A group of police officers who took legal action over a threat to use messages sent via a private messaging service in disciplinary proceedings against them have won a court victory allowing their case to proceed.
Senior officers in Police Scotland had sought to have the judicial review dismissed but a judge has ruled against them.
Lord Brailsford said: “I have formed the view that the present petition does raise a live question, of a significant or important nature, which does require to be determined.”
The ten officers, who serve with Police Scotland, raised the judicial review challenging the proposed use of the material sent via WhatsApp in misconduct proceedings brought against them.
They maintain that its use in respect of non-criminal behaviour on their part is unlawful and incompatible with their rights to respect for private and family life under Article 8 of the European Convention on Human Rights.
The material came to light when police were involved in an investigation into alleged sexual offences in 2016. None of the ten officers was or had been a suspect in that operation.
But another man, who was a police constable, was a suspect.
He was taken into custody and a telephone was found and during the examination of its content WhatsApp chat groups were discovered that had names linked to the police.
A detective took the view that the content of messages found on them was not appropriate given the status of members of the group and it was passed to officers in the force’s professional standards department.
The police claimed that messages found contained allegedly derogatory and offensive remarks and were likely to bring the service into disrepute with the public if it became known.
David Sheldon, QC, for the chief constable, deputy chief constable and a chief superintendent appointed for the proceedings, earlier asked Lord Brailsford at the Court of Session in Edinburgh to dismiss the judicial review petition brought by the officers as incompetent.
It was maintained that the officers had not availed themselves of rights of appeal and the action was directed at matters yet to be decided and was thus premature.
Mr Sheldon said: “There does not seem to be any dispute that the messages and contents of the phone on which they were found were lawfully in the hands of the police.”
He told the court that given the structure of police disciplinary rules it was “inevitable” it would come to a misconduct hearing.
Lord Brailsford said the judicial review petition would proceed and that a further hearing would be held to decide on future procedure.
None of the officers involved in the case can be identified because of court orders.