Sutherland v Her Majesty’s Advocate

The Supreme Court considered whether evidence provided to the police by private "paedophile hunter" volunteers (a decoy and associates) and then used by the prosecutor in a criminal trial interfered with the accused's Convention rights under article 8 ECHR (right to respect for private and family life and correspondence). The court answered the compatibility issues in the negative. It held that (i) the sexually explicit communications sent by the accused to a person he believed to be a 13-year-old were not an aspect of private life or correspondence that is "capable of respect" under article 8(1); and (ii) in any event the accused had no reasonable expectation of privacy as against the recipient of those communications or, having regard to the state’s positive obligations to protect children, as against public authorities using that material for investigation and prosecution. The court relied on article 17 of the ECHR, the Human Rights Act 1998 (section 6) and relevant statutory offences (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) to conclude that use of the material by the prosecutor was compatible with article 8. The court therefore dismissed the appeal on the compatibility issues.

Background and procedural posture. The appellant was convicted in the Glasgow Sheriff Court on charges (brought as attempts because the accused believed the recipient was a child) under section 33 and section 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 after a paedophile-hunter group used a decoy profile (portraying a 13-year-old) to elicit explicit communications and then handed those communications to the police. The appellant challenged admissibility of that material, arguing it was obtained covertly and in breach of article 8 ECHR. The High Court of Justiciary refused the appeal ([2019] HCJAC 61) and granted permission to appeal to the Supreme Court on two limited compatibility issues under section 288AA of the Criminal Procedure (Scotland) Act 1995.

Nature of the appeal and relief sought. By way of a compatibility appeal the appellant sought a determination that use of the material by the prosecutor and its admission at trial interfered with his article 8 rights and that the state's positive obligations under article 8 were incompatible with the prosecutor's use of material supplied by paedophile-hunter organisations.

Issues framed by the court.

• Whether use of the communications provided by the paedophile-hunter group as evidence in a public prosecution interfered with the appellant's article 8 rights;
• Whether the state's obligation to protect article 8 rights was incompatible with a prosecuting authority using material supplied by such groups to investigate and prosecute crime.

Facts. A volunteer decoy created a fake Grindr profile using a photograph of a boy aged about 13 and remained "in character" in communications on Grindr and WhatsApp (the latter being end-to-end encrypted). The appellant sent sexually explicit messages and images, arranged a meeting and was confronted by the group's "hunters"; the group provided copies of the communications to police who prosecuted.

Court’s reasoning and conclusions. The court (Lord Sales, with whom the other members agreed) held that article 8(1) did not apply because: (a) the nature of the appellant’s communications — sexually explicit contact with who he believed to be a child — is not an aspect of private life or correspondence "capable of respect" under the ECHR; and (b) objectively the appellant had no reasonable expectation of privacy as to the recipient or as to the police or prosecutor using the material in investigation and prosecution. The court considered Strasbourg authorities on positive obligations to protect children (eg KU v Finland, X and Y v The Netherlands) and domestic authorities (eg R v G, In re JR38, SXH v CPS), and concluded that the state’s positive obligation supports, rather than inhibits, the prosecutor’s use of such material to protect children. The court also observed that even if article 8 had been engaged, exclusion of evidence is governed by article 6/fair trial and domestic rules on fairness and there was no unfairness here. The Supreme Court dismissed the appeal on the compatibility issues and remitted the proceedings to the High Court as required by section 288AA.

Appeal dismissed. The Supreme Court held that (i) there was no interference with the appellant’s rights under article 8(1) by reason of the decoy’s gathering of the communications or the prosecutor’s use of them, because the communications were not an aspect of private life worthy of respect and the appellant had no reasonable expectation of privacy as against the recipient or public authorities; and (ii) the state’s positive obligations under article 8 to protect children supported, rather than prevented, the use of material supplied by paedophile-hunter groups in investigating and prosecuting 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 court therefore dismissed the compatibility appeal.

Convicted after trial in Glasgow Sheriff Court (trial 29-30 August 2018); appeal to the High Court of Justiciary refused (interlocutor dated 20 September 2019, [2019] HCJAC 61); permission granted on limited compatibility issues and appeal to the Supreme Court ([2020] UKSC 32).