TJ McIntyre: 'Vigilante 'paedophile hunters' won't save children without respecting justice system'
Online vigilantes are nothing new. In 2011 the activist collective Anonymous succeeded in hacking around 40 darkweb sites selling child abuse images, knocking them offline and publishing the names of their users. Indeed, in 2017, an individual hacker took down nearly one fifth of the entire darkweb - more than 10,000 sites - on the basis that many of the sites hosted child abuse images.
But these vigilante tactics have recently moved from the virtual world to the real world also. Groups of self-styled "paedophile hunters" have adopted the strategy of posing as a young girl or boy online, waiting for an individual to start a sexual conversation with them and then arranging a meeting in person to expose them. The meeting is usually recorded or even live-streamed.
This approach seems to have emerged in the UK, US and Russia in the early part of the decade; in Ireland it first hit the headlines in late 2017 when former RTÉ sports producer Kieran Creaven was convicted in Leeds of grooming offences following a four-month sting operation on Facebook by a group calling itself Predator Exposure.
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That high-profile case may or may not have been the catalyst for individuals in Ireland to adopt the same tactics, but soon afterwards at least one Irish group began using copycat techniques and aggressively confronting individuals in public, at their place of work and even at their home.
These cases seem to be escalating. In one case in February this year, an individual was badly beaten by a gang following a public confrontation, while earlier this week one such group was described by the President of the High Court as "a baying mob screaming for vengeance" following a confrontation with an intellectually disabled man with brain damage which left the man - a ward of court - distressed and suicidal. In that case the judge found that the video put other residents of the care home at risk also.
Following the approach of police in the UK, An Garda Síochána has issued a statement describing these activities as possibly illegal, likely to result in violence and harm, and liable to jeopardise future criminal proceedings.
What legal issues do they present?
Although colloquially described as entrapment, these tactics don't meet the standard which would enable an accused person to rely on a defence of entrapment. In Irish law this applies to State activity; the actions of private individuals are not held to the same standard.
There have been several successful prosecutions in the UK based on sting operations where entrapment arguments have been rejected.
On the other hand, they clearly do undermine the criminal justice process. The evidence obtained by vigilantes will seldom meet the standards to be admissible in court; if the vigilante fails to surrender their own phone or computer, the defendant may argue that they cannot receive a fair trial. In some cases the sting itself can give an individual the warning they need to delete incriminating evidence or move away from a particular location. In the UK, where vigilante activity has been going on for longer, police have found that in some cases it interferes with ongoing investigations.
In many cases the vigilantes themselves will also be committing offences. The confrontations typically involve attempts to carry out a "citizen's arrest" which will usually amount to assault or false imprisonment. And viewing or sending child abuse material is a serious crime even if it is done as part of a sting.
If the vigilantes have information that an offence has been committed against a child, then they will be committing an offence by failing to disclose that information to gardaí. There is no defence of vigilantism in Irish law.
Most worryingly, these tactics put individuals at risk of physical injury. The accusation of being a paedophile is enough on its own to put a person, however innocent, in threat of serious harm and in the UK some individuals have killed themselves after a public confrontation.
Some of those responsible might be genuinely motivated by a desire to "do their bit" and there can be a role for individuals to assist criminal investigations. For example, Europol has recently launched an initiative called Stop Child Abuse - Trace an Object, which crowdsources the analysis of clues in photographs. By identifying objects and locations in the background of child abuse images, police can identify and safeguard victims.
But there is no place in the criminal justice system for the majority of individuals in vigilante groups who seem to be motivated more by a desire for publicity and likes than any real interest in justice or child protection.
Dr TJ McIntyre is an associate professor in the UCD Sutherland School of Law, chair of Digital Rights Ireland and consultant with FP Logue Solicitors