The UK’s highest court is set to rule on whether prosecutions based on evidence gathered in covert sting operations by paedophile hunter groups are incompatible with a person’s human rights.
Mark Sutherland was convicted in August 2018 of attempting to communicate indecently with a child, and related offences, after evidence collected by a paedophile hunter group was handed to police.
He was caught after arranging to meet the 13-year-old, who was actually a member of one of the groups acting as a “decoy”, at Partick Train Station in Glasgow.
He brought a Supreme Court challenge arguing that his right to a private life, enshrined in Article 8 of the European Convention on Human Rights, had been breached.
The court will give its ruling on Wednesday.
At a hearing in June, a panel of five justices, including the court’s president Lord Reed, heard that in 2018, Sutherland matched up on Grindr with someone who, when he communicated with them, claimed to be a 13-year-old boy.
He sent sexual messages and images to the person and they later arranged to meet at the station.
It was here that it was revealed to Sutherland the person he was communicating with was not a child, but a member of a paedophile hunter group.
The group confronted Sutherland at the arranged meeting, broadcasting the encounter on social media and handing the evidence to the police.
Sutherland appealed against his conviction on the basis that the covert investigation, and the use of the resulting evidence by the authorities, breached his human rights.
Gordon Jackson QC, Dean of the Faculty of Advocates, representing Sutherland, told the court: “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, he said.
Mr Jackson also argued that “a huge number” of cases were prosecuted on the basis of information from these organisations.
There was a large amount of guidance on these organisations, he said, but added that “what we have is tacit encouragement of these groups”.
The barrister argued that what hunter groups were likely to take from the fact that many cases were prosecuted was that even if there were “reams of documentation”, “at the end of the day, we’re pretty sure if we carry on doing it, they’ll prosecute”.
“That’s systemic tacit encouragement,” Mr Jackson added.
Alison Di Rollo QC, Solicitor General for the Crown Office and Procurator Fiscal Service, Scotland’s Prosecution Service, which is opposing the appeal, argued that the criminal prosecution of sexual conduct between an adult and a child “does not engage” someone’s rights to privacy.
“There is no right to respect for such behaviour in a democratic society,” she said.
Ms Di Rollo said it was clear that the “overriding duty” of the police was “to respond to any report of any identified person who may pose a sexual risk to children”.
The ruling is due to be announced over a livestream at 9.45am.