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On appeal from:  [2019] HCJAC 61

This appeal discusses whether prosecutions based on the covert sting operations of “paedophile hunters” are compatible with the right to private life and correspondence. These are self-appointed groups of vigilantes who impersonate children in order to expose people who they consider to be sexual predators. Some of these groups have attracted substantial online followings and debate in mainstream media.

In 2018 Mr Sutherland matched on a dating app with somebody who, when he communicated with them, claimed to be a 13-year old child. He sent sexual messages and images to that person, and they eventually arranged to meet at Partick station. In fact, he was speaking to an adult member of a “paedophile hunter” group. Members of that group confronted Mr Sutherland at the meeting point at the arranged time. They broadcast the encounter on social media and handed the evidence to the police. Mr Sutherland was convicted of attempting to communicate indecently with an older child and related offences. He appealed against his conviction on the basis that the covert investigation (and the use of the resulting evidence by the prosecuting authorities) breached his right to respect for his private life and correspondence under ECHR Article 8.

Held: The Supreme Court unanimously dismisses the appeal. The appellant appeals on two issues: (1) whether, in respect of the type of communications used by the appellant and the PH group, article 8 rights may be interfered with by their use as evidence in a public prosecution of the appellant for a relevant offence; and (2) the extent to which the obligation on the state, to provide adequate protection for article 8 rights, is incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime.

The court holds that there was no interference with those rights at any stage because: (i) the nature of the communications rendered them incapable of being worthy of respect under article 8; and (ii) the appellant had no reasonable expectation of privacy in relation to the communications.

On the second issue, the state had no supervening positive obligation to protect the appellant’s interests that would prevent the respondent making use of the evidence to investigate or prosecute the crime. On the contrary, the relevant positive obligation on the respondent was to ensure that the criminal law could be applied effectively to deter sexual offences against children. Article 8 has the effect that the respondent should be entitled to, and might indeed be obliged to, make use of the evidence in bringing a prosecution against him.

 

For judgment, please download: https://www.supremecourt.uk/cases/docs/uksc-2020-0022-judgment.pdf

For Court’s press summary, please download: https://www.supremecourt.uk/cases/docs/uksc-2020-0022-press-summary.pdf

For a non-PDF version of the judgment, please visit: https://www.bailii.org/uk/cases/UKSC/2020/32.html

To watch the hearing please visit: Supreme Court website: 3 June 2020 morning and afternoon session

To watch the judgment summary, please visit: Supreme Court website: https://www.supremecourt.uk/watch/uksc-2020-0022/judgment.html