Sutherland v HM’s Advocate

 
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[2020] UKSC 32

Supreme Court

Trinity Term

On appeal from: [2019] HCJAC 61

before

Lord Reed, President

Lord Hodge, Deputy President

Lord Lloyd-Jones

Lord Sales

Lord Leggatt

Between:
Sutherland
(Appellant)
and
Her Majesty's Advocate
(Respondent) (Scotland)

Appellant

Gordon Jackson QC

Fred Mackintosh QC

Paul Harvey

(Instructed by Public Defence Solicitors' Office (Glasgow))

Respondent

Alison Di Rollo QC

Alan Cameron

Lesley Irvine

(Instructed by Crown Agent, Crown Office)

Intervener (Director of Public Prosecutions)

Duncan Atkinson QC

(Instructed by Appeals and Reviews Unit, Crown Prosecution Service)

Heard on 3 June 2020

Lord Sales

( with whom Lord Reed, Lord Hodge, Lord Lloyd-Jones and Lord Leggatt agree)

1

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 European Convention on Human Rights (“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.

2

Article 8 provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

3

An adult member of a PH group, acting as a decoy, created a fake profile on the Grindr dating application using a photograph of a boy aged about 13 years old as a lure to attract communications from persons with a sexual interest in children. The appellant entered into communication with the decoy, who stated in the course of exchanges first on Grindr and continued on the WhatsApp messaging platform that he was 13 years old. In the belief that the decoy was a child, the appellant sent him a picture of his erect penis. The appellant also sent him messages to arrange a meeting. When the appellant arrived for the meeting, he was confronted by members of the decoy's PH group who remained with him until the police arrived.

4

Copies of the appellant's communications with the decoy were provided to the police. The respondent, as public prosecutor, charged the appellant with offences related to sexually motivated communications with a child: (i) an offence of attempting to cause an older child (ie a child who has attained the age of 13 years, but has not yet attained the age of 16 years) to look at a sexual image, for the purposes of obtaining sexual gratification (contrary to section 33 of the Sexual Offences (Scotland) Act 2009 — “the 2009 Act”); (ii) an offence of attempting to communicate indecently with an older child (contrary to section 34 of the 2009 Act); and (iii) an offence of attempting to meet with a child for the purpose of engaging in unlawful sexual activity (contrary to section 1 of the Protection of Children and the Prevention of Sexual Offences (Scotland) Act 2005 — “the 2005 Act”). I will refer to these together as “the charges”. In each case, the charge was put in terms of an attempt to commit the offence, because the appellant believed the decoy was a child whereas he was in fact an adult.

5

After indictment on the charges in Glasgow Sheriff Court, the appellant lodged a preliminary minute objecting to the admissibility of the evidence sought to be relied upon by the respondent on the basis that it had been obtained by covert means without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 (“RIPSA”). The appellant also lodged a minute objecting to the admissibility of the evidence provided by the PH group on the basis that it was obtained covertly without authorisation or reasonable suspicion of criminality in violation of his rights under article 8.

6

By a ruling dated 30 July 2018, after a hearing conducted on the basis of agreed facts (as set out below), the Sheriff repelled the appellant's objections to the admissibility of the evidence provided by the PH group. Later, at a trial on 29 and 30 August 2018, the respondent led evidence from the decoy and two police officers. The appellant did not lead any evidence. He was convicted on each of the charges.

7

At a later hearing, the appellant was sentenced to 12 months' imprisonment on each charge, to be served consecutively. He was also made subject to the notification requirements of section 92(2) of the Sexual Offences Act 2003 for a period of ten years.

8

The appellant appealed against his conviction to the High Court of Justiciary (“the High Court”). He contended that the Sheriff should have found that the evidence provided by the PH group was obtained in breach of the requirements of RIPSA, that his rights under article 8 in relation to respect for his private life and correspondence were violated by admission of that evidence and that the Sheriff should have excluded it. The appellant's appeal was heard in conjunction with the appeal in another case, which is not relevant for present purposes. By an interlocutor dated 20 September 2019 the High Court (the Lord Justice General, Lord Brodie and Lord Malcolm) refused both appeals. It granted the appellant permission to appeal to this court in relation to certain compatibility issues.

The appeal on the compatibility issues
9

Article 8 is a Convention right for the purposes of the Human Rights Act 1998 (“the HRA”). Section 6(1) of the HRA provides that “[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right” (this is subject to certain exceptions which are not relevant in this case). A prosecuting authority is a public authority. A court also is a public authority for these purposes: section 6(3)(a) of the HRA.

10

The case comes before this court by way of an appeal on compatibility issues pursuant to section 288AA of the Criminal Procedure (Scotland) Act 1995. So far as is relevant for present purposes, a compatibility issue means a question, arising in criminal proceedings, as to whether a public authority has acted in a way which is made unlawful by section 6(1) of the HRA: see section 288AA(4), read with section 288ZA(2). On an appeal under section 288AA, “the powers of the Supreme Court are exercisable only for the purpose of determining the compatibility issue” (subsection (2)(a)); when it has determined the compatibility issue “the Supreme Court must remit the proceedings to the High Court” (subsection (3)). An appeal under section 288AA may be brought only with permission given by the High Court or by the Supreme Court (subsection (5)).

11

In this case, the High Court has granted permission to appeal in relation to its determination in the criminal proceedings against the appellant of two compatibility issues, as follows:

1. whether, in respect of the type of communications used by the appellant and the PH group, article 8 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.

12

As should be clear, this is not a full appeal, but an appeal limited to these compatibility issues.

Factual background and the judgment of the High Court
13

In his ruling on 30 July 2018 the Sheriff set out the agreed facts as follows:

“2. The Crown witness, Paul Devine, is a volunteer with ‘Groom Resisters Scotland’, an organisation which aims to protect children by catching ‘online predators’. The organisation consists of ‘decoys’ and ‘hunters’. Decoys create fake online personas with a general appearance of being under the age of 16. They remain in character as someone aged less than 16 in all communications with the public. In the event of a member of the public having apparently engaged in a sexual conversation with a decoy, a face to face meeting will be arranged at which a hunter or hunters will be present, who will then record and film the member of the public, while confronting them regarding the person's prior communication with the decoy persona. This recording may also be made available on the internet ‘live’, so that interested parties can see the confrontation take place. The video will also be uploaded onto various websites in order that it may be viewed by others. The organisation makes contact with the police at or after the time of the confrontation. The sexual communications between the decoy and the member of the public concerned, as well as the recording/film, of that person's confrontation with the hunters or extracts therefrom, are disclosed to the police for investigation.

3. Groom Resisters Scotland is one of several organisations deploying similar operating methods which operate in Scotland and other parts of the United Kingdom. The police are aware that there are a number of ‘hunter’ organisations operating in Scotland and across the United Kingdom, and evidence obtained from those organisations has led to a number of criminal investigations and prosecutions.

4. In the present case the crown witness Devine, acted as a decoy. Groom Resisters Scotland provided him with photographs of a boy aged approximately 13 years old and he created an online profile on an ‘App’ named ‘Grindr’, a forum through which males apparently can arrange to meet one another, inter alia, for sexual purposes. The terms and conditions of that ‘App’...

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