John Quinn and Mark Sutherland v. Her Majesty’s Advocate [2019] HCJAC 61

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995 and Note of appeal against conviction:- The appellants appealed against decisions of the sheriffs at first instance who had refused minutes lodged on behalf of each of the appellants which sought to exclude evidence obtained via the activities of paedophile hunter groups. On behalf of the first appellant a plea in bar of trial based on oppression was argued together with a minute objecting to the admissibility of the evidence it being contended that the evidence had been unfairly obtained as it had resulted from entrapment and in breach of the appellant’s rights under Article 8 of the European Convention on Human Rights. On behalf of the second appellant it was argued that the paedophile hunter group required authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 as the group’s actions were known to the police and in the absence of such authorisation the evidence was unlawfully obtained and inadmissible. In addition, it was also argued on behalf of the second appellant that the evidence had been a consequence of entrapment and contrary to Article 8. Here the court refused the appeals. In relation to the issue of entrapment the court reiterated that evidence would be excluded if an accused committed an offence, which he would not otherwise have committed as a result of pressure from or a trick by the police which would render the conduct of the police grossly unfair. The court noted, however, that the law as discussed in Jones v. HMA 2010 JC 255 related to the conduct of state actors (eg police)

Where the means to challenge such conduct was via a plea in bar of trial on the grounds of oppression. The court stated that where a person is pressured, tricked or deceived to commit a crime by a private individual he will be guilty of that crime in the absence of a defence eg necessity or coercion. The court noted, however, that in circumstances where the state actor and the private individual worked hand in glove then it could be different but that was not the position in the present case, where the police only became aware of the conduct of the appellants after the paedophile hunter groups had obtained the evidence. It is still possible in rare cases to exclude evidence unfairly obtained by a private individual but these were not such cases. In relation to the Article 8 arguments presented the court noted that there was no interference by a public authority with the appellants’ correspondence. It was the appellants who sent the messages to the decoys who had in turn forwarded them to the police, there was no surveillance or interception and whilst generally a person’s internet chat falls within Article 8 given the lack of any pre-existing relationship between the appellants and the paedophile hunter groups the appellants could have no reasonable expectation that the communications would remain private. The court also noted that by the time the police were informed the criminal activity had already occurred. The court went on to state that even if there was a reasonable expectation of confidentiality any interference with their private lives would fall short of not being justified in terms of Article 8. In the present cases the appellants were able to object to the admissibility of the evidence obtained on the basis of unfairness under the domestic law and there was no unfairness under ECHR. In relation to the arguments advance in relation to the absence of RIPSA authorisation the court stated that the legislation is to regulate the powers of organs of the state or where a private individual is being directed or has been engaged by a public authority, however, there was no such direction/engagement in the appellants’ cases and no RIPSA authorisations were necessary.