In Sutherland v Her Majesty’s Advocate (Scotland)  UKSC 32, the UK Supreme Court dismissed an appeal by a convicted sex offender who claimed that the manner in which evidence of his conduct had been obtained by a paedophile hunter group and then used by the public prosecutor violated his rights under Article 8 of the European Convention on Human Rights (ECHR). The judgment is important for what it has to say about the scope of Article 8 and the relevance of Article 17 of the ECHR. The issue in the case is neatly summarised in Para. (1) of the judgment:
“This case concerns the use in a criminal trial of evidence obtained by members of the public acting as so-called “paedophile hunter” (“PH”) groups, and whether this is compatible with the accused person’s rights under article 8 of the [ECHR]. 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.”
The sequence of events forming the background to the case followed a very familiar, indeed now almost universal, pattern. The appellant (S) went on to an internet site (Grindr in this instance) and made contact with a person who claimed to be a 13-year-old boy although, in fact, the person was an adult decoy. S sent a sexually explicit photograph of himself to this person, and eventually arranged to meet. When he arrived at the appointed place (believing he was to meet a 13-year-old), he was confronted and detained by members of the PH group, and handed over to the police. The confrontation between members of the PH group and S was broadcast live on Facebook and later posted on other social media.
The offences of which S was convicted included “meeting a child following certain preliminary contact” contrary to s. 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 which is very similar to the offence created by s. 7 of our Criminal Law (Sexual Offences) Act 2017. In respect of each offence in S’s case, the charge was one of attempt because he believed, wrongly as it transpired, that the person with whom he was in contact was a child. As noted in a previous post on this blog “Meeting a child for the purpose of sexual exploitation” (May 5, 2020), the same would probably apply here. I watched most of the Supreme Court hearing of this appeal on the internet and one interesting point to emerge was that in Scotland there has been an extraordinary high number of prosecutions resulting from detection by PH groups.
Counsel for S, if I remember rightly, had accepted that there was no entrapment in this case (presumably because the detection had not resulted from police action) but he did claim that it amounted to impermissible “virtue testing.” The Supreme Court held categorically (at ) that entrapment was not an issue in this case. It made no reference whatever to virtue testing (a topic that was analysed by the Canadian Supreme Court in R v Barnes  1 S.C.R. 449).
The appeal to the Supreme Court in this case was based on two compatibility issues as certified by the Scottish High Court. These were:
1. Whether, in respect of the type of communications used by the appellant and the PH group, article 8 [of the ECHR] rights may be interfered with by their use as evidence in a public prosecution of the appellant for a relevant offence; and
2. the extent to which the obligation on the state, to provide adequate protection for article 8 rights, is incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime.”
Article 8(1) of the ECHR states:
“Everyone has the right to respect for his private and family life, his home and his correspondence.“
Article 8(2) then provides that “[t]here shall be no interference by a public authority with the exercise of this right” unless the interference is in accordance with law and necessary in the interests of national security, the prevention of crime, “the protection of the rights and freedoms of others” and so forth,
Was Art. 8(1) of the ECHR engaged by the facts of this case?
Whenever a person claims to have suffered a violation of Art. 8 (or, for that matter, of Art. 9, 10 or 11 each which has the same structure as Art. 8), a court, whether a national court or the European Court of Human Rights (ECtHR), will begin by asking if the matter complained of comes within the purview of Art. 8. If satisfied that there appears to have been a breach of the Article, the court then proceeds to consider if the impugned act or omission was nonetheless justified, or at least permitted, by virtue of Art. 8(2). It is not uncommon for the answer to both questions to be “yes”, in which case no violation will be found. Sutherland, however, was one of those cases where the Supreme Court did not accept that there was any interference with S’s rights under Art. 8(1) at any stage of the criminal proceedings or, indeed, before they began. The Court stressed that what Art. 8 guarantees is the right to respect for private and family life, etc. S’s conduct did not merit such respect. Lord Sales, with whose judgment all other members of the Court agreed, said (at ):
“In my judgment, there are two reasons why the appellant’s rights under article 8(1) in relation to respect for private life and respect for his correspondence were not interfered with in the circumstances of this case: (i) the nature of the communications from the appellant to the decoy, whom he believed to be a child, was not such as was capable of making them worthy of respect for the purposes of the application of the ECHR; and (ii) the appellant had no reasonable expectation of privacy in relation to the communications, with the result that he enjoyed no relevant protection under article 8(1) as regards their disclosure to and use by the [prosecutor] and the other public authorities referred to above.”
The Court then dwelt on the positive obligation imposed by the ECHR on states parties to have effective measures in place for the prevention and criminalisation of sexual violence, abuse and exploitation. This is reflected in leading ECtHR judgments such as X and Y v The Netherlands (1986) 8 EHRR 235. In fact, it is the rights of victims and potential victims under Art. 8 (and also perhaps Art. 3) that mandate such positive measures. In this case, S’s conduct amounted to a clear violation of a Convention right of an intended victim and, as such, it did not merit protection. In this connection, the Court referred to Art. 17 of the ECHR, an article we seldom hear very much about, but which provides:
” Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
In Lawless v Ireland (No.3) (1979-1980) 1 EHRR 15, the ECtHR had said:
“… the purpose of Article 17, in so far as it refers to groups or individuals, is to make it impossible for them to derive from the Convention a right to engage in any activity, or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention .”
(See Emmerson, Ashworth and Macdonald, Human Rights and Criminal Justice, 3rd ed. (London, 2012), pp 147-148 et passim, which has a good discussion of Art. 17).
Art. 17 seems designed to deal with precisely the kind of situation that arose in Sutherland where a person claims Convention protection in respect of conduct that clearly violated, or had the potential to violate, the rights of others.
In Sutherland, Lord Sales concluded (at ) that “the reprehensible nature of the communications [between S and the decoy] is such that they do not attract protection under article 8(1). They do not involve the expression of an aspect of private life or an aspect of correspondence which is capable of respect within the scheme of values inherent in the ECHR.”
In light of this conclusion, there was obviously no need to consider Art. 8(2) which deals with permissible limitations on the right to respect for private life where a prima facie violation of Art. 8 has been found.
Although the Supreme Court did not draw this comparison, the idea that certain communications are inherently unworthy of respect or protection under Art. 8 of the ECHR bears some similarity to decisions of the US Supreme Court to the effect that certain kinds of expression, by virtue of their content, do not merit protection under the First Amendment which provides, in unqualified terms, that no law shall be enacted abridging freedom of speech or of the press. The US Supreme Court has so held in relation to child pornography, among other things. See, for example, New York v Ferber 458 U.S. 747 (1982).
Did S have a reasonable expectation of privacy?
Both the UK Supreme Court and the ECtHR have accepted that in interpreting the concept of private life in specific contexts, it is often relevant to ask if the applicant had a reasonable expectation of privacy. See, for example, Benedik v Slovenia (Application No. 62357/14. ECtHR 24 April 2018). In Sutherland, the Supreme Court had no hesitation in finding that S had no such expectation: “He could not reasonably expect that, where his messages constituted evidence of criminal conduct on his part, the recipient would not pass them on to the police.” .
Use by public prosecutor of material supplied by PH group
The second certified question related to the extent to which the use by a public prosecutor of material furnished by a PH was compatible with Article 8. The Supreme Court said that it could deal briefly with this issue, as indeed it did. Essentially, it held that since S’s Art. 8 rights were not violated in the first place, he could scarcely complain about the use of the material in the investigation and prosecution of the offences with which he was charged. The Court’s reasoning is encapsulated in these two passages:
“Clearly, therefore, in this case the state had no supervening positive obligation arising from article 8 to protect the appellant’s interests which would impede the [prosecutor] in any way in making use of the evidence about his communications with the decoy to investigate or prosecute in respect of the crimes he was alleged to have committed. On the contrary, in so far as positive obligations under art. 8 were engaged, the relevant positive obligation on the [prosecutor], as a public authority, was to ensure that the criminal law could be applied effectively so as to deter sexual offences against children. Contrary to the appellant’s argument, article 8 has the effect that the [prosecutor] 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.” .
“Further, even where article 8 is applicable, a contracting state has a margin of appreciation as to how to strike a fair balance between the competing interests which are in issue. Since, in the present context, the state has a positive obligation to operate an effective criminal law regime to deter and punish persons who threaten to harm young children, there is no doubt that the use by the [prosecutor] of the evidence provided by the decoy for the purposes of the prosecution of the appellant under that regime involved no breach of any positive obligation owed to the appellant” .
Other issues that arose in the Scottish High Court
The Supreme Court agreed with two other findings by the Scottish High Court, even though they did not fall be determined in this appeal. First, even if there had been a breach of Art. 8, the use of the evidence provided by the decoy would have been justified under Art. 8(2). Secondly, even if a violation of Art. 8 had been found, it would not follow that the conviction should be quashed. Evidence obtained in breach of Art. 8 may still be used in criminal proceedings without any consequent breach of Art. 6 which guarantees the right to a fair trial. As the ECtHR has repeated held, when a breach of Art. 6 is alleged, the question is whether the proceedings, viewed in their totality, were fair. This is something we are apt to forget. It is not a question of holding, as might be true under a domestic constitutional regime such as our own, that once evidence is obtained in a certain way it should be excluded, and failure to exclude may justify quashing a conviction. Under the ECHR, the use of evidence obtained through torture, contrary to Art. 3, would render a trial unfair, but that would not necessarily (or even predominantly) be true of evidence obtained in breach of Art. 8. The convicted person might be entitled to a remedy, typically monetary compensation, for the breach of Art. 8, but that would not imply a breach of Art. 6.
The outcome of this appeal was scarcely surprising. What is, however, remarkable is the absence of any reservations on the part of the Supreme Court about the activities of PH groups, despite their prevalence throughout the United Kingdom (as the Court noted) and elsewhere. At no point did the Court expressly validate or endorse their activities but, on the other hand, it left no reason to doubt the entitlement of police and prosecutors to avail themselves of evidence collected by PH groups in investigating and prosecuting sexual offences and attempted sexual offences against children. One need only read the final sentence of Para. 67 (quoted above) where the Court unambiguously held that the use by prosecutors of materials provided by decoys involved no breach of any positive obligation owed by the State to accused persons. In fact, Para. 64, also quoted above, suggests that they might be obliged to use the evidence once it was furnished to them.