A convicted paedophile has lost a Supreme Court challenge over using evidence in court gathered covertly by so-called paedophile hunters.
Judges unanimously dismissed an appeal which argued that evidence from vigilante groups breached a person’s right to a private life.
It was brought by Mark Sutherland, who was caught by Groom Resisters Scotland.
Sutherland was subsequently convicted of attempting to communicate indecently with an older child.
He was appealing his conviction on the grounds that the covert investigation – and the use of the resulting evidence by the authorities – breached his human right for his correspondence to be private.
‘Children have priority’
The UK’s highest court ruled on Wednesday that the interests of children have priority over any interest a paedophile could have in being allowed to engage in criminal conduct.
Lord Sales delivered the judgement via video link, stating that the panel of five justices found there was no interference with the accused’s rights under Article 8.
He said this was for two reasons – the first being that “the activity in question should be capable of respect”, and that children also have rights.
Lord Sales said the state had “a special responsibility to protect children against sexual exploitation by adults”.
“This indicates that there is no protection under Article 8 for the communications by the accused in this case.” he said.
“The interests of children have priority over any interest a paedophile could have in being allowed to engage in the criminal conduct in issue here.”.
The state must “deter offences against children” and so prosecutors were entitled to use the evidence gathered by Groom Resisters Scotland to secure a conviction.
Secondly, he said, Sutherland had “no reasonable expectation of privacy” in the circumstances.
“There was no prior relationship between the accused [Sutherland] and the decoy [from Groom Resisters Scotland] from which an expectation of privacy could be said to arise.
“In addition, the accused believed he was communicating with a 13-year-old child, and it was foreseeable that a child of that age might share any worrying communications with an adult”, Lord Sales said.
He added that prosecutors had “no additional positive obligation” to protect Sutherland’s interests in any way that would prevent the prosecutor making use of the evidence to prosecute the crimes.
What was Mark Sutherland convicted of?
Mark Sutherland brought the case after being caught by a group of “paedophile hunters” called Groom Resisters Scotland.
In 2018, Sutherland, 37, matched up on Grindr with someone who, when he communicated with them, claimed to be a 13-year-old boy.
Sutherland sent explicit pictures and made arrangements to meet the “boy”. It was in fact 48-year-old Paul Devine.
When Sutherland turned up at Partick Bus Station in Glasgow, he found two members of Mr Devine’s group.
The group confronted Sutherland at the arranged meeting, and waited with him until police arrived. They broadcast the encounter on social media and handed the evidence to the authorities.
Sutherland was convicted in August 2018 of attempting to communicate indecently with an older child, and related offences, and jailed for two years.
He had previously been jailed for sending explicit pictures to a 12-year-old boy.
What did Sutherland’s lawyers argue?
At a hearing in June, Sutherland’s lawyers argued in court that his right to a private life had been breached.
This right is enshrined in Article 8 of the European Convention on Human Rights, and states that everyone has the right to respect for his or her private life and correspondence.
His lawyer, Gordon Jackson QC, argued: “The police are aware that there a number of hunter organisations operating in Scotland and the UK and evidence submitted from these organisations has led to a number of criminal investigations and convictions.”
There is “disquiet” about the work of such groups, and police and prosecutors give them “tacit encouragement”, Mr Jackson said.
He argued that “a huge number” of cases were prosecuted on the basis of information from these organisations.
According to HM Inspectorate of Constabulary in Scotland (HMICS), almost half of online grooming cases result from the activities of vigilante groups.
The inspectorate said these groups are unregulated and untrained, and in its report in February 2020 said: “A more robust proactive capability on the part of Police Scotland would reduce the opportunities for these groups to operate.”