In Sutherland v Her Majesty’s Advocate, the Supreme Court ruled unanimously that it was compatible with the accused person’s rights under ECHR article 8 to use evidence obtained by “paedophile hunter” (“PH”) groups in a criminal trial.
PH groups impersonate children online to lure persons into making inappropriate or sexualised communications with them over the internet, and then provide the material generated by such contact to the police. Importantly, they operate without police authorisation.
Per Section 6(1) of the HRA, a prosecution authority – as a public authority – cannot lawfully act in a way that is incompatible with a Convention right. Consequently, there were two compatibility issues on appeal before the Supreme Court:
- Were the appellant’s article 8 rights interfered with by the use of the communications provided by the PH group as evidence in his public prosecution?
- To what extent is the state’s obligation to provide adequate protection for article 8 rights incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime?
The appellant was lured into sexual communications on Grindr and WhatsApp with a fake account set up by an adult member of a PH group. The decoy impersonated a 13-year-old boy. When the appellant sought to meet up with the decoy, he was confronted by members of the decoy’s PH group who remained with him until the police arrived.
Copies of the appellant’s communications with the decoy were provided to the police. The appellant was charged with attempting to communicate indecently with an older child and related offences contrary to the Sexual Offences (Scotland) Act 2009 (“the 2009 Act”) and the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (“the 2005 Act”).
The appellant unsuccessfully sought to contest the admissibility of the evidence on two grounds. First, that it had been obtained by covert means without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 (“RIPSA”). Second, that the evidence was obtained covertly without authorisation or reasonable suspicion of criminality in violation of his rights under article 8. The appellant was ultimately convicted on each of the charges.
The High Court Proceedings
His appeal to the High Court of the Justiciary was refused on grounds that RIPSA had no application in the circumstances of this case, since the decoy acted on his own initiative and not at the instigation of the police. For the same reason, the gathering of the appellant’s correspondence by a private citizen was not an interference by the state under article 8. Regarding the appellant’s private life, the Court held he had no reasonable expectation of privacy given the lack of any longstanding pre-existing relationship. Even had there been an interference under article 8(1), the Court said, it would still have been justified under article 8(2).
The Judgement of the Supreme Court
Issue 1: Were the appellant’s article 8 rights interfered with?
Article 8 reflects two fundamental values. These were summarised by Baroness Hale in R (Countryside Alliance) v Attorney General  at para 116:
the inviolability of the home and personal communications from official snooping, entry and interference without a very good reason
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.
As this case does not concern state surveillance, the judgement was focussed on the second of these fundamental values.
(i) The nature of the communications
The first reason why there was no interference with the appellant’s rights is because the nature of the communications was not capable of making them worthy of respect.
Lord Sales’ central proposition was that “respect” for the appellant’s private life and correspondence, under article 8(1), was conditional on the features of those activities being capable of respect within the scheme of values the ECHR seeks to protect and promote .
In relation to the second fundamental value articulated by Baroness Hale, it was established in X and Y v The Netherlands  that the state has a positive obligation under article 8 to protect children from sexual exploitation by adults. Whilst the state has a margin of appreciation in how it discharges this obligation, on the facts of that case, the Court held that only criminal law provisions would have sufficed.
This position was re-affirmed in KU v Finland , where it was held that the state breached its article 8 obligations in lacking the criminal sanctions necessary to proscribe an individual who placed a sexualised advert on an internet-dating site, on behalf of a 12-year-old boy, without his knowledge or consent.
In the present case, the provisions in the 2009 Act and the 2005 Act were enacted to enhance the protection for children in relation to “grave types of interference with essential aspects of their private lives” (KU). The state has a positive obligation under article 8, therefore, to ensure that there can be effective enforcement of those provisions, in much the same way as in KU.
In KU, however, the ECtHR entered a salient caveat that it was reaching its judgement
without prejudice to the question of whether the conduct of the person who placed the offending advertisement on the internet can attract the protection of articles 8 and 10, having regard to its reprehensible nature…”
Mindful of this qualification, Lord Sales further distinguished the present case. Unlike KU, which concerned a more indirect form of protection, the conduct here involved direct, sexually motivated contact between a paedophile and a child.
Furthermore, because this case does not concern state surveillance or the interception of communications, all that is in issue is the “balance of interests” between the person engaging in such conduct and of the children . In this vein, the “reprehensible nature” of the communications does not attract protection under article 8(1).
This proposition is supported by three substantive arguments. First, the conduct in question is criminal in nature and can affect the child more immediately and in a more directly damaging way than the conduct in issue in KU.
Secondly, because the state has a positive obligation under article 8, owed to children, to enforce these provisions of the criminal law effectively, “the interests of children in this field have priority over any interest a paedophile could have in being allowed to engage in the conduct which has been criminalised by these provisions.” 
Thirdly, “Article 17 of the ECHR (prohibition of abuse of rights) supports the conclusion that the criminal conduct at issue in this case is not such as is capable of respect for the purposes of Article 8(1).”  To elaborate,
The actions of the appellant were aimed at the destruction or limitation of the rights and freedoms of a child under article 8 which are the subject of positive obligations owed to children by the state under that provision.
(ii) No reasonable expectation of privacy
The second reason there was no interference with article 8 is because the appellant had no reasonable expectation of privacy (Halford v United Kingdom) . This is an objective question.
First, we look to the relationship between the parties. It is pertinent that the appellant communicated directly with the decoy and not through an anonymous intermediary. It is also relevant that there was no prior relationship, which might have given rise to expectations of privacy.
Second, we look to the contents of the communications themselves. In the Court’s view, they were not of the type to generate an obligation of confidentiality on the part of the recipient. Furthermore, given their “worrying” character, it was foreseeable that a child of 13 would share them with an adult. Relatedly, the appellant could not reasonably expect that said recipient would not pass evidence of criminal conduct onto the police. And then once the police obtained these communications, the appellant had no reasonable expectation that either the police or the respondent should treat them as confidential. Rather, the police have a positive obligation to investigate.
Issue 2: the compatibility between the state’s obligation to protect article 8 rights and the use by a public prosecutor of material supplied by PH groups
The state had no supervening positive obligation to protect the appellant’s interests. Rather the respondent, as a public authority, had a positive obligation to ensure that the criminal law could be applied effectively to deter sexual offences against children. And this obligation
…has the effect that the respondent should be entitled to, and indeed might be obliged to, make use of the evidence of the communications with the decoy in bringing a prosecution against him. 
The Supreme Court’s decision was correct. Its reasoning, however, was questionable on two fronts.
A heterodox approach to article 8(1)
First, in its assessment of the “nature of the communications”, the Court partially elided the separate tests for interference and justification under article 8(1) and article 8(2). This resulted from its bespoke approach to the meaning of “respect” under article 8(1). On Lord Sales’ construction, “respect” for an individual’s correspondence was effectively conditional upon its “respectability”.
This interpretation was made possible by the fact that in KU v Finland, the ECtHR left open the question of whether content of a “reprehensible nature” attracted protection under article 8 and article 10. Under ordinary principles of Strasbourg case-law, however, there is a general presumption that the content and form of the correspondence is irrelevant to the question of interference.
The heterodoxy of Lord Sales’ approach may be demonstrated by contrasting it with the judgement of the Court of Session in BC and others v Chief Constable Police Service of Scotland and Others . In that case, the issue on appeal was whether the Police Service of Scotland was entitled to use WhatsApp messages as a legal basis for bringing non-criminal misconduct proceedings against a group of officers and whether it breached their right to privacy. Significantly for our purposes, Lord Bannatyne held that article 8 could be engaged even though the content of the messages was of “an abhorrent nature”. The interference was justified, however, by article 8(2).
What might explain this discrepancy? The conduct in this case was of a criminal nature unlike that in BC. Lord Sales said the prohibition on the abuse of rights under article 17 precluded the application of article 8 to the appellant’s criminal conduct because it was aimed at the destruction of a child’s right to physical and psychological inviolability. This is a principled distinction that should not be dismissed.
But this interpretation does open the gateway for excluding criminal or suspected criminal correspondence from the purview of article 8 altogether. Here the Court went to extended lengths to avoid the balancing test under article 8(2), even though the putative interference would have been easily justified. Instead, it weighed the interests of victims against the interest of defendants under article 8(1). By this metric, victims are always likely to take priority.
Nonetheless, in this author’s view, an alternative approach to the nature of the communications would still not have been sufficient to engage article 8 because, as both the High Court and Supreme Court concluded, the appellant had no reasonable expectation of privacy.
An uncertain approach to the public-private divide
Second, the Court’s construal of positive obligations in criminal matters risks facilitating an uncertain approach to the public-private divide in law enforcement. In respect of the first issue, Lord Sales justifiably concluded that it was consistent with the state’s positive obligation to protect children to use evidence collected by PH groups. In respect of the second issue, however, his Lordship went further and said the respondent might be obliged to use said evidence. In effect, this licences pre-emptive policing by private citizens. This might create incentives for public authorities to outsource evidence collection, on a de facto basis, to legally unregulated citizen-groups. The Supreme Court appears to have overlooked this possibility because it was hindered by an unduly formalistic view of the relationship between police authorities and their “privatised” vigilante counterparts.
Sapan Maini-Thompson is training to become a barrister specialising in criminal, public and human rights law. He tweets @SapanMaini
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