Background
BB sought judicial review of Metropolitan Police guidance requiring officers and staff using WhatsApp on MPS-issued devices to enable the application’s 90-day disappearing-message function. The guidance limits WhatsApp principally to short-term communications, prohibits its use for evidential or investigatory material engaging disclosure obligations, and directs users to export unexpectedly received evidential material to an official repository.
BB was awaiting trial for alleged controlling or coercive behaviour and breaches of a non-molestation order. The officer in charge had communicated with the complainant through WhatsApp and exported certain conversations, screenshots, and other material. Further exports were discovered after the judicial-review hearing, prompting concern about how the material had been identified and disclosed.
BB argued that the guidance authorised unlawful conduct, frustrated the purposes of policing legislation, was irrational, and unjustifiably interfered with his right to a fair trial under Article 6 of the European Convention on Human Rights and at common law.
The Court’s Holding
Mr Justice McKendrick dismissed all four grounds. Read as a whole and on the assumption that officers would comply with it, the guidance did not direct unlawful conduct. It restricted WhatsApp’s role and provided a mechanism for transferring evidential or potentially disclosable material to official storage.
The Commissioner had considered the benefits, risks, retention options, and external guidance before adopting the policy. The court held that BB had not met the high threshold for showing that no reasonable police commissioner could select a 90-day deletion period coupled with official storage of material requiring preservation. Although the judge expressed reservations about deleting potentially relevant material in criminal cases, those concerns did not make the policy unlawful.
The guidance’s existence or application did not itself violate BB’s fair-trial rights. Any dispute about whether relevant material was lost or inadequately disclosed, and whether that caused unfairness, was for the Crown Court to assess in the criminal proceedings through disclosure arguments, cross-examination, or an abuse-of-process application.
Key Takeaways
- A disappearing-message policy is not unlawful merely because compliance failures could result in relevant material being lost.
- The MPS guidance remained lawful because it limited WhatsApp use and required evidential or investigatory material to be transferred to official storage.
- Case-specific disclosure and fair-trial complaints concerning BB’s prosecution belonged in the Crown Court, not in this judicial review.
Why It Matters
The judgment permits the Metropolitan Police to retain its 90-day disappearing-message requirement while underscoring that officers must identify and preserve material subject to evidential or disclosure duties. It also illustrates the demanding standard for invalidating an operational police policy on rationality grounds.
The decision does not resolve whether disclosure failures occurred in BB’s criminal case. It leaves the Crown Court to determine the significance of the later-discovered WhatsApp exports and any resulting unfairness.