Police officer who posted comedy GIF in Twitter argument with solicitor loses appeal against misconduct proceedings decision

It was maintained by Calum Steele that the decision to instigate proceedings was incompatible with his right to freedom of expression under the ECHR. In a cross-appeal, the Deputy Chief Constable of Police Scotland challenged the Lord Ordinary’s finding that there was no effective alternative remedy to judicial review available to the petitioner.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Malcolm and Lord Turnbull. Dean of Faculty, Roddy Dunlop QC, appeared for the petitioner and reclaimer and Ross QC for the respondent.
Amounted to discreditable conduct
On 3 May 2015, Sheku Bayoh died in police custody shortly after being arrested in Kirkcaldy. The police officers involved did not face any criminal prosecution, and on 11 November 2019 the Bayoh family’s solicitor posted on Twitter that the decision was “deeply disappointing”. The petitioner responded to this post as well as others, and as part of one of these responses linked to an article about a fight Mr Bayoh was allegedly involved in prior to his arrest.

Another Twitter user, a political journalist, called this post “appalling” and “an attempt to damage the character of a dead man”, to which the petitioner responded by saying that “maybe the earlier fight was like this”, attaching a GIF image from the 2004 comedy film “Napoleon Dynamite” in which the titular character taps his brother’s right cheek and then runs away.

An inspector of police concluded that the petitioner’s conduct failed to meet the standards expected of currently serving police officers and concluded that he had a case to answer for misconduct. A decision was taken to refer the matter to a misconduct hearing, which the petitioner challenged. The Lord Ordinary accepted that the making of a formal allegation could amount to a violation of the petitioner’s Article 10 rights but held that the decision to institute proceedings was not irrational and the view that posting the GIF amounted to discreditable conduct was tenable.

It was accepted by both parties that a degree of proportionate restriction must be placed on a police officer’s right to free expression. However, counsel for the petitioner argued that the post could not, on any objective view reasonably arrived at, constitute misconduct, and the Lord Ordinary’s reasoning that it could and that there was a case to answer was irrational.

It was observed by the court that the respondent’s cross-appeal would only be relevant if the petitioner was able to satisfy the court that no reasonable person would construe the post as coming within the proportionate degree of restriction placed upon him.
Trivialising the subject
Delivering the opinion of the court, Lady Dorrian began: “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, focussing not on the whole context, but on the post itself in isolation.”

She continued: “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.”

On the effect the GIF was intended to convey, Lady Dorrian said: “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. A message conveyed visually may have more force, or may be more open to nuanced interpretation, than a simple message stated in words.”

Turning to whether it could be connected to the broader conversation, she added: “The whole context related to Mr Bayoh’s death in custody, the injuries found on his body after death, and the reports of his allegedly having been involved in a fight prior to his arrest. Of course the observations in the post in question were designed to comment directly on the issue of the possible source for the injuries found on the body, but we do not think that this can be isolated from the conversation of which it was part; it is not unreasonable to form a view that the post and GIF were ‘linked’ to the death.”

Lady Dorrian concluded: “We have already noted that the use of a visual aid as a form of expression may convey more than mere words, and may be more open to nuance and interpretation. The visual aid, in this case, the comedy GIF, is part of the tone of the comment. 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.”

The petitioner’s reclaiming motion was therefore refused.

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