Sutherland v Her Majesty’s Advocate (Scotland) [2020] UKSC 32

An adult 'paedophile hunter' posing as a 13-year-old boy on Grindr received sexual communications from Sutherland, who was convicted of sexual offences. The Supreme Court held admitting this evidence did not breach his article 8 ECHR rights.

Facts

An adult member of a ‘paedophile hunter’ (PH) group called ‘Groom Resisters Scotland’ created a fake profile on the Grindr dating application, using a photograph of a boy of approximately 13 years of age to lure persons with a sexual interest in children. The appellant, Mr Sutherland, entered into communication with the decoy, who throughout stated he was 13 years old. The appellant sent sexually explicit messages and a photograph of his erect penis, and arranged to meet the decoy. On arrival, he was confronted by members of the PH group, who broadcast the confrontation live on Facebook and detained him until police arrived. The communications were handed to police.

The appellant was charged under sections 33 and 34 of the Sexual Offences (Scotland) Act 2009 and section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (each by way of attempt, the ‘child’ being an adult). Having been convicted at trial in Glasgow Sheriff Court, he was sentenced to consecutive 12-month terms and placed on the sex offenders register for 10 years. His appeal to the High Court of Justiciary was refused. Permission was granted to appeal to the Supreme Court on two compatibility issues under section 288AA of the Criminal Procedure (Scotland) Act 1995.

Issues

The Supreme Court had to determine two compatibility issues:

1. Whether article 8 ECHR rights were interfered with by the use, as evidence in the public prosecution, of the type of communications exchanged between the appellant and the PH decoy.
2. The extent to which the state’s positive obligation to provide adequate protection for article 8 rights is incompatible with a public prosecutor’s use of material supplied by PH groups in investigating and prosecuting crime.

Arguments

Appellant

The Dean of Faculty, Mr Gordon Jackson QC, argued that there had been an interference with the appellant’s rights to respect for private life and correspondence under article 8(1), and that the respondent had to justify that interference under article 8(2). He relied on G v United Kingdom for the proposition that criminal proceedings arising out of sexual communications engage article 8. He also sought to argue the evidence was not obtained ‘in accordance with the law’ because no authorisation had been obtained under the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA).

Respondent

The Solicitor General for Scotland, Ms Alison Di Rollo QC, submitted that the decoy had acted as a private individual, not on behalf of the state, so RIPSA was inapplicable and there was no state ‘interference’. The appellant had no reasonable expectation of privacy in relation to communications sent directly to a person he believed to be a 13-year-old child, and the nature of the communications (criminal conduct directed at a child) was not such as to attract respect under the ECHR scheme.

Judgment

Lord Sales, with whom Lord Reed, Lord Hodge, Lord Lloyd-Jones and Lord Leggatt agreed, dismissed the appeal.

Compatibility issue (1): No interference with article 8(1)

The Court held there was no interference with the appellant’s rights under article 8(1), for two reasons.

Nature of the communications: Lord Sales held it was implicit in the phrase ‘respect for’ private life and correspondence that the activity must be capable of respect within the scheme of values the ECHR exists to protect. Reviewing X and Y v The Netherlands, MC v Bulgaria and KU v Finland, the Court observed that article 8 imposes positive obligations on states to provide effective criminal law protection for children against sexual exploitation, children being recognised as vulnerable individuals. The offences enacted by the Scottish Parliament formed part of that fabric of protection. The appellant’s conduct, involving direct sexually motivated contact with a person he believed to be a child, was of a reprehensible nature and did not attract protection under article 8(1). Lord Sales also relied on article 17 ECHR (prohibition of abuse of rights), observing that the appellant’s actions were aimed at limiting a child’s article 8 rights. He endorsed Baroness Hale’s approach in R v G that not every sexual activity is ‘worthy of respect’, and the approach in In re JR38 that the nature of the activity is relevant to whether article 8 is engaged.

No reasonable expectation of privacy: Applying Halford, Benedik v Slovenia, Ribalda v Spain (GC) and In re JR38, the Court held that the objective touchstone of reasonable expectation of privacy was not satisfied. The decoy was a private individual, owed no duty of confidentiality, with no pre-existing relationship. The appellant’s belief that he was messaging a 13-year-old made it foreseeable the child might share communications with an adult. The appellant could have no reasonable expectation that the recipient, police or prosecutor would treat evidence of criminal conduct as confidential.

Compatibility issue (2): Positive obligations

Because article 8 was inapplicable, no positive obligation arose to protect the appellant’s interests that would impede use of the evidence. On the contrary, under Ribalda v Spain (GC) and related authorities, the state’s positive obligation was to operate an effective criminal law regime to protect children. Applying SXH v CPS, there were no exceptional circumstances making the prosecution itself an interference with article 8. The use of the PH evidence was within the state’s margin of appreciation.

Additional observations

Even had there been an article 8(1) interference, the High Court had been entitled to find it justified under article 8(2), and admission of such evidence would not normally render a trial unfair under article 6 (Kinloch v HM Advocate).

Implications

The decision clarifies the engagement of article 8 in a context of civilian-gathered evidence of online sexual offending against children. Several points emerge, tied closely to the Court’s reasoning:

• Article 8(1) protection requires that the private-life or correspondence interest asserted be capable of respect within the ECHR’s scheme of values. Direct sexually motivated communications by an adult with a person believed to be a child do not attract such respect.
• Where evidence is gathered not by state surveillance but by a private individual acting on his own initiative, the article 8 analysis is different from cases of state interception; RIPSA and article 8(2) questions may not arise.
• Whether there is a reasonable expectation of privacy is objective and context-sensitive; a sender of messages cannot reasonably expect the recipient to keep evidence of criminality confidential, even where encrypted platforms are used.
• States have a positive obligation under article 8 to provide effective criminal law protection for children, reinforced by effective investigation and prosecution. That obligation operates in favour of, not against, use of PH-generated evidence in cases of this kind.
• The judgment does not authorise or endorse PH activity generally, and it leaves open questions where state authorities instigate or direct such activity (which may engage RIPSA and article 8 surveillance considerations). It also does not decide whether evidence obtained in breach of article 8 must be excluded — that remains governed by article 6 and domestic fairness rules (see Kinloch).
• The decision matters principally to prosecutors, police, defence practitioners and those engaged in investigating online child sexual offences, confirming that evidence provided by private PH groups can be used in prosecutions without offending article 8, at least on facts like these.

In the wider legal context, the case consolidates the approach in In re JR38 and SXH that the nature of the conduct in issue forms part of the article 8(1) analysis, and reinforces the Strasbourg line from X and Y v The Netherlands and KU v Finland that the protective interests of vulnerable children will weigh heavily against any competing interests of those who target them.

Verdict: The Supreme Court unanimously dismissed the appeal. There was no interference with the appellant’s article 8(1) rights by the use of the PH-supplied evidence in his prosecution, and no incompatibility between the state’s positive obligations under article 8 and the respondent’s use of that evidence.

Source: Sutherland v Her Majesty's Advocate (Scotland) [2020] UKSC 32