A convicted paedophile who was snared by a vigilante group is to have his case examined at the UK Supreme Court.
Judges at the UK’s highest court will consider whether prosecutions based on the covert operations of “paedophile hunters” breach the right to privacy.
Mark Sutherland, 37, believed he was communicating with a 13-year-old boy on the dating app Grindr.
But in reality it was a 48-year-old man who was part of a group called Groom Resisters Scotland.
The Supreme Court will hold a virtual hearing to consider the case and will issue its judgement later. It will decide whether covert sting operations by vigilante groups are a breach of the right to a private life and private correspondence under Article 8 of the European Convention on Human Rights (ECHR).
The court defines “paedophile hunters” as self-appointed groups of vigilantes who impersonate children in order to expose people whom they consider to be sexual predators.
It says some of these groups have attracted substantial online followings and debate in mainstream media.
When Sutherland was tried at Glasgow Sheriff Court in 2018, the jury heard he had sent explicit pictures to what he believed was a 13-year-old boy, called James Boyle, whom he had contacted on the dating site Grindr.
Even though he was told James was just 13, he sent explicit pictures and made arrangements to meet up.
But the person Sutherland was talking to was in fact Paul Devine, a member of the group Groom Resistance Scotland.
When Sutherland arrived at Partick Bus Station in Glasgow to meet the boy, he was intercepted by the vigilante group who streamed their encounter live on social media.
They informed police and Sutherland was arrested.
He was unanimously found guilty of two charges of attempting to communicate indecently with an older child.
Sheriff Martin Jones QC jailed Sutherland for a total of two years.
Sutherland had previously been imprisoned in 2015 for 21 months after sending a 12-year-old boy explicit pictures and inappropriate messages two years earlier.
The case before the Supreme Court justices is very important as the law surrounding the activities of “paedophile hunters” is currently unclear.
Yet according to HM Inspectorate of Constabulary in Scotland (HMICS) almost half of online grooming cases result from the activities of vigilante groups.
The inspectorate said these groups are unregulated and untrained, and in its report in February 2020 said: “A more robust proactive capability on the part of Police Scotland would reduce the opportunities for these groups to operate.”
Although Mark Sutherland was convicted by a jury at Glasgow Sheriff Court, a later case in Dundee was thrown out because evidence gained by a vigilante group was ruled “inadmissible.”
In that case the sheriff said the means used to induce the accused, known only as PHP, into engaging in an exchange of messages amounted to “fraud”.
PHP’s lawyers said the vigilantes’ activities interfered with his rights under ECHR Article 8 and using their evidence in any trial would mean the court was acting “incompatibly” with those rights.
They also argued the use of information gathered covertly was unlawful under legislation designed to to ensure the surveillance of a person was properly regulated.
Those arguments were rejected by the sheriff, but he said by pretending falsely to be young children, the vigilantes had acted unlawfully.
The case at the Supreme Court is being watched carefully by England’s Director of Public Prosecutions who has been granted “intervener” status.
The judgement, which will be issued later, will provide a definitive answer to the question of whether undercover vigilante activity is legal, and compatible with human rights, even of those who seek to abuse children.