In a recent supreme court ruling, prosecution of alleged paedophiles based upon entrapment by civilian groups will not be inadmissible in court. The case was brought by Mr Mark Sutherland who was recently caught by ‘Groom Resisters Scotland’ attempting to meet with an individual who he thought to be a thirteen-year-old boy. Mr Sutherland had previously been convicted of sending indecent images to a twelve-year-old boy. Mr Sutherland brought a claim against the Crown Prosecution Service, alleging that such evidence was a breach of his human rights under Article 8 of the European Convention of Human Rights.
Messages and images sent to the group by Mr Sutherland were of a sexual nature, and Mr Sutherland had arranged to meet with the child in a public place. He was then confronted by members of the vigilant group and evidence was handed to the police. Using this evidence, he was convicted of indecent communications with an older child and jailed for 2 years.
Mr Sutherland had also argued that using covertly gathered evidence such as was used in his case was unlawful under legislation that was designed to regulate the use of surveillance. This argument was however, rejected as such groups have not been encouraged by the police, nor was the entrapment considered unfair.
Concerns have been raised by many regarding the use of such evidence given by vigilant groups and that this judgement will positively encourage civilians to take the law into their own hands.
The Supreme Court ruled that such activity – indecent communications with a child – were not subject to protection under the European court of Human rights as there was no such right to privacy for such behaviour that would endanger children.
Currently, almost half of online grooming cases (in Scotland) are brought to trial by evidence collected from groups such as Groom Resisters Scotland. Clearly there a deficit in Police resources to be able to do such programs, however the involvement of untrained and unsolicited groups is not without risk, they themselves may be liable for criminal prosecutions if they break the law during their entrapment activities.
The Supreme court unanimously dismissed Mr Sutherland’s appeal as under Article 8 the activity in consideration has to be capable of respect, children have rights here and the state has a responsibility to protect children under Article 8 from sexual exploitation by adults. Mr Sutherland did not have a reasonable expectation of privacy as there was no pre-existing relationship of which he could expect privacy, nor was it such that a thirteen-year-old would not be expected to share worrying communications such as the images and messages sent by Mr Sutherland, with an appropriate adult. Hence the use of such evidence is not illegal and there is no obligation to protect the accused under article 8.
As a firm who represents the rights of children but also those accused of crimes, we believe everyone is entitled to fair representation. Protection of vulnerable children is always paramount.
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