Citizen Led Policing in the Digital Realm: Paedophile Hunters and Article 8 in the case of Sutherland v Her Majesty's Advocate
| Published date | 01 January 2022 |
| Author | Allison M. Holmes |
| Date | 01 January 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12653 |
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Modern Law Review
DOI:10.1111/1468-2230.12653
Citizen Led Policing in the Digital Realm:Paedophile
Hunters and Article 8 in the case of Sutherland vHer
Majesty’s Advocate
AllisonM. Holmes∗
In Sutherland vHer Majesty’s Advocate, theSupreme Court unanimously dismissedanappeal
which argued that the use of communications obtained by a paedophile hunter group as ev-
idence in criminal prosecution was a violation of Article 8 of the European Convention on
Human Rights. The case raises fundamental questions of the scope of the right to private life as
regards to the content of communications and the role played by private actors in the criminal
justice process.This note argues that by limiting the protection of Article 8 to private commu-
nications which satisfy a contents-based test, the Court has bypassed the Article 8(2) balancing
test to the detriment of the due process rights of the accused. The note concludes that the de-
cision opens up the prospect of the state circumventing the accused’s Article 8 privacy rights by
lending tacit approval to the proactive investigations of these private ‘paedophile hunter’groups.
INTRODUCTION
Groom Resisters Scotland describe themselves as an ‘online child protection
enforcement team’.They are just one of the so-called paedophile hunter groups
who are engaged in activities aimed at identifying and ultimately convicting
individuals involved in interpersonal child-oriented sexual oences.1Operat-
ing outside of the legislative framework for covert activity which binds tra-
ditional police authorities, these groups represent a shift toward citizen-led
policing in the digital sphere.The techniques utilised by the groups vary, but
typically involve online interactions coupled with real-world contact. Fre-
quently, this involves adult decoys purporting to be children online in order to
lure those who aim to groom and exploit children.Once these individuals are
identied,the paedophile hunter g roupsar range meetings to confront them,of-
ten lming and publicising these encounters. The evidence obtained through
∗Lecturer inLaw, KentLawSchool, University ofKent. The authorwould like tothankDer mot
Walsh,Steve Crawford,and the anonymous referees for their useful feedback and suggestions.
1 L.Brooks, ‘Scotland’s child abuse activists: We embrace the vigilante label’ The Guardian
6 Aug 2019 at https://www.theguardian.com/society/2019/aug/06/scotlands-child-abuse-
activists-we-embrace-the-vigilante-label (lastvisited10September 2020). Interpersonal child
sexual oences are dened as oences where an individual targets sexual communications at
a minor in an online environment.These communications include:the description of explicit
sexual behaviours and scenarios, discussions of a sexual nature,and incitements to minors to en-
gage in sexual behaviour.See M. Yar,‘The policing of Inter net sex oences:pluralised governance
versus hierarchies of standing’(2013) 23Policing andSociety 482, 483.
© 2021The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(1) MLR 219–231
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, providedthe originalwork isproperly cited.
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