Can WhatsApp messages be relied upon in misconduct allegations?


In 2016 a detective constable led an investigation into sexual offences within the Police Service of Scotland (PSS). In the course of this investigation, the detective found and reviewed messages sent via WhatsApp on a phone belonging to a suspect, who was a police officer. The messages formed part of two group chats between officers: one with 15 members and the other with 17. The messages included content that was sexist, racist, antisemitic, homophobic and mocking of disability, and included a flagrant disregard for police procedures by posting crime scene photos of current investigations.

The messages were discovered during the course of a criminal investigation but not actually used in that investigation. However, the Court held that they could be used as a legal basis from brining separate misconduct proceedings against the officers who were members of the chat group. The officers had argued that using the messages was unlawful and incompatible with their right to a private life under Article 8 of Human Rights legislation. Court held that the officers in the group could have had no reasonable expectation of privacy in relation to the messages, taking into account the inappropriate nature of the messages and the fact that the officers were under an obligation to behave in accordance with professional standards by acting with honesty and integrity and challenging and reporting improper conduct.

While the situation may be different for an ordinary member of the public, it is an interesting case regarding what evidence can be replied upon by employers dealing with misconduct allegations.

https://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_61.html

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