If police officers send messages in private WhatsApp groups that are “blatantly sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability and [include] a flagrant disregard for police procedures by posting crime scene photos of current investigations,” do they have a reasonable expectation of privacy? And can the messages be used and relied upon by the Police’s Professional Standards Department to bring misconduct charges against each of the officers?

These were the critical questions in the case of B C & Others v Chief Constable of Police Scotland & Others [2020] CSIH 61.

We have previously reported on a preliminary issue (see here) when the judge decided that the case should be allowed to proceed to a full hearing. We also reported on the outcome of the case (see here) where the judge concluded that, among other things, there was a nascent recognition of a common law right to privacy in Scotland; but that the disclosure of the messages was in accordance with the law, necessary and proportionate. The police officers appealed that decision and the Inner House of the Court of Session has unanimously refused their appeal (see here for the judgment).

However, the focus of this article is on part of the original decision that was not cross-appealed, namely the judge’s recognition as to the existence of a common law right to privacy in Scots law.

Is there a common law right to privacy in Scotland?

According to the judge at first instance, yes. But this conclusion has been cast into doubt by the Inner House in deciding the appeal.

Lady Dorrian, the second most senior judge in Scotland, called the decision not to appeal that conclusion, “somewhat unfortunate, because it means that the issue was not a live one for determination” in the appeal. Therefore, the appeal court did not need to give a decision on the issue and so the first instance judge’s decision has not been overruled.

Despite both sides in the case accepting the recognition of the right to privacy and the lack of a cross-appeal, Lady Dorrian did “not feel that the [judge’s] conclusions on the matter can pass without comment”. So although the appeal court’s views are not determinative or binding on other Scottish courts, they are likely to be highly persuasive.

Lady Dorrian’s concerns

Lady Dorrian questioned the first instance judge’s reasoning that led him to conclude there is a fully developed right of privacy in Scots law, commenting that the process by which the nascent right became fully established was not developed by the judge. Lady Dorrian also said that the judge’s conclusion that the right to privacy was equivalent to the right to the protection of private and family life under the Human Rights Act 1998 (and the European Convention on Human Rights) was unexplained.

Finally, Lady Dorrian was also critical of the judge’s analysis of the case law he cited in support of his judgment, saying that one case “does not reach the conclusions which [the judge] attributed to it”, and of others that, “I beg leave to doubt whether these cases have that effect.”

Of the other two appeal judges, Lord Menzies shared the concerns expressed by Lady Dorrian but expressed no view in the absence of a cross-appeal; and Lord Malcolm, agreed that “as matters have developed it is not necessary to dwell on either this or the current state of our common law on privacy.”

Implications and conclusion

As matters stand, the original judge’s decision has not been overruled by the appeal. Therefore, the finding of a common law right to privacy stands. However, it has been cast into doubt by the concerns over the analysis that were expressed by Lady Dorrian and shared by Lord Menzies.

This means that anyone seeking to assert or rely on this right in the Scottish courts may face an uphill battle to persuade another court to follow the non-binding decision of the original judge. Although the Inner House recognised that the law continues to evolve, and the scope of protection afforded to private information has expanded, it is not clear that it has reached the stage suggested by the original judge, namely a fully-fledged right to privacy.

Therefore, it remains to be seen whether the perceived flaws in the analysis will be addressed in a future case and how, or indeed if, a general right to privacy will be recognised and develop in Scots law.

Ruairidh Leishman is a solicitor in Shepherd and Wedderburn’s commercial disputes and regulation team. For more information, contact Ruairidh on 0131 473 5180 or at ruairidh.leishman@shepwedd.com.

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