Balancing Freedom of Expression and Professional Standards: Insights from Steele [2022] CSIH 10

Introduction

The case of Calum Steele v. Deputy Chief Constable of the Police Service of Scotland ([2022] CSIH 10) presents a significant examination of the interplay between a police officer's freedom of expression and the maintenance of professional standards within law enforcement. Calum Steele, serving as the General Secretary of the Scottish Police Federation and a police officer, challenged the decision to initiate misconduct proceedings against him. The crux of the dispute centered on Steele's use of social media, specifically Twitter, where his posts related to the death of Sheku Bayoh, a police custody death that sparked public outcry and debate. The decision by the Scottish Court of Session's Second Division to refuse Steele's judicial review has established important precedents concerning the limits of free expression for police personnel and the mechanisms in place to uphold public confidence in the police service.

Summary of the Judgment

In this judgment, the petitioner, Calum Steele, sought a declaratory judgment declaring the initiation and maintenance of misconduct proceedings against him as unlawful under common law and incompatible with his Article 10 rights to freedom of expression. The misconduct allegations arose from Steele's Twitter interactions related to the death of Sheku Bayoh in police custody. Specifically, Steele shared a GIF from the comedy film "Napoleon Dynamite" in a series of tweets discussing the circumstances of Mr. Bayoh's death and the police's decision not to prosecute the involved officers. The Inspector recommended that Steele had a case to answer for discreditable conduct, leading to formal misconduct proceedings. Steele's challenge argued that the decision to start these proceedings violated his right to free expression. However, the Lord Ordinary concluded that the decision to institute proceedings was neither irrational nor unlawful, affirming that the social media conduct in question could reasonably be interpreted as discreditable and thus warranting disciplinary action. Consequently, the court dismissed Steele's reclaiming motion.

Analysis

Precedents Cited

The judgment references several key precedents that have shaped the court's approach to balancing free expression rights with organizational disciplinary measures:

Akcam v Turkey (2016) 62 EHRR 12: This case was significant in discussing the "chilling effect" on free expression when disciplinary actions are initiated.
Ahmed and others v UK (2000) 29 EHRR 1: Clarified that any interference with Article 10 rights must aim at a legitimate objective, be proportionate, and supported by relevant reasons.
BC and others v Chief Constable of the Police Service of Scotland [2019] CSOH 48: Emphasized the necessity of maintaining public confidence in the police as a legitimate aim when regulating police conduct.

These precedents collectively underscore the importance of ensuring that any limitation on freedom of expression by public officials, including police officers, must be carefully justified within a legal framework that respects individual rights while maintaining institutional integrity.

Legal Reasoning

The court's legal reasoning hinged on several pivotal considerations:

Legitimate Aim: The decision to commence disciplinary proceedings was aligned with the legitimate aim of maintaining public confidence in the police service, a recognized necessity for effective law enforcement.
Proportionality: The Lord Ordinary assessed whether the interference with Steele's Article 10 rights was proportionate. He determined that initiating proceedings based on Steele's social media conduct did not exceed the bounds of necessary regulation to uphold professional standards.
Margin of Appreciation: The judgment acknowledged the "margin of appreciation" allowed to public bodies in regulating the conduct of their officials, especially in sensitive roles such as policing where public trust is paramount.
Contextual Interpretation: The court emphasized that Steele's posts, including the use of a GIF in a sensitive conversation, should be interpreted within the broader context of the public debate surrounding Sheku Bayoh's death. This holistic view supported the notion that such conduct could be deemed discreditable.

The court ultimately found that the decision to initiate misconduct proceedings was based on reasonable assessments of Steele's conduct and aligned with established legal principles protecting organizational integrity and public trust.

Impact

The decision in Steele [2022] CSIH 10 has several implications for future cases and the broader legal landscape:

Clarification of Boundaries: The judgment provides clearer boundaries regarding the extent to which police officers can exercise freedom of expression, especially on public platforms like social media.
Precedent for Social Media Conduct: It sets a precedent for how social media interactions by public officials may be subject to scrutiny and disciplinary measures if deemed to undermine public confidence.
Balancing Rights and Responsibilities: The case exemplifies the ongoing balance courts must maintain between protecting individual rights and upholding the standards necessary for public trust in law enforcement agencies.
Guidance for Law Enforcement Personnel: Police officers and other public servants can take guidance from this judgment when considering their public communications, understanding that their conduct can be subject to disciplinary review if it potentially discredits their service.

Overall, the judgment reinforces the principle that while freedom of expression is a fundamental right, it is not absolute and can be subject to limitations necessary to preserve the integrity and public trust in essential services like policing.

Complex Concepts Simplified

Article 10 of the European Convention on Human Rights

Article 10 protects the right to freedom of expression, which includes the freedom to hold opinions and receive and impart information without interference by public authorities. However, this right is subject to certain restrictions that are "prescribed by law and are necessary in a democratic society" for reasons such as national security, public safety, or the protection of the reputation or rights of others.

Misconduct Procedures Under Police Conduct Regulations

Police officers in Scotland are subject to the Police Service of Scotland (Conduct) Regulations 2014, which outline what constitutes misconduct and the procedures for addressing it. Misconduct can include actions that breach the Standards of Professional Behaviour, such as conduct that discredits the police service or undermines public confidence.

Case to Answer

A "case to answer" is a preliminary determination that sufficient grounds exist for proceeding with formal disciplinary or legal action. It does not imply a judgment on the merits but indicates that the allegations warrant further examination.

Margin of Appreciation

The "margin of appreciation" is a doctrine in European human rights law that allows national authorities some discretion in how they implement rights protected under the European Convention on Human Rights, acknowledging that national authorities are better placed to assess local needs and conditions.

Conclusion

The judgment in Steele [2022] CSIH 10 underscores the delicate balance between safeguarding the freedom of expression for police officers and maintaining the integrity and public trust essential to law enforcement. By upholding the decision to initiate misconduct proceedings based on Steele's social media conduct, the court reinforced the principle that police officers, despite their public service roles, are subject to standards that prevent conduct discreditable to the service. This case serves as a pivotal reference for future instances where personal expressions by public officials intersect with professional responsibilities, providing a framework for evaluating such conflicts within the bounds of established legal principles and societal expectations.