Factual and Procedural Background
The Defendant is charged with attempted contraventions of sections 34(1) and 24(1) of the Sexual Offences (Scotland) Act 2009 by sending sexual messages via social media to persons he believed to be children aged 14 and 12, respectively. In reality, no such children existed; the Defendant was unknowingly communicating with two adults operating decoy accounts as part of a vigilante scheme designed to "catch predators." The scheme was orchestrated by an individual referred to as Mr U, with assistance from Ms W. The Defendant lodged challenges to the competency of the prosecution and the admissibility of evidence obtained through this scheme, raising compatibility issues under Article 8 of the European Convention on Human Rights (ECHR), alleged unlawful evidence gathering without statutory authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 ("RIPSA"), and a plea in bar of trial on grounds of oppression, arguing that the evidence was obtained through entrapment.
Legal Issues Presented
- Whether the activities of Mr U and Ms W interfered unlawfully with the Defendant’s Article 8 rights under the ECHR due to lack of authorisation under RIPSA, affecting the admissibility of evidence.
- Whether the evidence obtained by the vigilante scheme is admissible given the absence of statutory authorisation and alleged unlawful conduct.
- Whether the plea in bar of trial on the ground of oppression, based on factual entrapment by private individuals, is sustainable.
- The extent to which entrapment principles apply to private persons as opposed to law enforcement authorities.
- Whether the irregularities in evidence gathering can be excused, permitting admission of the evidence.
Arguments of the Parties
Defendant's Arguments
- The conduct of Mr U and Ms W infringed the Defendant's privacy rights under Article 8 ECHR without lawful authorisation under RIPSA, rendering evidence inadmissible.
- All Crown evidence obtained through the vigilante scheme should be excluded due to unlawful and irregular evidence gathering.
- The prosecution is oppressive because the evidence was obtained by entrapment in a factual sense, which offends public conscience and justice.
Crown's Arguments
- The activities of Mr U and Ms W do not engage Article 8 rights because the Defendant voluntarily communicated with them, and any expectation of privacy is lost once the recipient reveals the content.
- The vigilante participants acted without police inducement or authorisation; therefore, RIPSA does not render their evidence unlawful or inadmissible.
- The police have a duty to investigate allegations, even if reported by private persons acting unlawfully.
- Entrapment principles apply only to law enforcement; private individuals’ conduct does not amount to entrapment in the legal sense.
- Even if irregularities exist, the Crown submits that the court should exercise discretion to admit the evidence, given the serious nature of the alleged offence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Jones v HM Advocate 2010 JC 255 |
Entrapment relates to law enforcement conduct; primary method of dealing with entrapment is admissibility of evidence. |
Guided the court to treat entrapment as an admissibility issue, not a plea in bar of trial. |
| R v Mack [1988] 2 SCR 903 |
Entrapment defined explicitly in terms of police conduct. |
Supported the court’s view that entrapment requires law enforcement involvement. |
| R v Hardwicke and Thwaite [2001] Crim LR 220 |
Distinction between "executive lawlessness" (law enforcement) and "commercial lawlessness" (private persons); admissibility of evidence under s78 PACE. |
Recognised private entrapment as a distinct category affecting admissibility. |
| Shannon v United Kingdom (67537/01) |
Private entrapment may render proceedings unfair under Article 6 ECHR; admissibility of evidence affected. |
Supported court’s approach to private entrapment as an admissibility issue. |
| Lawrie v Muir 1950 JC 19 |
Improperly obtained evidence is to be excluded unless irregularity is excused; court has discretion. |
Provided framework for assessing whether to admit evidence despite irregularities. |
| Thomson v Crowe 1999 SCCR 1003 |
Admissibility of statements depends on lawfulness and fairness; Crown bears burden of proof. |
Used to support the Crown’s burden to justify admission of irregularly obtained evidence. |
| Jeffrey v Higson 2003 SLT 1053 |
Principles of admissibility apply equally to all evidence dependent on lawfulness and fairness. |
Reinforced the approach to admissibility of evidence on fairness grounds. |
| Adcock v Archibald 1925 JC 58 |
Fraud defined as inducing a person to do an act he would not otherwise have done; pecuniary loss not essential. |
Applied to characterise the vigilante scheme as fraudulent conduct. |
| Latif and Shahzad |
Significance of minor illegality by police in controlled operations; public duty as defence to entrapment. |
Distinguished police regulated operations from vigilante actions. |
| McAlister v Associated Newspapers Ltd 1954 SLT 14; Lord Advocate v Scottish Daily Record and Sunday Mail Ltd [2018] HCJAC 32 |
Publication of photographs of arrested persons may interfere with justice and amount to contempt of court. |
Supported criticism of vigilante publication practices. |
| Stuurman v HM Advocate 1980 JC 111 |
Power to prevent prosecution on grounds of oppression is exceptional and requires grave prejudice to fair trial. |
Informed the court’s approach to plea in bar of trial on oppression grounds. |
| HM Advocate v Withey and Grier 2017 JC 249 |
Rare cases where exclusion of evidence is insufficient to prevent illegitimate prejudice; plea in bar may succeed. |
Clarified threshold for plea in bar success. |
| Nottingham City Council v Amin [2000] 1 Cr App R 426 |
Distinction between law enforcement provocateur and private persons; fairness in evidence obtained by inducement. |
Supported the court’s analysis of manipulative conduct by private persons lacking public duty. |
| Lipsey v MacIntosh (1913) 7 Adam 182; Wm Allan (1872) 2 Couper 402; Clements v HM Advocate 1991 JC 62 |
Jurisdictional principles regarding offences committed by persons outside Scotland affecting conduct within Scotland. |
Supported the court’s view that fraudulent conduct by persons in England affecting persons in Scotland is prosecutable. |
| Khan v United Kingdom (2001) 31 EHRR 45 |
Interference with Article 8 rights requires lawful justification; absence of statutory framework for covert surveillance breaches Article 8. |
Contextualised the purpose of RIPSA as statutory regulation of covert surveillance. |
| G, S and M v Austria 9614/81; AD v Netherlands (21962/93) |
Right to privacy in correspondence is lost once contents are voluntarily disclosed by the addressee. |
Supported rejection of Article 8 interference in communications voluntarily revealed to decoys. |
| Teixeira de Castro v Portugal (1999) 28 EHRR 101 |
Entrapment by or on behalf of the State affects fairness under Article 6 ECHR. |
Referenced in relation to fairness and admissibility of evidence from entrapment operations. |
Court's Reasoning and Analysis
The court began by considering the compatibility issue under Article 8 ECHR, concluding that no interference occurred because the Defendant voluntarily communicated with the decoys, and privacy rights do not extend to communications once revealed by the addressee. Consequently, no unlawful interference requiring justification arose.
Regarding the objection based on RIPSA, the court acknowledged that Mr U and Ms W’s activities fell within the definition of covert human intelligence sources (CHIS) but found no evidence that the police authorised or induced their conduct. The court held that while RIPSA regulates police use of CHIS, it does not render unlawful conduct by private persons who act without police involvement. The police’s subsequent use of evidence from these private persons does not equate to using them as CHIS under RIPSA, and the police have a duty to investigate allegations even if initially reported by private individuals acting unlawfully.
On the plea in bar of trial based on oppression and entrapment, the court followed the established principle that entrapment applies only to law enforcement conduct. It recognized related concepts of "commercial" or "private" entrapment from English and Strasbourg jurisprudence but treated these as issues of evidence admissibility rather than grounds to bar trial. The court heard evidence and found that the vigilante scheme was unlawful and fraudulent, involving deliberate deception to induce the Defendant to commit a criminal act he would not otherwise have done.
The court emphasized that the vigilantes’ conduct was manipulative and dishonest, lacking the regulatory oversight and accountability that govern police operations. It rejected the Crown’s submission to excuse the irregularity, noting strong public policy reasons against permitting private persons to operate outside the law and regulatory frameworks, particularly given the risks of unfairness and undermining the rule of law.
Accordingly, the court excluded the evidence obtained by Mr U and Ms W on grounds of unfairness and impropriety, applying the framework from Lawrie v Muir that improperly obtained evidence is to be excluded unless excused. The court found no adequate basis to excuse the irregularity, particularly given the deliberate dishonesty involved.
The court further noted that the remaining Crown evidence was not challenged at this stage due to lack of information about its nature or dependence on the excluded evidence.
Holding and Implications
The court’s final decision is to sustain the objection to the admissibility of evidence obtained by the vigilante scheme, excluding the evidence of Mr U and Ms W as inadmissible.
This decision directly affects the prosecution’s case by disallowing key evidence obtained through unregulated private conduct deemed fraudulent and improper. The ruling reinforces the principle that evidence obtained by private persons acting outside the law and without police authority cannot be admitted unless irregularities are excused, which the court did not find justified here. No broader precedent beyond the facts of this case is established, but the court articulated clear public policy concerns safeguarding the rule of law and the regulated role of law enforcement in covert investigations.