Jobseeker wins human rights challenge over disclosure of historical conviction

A judge in the Court of Session ruled that the automatic disclosure by Disclosure Scotland of a deemed criminal conviction for a minor offence of lewd and libidinous practices was “unlawful”.

In a petition for judicial review, Lord Pentland held that mandatory disclosure of the petitioner’s appearance before a Children’s Hearing in 1987 constituted an “unlawful and unjustifiable interference” with his rights under Article 8 of the European Convention on Human Rights.

The petitioner “P”, 43, challenged an aspect of the Scottish Government’s recently amended statutory scheme regulating the disclosure of the criminal convictions of persons who wish to obtain employment in “regulated work”, such as working with children or vulnerable adults.

The petitioner averred that he wanted to obtain such employment, but was unable to do so because of the disclosure of the historical criminal conviction for an offence committed in 1987 when he was 14 years old – after he had been caught masturbating in a bush and on a separate occasion indecently exposed himself to his younger sister – even though he was not prosecuted in the court system.

The court heard that in 2015 he obtained a college qualification at SVQ level 3 in social care in 2015 and then applied to work as a care assistant in a care home for vulnerable adults.

In terms of section 45 of the Protection of Vulnerable Groups (Scotland) Act 2007 he applied to join the PVG Scheme, under which information about individuals who do, or wish to do, regulated work with children or protected adults is collated and disclosed.

As part of that application he made a disclosure of scheme record request and the vetting information disclosed on the petitioner’s PVG scheme record referred to his appearance before a Children’s Hearing on 14 October 1987.

The petitioner said in his affidavit that he “got the job as long as my Disclosure Scotland certificate came back” and was given a start date, but was contacted by the manager of the nursing home and told that his Disclosure Scotland certificate had shown that he had been convicted of the crime of lewd and libidinous practices and that due to the nature of the crime, the petitioner’s prospective employers were no longer prepared to offer him the job.

The petitioner believes that he should be allowed to work in the care sector because he is qualified to do so and because he has relevant experience, having cared for his disabled sister. He feels that it is “unfair” that his appearance before the Children’s Hearing so long ago should effectively bar him forever from his chosen line of work.

The petitioner contended that the automatic disclosure of the conviction information violated his right under Article 8 of the European Convention on Human Rights to respect for his private life and sought declarator to the effect that the relevant legislation is “unlawful” insofar as it requires the automatic disclosure of the conviction information.

Counsel for the petitioner argued that the amended scheme was unlawful because it did not provide (adequately or at all) for an assessment of the proportionality of the admitted interference with the petitioner’s rights under Article 8. The petitioner also argued that disclosure of the conviction information in his case was “disproportionate” because it had no rational connection to the aim of protecting vulnerable adults.

The respondents, the Scottish Ministers, submitted that the petitioner’s complaints of breach of his Convention rights were “unfounded” and that the petition should be refused. Disclosure of spent convictions, including convictions for lewd and libidinous practices, was said to be “necessary” for the protection of the safety of vulnerable adults and children.

However, the judge held that the mandatory requirement for disclosure of the petitioner’s deemed conviction was not “in accordance with the law” and that it constituted an “unlawful and unjustifiable interference with his rights”.

In a written opinion, Lord Pentland said: “In my opinion, the scheme failed to provide any (or at least any sufficient) safeguards to enable the proportionality of the admitted interference in the petitioner’s case to be evaluated fairly and objectively; in the absence of any (or any adequate) safeguards, I conclude that the scheme operated arbitrarily in the petitioner’s case. The fundamental deficiency in the system, as it applied in the petitioner’s case, was that it automatically generated disclosure of the conviction information without affording the petitioner any opportunity to challenge disclosure on the basis that it would be disproportionate to disclose in the particular circumstances of his case.”

In its application to the petitioner’s case, the system operated on the basis of the principle that any conviction for the offence of lewd and libidinous practices justified automatic disclosure. The argument for the respondents was that any conviction for the offence of lewd and libidinous practices is by its nature of sufficient gravity to exclude any need for individual assessment as to whether it should be disclosed, but the court held that such an approach is “too sweeping and indiscriminate”.

Lord Pentland added: “I consider that, in the way it operated in the petitioner’s case, the statutory scheme gave rise to an outcome that can properly be characterised as arbitrary. The effect of the scheme is that the petitioner’s deemed conviction for minor sexual misconduct when he was a child will remain subject to disclosure for the remainder of his life, whenever he looks for employment in his chosen line of work. The label attached to the offence means that the relative conviction will always be disclosed. At no stage does the system provide for any form of review or reconsideration of the continuing need for this to happen; the petitioner is given no say in the disclosure process. In the context of the petitioner’s case, the scheme, in my opinion, operates as an unnecessarily blunt instrument.”

Nor did court consider that the interference with the petitioner’s rights was necessary in a democratic society in the interests of public safety.

The judge concluded: “In summary, there was no consideration given to whether the deemed conviction had any rational connection to the aim of protecting vulnerable adults in a care home environment. The relatively minor nature of the deemed conviction was not taken into account. No consideration was given to the fact that the matter had been handled through the Children’s Hearing system and not by way of a criminal prosecution. Importantly, the fact that the offence was committed very many years ago when the petitioner was a child was ignored, as was the fact that despite his previous mental health issues, there was nothing to suggest that the petitioner was likely to engage in sexually inappropriate behaviour. Finally, no regard was had to the petitioner’s general good character. The cumulative impact of these various considerations is such that disclosure in the petitioner’s case was, in my view, disproportionate.”

Lord Pentland put the case out by order so that he could be addressed on the appropriate remedy and terms of the order to give effect to the ruling.