PETITION OF CALLUM STEELE FOR JUDICIAL REVIEW

Factual and Procedural Background

The Petitioner is the General Secretary of the Scottish Police Federation ("the SPF") and a police constable with the Police Service of Scotland. Since approximately 2009, the Petitioner has not performed operational duties but remains subject to police misconduct procedures under the Police Service of Scotland (Conduct) Regulations 2014 ("the 2014 Regulations"). The Respondent is the Deputy Chief Constable of the Police Service of Scotland.

The Petitioner challenged the lawfulness of a decision taken by the Respondent on 22 September 2020 to institute misconduct proceedings against him, specifically the issuance of a Misconduct Form under Regulation 15 of the 2014 Regulations. These proceedings relate to the Petitioner’s use of a GIF in a Twitter post responding to social media commentary about the death in police custody of a member of the public in 2015.

The misconduct procedures are governed by the 2014 Regulations, which define misconduct as conduct breaching the Standards of Professional Behaviour, including "Discreditable conduct" that undermines public confidence in the police service. The Respondent, upon receiving an allegation of misconduct, must investigate and determine if there is a case to answer before referring the matter to a misconduct meeting.

Following the death of the individual in custody and the public announcement that involved officers would not face prosecution, the Petitioner posted several tweets defending police officers. One post at 6.17pm on 11 November 2019 included a short GIF clip from a comedy film, which drew negative public reaction and led to misconduct proceedings being initiated against the Petitioner.

An investigating officer concluded that the Petitioner’s conduct, specifically posting the GIF in the given context, could undermine public confidence in the police service and that misconduct proceedings were necessary and proportionate. A delegated Chief Inspector agreed there was a case to answer and referred the matter to a misconduct meeting, issuing a Misconduct Form to the Petitioner. The misconduct meeting was scheduled but suspended pending this judicial review.

Legal Issues Presented

1. Whether the institution and maintenance of misconduct proceedings against the Petitioner for his use of the GIF in a social media post constituted an unlawful interference with his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).
2. Whether the Respondent’s decision to issue a Misconduct Form and refer the matter to a misconduct meeting was irrational or lacked adequate reasons at common law.
3. Whether the Petitioner had an effective alternative remedy available, rendering the judicial review premature.
4. Whether the interference with the Petitioner’s Article 10 rights was justified as necessary in a democratic society and proportionate to the legitimate aims pursued by the Respondent.

Arguments of the Parties

Petitioner’s Arguments

• The Petitioner accepted that some restrictions on freedom of expression apply to police officers but argued that the use of the GIF did not amount to misconduct or discreditable conduct.
• The institution of misconduct proceedings itself interfered with his Article 10 rights due to the "chilling effect," regardless of the outcome.
• The Respondent failed to justify the interference as necessary and proportionate under Article 10(2); the GIF was neither offensive nor mocking the death and was relevant to a matter of public interest.
• The Respondent did not provide adequate reasons explaining why the use of the GIF warranted investigation or misconduct proceedings.
• The Petitioner argued that no effective alternative remedy existed, as the misconduct proceedings themselves chilled his freedom of expression and thus judicial review was appropriate.
• Common law grounds of irrationality and absence of reasons were also advanced, contending that the decision to proceed was not rationally connected to the conduct alleged.

Respondent’s Arguments

• The Respondent contended the Petitioner had an alternative remedy in the misconduct meeting and thus the judicial review was premature.
• The mere institution of misconduct proceedings does not itself constitute an interference with Article 10 rights; only sanctions at the conclusion might do so.
• The Petitioner’s conduct was within the "zone" of potentially discreditable conduct warranting investigation under the 2014 Regulations.
• Restrictions on freedom of expression for police officers are legitimate to ensure expression is exercised with moderation, propriety, reserve, and discretion.
• The Respondent’s decision to investigate and refer the matter to a misconduct meeting was necessary and proportionate to maintain public confidence in the police service, which furthers public safety and prevention of disorder or crime.
• The Respondent argued that the decision was rational and supported by relevant reasons, and the Petitioner’s conduct could reasonably be considered discreditable.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court accepted that the Petitioner’s use of the GIF constituted expression protected by Article 10. It acknowledged that formal allegations, including misconduct proceedings, can interfere with freedom of expression by chilling effect. The Court rejected the Respondent’s argument that the proceedings did not constitute interference, holding that the institution of proceedings itself is capable of chilling expression.

The Court examined whether the interference was justified under Article 10(2), requiring it to be prescribed by law, pursue a legitimate aim, and be necessary and proportionate in a democratic society. The legitimate aims identified were public safety and prevention of disorder or crime, achieved through maintaining public confidence in the police service.

The Court found that maintaining public confidence in the police is essential for effective policing and that the 2014 Regulations and related procedures are compatible with Article 10. The Court held that the Respondent’s decision that there was a case to answer was rational and supported by clear reasons, taking into account the Petitioner’s Article 10 rights.

The Court recognized the margin of appreciation afforded to national authorities in regulating expression by civil servants, including police officers, who may be subject to restrictions requiring moderation, propriety, reserve, and discretion.

The Court concluded that the decision to institute misconduct proceedings was a necessary and proportionate means of maintaining public confidence and that no less intrusive means were available given the Petitioner’s refusal to accept wrongdoing. The Court also found that the Petitioner had not failed to exhaust an effective alternative remedy, rejecting the argument of prematurity.

Holding and Implications

The Court REFUSED the petition for judicial review, sustaining the Respondent’s plea-in-law and rejecting the Petitioner’s pleas-in-law.

The direct effect of this decision is that the misconduct proceedings against the Petitioner may continue. The Court did not find any new legal precedent but reaffirmed established principles regarding the balance between freedom of expression and the maintenance of public confidence in the police service. The ruling confirms the legitimacy of investigatory and disciplinary processes under the 2014 Regulations as compatible with Article 10 rights when conducted with appropriate justification and proportionality.