Supreme court dismisses appeal against evidence gathered by paedophile hunters

The UK Supreme Court has dismissed an appeal in a case where it was argued that evidence gathered by a ‘paedophile hunter’ group clashed with the European Convention on Human Rights (ECHR).

The judgement on the hearing of Sutherland (appellant) v Her Majesty’s Advocate (respondent) (Scotland) was delivered on 15 July 2020.

The justices giving their view were Lord Reed (President), Lord Hodge (Deputy President), Lord Lloyd-Jones, Lord Sales, and Lord Leggatt. 

The appeal concerned the compatibility of the use in a criminal trial of evidence obtained by a ‘paedophile hunter’ group with the accused person’s rights under article 8 of the ECHR. 

Article 8 provides that everyone has the right to respect for his or her private life and correspondence. Paedophile hunter groups impersonate children online to lure persons into inappropriate communications and provide the resulting material to the police. 

An adult member of a paedophile hunter group, acting as a decoy, created a fake profile on a dating application using a photograph of a boy aged approximately 13 years old. The appellant entered into communication with the decoy, who stated that he was 13 years old. The appellant sent the decoy a sexual image and arranged a meeting. At the meeting, the appellant was confronted by members of the paedophile hunter group who remained with him until the police arrived. Copies of the appellant’s communications with the decoy were provided to the police. 

The respondent, as public prosecutor, charged the appellant with attempts to commit: (i) the offence of attempting to cause an older child (i.e. a child between 13 and 16 years old) to look at a sexual image, for the purposes of obtaining sexual gratification, contrary to section 33 of the Sexual Offences (Scotland) Act 2009; (ii) the offence of attempting to communicate indecently with an older child, contrary to section 34 of the 2009 Act; and (iii) the offence of attempting to meet with a child for the purpose of engaging in unlawful sexual activity, contrary to section 1 of the Protection of Children and the Prevention of Sexual Offences (Scotland) Act 2005. 

The appellant objected to the admissibility of the evidence on the basis that it was obtained covertly without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 and without authorisation or reasonable suspicion of criminality in violation of his rights under article 8. These objections were dismissed and the appellant was convicted of the charges. The appellant appealed against his conviction to the High Court of Justiciary, which refused the appeal and granted the appellant permission to appeal to the Supreme Court on two compatibility issues, which arise in criminal proceedings over whether a public authority has acted in a way that is unlawful under section 6(1) of the Human Rights Act 1998. 

The Supreme Court unanimously dismissed the appeal. Lord Sales gave the judgment, with which all members of the Court agreed. 

You can read more about the judgment here