Introduction

In the case of Calum Steele v Deputy Chief Constable ([2021] CSOH 65), the Scottish Court of Session addressed crucial issues surrounding the balance between a police officer's right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) and the maintenance of public confidence in the police force. Calum Steele, the General Secretary of the Scottish Police Federation (SPF) and a serving police constable, sought judicial review against the Deputy Chief Constable for instituting misconduct proceedings based on his social media activity.

The key issue at stake was whether the disciplinary actions taken against Steele for posting a GIF on Twitter in the context of a sensitive public debate constituted an unlawful interference with his Article 10 rights. The case examined whether the police service's actions were justified in maintaining public trust and confidence, a legitimate aim under the ECHR framework.

Summary of the Judgment

The Court, presided over by Lord Fairley, examined the procedural and substantive aspects of the misconduct proceedings initiated against Steele. The petitioner argued that the decision to pursue misconduct proceedings was both irrational and violated his right to freedom of expression as protected by Article 10 of the ECHR.

The court thoroughly analyzed the arguments presented, focusing on whether the interference with Steele's Article 10 rights was justified under the ECHR's criteria of being "prescribed by law" and "necessary in a democratic society." The Court ultimately upheld the Deputy Chief Constable's decision to proceed with the misconduct proceedings, finding that the interference was proportionate and necessary to maintain public confidence in the police service.

Consequently, the Court dismissed Steele's petition, affirming that the misconduct procedures were lawfully instituted and consistent with both the Police Service of Scotland's regulations and the ECHR.

Analysis

Precedents Cited

The judgment drew upon numerous precedents to substantiate the Court's reasoning. Key cases referenced include:

• Ahmed v United Kingdom (2000): Established the foundational principles for assessing the necessity and proportionality of interference with Article 10 rights.
• Gaunt v United Kingdom (2016): Highlighted that Article 10 protection extends to both the content and form of expression.
• Akçam v Turkey (2016): Discussed the "chilling effect" of disciplinary actions on freedom of expression.
• Steur v Netherlands (2004): Reinforced that even without sanctions, the mere initiation of proceedings could impact Article 10 rights.

These precedents collectively informed the Court's assessment of whether Steele's rights were infringed and whether such infringement was justified.

Legal Reasoning

The Court employed a balanced approach, weighing Steele's right to freedom of expression against the police service's legitimate aim of maintaining public confidence. Key points in the legal reasoning include:

• Article 10 Scope: Recognized that Steele's Twitter activity constituted protected expression under Article 10.
• Legitimate Aim: Emphasized the importance of public confidence in policing as essential for public safety and crime prevention.
• Proportionality: Assessed whether the interference (misconduct proceedings) was proportionate to the aim, concluding that it was necessary to uphold professional standards and public trust.
• Margin of Appreciation: Acknowledged that national authorities possess a degree of discretion in balancing individual rights with societal interests.

The Court determined that Steele's use of a GIF, while seemingly benign, occurred in a highly sensitive context and attracted negative public attention, thereby justifying the initiation of misconduct proceedings to preserve the integrity and reputation of the police service.

Impact

This judgment sets a significant precedent in the realm of police conduct and freedom of expression. It clarifies that police officers, especially those in leadership positions, are held to high standards both on and off duty, particularly in public forums like social media. The decision underscores that:

• Disciplinary actions can be deemed necessary and proportionate to maintain public trust in law enforcement.
• Even non-senior officers are subject to misconduct regulations when their public statements or behavior may undermine the police service.
• The balance between individual rights and institutional integrity continues to be nuanced, requiring careful judicial consideration.

Future cases involving police misconduct and freedom of expression will likely reference this judgment to determine the extent to which disciplinary measures are justified in maintaining public confidence.

Complex Concepts Simplified

Article 10 of the European Convention on Human Rights (ECHR)

Article 10 protects the right to freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas without interference by public authorities. However, this freedom is not absolute and may be subject to certain restrictions deemed necessary in a democratic society for reasons such as national security, public safety, or maintaining the reputation of others.

Misconduct Procedures for Police Officers

Under the Police Service of Scotland (Conduct) Regulations 2014, police officers are held to high standards of professional behavior. Misconduct procedures are initiated when an officer's conduct, either on or off duty, is alleged to breach these standards. The process involves investigation, reporting, and potentially disciplinary meetings to determine if the officer has engaged in discreditable conduct, which could undermine public confidence in the police.

Discreditable Conduct

Defined as behavior by a police officer that discredits the police service or undermines public confidence in it. This can encompass actions both on and off duty, including inappropriate use of social media, which may reflect negatively on the profession.

Conclusion

The judgment in Steele v Deputy Chief Constable serves as a pivotal reference point in understanding the delicate balance between individual freedoms and institutional integrity within the policing framework. By upholding the misconduct proceedings against Steele, the Court affirmed that maintaining public confidence in the police service is a legitimate and necessary aim that can, under certain circumstances, justifiably constrain individual expressions of freedom.

This decision reinforces the principle that police officers, entrusted with upholding the law and public trust, must adhere to stringent standards of conduct. It also delineates the boundaries of Article 10 rights in the context of public service roles, emphasizing that while freedom of expression is fundamental, it must be harmonized with responsibilities inherent to positions of authority and public trust.

Moving forward, this case will influence how police services across Scotland and potentially the broader UK manage and adjudicate misconduct related to social media and public statements, ensuring that the integrity of policing is maintained without unduly infringing on the rights of individual officers.