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  4. Police Federation chief fails to halt misconduct charge

Police Federation chief fails to halt misconduct charge

7th March 2022 | professional regulation

The general secretary of the Scottish Police Federation has failed in attempt to have misconduct proceedings against him declared unlawful.

Lord Justice Clerk Lady Dorrian, Lord Malcolm and Lord Turnbull in the Inner House of the Court of Session refused an appeal by Calum Steele against a decision dismissing his appeal in his petition for judicial review of the decision to bring proceedings. The Lord Ordinary had held that the respondent, the deputy chief constable of the Police Service of Scotland, had not acted irrationally in considering that the petitioner had a case to answer over a tweet he posed during an exchange concerning the well publicised death in police custody of Sheku Bayoh.

During the exchange the petitioner had questioned the extent of the injuries sustained by Bayoh while being restrained by police. The tweet in question asked if a fight in which Bayoh had been involved prior to his arrest had been like a GIF posted with the tweet, showing a man tapping another man lightly on the cheek before running away. An investigating officer proposed that the petitioner be charged with misconduct in that posting this clip and linking it to the death of Sheku Bayoh had discredited the police service.

Before the Inner House it was argued for the petitioner that although the Lord Ordinary had accepted his propositions that the decision to institute proceedings interfered with his ECHR article 10 rights to freedom of expression, and had to be shown to have had a legitimate aim, be prescribed by law and be necessary in a democratic society, he had erred in his decision since the post could not, on any objective view reasonably arrived at, constitute misconduct.

Giving the opinion of the court, Lady Dorrian stated: “As the Lord Ordinary pointed out, the issue is not whether the facts justify a finding of misconduct, but whether they are sufficient to justify a finding of a case to answer for alleged misconduct.” For the petitioner to succeed, the court “would have to be satisfied that no reasonable person, objectively construing the post, could consider that it was a communication which could come within the proportionate degree of restriction which may be placed on the right to freedom of expression by a police officer, and thus potentially be capable of being classified as misconduct”.

Holding in favour of the respondent, she ruled: “The reclaimer recognises that the post in question must be construed in the context of the Twitter conversation of which it forms part. However, the submissions for the reclaimer repeatedly failed to do that, focusing not on the whole context, but on the post itself in isolation. Admittedly, it is the posting of the message and the use of the GIF which forms the nub of the charge, but the character and quality to be attached thereto comes not from the post in isolation, but from the context in which it appears, as part of a lengthier conversation.”

While it was submitted that the message the GIF was intended to convey was that the earlier fight had not been a trivial one, “The fact is that rather than express himself in words the reclaimer chose a GIF for the task, and selected one from a comedy film... The fact that it is a common method of expression on Twitter will no doubt be recognised by the decision maker in due course, as part of the whole circumstances which require to be taken into account. Those circumstances would include the position within the Police Federation held by the [petitioner], but that position does not give him a latitude to exceed the bounds of what may be expected from the holder of the office of constable.”

She concluded: “In the context in which it was used, it could be open to construction as trivialising the subject matter of the conversation. Whether this is so would be a matter for the fact finder in light of all the circumstances.

“It is important to stress that the court is expressing no view on the merits of the charge facing the reclaimer nor prejudging any defence thereto. It has simply rejected the challenge to the legality of the proceedings themselves.”

View the opinion of the court here.

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