P(AP) v The Scottish Ministers [2017] CSOH 33

https://www.scotcourts.gov.uk/search-judgments/judgment?id=70d42ba7-8980-69d2-b500-ff0000d74aa7 (Court of Session Outer House, 28 February 2017)

Background: A jobseeker was denied employment in a care home following a disclosure check which revealed he had been made subject to a supervision order for the offence of lewd and libidinous practices. He was 14 years old at the time and the matter had been handled in the Children’s Hearing system. He petitioned for judicial review, challenging an aspect of the Scottish Government’s statutory scheme (under the Protection of Vulnerable Groups (Scotland) Act 2007) regulating the disclosure of the criminal convictions of persons who wish to obtain employment in ‘regulated work’.

Held: Lord Pentland ruled that the automatic disclosure by Disclosure Scotland of a deemed criminal conviction for the minor offence in 1987 constituted an “unlawful and unjustifiable interference” with the petitioner’s rights under article 8 of the European Convention on Human Rights. He stated that:

“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.” [45]

“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.” [46]

…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.” [61]