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UK Human Rights Decision

Supreme Court rules there is no right to privacy against “paedophile hunters”
– an extended look by Sapan Maini-Thompson:

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?

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Factual Background

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 [2007] 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 focused 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 [32].

In relation to the second fundamental value articulated by Baroness Hale, it was established in X and Y v The Netherlands [1985] 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 [2008], 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 [40]. 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.” [42]

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).” [43] 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) [1997]. 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.

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