The Court of Session's recent decision in P (AP) v The Scottish Ministers brought with it the first successful challenge to Scottish legislation in 2017.

Lord Pentland decided that parts of the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial (No. 2) Order 2015 (the "Remedial Order") unlawfully interfered with the petitioner's rights under Article 8 of the European Convention on Human Rights (ECHR), and so could not lawfully be made by the Scottish Government. The Remedial Order will now itself require remedial action, which could cause delays in the disclosure process for charities and others who depend on PVG checks, as well as changes to what appears on Disclosure Scotland certificates.

The Rules

The Rehabilitation of Offenders Act 1974 (the "1974 Act") usually stops a person from having to disclose a "spent" conviction (i.e. after the rehabilitation period required under the 1974 Act has ended), but a 2013 Order disapplied that rule for the purposes of disclosure checks. After the UK Supreme Court decided, in the 2014 case of R(T) v Chief Constable of Greater Manchester Police and Others, that blanket disclosure of all 'spent' convictions and cautions in England and Wales was unlawful, the Scottish Government decided that emergency legislation was required in Scotland (see our blog here).

The Remedial Order therefore reinstated the protection for certain spent convictions, so that they no longer appeared on a disclosure certificate. Broadly speaking, unspent convictions will always be disclosed but the only spent convictions that would appear on a disclosure check are those listed in Schedules 8A and 8B to the Police Act 1997. The intention was to ensure that offences relevant to the protection of vulnerable groups continue to be flagged, but not spent convictions that are irrelevant to that purpose.

However, it seems that the Remedial Order's attempt to remove human rights issues from the disclosure process has fallen short. Lord Pentland found that automatic disclosure of spent conviction information was "an unnecessarily blunt instrument" and the system failed to provide sufficient safeguards or mechanisms to allow the proportionality of such disclosures to be evaluated objectively and fairly.

The Scheme

Managed by Disclosure Scotland, the PVG Scheme aims to ensure that anyone unsuitable for working with children and/or protected adults cannot do "regulated work" with them. Regulated work can be voluntary. A member's PVG Certificate provides information relevant to working with vulnerable groups, including any sex offender notification requirements and criminal convictions (including some spent convictions).

The Facts

The petitioner (P) had applied to join the PVG Scheme in 2015 to take up work as a care assistant in a care home for vulnerable adults. However, his PVG Scheme Record was returned showing an offence committed almost 28 years earlier, when P was a child, and for which he had not been prosecuted in the criminal courts; P's case had gone through the Children's Hearing system in 1987, and the panel had imposed a supervision requirement on him for the offence of lewd and libidinous practices. That supervision requirement was terminated a year later.

Due to the nature of the conviction, however, the 2015 job offer was withdrawn by P's prospective employers.

The Challenge

As it stands, and despite the recent reforms, there was (and remains) no discretion available to Disclosure Scotland staff to exclude certain spent convictions from the PVG Scheme Record, and no other means by which the applicant can challenge their inclusion.Lewd and libidinous conduct is not a "protected conviction" (a spent conviction no longer subject to disclosure) because it falls within Schedule 8A to the Police Act 1997. Disclosure Scotland therefore had no choice but to disclose it.

P was qualified to work in the care sector and claimed that it was unfair for a 28 year old Children's Hearing matter, about conduct unrelated to care work, should effectively bar him from any work in that sector. In his petition, P argued that the automatic disclosure requirement, with no margin for discretion, violated his right to respect for his private life under Article8 ECHR.

The Defence

The Scottish Ministers accepted that disclosure of the spent conviction interfered with P's Article 8 ECHR rights, but claimed that it did so in a manner which was lawful, proportionate and necessary in a democratic society. They argued that the requirement pursued a number of legitimate aims including the protection of vulnerable persons, which had to be balanced against the policy of rehabilitating offenders and the risk of a past offender's private life being subject to disproportionate scrutiny.

Disclosure of certain offences, the Scottish Ministers argued, should always be made, since the passage of time would not diminish their relevance for a potential employer - who in any event still had to assess the importance and impact of the disclosure. It was also argued that the "individualised and discretionary" system sought by P, requiring any disclosure which might disproportionately affect Article 8 ECHR rights to be individually justified, would be unworkable given that Disclosure Scotland manages around 300,000 PVG Scheme applications every year.

The Decision

In his written decision, Lord Pentland held that the PVG Scheme's automatic disclosure failed to provide any, or at least any sufficient, safeguards against arbitrary treatment and so could not be "in accordance with the law" in terms of Article 8 ECHR:

"[46]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. This flaw was, in my opinion, compounded by the absence of any procedure requiring a judgment to be made by Disclosure Scotland as to the relevance of the conviction to the petitioner's prospective employment."

The conviction would be disclosed for the remainder of P's life due to the status given to lewd and libidinous conduct.

The first question for Lord Pentland was whether the mandatory disclosure requirement was "in accordance with the law" for Article 8 purposes, which the Supreme Court had explained in T (see above) means whether it offered sufficient protection against arbitrary interference with P's Article 8 rights, and sufficient safeguards to allow the proportionality of the interference with his rights to be fairly and adequately examined. Lord Pentland concluded that the scheme did not offer sufficient (if any) safeguards to allow for that examination, and so operated arbitrarily in P's case.

The "fundamental deficiency" in the system was that the information was generated automatically without P having any opportunity to challenge disclosure as disproportionate in the circumstances of his case, compounded by the absence of any procedure requiring Disclosure Scotland to exercise any judgment on the relevance of the conviction to the prospective employment (para 46). The proportionality of the interference with P's private life could not therefore be evaluated fairly and objectively. The system was too sweeping and indiscriminate, and in any event the offences in question were not serious enough to fall within the ambit of the policy intentions that had led to the inclusion of lewd and libidinous practices in the 'always disclosable' category of offences. The outcome in P's case was therefore arbitrary.

Although that conclusion was sufficient to uphold the challenge, Lord Pentland (at paras 59 to 61) went on to decide that it was in any event disproportionate to disclose the conviction. It was "misconceived" for the Scottish Government's arguments to focus on the system as a whole, instead of considering whether disclosure was appropriate in the petitioner's particular circumstances. On the latter approach the disclosure was disproportionate, in particular because no consideration had been given to:

  • whether the conviction had any rational connection to the aim of protecting vulnerable adults in a care home environment;
  • its relatively minor nature;
  • the fact that it had been handled through the Children's Hearing system rather than criminal prosecution;
  • the fact that the offence was committed when P was a child (and nothing remotely similar had occurred in the 27 years since);
  • the fact that, despite previous mental health issues, there was nothing to suggest that P was likely to engage in sexually inappropriate behaviour; and
  • P's general good character.

Lord Pentland gave short shrift (at para. 63) to the suggestion that the prospect of the Scottish Social Services Council (SSSC) - which regulates workers in the care sector - agreeing to register a worker notwithstanding a conviction was relevant to the issue. Employers would remain less likely to hire P because of the offence, even if the SSSC had registered him.

The (Potential) Fix

While noting that it is not for the court to devise a legally compliant scheme, Lord Pentland did observe that allowing for some degree of judgment or discretion, in cases like P's where the absence of any rational connection between the offence and the proposed employment, "need not be unduly expensive, time-consuming, or resource-intensive"(para. 57).

The Scheme could in any event be subject to a cut-off date whereby any convictions such as P's would not be automatically disclosed after the expiry of an appropriate period of time (or that could be limited to offences committed during the offender's childhood). There could also be an appeal process on whether a conviction was relevant to the particular proposed employment.

The Impact

Lord Pentland declared that, insofar as it required automatic disclosure of P's conviction, the provisions contained in the Remedial Order unlawfully and unjustifiably interfered with P's Article 8 rights, and so the Remedial Order itself was unlawful under section 57(2) of the Scotland Act 1998 (which prohibits the Scottish Government from making subordinate legislation which is incompatible with Convention rights).

It is not yet clear whether the decision will be appealed, but Lord Pentland noted other recent cases from England and Wales and from Northern Ireland that have found other Article 8 issues with the disclosure regimes there. It is therefore clear that the action taken following the Supreme Court's decision in T has not resolved the judiciary's concerns with the disclosure system. Further remedial action may therefore be necessary.

If the decision is not appealed, Lord Pentland will hear from the parties more fully on what they believe should happen next, including whether the effect of his decision should be suspended to give the Scottish Ministers an opportunity to consider whether to amend the PVG Scheme to resolve the identified defects. Any such efforts may focus on lewd and libidinous practices, given the Court's concerns that the wide scope of that offence makes automatic disclosure inappropriate, though the other recent cases show that various issues can arise. Careful thought will therefore be required.

In the meantime, this ruling may introduce delays into the disclosure process (there were reports that up to 3,000 people were affected when the Disclosure Scotland scheme was suspended following the Supreme Court's decision in T). Charities and others dependent on PVG clearances may therefore need to prepare for that. They will also need to be conscious that certain convictions may no longer appear on PVG certificates once these issues are resolved. As we noted when the Remedial Order was introduced, a significant delay in receiving a certificate may indicate the existence of a historic offence. Prospective employers should nevertheless be cautious about jumping to conclusions. Not least because section 4(3)(b) of the 1974 Act states that a spent conviction is not a proper ground for "dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment."