Immigration and Asylum Chamber);
- been instructed in a variety of property, contractual, professional negligence, debt recovery and insolvency disputes, including success after proof in a case involving a challenge to interest to enforce real burdens;
- developed a proficiency in consumer rights issues, including claims under the Consumer Rights Act 2015 and the Consumer Protection From Unfair Trading Regulations 2008;
- assisted in a major offshore dispute in Jersey;
- undertaken criminal appeal work, with successful appearances in the High Court and Sheriff Appeal Court.
Michael has a strong academic background with degrees from Oxford, King’s College London and Edinburgh. Since 2015, Michael has tutored at the University of Edinburgh (Jurisprudence; Critical Legal Thinking) and was previously a guest lecturer in Business Law at Queen Margaret University. He was the research assistant to Lady Poole and Sheriffs McCartney and Drummond on their recent book A Practical Guide to Public Law Litigation in Scotland (2019; W.Green)
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Faculty of Advocates support for human rights National Taskforce
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The Scottish Government says the Taskforce is to be co-chaired by Shirley Anne Somerville, Cabinet Secretary for Social Security and Older People, and Professor Alan Miller of Strathclyde University.
Its purpose will be to “ensure Scotland is a world leader in putting human rights into practice”.
Ampersand’s Euan Mackenzie QC, of HRRoL, said: “The announcement of the National Taskforce is welcome news for the future of human rights in Scotland. The creation of enforceable rights in areas such as housing, health and social security will make a real difference to people’s lives.
“Alongside the work already under way to incorporate the United Nations Convention on the Rights of the Child (UNCRC), the National Taskforce will cement Scotland’s ambition to provide human rights leadership in these challenging times.
“We look forward to engaging with others in this important work.”
Details of the Taskforce can be found here.
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Ampersand advocates appointed to EHRC panel of counsel
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They join Dorothy Bain QC, Aidan O’Neill QC and Laura-Anne van Westhuizen who were re-appointed to the panel.
Members of the Commission’s panel of counsel are the preferred providers of external legal services, including representation and advice. These services support the EHRC’s advisory, influencing, regulatory and enforcement work across the equality and human rights spheres, including strategic litigation in domestic and European courts.
These appointments are for a period of 4 years.
Further information on the work of the EHRC and the full panel of counsel can be found on the EHRC website here.
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