The Supreme Court held that a prosecutor could use evidence of sexual communications gathered by a private paedophile-hunter group without interfering with the accused’s article 8 rights. The appellant had sent explicit messages and an image to an adult decoy whom he believed to be a 13-year-old child. Those communications were not capable of respect under the European Convention on Human Rights, and he had no reasonable expectation of privacy in them.
Background
A volunteer posing online as a child exchanged messages with the appellant and supplied them to the police. The appellant believed he was communicating with a child. The question was whether article 8 prevented the prosecutor from using the communications as evidence.
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The charges were attempts because the person on the other end was an adult. The appeal concerned the prosecutor’s use of the evidence and the state’s obligations under article 8.
The High Court and the issues on appeal
The High Court of Justiciary refused his appeal against conviction. It held that the decoy acted as a private citizen and not at the instigation of the police, so the 2000 Act did not apply and there was no state surveillance or interception. The appellant had no reasonable expectation of privacy. Any interference would have been justified under article 8(2), and the trial was fair. The High Court gave permission to appeal to the Supreme Court on two compatibility issues only: whether article 8 rights may be interfered with by using communications of this type as evidence in a public prosecution; and the extent to which the state’s obligation to protect article 8 rights is incompatible with a prosecutor using material supplied by such groups.
No interference with article 8
Lord Sales, with whom the other members of the Court agreed, held that there was no interference with the appellant’s rights to respect for private life and correspondence at any stage. The evidence was gathered by a private individual acting on his own behalf, not by state surveillance or at the instigation of a public authority. The Court proceeded on the footing that, throughout or substantially throughout the communications, the appellant believed the decoy to be a child aged 13.
First, the communications were not capable of respect within the scheme of values protected by the Convention. Article 8 covers physical and moral integrity. States owe children a positive obligation to secure effective protection against sexual exploitation, including by criminal-law provisions that deter and punish direct sexualised contact. The Scottish offences formed part of that protection. Where the only question is the balance between a person engaging in such conduct and the children who are its intended recipients, the reprehensible nature of the conduct means that it does not attract article 8(1) protection. Article 17, which prevents the Convention being interpreted so as to allow activity aimed at destroying the rights of others, supported that conclusion. The case differed from sexual activity between children, which may engage private life for reasons of personal development that do not apply to an adult.
Second, the appellant had no reasonable expectation of privacy. The messages were sent directly to someone he believed to be 13, with whom he had no prior relationship and who owed him no obligation of confidence. It was foreseeable that a child of that age might share worrying communications with an adult. Exhortations to delete the messages did not create confidentiality. He could not reasonably expect the recipient to withhold evidence of crime from the police, nor expect the police or the prosecutor to keep that evidence confidential rather than use it to investigate and prosecute. The authorities were bound, under the Convention, to act to safeguard children, and open justice required the prosecution to be public.
Positive obligations and the prosecutor’s use of the evidence
Positive obligations under article 8 arise only where the article is applicable. It was not applicable to the appellant’s complaint, so the state owed him no obligation that would prevent use of the evidence. The relevant positive obligation was owed to children and required effective enforcement of the criminal law. The prosecutor was therefore entitled, and might be obliged, to rely on the material. The appellant accepted that the offences themselves were compatible with article 8, and there were no exceptional circumstances making the prosecution an interference with his rights. A contracting state has a margin of appreciation in balancing the competing interests, and use of the evidence involved no breach of any positive obligation owed to the appellant.
Other aspects of the High Court’s judgment did not arise on the compatibility issues. Lord Sales nevertheless saw no reason to doubt its conclusions that any interference would have been justified under article 8(2) as proportionate to the prevention of crime and the protection of the rights of others, or that evidence obtained in breach of article 8 may be admitted if the trial remains fair under article 6 and domestic law. The High Court had found no unfairness.
Verdict: The Supreme Court unanimously dismissed the appeal. On these facts, use of the decoy’s evidence in the prosecution did not interfere with the appellant’s article 8 rights and did not breach a positive obligation owed to him.
Source: Sutherland v Her Majesty’s Advocate (Scotland) [2020] UKSC 32
