The appeal was unanimously dismissed. Implicitly, the Court gave PH groups and similar organisations a green light to continue their operations.
The so-called paedophile hunters groups have attracted substantial online followings and debate in mainstream media in the recent years. Paedophile hunters (PH) are self-appointed vigilantes who impersonate children online in order to lure persons they believe to be sexual predators into inappropriate communications and provide the resulting material to the police.
In 2018, Mr. Sutherland matched on a dating app with somebody who claimed to be a 13-year old child. He sent sexual messages and images to that person, and they eventually arranged to meet. The truth was that he was not speaking to a child, but to a member of a PH group. When he arrived at the meeting point, Mr. Sutherland was confronted by members of that group. They broadcast the encounter on social media and provided copies of the appellant’s communications with the fake child to the police. That evidence helped convict Mr. Sutherland of attempting to communicate indecently with an older child. He appealed from this decision, arguing that the covert operation of the PH group (and the resulting evidence used by the prosecution) breached his right to respect for private life, contained in Article 8 of the European Convention on Human Rights.
In the High Court Case, the appellant objected to the admissibility of the incriminating evidence on the basis that it was obtained covertly without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA) and without authorisation or reasonable suspicion of criminality, therefore in violation of his rights under Article 8 of the European Convention on Human Rights, which the UK has ratified. This article sets out that everyone has the right to respect for his privacy and his correspondence and that there shall be no interference by a public authority with the exercise of this right except when this interference is in accordance with the law and has the goal such as, but not limited to, preventing disorder or crime, protecting health or morals, or protecting the rights and freedoms of others. In addition to having a prohibitive aspect, Article 8 imposes a positive obligation on the state to protect an individual’s Article 8 rights from interference by other private individuals. The High Court held that since the decoy was working without cooperating with a public authority, the gathering of the evidence by him was not a case of interference by the state with the appellant’s Article 8 rights. The High Court then dismissed the appeal.
The appellant appealed further to the Supreme Court on two issues: firstly, whether Article 8 rights may be interfered with by using the appellant’s private online communication as evidence in a public prosecution; and secondly, on the extent to which the state’s obligation to provide adequate protection for Article 8 rights is incompatible with the use by a public prosecutor of material supplied by a PH group in investigating and prosecuting crime.
On the first issue, the appellant submitted that there was an interference with his rights to respect for his private life and for his correspondence, and that, as no authorisation which was required by RIPSA had been obtained, the evidence had been obtained unlawfully. However, the Supreme Court agreed with what the High Court had held: that RIPSA had no application in the circumstances of the case at hand, since the decoy acted on his own initiative. The appellant had voluntarily engaged in online communication with a person he believed to be a child, for sexual purposes; by the time the police became involved, the crime had already been committed.
Once the messages, as evidence, had been passed to the police by the decoy, the appellant had no reasonable expectation that the police should treat them as confidential, since making use of that evidence could help them investigate whether a crime had been carried out. What is more, the police and the respondent had a responsibility, under the scheme of values in the ECHR, to take effective action to protect the rights of children, as the information provided by the decoy indicated that the appellant represented a risk to them. Moreover, the Court highlighted that the appellant had no reasonable expectation of privacy in relation to his correspondence in question, which, according to case law, is an important indication of whether the right to respect for private life and correspondence is engaged.
The Court accepted that, in general, a person’s internet chats fall within ‘communication’ as meant by Article 8, but went on to say that given the lack of any pre-existing relationship between the appellant and the person with whom he thought he was communicating, he had no reasonable expectation that the communications would remain private. It was also noted that, even if there had existed a reasonable expectation of confidentiality on the part of the appellant, the state only became involved after the evidence was obtained and the actions of the decoy were justifiable as they had the legitimate purposes of the prevention of crime and the protection of the rights and freedoms of others.
On the second issue, it was held that the state had no positive obligation to protect the appellant’s interests that would prevent the respondent from using the evidence to prosecute the crime committed by the appellant. On the contrary, the positive obligation that the respondent did have was to ensure that the criminal law could be applied effectively to deter sexual offences against children. Since the state has a positive obligation to deter and punish persons who threaten to harm young children by operating an effective criminal law system, the use by the respondent of the evidence provided by the decoy for the purposes of the prosecution of the appellant involved no breach of any positive obligation owed to the appellant. Therefore, there was no incompatibility between the state’s obligation to protect the appellant’s Article 8 rights and the use of material provided by a PH group by a public prosecutor.
On the reasons given above, the appeal was unanimously dismissed. Implicitly, the Court gave PH groups and similar organisations a green light to continue their operations.