Wednesday, 15 July 2020

Sutherland v HM Advocate ~ Supreme Court judgment ~ Paedophile Hunters

The Supreme Court has handed down judgment in Sutherland v Her Majesty's Advocate [2020] UKSC 32.

The legal issue was whether prosecutions based on the covert sting operations of "paedophile hunters" are compatible with the right to private life and correspondence - Article 8 of the European Convention on Human Rights.

According to the court's website - "Paedophile hunters" are "self-appointed vigilantes who impersonate children in order to expose people who they consider to be sexual predators. Some of these groups
have attracted substantial online followings and debate in mainstream media.

In 2018 Mr Sutherland matched on a dating app with somebody who, when he communicated with them, claimed to be a 13-year old child. He sent sexual messages and images to that person, and they eventually arranged to meet at Partick station. In fact, he was speaking to an adult member of a "paedophile hunter" group. Members of that group confronted Mr Sutherland at the meeting point at the arranged time. They broadcast the encounter on social media and handed the evidence to the police. Mr Sutherland was convicted of attempting to communicate indecently with an older child and related offences. He appealed against his conviction on the basis that the covert investigation (and the use of the resulting evidence by the prosecuting authorities) breached his right to respect for his private life and correspondence under ECHR Article 8.

The court (Lords Reed, Hodge, Lloyd-Jones, Sales and Leggatt) unanimously dismissed Sutherland's appeal for reasons set out in the Judgment (PDF) and summarised in the Press summary (PDF)

There was no interference with the appellant’s right to respect for his private life and correspondence under article 8(1) by reason of the use by the respondent of the evidence obtained from the decoy in the public prosecution of the appellant - (the 1st compatibility issue).

There was no incompatibility between the obligation on the state to protect rights arising under article 8 and the use by the respondent in this case of the evidence provided by the decoy in support of the prosecution of the appellant - (the 2nd compatibility issue).  The relevant positive obligation on the respondent was to ensure that the criminal law could be applied effectively to deter sexual offences against children. Article 8 has the effect that the respondent should be entitled to, and might indeed be obliged to, make use of the evidence in bringing a prosecution against him.
Whether this question will be taken to the European Court of Human Rights remains to be seen.

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