Sutherland v Her Majesty’s Advocate

Article 8 does not protect an adult’s sexually motivated communications with a person whom the adult believes to be a child where the communications are incapable of respect within the Convention’s values. Nor does the sender have a reasonable expectation that the recipient will keep evidence of such criminal conduct from the police.

A prosecutor may use evidence voluntarily supplied by a private recipient. The state’s positive obligation is to enforce effectively the criminal law protecting children. Even if article 8 had been breached when evidence was obtained or used, exclusion would not automatically follow. The controlling questions would be the fairness of the trial under article 6 and domestic law.

An adult member of a paedophile-hunter group created an online profile purporting to belong to a 13-year-old boy. Believing the decoy to be a child, the appellant sent sexual messages and an explicit photograph and arranged a meeting. The group supplied the communications to the police. The appellant was convicted of attempting offences under sections 33 and 34 of the Sexual Offences (Scotland) Act 2009 and section 1 of the Protection of Children and the Prevention of Sexual Offences (Scotland) Act 2005.

The Sheriff rejected objections to the evidence. The High Court of Justiciary refused the conviction appeal in [2019] HCJAC 61 but permitted a limited appeal on compatibility issues. The questions were whether the prosecution’s use of the privately obtained communications interfered with article 8 and whether the state’s obligation to protect article 8 rights was incompatible with using evidence supplied by paedophile-hunter groups.

1. The appeal was dismissed unanimously. Lord Sales, with whom Lord Reed, Lord Hodge, Lord Lloyd-Jones and Lord Leggatt agreed, held that the prosecution’s use of the communications caused no interference with the appellant’s rights to respect for private life or correspondence under article 8(1).

2. Article 8 protects only features of private life and correspondence capable of respect within the Convention’s scheme of values. In the absence of state surveillance or interception, an adult’s direct, sexually motivated communications with a person believed to be a child did not qualify. The state has a positive obligation to protect children and to enforce effectively criminal laws intended to deter sexual offending against them. Article 17 supported the conclusion that conduct aimed at limiting a child’s article 8 rights could not itself command article 8 protection.

3. The appellant also lacked a reasonable expectation of privacy. That inquiry is objective and depends on the circumstances and the values protected by article 8. The messages were sent directly to a stranger whom the appellant believed to be 13. The recipient owed no duty of confidence, and requests for secrecy did not create one. It was foreseeable that a child might show worrying messages to an adult. The appellant could not reasonably expect the recipient to withhold evidence of crime from the police, or expect the police and prosecutor to treat it as confidential.

4. Positive obligations arise only where article 8 applies to the claimant’s complaint. No obligation owed to the appellant impeded use of the evidence. On the contrary, effective enforcement of the child-protection offences meant that the prosecutor was entitled, and might be obliged, to use it. There were no rare or exceptional circumstances in which prosecuting an offence accepted to be compatible with article 8 could itself interfere with article 8 rights.

5. Although outside the permitted compatibility issues, the court added that any interference would have been justified under article 8(2). A breach of article 8 would not itself require exclusion: evidence may generally be used if the trial remains fair under article 6 and domestic law. The proceedings were remitted to the High Court as required by section 288AA(3) of the Criminal Procedure (Scotland) Act 1995.

1. United Kingdom Supreme Court: The court unanimously dismissed the limited appeal in [2020] UKSC 32, answered both compatibility issues against the appellant and was required to remit the proceedings to the High Court of Justiciary.
2. High Court of Justiciary: The court refused the conviction appeal in [2019] HCJAC 61. It granted permission to appeal to the Supreme Court on two compatibility issues.
3. Glasgow Sheriff Court: The Sheriff rejected the preliminary objections to the evidence. Following trial, the appellant was convicted on all three charges.