In this post, Joanna Clark and Emma Ainsley of CMS discuss the judgment handed down by the UK Supreme Court on 15 July 2020 in a referral from the High Court of Justiciary, the Scottish criminal appeal court, in the matter of?Sutherland v Her Majesty’s Advocate [2020] UKSC 32 concerning the admissibility of evidence obtained by so-called “paedophile hunter” groups in criminal trials.?

On 3 June 2020, the Supreme Court heard this case in which the Director of Public Prosecutions in England and Wales intervened. Since the issues raised relate to issues of compatibility with Convention rights, specifically the ECHR, art 8 right to respect for private life and correspondence, the decision will be relevant to prosecuting authorities across the UK.

Case background

This case concerned the admissibility of evidence in a criminal trial that had been obtained by a “paedophile hunter” group (“a PH group”).

The appellant, Mark Sutherland, began corresponding on Grindr with a member of a PH group, Groom Resisters Scotland, posing as a thirteen year old boy (“the decoy”). The appellant’s first communication with the decoy was to send a sexual image. On receiving the image, the decoy replied “Wow, I’m only 13.” The appellant and the decoy continued to communicate using Grindr and WhatsApp, with the appellant sending further sexual images and sexual messages. The two then arranged to meet at a bus station in Glasgow.

Members of PH groups impersonate children in order to expose people who they consider to be sexual predators, often streaming their in-person encounters online and later reporting their findings to the police. It is estimated that 164 cases using evidence originating from PH groups have been heard in Scotland, with between 80 – 90% of cases reported by PH groups to the police culminating in prosecution. It is estimated by HM Inspectorate of Constabulary in Scotland that almost half of online child sexual offence cases now result from the activities of PH groups. At the time of the hearing before the Supreme Court, 110 cases at various stages of procedure in Scotland had been adjourned in anticipation of this judgment.

At the time of the arranged meeting, members of the PH group met the appellant and livestreamed the encounter on Facebook. Police officers attended during the ongoing confrontation and the PH group subsequently turned the information they had gathered about the appellant over to the police.

In relation to the entire course of his conduct, the appellant was prosecuted for attempted offences under the Sexual Offences (Scotland) Act 2009 (“SO(S)A”), ss 33, 34 and the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s 1, including causing an older child to look at a sexual image and communicating indecently with an older child. The appellant objected to the admissibility of the evidence provided by the PH group on the grounds that the covert investigation had (a) proceeded without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 (“RIPSA”), and (b) breached his right to respect for his private life and correspondence under ECHR, art 8. The sheriff repelled these objections and the appellant was convicted. He appealed the conviction to the High Court of Justiciary. The High Court of Justiciary determined that RIPSA had no application in the circumstances, since the decoy had acted on his own initiative and not at the instigation of the police. It referred the ECHR compatibility issues to the Supreme Court.

Whilst a large number of criminal cases have been adjourned pending the outcome of this decision, the use of evidence obtained by PH groups has been considered in a previous Scottish decision, namely Procurator Fiscal, Dundee v P H P [2019] SC DUN 39. In that case, another PH group had set up profiles on the platform SayHi. While the accused in that case (who was cognitively impaired) did not agree to any meeting, the PH group was able to find his address after exchanges of sexual messages and the accused was subsequently charged with attempted contraventions of SO(S)A, ss 34(1), 24(1).

While the sheriff presiding over the P H P case found that the accused’s ECHR, art 8 rights were not engaged, he determined that the evidence in question was nonetheless inadmissible. This was because, in his view, the evidence had been obtained unlawfully, by way of common law fraud, and irregularly. The sheriff voiced concerns over encouraging vigilante groups, pointing out that the police work within a scheme of regulation and inspection and are democratically accountable, going about their work in a way which involves making careful judgments about what lines of enquiry to follow up and which takes account of factors such as cognitive impairment in a suspect. Furthermore, the police do not confront suspects or make arrests in a way that risks public disorder, and they understand that publishing photographs of suspects on the internet poses risks for the administration of justice and might amount to contempt of court.

Issues referred to the Supreme Court

The High Court of Justiciary characterised the issues raised by the Sutherland case as being of general public importance and requested that the hearing be expedited. Two questions were remitted to the Supreme Court under the Criminal Procedure (Scotland) Act 1995, s 288A (which permits compatibility issues in Scottish criminal appeals to be determined by the Supreme Court):

  • Whether, in respect of the type of communications used by the appellant and PH groups, ECHR, art 8 rights may be interfered with by their use as evidence in a public prosecution of the appellant for the relevant offences; and
  • The extent to which the obligation on the state, to provide adequate protection for ECHR, art 8 rights, is incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime.

ECHR, art 8 provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  1. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Since prosecuting authorities and courts are “public authorities” within the meaning of the Human Rights Act 1998, s 6, it is unlawful for them to act in a manner that is incompatible with Convention rights.

Decision

The decision begins with a detailed analysis of ECHR, art 8 and the “two fundamental values” that it protects as identified by Baroness Hale of Richmond in R (Countryside Alliance) v Attorney General [2007] UKHL 52, para 116, namely:

  • the inviolability of the home and personal communications from official snooping, entry and interference without a very good reason”; and
  • the inviolability of … the personal and psychological space within which each individual develops his or her own sense of self and relationships with other people.

The court noted that the first of these two values was not relevant in the present case as the evidence was gathered by a private individual acting on his own behalf, and not by means of surveillance by state authorities or someone acting at the instigation of a state authority. However, the second value was of significance to this case.

Was the appellant’s right to respect for his private life and correspondence interfered with?

The court answered this question in the negative, for two reasons.

Firstly, the court said that the nature of the communications – which were to a person whom the appellant believed to be a child – were not worthy of respect for the purposes of the application of the ECHR.

Secondly, the court said that the appellant had no reasonable expectation of privacy in relation to the communications.

Nature of the communications

The court began by noting the language used in ECHR, art 8(1), i.e. “right to respect for”. In the court’s view, it was implicit within this that the conduct over which protection was claimed by the appellant should be capable of respect within the “scheme of values” that the ECHR exists to protect and promote.

The court referred back to the second value that Baroness Hale had identified in Countryside Alliance, namely “the inviolability of … the personal and psychological space”. This was an aspect of ECHR, art 8 that arose in this case, not in relation to the appellant’s rights, but in relation to the rights of any children who might be the intended recipients of his communications. The court noted that the jurisprudence of the Strasbourg court on ECHR, art 8 had identified that, in this context, ECHR, art 8 placed a special responsibility upon the state to protect children from sexual exploitation by adults.

The court considered a number of authorities in this regard, including X and Y v The Netherlands (App no 8978/80) and KU v Finland (App no 2872/02), in which the Strasbourg court had indicated that ECHR, art 8 placed a positive obligation on states to put in place effective deterrence measures against activities which may pose a threat to fundamental values and essential aspects of the private lives of individuals, particularly children and other vulnerable persons. This obligation extended beyond the creation of appropriate offences to the effectiveness of criminal investigations into those offences.

In this case, it was clear that the statutory offences the appellant had been charged with – which related to direct, sexually motivated communication with a child – were put in place to protect children against interference with “essential aspects of their private lives” (to use the language adopted by the court in KU v Finland). Having put these offences in place, the state was obliged under ECHR, art 8 to enforce them.

In this case, in the absence of any state surveillance, when it came to balancing relevant interests the only two interests to be considered were those of the person engaging in the criminal conduct, and those of the children who were the recipients (or intended recipients) of the communications. Given the nature of the communications, they did not attract protection under ECHR, art 8(1).

The court also referred to ECHR, art 17 (prohibition of the abuse of rights) in support of the conclusions the court had reached. The actions of the appellant were aimed at the destruction or limitation of the rights and freedoms of a child, and those rights and freedoms were the subject of positive obligations on the state under ECHR, art 8. In these circumstances, any legitimate interest the appellant could have under ECHR, art 8 was outweighed by the positive obligations on the state to protect children from sexual exploitation.

The court identified four distinct stages at which the appellant’s conduct was brought to the attention of the public authorities for criminal justice purposes when it might be argued his rights had been interfered with:

  • When the decoy passed the evidence to the police;
  • When the police took investigative action based on that evidence;
  • When the prosecuting authority presented charges and relied upon the evidence at trial; and
  • When the court admitted the evidence and convicted the appellant on the basis of it.

The court indicated that at none of these stages did the appellant have a legitimate interest under the ECHR in preventing the action taken. The communications sent by the appellant constituted criminal offences, so the decoy was entitled to pass evidence in his possession of them to the police. Once the police had this, they were entitled to use it and pass it to the prosecuting authority for use in criminal proceedings against the appellant. The public authorities had responsibility under the ECHR to take effective action to protect children and the information provided by the decoy demonstrated that the appellant represented a risk to children.

No reasonable expectation of privacy

In the context of whether the appellant had a reasonable expectation of privacy, the court began by pointing out that the appellant’s communications had been sent directly to the decoy who was a private individual the appellant believed was a child of 13. Their contents were not, the court said “a matter in relation to which the recipient could be thought to owe the appellant any obligation of confidentiality”.

In addition, there was no prior relationship between the appellant and the recipient from which an expectation of privacy might arise. The appellant contacted the decoy himself. It was entirely foreseeable that a child might well share any “worrying communication” with an adult and the fact that the appellant had urged the decoy to keep their messages private did not establish any relationship of confidentiality between them. The criminal nature of what the appellant was doing was not an aspect of his private life he was entitled to keep private and he could not reasonably expect that messages which were evidence of criminal conduct would not be passed on to the police.

The court did note, with reference to the case of Benedik v Slovenia (App No 62357/14), that there may be different expectations of confidentiality in relation to the use of the internet. The court referred to the fact that different degrees of anonymity might be possible, depending on the forum, and held that whether or not a reasonable expectation of privacy existed in relation to a particular matter was an objective question.

The court recognised that there was a degree of overlap between the issues of the reasonable expectation of privacy, and that of the nature of the appellant’s communications. Although the court found it helpful to examine these two issues separately, it was of the view that the nature of the communications provided further reasons why the appellant would not have had a reasonable expectation of privacy in relation to them.

Other issues addressed by the Supreme Court

The court held that even if there had been an interference with his ECHR, art 8 rights, the appellant would still have faced fundamental difficulties in challenging the High Court’s refusal of his appeal. Firstly, any interference with his ECHR, art 8 rights would have been justified under ECHR, art 8(2) as being in accordance with the law and necessary in a democratic society, as a measure proportionate to promoting the legitimate objectives of the prevention of disorder or crime and the protection of the rights and freedoms of others. Secondly, as the High Court had correctly pointed out, a breach of the appellant’s ECHR, art 8 rights did not necessarily require his conviction to be quashed, as, generally, evidence obtained in breach of ECHR, art 8 may be relied on in criminal proceedings, provided that there is no violation of the right to a fair trial under ECHR, art 6, and no breach of any rules of domestic law regarding the fairness of those proceedings.

Comment

?Counsel for the appellant in this case sought to argue that the acquisition and use of the evidence of the communications between the appellant and the decoy were not “in accordance with the law”, as required by ECHR, art 8(2). However, since the court found there was no interference under art 8(1), the court did not require to address these arguments, or the issues regarding the activities of vigilante groups that were commented upon by the sheriff in the P H P case. It may be that some of those issues may raise ECHR, art 6 issues, however, that was not argued in this case.