Vigilante justice: Is evidence obtained by ‘paedophile hunter’ groups admissible in criminal proceedings?

Introduction

On 15 July 2020 the Supreme Court handed down its findings in Sutherland (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2020] UKSC 32.

The appeal concerned the use of evidence gathered by ‘paedophile hunter’ groups in public prosecutions (ie. group members posing as underage children online to ‘trap’ paedophiles) and whether the use of that evidence is compatible with an accused’s right to private life under Article 8 of the European Convention on Human Rights (‘ECHR’).

The facts

In summary, the facts of the case were that a member of a paedophile hunter group created a fake profile on the Grindr dating application using a photograph of a 13-year-old boy. The Appellant entered into communication with the ‘boy’ who confirmed he was 13 years old. The Appellant sent him a photograph of his erect penis and arranged a meeting with him. When he arrived he was confronted by members of the vigilante group who contacted the police.

The Appellant was arrested and subsequently prosecuted for attempting to cause an older child to look at a sexual image for the purposes of obtaining sexual gratification, attempting to communicate indecently with an older child and attempting to meet a child for the purpose of engaging in unlawful sexual activity (these are all ‘attempts’ because no child was actually involved).

At his trial, the Appellant argued that the evidence had been obtained unlawfully and that its use breached his Article 8 ECHR rights. This was rejected and he was convicted after trial.

The Appellant appealed against his conviction to the High Court of Justiciary where his appeal was dismissed. The High Court found that since the individual who obtained the evidence was a private individual, and not a ‘State’ authority there had been no interference with the Appellant’s Article 8 rights. The High Court accepted that the communications could engage Article 8 but that the Appellant could have had no reasonable expectation of privacy in relation to them given he was communicating with a stranger who was a child. It was also held that even if the Appellant’s Article 8 rights had been interfered with, the interference was justified and in any event he had received a fair trial pursuant to Article 6 ECHR and his conviction was safe.

The case was certified as fit for appeal to the Supreme Court on the human rights issues – whether the use of the paedophile hunter evidence in any way infringed upon or was incompatible with the Appellant’s right to private life under Article 8.

Article 8

Article 8 of the ECHR holds as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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.

The Appeal

The appeal to the Supreme Court concerned two questions:

1. Given the type of communications in question, were the Appellant’s Article 8 rights infringed by using the communications as evidence in a public prosecution?
2. To what extent is the State’s obligation to provide adequate protection for Article 8 rights incompatible with the use by state prosecutors of material supplied by paedophile hunter groups in investigating and prosecuting crime?

In a judgement delivered by Lord Sales, the Supreme Court unanimously dismissed the  appeal, finding as below.

1 – Did using the evidence in question infringe the Appellant’s Article 8 ECHR rights?

On the first question, the Court found that there had been no infringement of the Appellant’s Article 8 rights for two reasons:

1. The communications themselves were not worthy of respect under Article 8 ECHR given their reprehensible nature.
2. The Appellant could not have had a reasonable expectation of privacy in relation to the communications.

Communications not worthy of respect

The question of whether the communications were worthy of respect under Article 8 was a pivotal question. The evidence in this case had been gathered by a private individual. The communications involved no question of state surveillance or interception and all that was in issue was the balance of the interests of a paedophile and the intended recipient of the communications – a child. By virtue of the reprehensible nature of the communications the Supreme Court held that they did not attract protection under Article 8.

Support for this conclusion was drawn in three ways:

First, the contact was criminal in nature and was capable of having a serious impact on any child receiving it – this engaged the child’s rights under the ECHR.

Second, Article 8 imposes a positive obligation on States to ensure that the criminal law can be applied effectively to deter the commission of sexual offences against children. The interests of children take priority over the interest of any paedophile being allowed to engage in criminal conduct in this regard.

Third, Article 17 protects the ECHR from being abused. It provides that nothing in the ECHR may be interpreted as permitting anybody to engage in activity: “aimed at the destruction of any of the rights and freedoms” protected by it. Applying this to the present case, the Court concluded that this type of criminal conduct destroyed the rights and freedoms of children who must be protected from sexual crime.

No reasonable expectation of privacy

The second important question when considering Article 8 rights relates to whether the Appellant could have had a reasonable expectation of privacy in respect of the communications.

The Court held that what amounts to a reasonable expectation of privacy is an objective test and that, despite the Appellant’s pleas to the ‘boy’ to keep their communications private, he could not have had a reasonable expectation of privacy.

In reaching this conclusion, the Court found as follows:

1. There was no pre-existing relationship between the Appellant and the child. The contact came “out of the blue” and so he was not owed any duty of privacy.
2. The child (as the Appellant thought) was 13 years old and it could reasonably be expected he may share the worrying communications with an adult.
3. The Appellant was engaging in criminal conduct and could not have had a reasonable expectation of privacy in relation to such conduct. This was not the kind of activity Article 8 sought to protect.
4. The Appellant could not have had a reasonable expectation that the communications, once in existence, would not be given to the police and the prosecuting authorities and thereafter used in a criminal prosecution against him.

Therefore, the Appellant’s Article 8 rights had not been infringed.

2 – To what extent is the State’s obligation to protect Article 8 rights incompatible with using the evidence of paedophile hunter groups to investigate and prosecute crime?

In respect of the Appellant, the Court found that his Article 8 ECHR rights had not been infringed and so the question was moot. However, had Article 8 been engaged the State’s obligation to protect the Appellant’s rights under Article 8 was not incompatible with using the evidence obtained to investigate and prosecute his crimes.

Lord Sales noted that States must perform a balancing exercise between public and private interests, and are afforded a margin of appreciation in doing so.

In the present case there was a positive obligation on the State to apply the criminal law effectively so as to deter and punish those who threaten to harm young children. There was also no question that the offences with which the Appellant was charged were compatible with Article 8 in themselves.

Balancing the interest of the public and the protection of children with the interests of a paedophile wishing to engage in criminal conduct, it was clear where the balance lay. Lord Sales even went as far as to say that States are entitled – and perhaps even obliged – to make use of such evidence when prosecuting defendants.

Other issues

The appeal related solely to the human rights issues and thus the Court did not consider any other issues in the appeal to the lower court. However, Lord Sales observed that he could find no fault in the reasoning of the High Court in finding that any interference with the Appellant’s Article 8 rights in this case would have been justified in any event, and that his conviction was safe.

Conclusion

In conclusion, the use of the evidence obtained by the paedophile hunters in the prosecution of the Appellant did not infringe his Article 8 rights nor was the use of such evidence in prosecuting him incompatible with his Article 8 rights.

There is a need to protect children from sexual offences and where it comes down to it, the balance of competing rights will not fall in favour of a paedophile engaging in criminal conduct.

This decision is unsurprising, and although fact-specific it is clear that the principles are capable of broader application to other cases involving ‘paedophile hunters’ and sexual offences committed against children.

Hannah Thomas