Evidence obtained from ‘paedophile hunters’ inadmissible as conduct amounted to ‘fraud’

A sheriff ruled that the evidence was “inadmissible” because the means used to induce the accused into engaging in an exchange of messages amounted to “fraud”.

‘Catching predators’

Dundee Sheriff Court heard that the accused “PHP” was charged with attempted contraventions of sections 34(1) and 24(1) of the Sexual Offences (Scotland) Act 2009 by sending sexual messages via social media to persons he believed to be children aged respectively 14 and 12, but no such children existed. 

The accused was, unknown to him, alleged to be exchanging messages with “JRU” and “CW”, both adults living in England, who were involved in a scheme in which they pretended to be children in the hope of, in their words, “catching predators” by getting them to engage in sexual messaging. 

They then travelled to Dundee to confront the accused, who had to be taken into custody for his own protection, the court was told.

Three minutes were lodged on behalf of PHP, challenging the competency of the prosecution and the admissibility of the evidence obtained.

The compatibility issue minute stated that the activities of Mr U and Ms W interfered with the accused’s privacy rights under Article 8 of the European Convention on Human Rights, and that admitting their evidence at trial would involve the court acting “incompatibly” with his human rights.

The minute based on the provisions of the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA) objected to the admissibility of “all of the Crown evidence” intended to be led against the accused on the basis that, in the absence of an authorisation under RIPSA for the use of Mr U and Ms W as “covert human intelligence sources”, their evidence had been “unlawfully obtained” and should be deemed “inadmissible”.

The plea in bar of trial was to the effect that the ingathering of such evidence by covert means was entrapment in a factual if not strictly legal sense, and that reliance on that evidence by the police and the Crown, which would be deemed oppressive had they gathered the evidence themselves, was “oppressive”, would offend the public conscience and be an “affront to the justice system”.

‘Evidence inadmissible’

Sheriff Alastair Brown rejected that arguments based on Article 8 ECHR and RIPSA, but ruled that the evidence gathered by Mr U and Ms W was “inadmissible”.

In a written note, Sheriff Brown said: “I have reached the conclusion that the scheme operated by Mr U and Ms W was unlawful at all stages and, hence, that its results are inadmissible in evidence unless the irregularity involved is excused. I have not been persuaded that it ought to be excused.

“Put shortly, what Mr U and Ms W did was fraud. They made a false pretence (about the identity and characteristics of the person operating the account), knowingly (and, accordingly, dishonestly) in order to bring about a practical result (namely, to induce persons open to temptation to engage in messaging). Their conduct therefore contained all of the elements of the crime of fraud. 

“Having induced the person alleged to be the Minuter to exchange electronic messages, they then set out to induce him to continue with the exchange of messages until he had, in their view, conducted himself in a way which was likely to result in a substantial prison sentence. That they did by maintaining the false pretence and by wheedling him to continue.”

The sheriff described their conduct as “calculated and manipulative”. 

He continued: “Mr U then travelled to Dundee, with two other men, to confront the Minuter and that made it necessary for the police to take him to a police station for his own safety. Such confrontations have the potential for serious public disorder and will, in some circumstances, constitute the crime of breach of the peace. 

“It was Mr U’s wish to get a photograph, which he would post on the internet with a caption stating that the Minuter had been arrested for suspected child sex offences. Since an arrested person is likely to appear in court the next day, the publication of such a photograph and caption risks interfering with the administration of justice and might sometimes amount to contempt of court.”

‘Rule of law’

Sheriff Brown also dismissed the suggestion that the pair were acting in “good faith”.

“Moreover,” he added, “in my opinion there are strong public policy considerations which militate against excusing the impropriety involved in this kind of case. To be sure, internet crime is a serious issue, though it is far more complex than Mr U and Ms W appeared to recognise. 

“Police Scotland take it seriously. But policing is a skilled, professional activity which ought to be left to the police. Police officers work within a careful scheme of regulation and inspection and they are democratically accountable. When it comes to covert policing, they operate within a carefully constructed regulatory framework which exists for the protection of the public as a whole. 

“To excuse the improprieties in what happens in such cases would be to encourage those who are inclined to pursue such action to think that they can operate outside any regulatory structure, to think that they can operate outside the law, to think that they can operate without having to observe the carefully considered limits which the legislature has applied to the police (whom they claim to be helping) and to think that they can manipulate the courts into imposing condign sentences. 

“That would be contrary to the wider public interest in the rule of law. I have, accordingly, decided to sustain the objection to the admissibility of evidence to the extent of excluding the evidence of Mr U and Ms W as inadmissible.”