Two men were convicted of attempting to communicate with children for sexual gratification. This was based on evidence from paedophile hunter groups. The men argued that the evidence that came from the groups had been unfairly obtained and that their pleas in bar of trial based on oppression should have been upheld.
The first appellant had exchanged messages with a person he believed to be a 13-year-old girl. However, it was a member of a group called Child Protectors Scotland. He arranged a meeting with the decoy and at this stage he was arrested. The trial sheriff found that there was no finding which would amount to an abuse of process.
The second appellant was convicted of similar charges after he communicated with a volunteer from another group. He objected the evidence from the volunteer on the basis that he was a covert human intelligence source under the Regulation of Investigatory Powers (Scotland) Act 2000. The sheriff in his case ruled that the volunteer had not acted as a CHIS as the police had only become involved after he was confronted by the group at a bus station.
It was submitted on behalf of the first appellant that he had been entrapped in a way which meant he would not have a fair trial. It was argued that test for entrapment had been satisfied as he would not have acted as he did, if the decoy had told him her true age of 34. The second appellant submitted that RIPSA did not require knowledge on the part of the authorities to be engaged, but simply set out a regime that had to be complied with for certain covert information gathering methods.
In delivering the opinion of the court, Lord Carloway stated: “The fact that paedophile hunter groups are not regulated is of no relevance. The police, and other organs of the state, are regulated because of the extensive powers which they have. The private individual has no such powers and stands in the same position as any other member of the public. As matters stand, they are free to carry out their own investigations into criminal behaviour and to report it to the police or directly to the Crown.”
Lord Carloway concluded on RIPSA: “There could have been no application for authorisation because the police was unaware of the decoys’ activities until after the appellants’ allegedly criminal activities had been, to all intents and purposes, completed and recorded. Even if the police had been aware, they were not in a position to control these activities. The paedophile hunter groups are not ‘law enforcement agencies’ or agents whose activities fall to be regarded as those of a public authority.”
As a result, both appeals were refused.