Crown bill of advocation against sheriff’s pre-trial ruling on admissibility of ‘paedophile hunter’ evidence passes

The Procurator Fiscal at Dundee brought a Crown bill of advocation to bring under review the decision of a sheriff in its case against the respondent to the appeal, PHP, a man charged with sending sexual written communications to a child via social media.

The appeal was heard by Sheriff Principal Stephen, sitting with Appeal Sheriffs Braid and McFadyen.

‘A matter of entrapment’

The case concerned two charges of sending sexual communications to children via social media, one under 13 and one between 13 and 16, contrary to sections 24(1) and 34(1) of the Sexual Offences (Scotland) Act 2009. Before the trial date was fixed, the respondent’s solicitor lodged a compatibility issue minute, a minute objecting to the Crown evidence on the basis it had been unlawfully obtained in the absence of authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000, and a minute intimating a preliminary plea in bar of trial on the ground of oppression.

All three minutes related to the gathering of evidence by two named persons who were part of a group of ‘paedophile hunters,’ adults who had represented themselves online as the children whom the respondent was alleged to have sent communications to. Following an evidential hearing and debate, the sheriff repelled the first two minutes but held that the third, if approached as a matter of entrapment of the respondent rather than a preliminary plea, had merit, and ruled the evidence inadmissible.

The Crown maintained that the sheriff had erred in holding that the conduct of the named persons amounted to entrapment. After a previous hearing concerned with other matters, an amended bill of advocation was submitted. The bill was concerned with the competency of the sheriff’s decision to determine a question of admissibility of evidence pre-trial. Other matters were raised by the respondent in relation to competency of proceedings, but it was accepted that the Crown’s approach was correct.

Regarding the admissibility ruling the Crown submitted that, unlike in solemn procedure, there was no provision in summary cases for holding a separate evidential hearing to deal with preliminary pleas and issues. As such, any matters relating exclusively to admissibility of evidence should be dealt with at trial, by a trial within a trial, if requested by the defence, in order to avoid superfluous proceedings. They argued that the only diet at which evidence could be submitted was the trial diet. Furthermore, the sheriff had accepted that matters exclusively related to admissibility of evidence should be determined at trial, and that this was the approach he would take in future cases.

Counsel for the respondent argued that the fact that the sheriff ultimately determined the matter on the basis of admissibility did not prevent it being treated as a preliminary plea, and that this was the starting point that determined how it should be dealt with.

‘Inappropriate to determine on a preliminary basis’

The opinion of the court was delivered by Sheriff McFadyen. He said that, although the Crown was in error in stating that evidence could only be submitted at trial, it was “correct that in summary, as opposed to solemn procedure there is no specific mechanism for determining issues of admissibility before trial”.

In relation to the admissibility of evidence, he said: “It is artificial to treat an objection to admissibility as an objection to competency of the proceedings, because it only goes to exclusion of particular evidence, which may or may not be practically conclusive of matters in any particular case. It is unnecessary, because there is an established procedure for making timeous objection at trial and hearing evidence at trial within a trial or under reservation.”

He continued: “All of this demonstrates, as the sheriff now recognises, that it was inappropriate to determine the issue on a preliminary basis. Whether that extended to the determination of the other minutes is not something we are in a position to say, but if, as it seems, they largely turned on consideration of the same evidence it is likely to have been more appropriate to continue them to trial.”

Concluding, he said: “We have not heard submissions on the merits of the ruling on admissibility and do not wish to offer any particular view on that at this stage, since there will require to be further procedure, including very possibly a trial, but, that said, if it had been clear to us that there was no arguable case for the sheriff’s decision on the merits being wrong, we would have been prepared to follow the pragmatic approach taken in Warwick v Harvie and we would have refused to pass the bill of advocation. We are not so satisfied and it follows that the correct disposal is to pass the bill and remit to another sheriff to proceed as accords.”