High Court of Justiciary upholds convictions of men ensnared by paedophile hunter groups

Lord Carloway

About this case:

• Citation:
  [2019] HCJAC 61
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

John Quinn and Mark Sutherland argued that the evidence gathered by the groups had been unfairly obtained and their pleas in bar of trial based on oppression ought to have been sustained. Mr Sutherland also argued that the groups required statutory authorisation in order for their evidence to be used.

The appeals were heard together by the Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Malcolm. Mungo Bovey QC and Dean of Faculty, Roddy Dunlop QC, appeared for the appellants and P Kearney, advocate depute, for the Crown.

Unregulated surveillance

Between 24 April and 7 May 2018, the first appellant had exchanged messages with a person he believed to be a 13-year-old girl called Mel Howard, who was in fact a member of a group called Child Protectors Scotland. After arranging a meeting with “Mel” at Paisley Cross, he was detained and later arrested for offences under sections 33 and 34 of the Sexual Offences (Scotland) Act 2009. The trial sheriff in Mr Quinn’s case distinguished the actions of paedophile hunter groups to those of state actors and ruled that they were not sufficient to amount to an abuse of process.

Mr Sutherland, who had been convicted of similar charges to Mr Quinn after he communicated with a volunteer from another group, had objected to evidence from the volunteer on the basis that he was a covert human intelligence source under the Regulation of Investigatory Powers (Scotland) Act 2000. The sheriff in his case ruled that the volunteer had not acted as a CHIS as the police had only become involved after he was confronted by the group at a bus station.

It was argued by the first appellant that he had been entrapped in a manner which meant that a fair trial could not take place. By proceeding against him, the Crown had acted incompatibly with his rights under articles 6 and 8 of the ECHR. The test for entrapment had been satisfied when he would not have acted as he did if the decoy had told him that her true age was 34.

The second appellant submitted that RIPSA did not require knowledge on the part of the authorities to be engaged, but simply set out a regime that had to be complied with for certain covert information gathering methods. The police were, in effect, using the groups as a means of circumventing RIPSA by operating an unregulated system of surveillance.

Free to investigate

Lord Carloway, delivering the opinion of the court, said of entrapment: “The essential vice of entrapment [per Jones v HM Advocate (2010)] is the creation of crime by the state for the purpose of prosecuting it. It has no relevance to the actings of non-state actors. A person who is persuaded to commit a crime by a private individual will still be guilty of that crime.”

He continued: “The fact that paedophile hunter groups are not regulated is of no relevance. The police, and other organs of the state, are regulated because of the extensive powers which they have. The private individual has no such powers and stands in the same position as any other member of the public.”

Addressing whether such groups were free to carry out their investigations, Lord Carloway said: “As matters stand, they are free to carry out their own investigations into criminal behaviour and to report it to the police or directly to the Crown. They are far from being alone in such activity. Security firms, shops, gamekeepers, [and] neighbourhood watch schemes all do so, even if the results of their activities are not normally published on social media.”

On the ECHR arguments, he added: “Given the lack of any longstanding pre-existing relationship between the appellants and those with whom they thought they were communicating, they had no reasonable expectation that these communications would remain confidential or private. Significantly, for Article 8 purposes, by the time at which the police were informed, the criminal activity had already been carried out.”

Lord Carloway concluded on RIPSA: “There could have been no application for authorisation because the police was unaware of the decoys’ activities until after the appellants’ allegedly criminal activities had been, to all intents and purposes, completed and recorded. Even if the police had been aware, they were not in a position to control these activities. The paedophile hunter groups are not ‘law enforcement agencies’ or agents whose activities fall to be regarded as those of a public authority.”

For these reasons, both appeals were refused.