P (ap) Against The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Pentland |
| Neutral Citation | [2017] CSOH 33 |
| Date | 28 February 2017 |
| Published date | 28 February 2017 |
| Docket Number | P863/16 |
| Court | Court of Session |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 33
P863/16
OPINION OF LORD PENTLAND
In the cause
P (AP)
Petitioner
against
THE SCOTTISH MINISTERS
Respondents
Petitioner: Leighton; Drummond Miller LLP
Respondents: Charteris; Scottish Government Legal Directorate
28 February 2017
Introduction
[1] This petition for judicial review, which came before me for a substantive first hearing, challenges 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 what is known as “regulated work”; such work involves working with children or vulnerable adults, for example as a care worker in a nursing home. The petitioner avers that he wanted to obtain such employment, but was unable to do so because of the disclosure of a historical criminal conviction. The conviction was for an offence committed when the petitioner was a child; he was not prosecuted in the court system; instead his case was dealt with at a Children’s Hearing.
[2] As recent case law has shown, any system of this type is likely to bring to the surface tensions between a number of legitimate aims; such aims include the protection of vulnerable persons from avoidable danger to their health, safety and welfare; the desirability of rehabilitating offenders; and protection of a past offender’s private life from disproportionate scrutiny. Striking the right balance between such potentially conflicting aims is by no means an easy task for those public authorities charged with the responsibility of designing an appropriate scheme governing the disclosure of criminal convictions and other information bearing on potential risk.
[3] The present case has arisen in the following way. On 8 October 2015 Disclosure Scotland, acting under and in terms of section 52 of the Protection of Vulnerable Groups (Scotland) Act 2007 (“the 2007 Act”), issued to the petitioner, in response to an application by him, a document known as a PVG Scheme Record. The document, which was marked as being strictly private and confidential, contained a section headed: “Vetting Information”; just beneath this there was a subheading reading: “Convictions and Alternatives to Prosecution”. In this part of the document it was disclosed that on 14 October 1987 – very nearly 28 years earlier - at a Children’s Hearing in Hamilton, the petitioner had been made subject to a supervision requirement for the offence of lewd and libidinous practices. For convenience, I shall refer to this information as “the conviction information”. As I shall explain more fully later, Disclosure Scotland had no discretion as to whether to disclose the conviction information. Under the applicable statutory scheme they were obliged to do so.
[4] In this petition for judicial review the petitioner contends 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. He seeks declarator to the effect that the relevant legislation is unlawful insofar as it requires the automatic disclosure of the conviction information (paragraph (4) of Statement IV of the petition). The petitioner originally sought certain other forms of relief, but ultimately none of these was insisted in at the first hearing.
[5] 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.
The Scope of the Dispute
[6] The respondents accept that the petitioner’s Article 8 rights are engaged by the disclosure of the conviction information on his PVG Scheme Record. They also accept that such disclosure amounts to an interference with the petitioner’s Article 8 rights, although they say that the interference is lawful and proportionate.
[7] For his part, the petitioner concedes that there was a legitimate aim behind the disclosure of the conviction information in the present case, namely the protection of vulnerable adults.
[8] Accordingly, the issues for determination in the case resolve into whether the disclosure of the conviction information was justified as being in accordance with the law and necessary in a democratic society for the protection of the safety of vulnerable adults and children.
The Disclosure System and the Protection of Vulnerable Groups
[9] At this point it will assist if I summarise the basic features of the current system governing the disclosure of criminal convictions in respect of persons wishing to be employed in regulated work.
[10] In Scotland, the issuing of certificates disclosing details of a person’s criminal convictions, and other vetting information, is devolved to the Scottish Ministers and exercised through an executive agency of the Scottish Government known as Disclosure Scotland.
[11] There are different types of disclosure – Basic, Standard, Enhanced, Enhanced with Lists check, PVG Scheme Record and PVG Scheme Membership Statement. Depending on the type of disclosure applied for, the information disclosed could include details of unspent convictions and cautions, relevant spent convictions, information about a person’s inclusion on children’s or adults’ lists, sex offenders’ notification requirements and other relevant information held by a local police force or government body.
[12] For “regulated work” with children or protected adults (as defined in section 91 of and Schedules 2 and 3 to the 2007 Act) the PVG Scheme Record is the appropriate type of check to be requested by a prospective employer. The PVG Scheme is a scheme under which information about individuals who do, or wish to do, regulated work with children or protected adults is collated and disclosed (section 44 of the 2007 Act).
The Petitioner and his Appearance before the Children’s Hearing
[13] The petitioner was born on 19 April 1973. He is a single man, who lives with his sister; she has a learning disability and the petitioner is her main carer. The petitioner avers in his petition for judicial review that in October 1987, when he was aged 14, he obtained some pornographic magazines. He says that he took the magazines to a bush. The petitioner’s averments in the petition (as finally adjusted) continue as follows:
“The petitioner masturbated in the bush with the magazines. On a separate occasion the petitioner exposed himself indecently in the presence of his younger sister.”
[14] In an affidavit lodged in support of his case, the petitioner amplifies these averments slightly. He says that one of the incidents had been in a bush when a police officer saw him and the second had been when he exposed himself to his sister in the family home. Following these incidents, the petitioner was referred to a Children’s Hearing. This took place at Hamilton on 14 October, 1987. In his affidavit the petitioner says that he is unable to remember “too much about what happened at the hearing”. It is, however, clear that the panel imposed a supervision requirement on the petitioner. A year later the supervision requirement was terminated.
[15] The petitioner explains in his affidavit that after his appearance at the Children’s Hearing he received support and counselling from social workers; this would have been provided under and in terms of the supervision requirement imposed at the hearing. According to his affidavit, the petitioner then came to realise and accept that what he had done was wrong. He never repeated that type of behaviour. He makes the point that he was a 14-year-old boy at the time; he thinks that he was just a bit confused sexually. Since then the petitioner has not been in any trouble with the law except for a single conviction for theft by shoplifting when he was aged 22. He says that he was drunk and stole two bottles of wine. Thereafter, the petitioner says, he stopped hanging around with the wrong people and tried to change his ways.
[16] For the purposes of the present proceedings, the respondents have attempted to carry out investigations into the circumstances giving rise to the petitioner’s referral to the Children’s Hearing. They contacted the police and the local authority, but it has not been possible to trace any details relating to this matter.
The Petitioner’s Application for a PVG Scheme Record
[17] In 1999 the petitioner was diagnosed with schizophrenia. He received continuing mental health intervention until he was discharged in 2011. He continues to have check-ups. The petitioner explains in his affidavit that about 11 years ago he became a client of an organisation known as Clydesdale Community Initiative. This group supports people in the Lanark area with illness or disability. The petitioner sought the support of the group because of his mental health diagnosis; he thought they might be in a position to assist him. [18] With the support of Clydesdale Community Initiative, the petitioner obtained a college qualification at SVQ level 3 in social care in 2015. He then applied to work as a care assistant in a care home in Stonehouse. The petitioner says in his affidavit that he “got the job as long as my Disclosure Scotland certificate came back”. He goes on to explain that he was given a start date, but was contacted by the manager of the nursing home around the time he was meant to begin work. He was told that his Disclosure Scotland certificate had shown that he had been convicted of the crime of lewd and libidinous practices. 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 for ever from his chosen line...
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R P v The Secretary of State for the Home Department and Another
...has a right to apply to a sheriff to have that conviction removed from their certificate. 31 This scheme fell for consideration in P (AP) v Scottish Ministers [2017] CSOH 33 which concerned a challenge by a 42 year old male who wished to work in the care sector but who, as a 14 year old boy......