Confidential communication of criminal nature can be tendered as evidence in court without violating a party’s right to privacy
September 2, 2020
Sutherland v Her Majesty’s Advocate (Scotland)
2020 UKSC 32
Supreme Court of United Kingdom
Reed CJ; Hodge, Lloyd-Jones, Sales, Leggatt, SCJJ
July 20, 2020
Reported by Faith Wanjiku & Ian Otenyo
Statutes – application of statutes – application of statutes concerning sharing of confidential communication – application of the European Convention on Human Rights when confidential communication was shared with third parties – where the nature of confidential communication was reprehensible in nature –whether evidence gathered through the violation of an individual’s right to privacy could be used to prosecute a party in court – European Convention on Human Rights of 1950, article 8
Evidence Law – covert obtainment of evidence – where evidence was gathered covertly by a decoy – whether proper authorization was necessary before a decoy could gather evidence covertly and present it in court for admissibility – Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA) section 7 (3)
International Law– international human rights law – European Convention on Human Rights of 1950–right to privacy under the European Convention on Human Rights– whether a member state had a positive obligation to protect the appellant’s right to privacy where confidential communication contained inculpatory evidence against the appellant –European Convention on Human Rights of 1950, article 8
The appellant was nabbed by a deceptive operation orchestrated by a paedophile hunting (PH) group. The PH had used a fake profile of a thirteen-year-old boy as a decoy to attract communications with adults that were sexually interested in children. The decoy was a member of Grindr dating application, where personal phone numbers were exchanged with the appellant and subsequent conversations were done on the WhatsApp messaging platform. The appellant sent the decoy a picture of his erect penis and later arranged for a physical meeting.
The PH group turned up at the appointed venue and detained the appellant until the police showed up. The appellant was arrested and the PH gave the police communications that they had with the appellant for reliance during prosecution. The appellant claimed that his right to privacy was breached by the PH and that the prosecution shouldn’t be allowed to tender such evidence in court.
- Whether the applicant’s right to privacy was violated by the Paedophile Hunting (PH) group when they disclosed the contents of their communication to the police and whether the state had a positive obligation to protect the appellant’s right to privacy in relation to their confidential communication with the decoy as provided under article 8 of European Convention on Human Rights (ECHR).
- Whether the prosecution could rely on covertly gathered evidence in prosecuting the appellant.
- Whether the paedophile hunters were required to get authorization before they gathered confidential communication that involved the appellant.
Relevant provisions of the law
European Convention on Human Rights of 1950 (ECHR)
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA)
Section 7.Authorisation of covert human intelligence sources
An authorisation is necessary on grounds falling within this subsection if it is necessary—
(a) for the purpose of preventing or detecting crime or of preventing disorder;
(b) in the interests of public safety;
- In considering whether in a particular set of circumstances, a person had a reasonable expectation of privacy (or legitimate expectation of protection), it was necessary to focus both on the circumstances and on the underlying value or collection of values which article 8 of theEuropean Convention on Human Rights of 1950was designed to protect. Given the lack of any longstanding pre-existing relationship between the appellant and the person with whom he thought he was communicating, he had no reasonable expectation that the communications would remain confidential or private. The decoy did not owe the appellant any obligation of confidentiality.The appellant had voluntarily engaged in his communications on Grindr and WhatsApp with a person he believed to be a child, for sexual purposes. By the time the police were informed, the criminal activity had already been carried out.
- The nature of the communications from the appellant to the decoy, whom he believed to be a child, was not such as was capable of making them worthy of respect for the purposes of the application of theEuropean Convention on Human Rights ECHR. The appellant had no reasonable expectation of privacy in relation to the communications, with the result that he enjoyed no relevant protection under article 8(1) of the ECHR as regards their disclosure to and use by the respondent and the other public authorities.
- Although freedom of expression and confidentiality of communications were primary considerations and users of telecommunications and internet services should have a guarantee that their own privacy and freedom of expression would be respected, such guarantee could not be absolute and had to yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others.
- Under the scheme of the ECHR and for the purposes of itsarticle 8, the interests of children in the field hadpriority over any interest a paedophile could have for being allowed to engage in the conduct which had been criminalised by those provisions.As such, there was no interference with the appellant’s right to privacy.
- The actions of the appellant were aimed at the destruction or limitation of the rights and freedoms of a child under article 8 of the ECHRwhich were the subject of positive obligations owed to children by the state. Those positive obligations outweighed any legitimate interest the appellant could have under article 8(1) of the ECHR to protection for his actions. The facts were criminal in nature and the appellant’s actions were not an aspect of his private life that he was entitled to keep private.
- Once the police passed the evidence to the respondent, the appellant had no legitimate interest under the scheme of the ECHR to prevent the respondent from making use of that evidence in criminal proceedings against him. The police and the respondent, as relevant public authorities, had a responsibility, under the scheme of values in the ECHR, to take effective action to protect children, to the extent that the information provided by the decoy indicated that the appellant represented a risk to them.
- The state had no supervening positive obligation arising from article 8 of the ECHR to protect the appellant’s interests which would impede the respondent in any way in making use of the evidence about his communications with the decoy to investigate or prosecute in respect of the crimes he was alleged to have committed. On the contrary, in so far as positive obligations under article 8 of the ECHR were engaged, the relevant positive obligation on the respondent, as a public authority, was to ensure that the criminal law could be applied effectively so as to deter sexual offences against children. Contrary to the appellant’s argument, article 8 of the ECHR had the effect that the respondent should be entitled to, and indeed could be obliged to make use of the evidence of the communications with the decoy in bringing a prosecution against him
Relevance to the Kenyan situation
The test employed in determining the admissibility of evidence by Kenyan courts where evidence had been acquired through means that violated an individual’s constitutional right is double pronged. The first prong directs the court to examine the relevance of the evidence in question to the case at hand. If the evidence in question is relevant to the case then it is admissible.
This test was employed in the case of Nicholas Randa Owano Ombija v. Judges and Magistrates Vetting Boar  eKLR where it was held that:
The test to be applied both in civil and in criminal cases in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained.
The second prong directs the court to examine if the evidence in question is detrimental to the administration of justice and against the principle underlying Article 50(4). It was stated in David Ogolla Okoth v. Chief Magistrate Court, Kibera & 2 others;  eKLR that:
I do not however agree that all evidence not properly obtained lead to some form of prejudice and therefore the automatic termination of a criminal trial. Such an approach negates and dilutes, invariably, the words of the Constitution emphasized above. There has to be established that a right in the Bill of rights was unjustifiably violated whilst obtaining the evidence in question. Secondly, there must then be shown that the admission of such evidence would render the trial unfair or be detrimental to the administration of justice.
Article 50 (4) of the Kenyan Constitution 2010 states that:
Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.
Though suits instituted by parties that claim their privacy rights had been violated by private citizens conducting covert investigations are not quite common in Kenya, the United Kingdom case can inform Kenyan courts to further interrogate the nature of the contents of adduced evidence to reveal if it would be useful in furthering the ends of justice before declaring it inadmissible. The revealed nature of the contents of the interrogated evidence will then determine its admissibility. The upshot, is that courts should not be stopped at looking into evidence merely because it was acquired in a manner that violated the human rights of a party.