P (AP) AGAINST THE SCOTTISH MINISTERS
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 of work.
[19] The details of the procedure followed under the statutory scheme, as it applied in the petitioner’s case, were as follows.
[20] The petitioner applied to join the PVG Scheme in terms of section 45 of the 2007 Act and as part of that application made a disclosure of scheme record request under section 52 of the 2007 Act. A scheme record comprises a scheme member’s statement of scheme membership and vetting information about a scheme member (section 48 of the 2007 Act). A statement of scheme membership sets out the type of regulated work in relation to which an individual participates in the PVG Scheme, confirms that the individual is not barred from doing that work and states if consideration has been given to whether to list the individual (section 46 of the 2007 Act). Vetting information includes details of unspent convictions and cautions, spent convictions which are not “protected convictions” (as these are defined in section 126ZA of the Police Act 1997), sex offender notification requirements and other non-conviction information deemed relevant by police forces (section 49 of the 2007 Act).
[21] For the purposes of the scheme, “conviction” and “spent conviction” are defined by reference to the Rehabilitation of Offenders Act 1974 (“the 1974 Act”). Where a ground for the referral of a child’s case to a children’s hearing has been accepted or established, it is treated as a “conviction” under and in terms of section 3 of the 1974 Act; any disposal of the case is treated as a sentence.
[22] As I have already explained, the vetting information disclosed on the petitioner’s PVG scheme record referred to his appearance before a Children’s Hearing on 14 October 1987 for the offence of lewd and libidinous practices; it also referred to the disposal by way of a supervision requirement and to the termination of this order on 12 October 1988.
R(T) v Chief Constable of Greater Manchester Police
[23] At this stage it is convenient to refer to the Supreme Court’s decision in R(T) v Chief Constable of Greater Manchester Police and Others [2015] AC 49 (“T”), in which the Supreme Court considered the system of disclosure of criminal convictions and cautions in England and Wales. In its judgment, given on 18 June 2014, the Supreme Court held that the disclosure provisions in Part V of the Police Act 1997 relating to Criminal Records Certificates were incompatible with Article 8. The court ruled that the requirements in relation to blanket disclosure of all spent convictions were not in accordance with the law; it made a declaration that the provisions of sections 113A and 113B of the 1997 Act (as applicable in England and Wales) were incompatible with Article 8.
[24] The attack on the scheme in T was that it operated indiscriminately and that, while there were rules specifying the type of requests which should justify some disclosure, there were no rules identifying the entries which should then be disclosed (paragraph 41 per Lord Wilson JSC). The court sustained the challenge to the scheme. In paragraph 119 Lord Reed JSC said the following:
“In the light of the judgment in MM v United Kingdom, it is plain that the disclosure of the data relating to the respondents’ cautions is an interference with the right protected by Article 8(1) ... That judgment establishes, in my opinion persuasively, that the legislation fails to meet the requirement for disclosure to constitute an interference ‘in accordance with the law’. That is so, as the court explained in MM, because of the cumulative effect of the failure to draw any distinction on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought, and the absence of any mechanism for independent review of a decision to disclose data under section 113A”
The Remedial Orders
[25] Following the decision of the Supreme Court in T the Scottish Government came to the view that similar provisions in sections 113A and 113B of the Police Act 1997 (as applicable in Scotland) might also be incompatible with Article 8. It was also thought that this incompatibility might extend to provisions of the 2007 Act because the definition of “vetting information” to be included in a PVG Scheme Record relied in part on section 113A(3)(a) of the 1997 Act and thus all spent convictions had to be disclosed. The steps taken within the Scottish Government in order to develop a new policy in the light of T were explained in an affidavit provided to the court by Mr Gerard Hart, the Director of Policy and Protection Services of Disclosure Scotland. It is clear from Mr Hart’s affidavit that ministers and their officials devoted a good deal of consideration to the issues. The policy view ultimately arrived at was that a conviction for a criminal offence that resulted in serious harm to a person, or that represented a significant breach of trust and/or responsibility, or that demonstrated either exploitative or coercive behaviour, or that demonstrated dishonesty against an individual, or that abused a position of trust or displayed a degree of recklessness that resulted in harm or a substantial risk of harm all amounted to evidence that a person’s conduct had caused harm to an individual and/or was evidence of misconduct in a position of authority. The view taken was that such evidence of past behaviour was important information for prospective employers to have in determining whether a person was suitable for a role to which higher level disclosure applied.
[26] Mr Hart went on to explain in his affidavit that the new policy was based on a filtering-in approach. This entailed the drawing up of two lists of offences after careful consideration had been given to the attributes required for people doing regulated work with children or protected adults; these came to be known as the Schedule 8A and the Schedule 8B lists for reasons I will shortly explain. In developing the lists, regard was had to the lists of offences which are always disclosed by the Disclosure and Barring Service in England and Wales. In the English and Welsh system there will always be disclosure where a person has two criminal convictions, regardless of their nature and age. The Scottish Government did not want to follow this model. Instead, it decided to draw a bright line around a list of what it classified as serious offences on the basis of the policy rationale I have already explained. Reliance was placed upon the list of violent and sexual offences provided for in section 210A(10) of the Criminal Procedure (Scotland) Act 1995 (the power to impose extended sentences), to the Schedule 1 relevant offences in respect of the Protection of Vulnerable Groups (Scotland) Act 2007 (which, upon conviction, lead to a court referral and consideration for listing); and to the automatic listing offences set out in the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010 (SSI 2010/241). Consideration was also given to the ISCJIS (Integration of Scottish Criminal Justice Information Systems) codes as well as the classifications of “serious” and “otherwise” used in categorising official statistics.
[27] The work done by the Scottish Government led to the Scottish Ministers making a remedial order under the urgent procedure provided for by the Convention Rights Compliance (Scotland) Act 2001. The first remedial order came into force on 10 September 2015. There was then a 60-day period of statutory public consultation. Thereafter, the Scottish Ministers made a slightly revised remedial order. This was the Police Act 1997 and Protection of Vulnerable Groups (Scotland) Act 1997 Remedial (No 2) Order 2015 (SSI 2015/423); it was considered by two committees of the Scottish Parliament, the Delegated Powers and Law Reform Committee and the Education Committee. The revised remedial order came into force on 8 February 2016; it revoked the first order.
[28] The effects of the revised remedial order may be summarised as follows. The definition of “vetting information” to be included in a PVG Scheme Record continues to rely in part on section 113A(3)(a) of the 1997 Act, but the definition of every “relevant matter” relating to the scheme member which is recorded in central records has been changed in terms of section 113A(6) of the 1997 Act. This introduces the concept of a “protected conviction” as defined in section 126ZA of the 1997 Act. The main effects are these:
(i) Unspent convictions will always be disclosed.
(ii) Certain spent convictions will always be disclosed. These are the convictions listed in Schedule 8A to the 1997 Act.
(iii) Certain spent convictions will no longer be disclosed (“protected convictions”). These are spent convictions for offences which are neither listed in Schedule 8A nor in Schedule 8B to the 1997 Act. They are also the spent convictions for offences which are listed in Schedule 8B and in relation to which either (i) the disposal in respect of the offence was an admonition or an absolute discharge or (ii) the person was aged under 18 on the date of conviction and at least 7 years and 6 months have passed since the date of conviction or (iii) the person was aged 18 or over on the date of conviction and at least 15 years have passed since the date of conviction.
(iv) Certain spent convictions might not be disclosed. These are convictions for offences listed in Schedule 8B to the 1997 Act which have not yet become “protected convictions”. In terms of section 52A of the 2007 Act an individual may apply to the sheriff for an order requiring the Scottish Ministers to remove from the PVG Scheme Record vetting information about such convictions. The sheriff must allow the application if satisfied that the vetting information is not relevant in relation to a type of regulated work in relation to which the scheme member participates in the PVG scheme. There is no disclosure of the PVG Scheme Record until the application to the sheriff is determined.
[29] The definition of vetting information continues to include sex offender notification requirements (section 49(1)(b)). It also includes information which the chief officer of a relevant police force reasonably believes to be relevant in relation to the type of regulated work in relation to which the scheme member participates in the PVG Scheme and in his or her opinion ought to be included (section 49(1)(c)). Provision for review of any information included in a scheme record by virtue of section 49(1)(c) is made by section 51(4).
[30] Insofar as it applies to the petitioner’s case, the 2007 Act (as amended) requires disclosure of the petitioner’s “conviction” before the Children’s Hearing because in terms of section 49(1)(a) of the 2007 Act it is information referred to in section 113A(3)(a) of the 1997 Act, as amended. It is a “relevant matter” relating to the petitioner because it is not a “protected conviction” as defined in section 126ZA of the 1997 Act, as amended. It is not a protected conviction because it is a conviction for an offence listed in Schedule 8A to the 2007 Act. Lewd and libidinous practices fall within the definition in section 210A(10)(vi) of the Criminal Procedure (Scotland) Act 1995 and the offence is, therefore, brought within the scope of paragraph 42 of Schedule 8A.
[31] It can thus be seen that under the amended version of the statutory scheme there was no discretion available to Disclosure Scotland staff to exclude the petitioner’s conviction from the vetting information contained in the PVG Scheme Record issued to him. Disclosure of the conviction information was automatic in his case. There was no procedure by which the petitioner could make representations to Disclosure Scotland inviting them to exclude the conviction information; he had no right of appeal (administratively or to a court) against inclusion of the conviction information. The petitioner’s solicitors attempted to persuade Disclosure Scotland that the conviction information should be removed from his PVG Scheme Record; they were told (correctly) that there was no power that would allow Disclosure Scotland to do so.
The Crime of Lewd, Indecent and Libidinous Practices
[32] It will assist if I now explain the nature of the offence of lewd, indecent and libidinous practices in Scots law.
[33] Since the case of McKenzie v Whyte (1864) 4 Irv 570 the offence of lewd, indecent and libidinous practices has been classified as a crime against an individual victim. In Webster v Dominick 2005 1 JC 65 the Lord Justice Clerk (Gill) stated (at paragraph 49):
“In the modern law, where indecent conduct is directed against a specific victim who is within the class of persons whom the law protects, the crime is that of lewd, indecent and libidinous practices. It may be committed by indecent physical contact with the victim, but it need not. It may be committed by the taking of indecent photographs of the victim ... or by indecent exposure to the victim ... or by the showing of indecent photographs or videos to the victim. It may be committed, in my opinion, by means of a lewd conversation with the victim, whether face to face or by a telephone call or through an internet chat-room. In each case the essence of the offence is the tendency of the conduct to corrupt the innocence of the complainer”
[34] Professor Gordon states that it is a crime at common law to indulge in indecent practices towards children under the age of puberty with or without their consent; the crime is known as “lewd, indecent and libidinous practices and behaviour” (Gordon, “The Criminal Law of Scotland”, 3rd Christie ed, vol 2, paragraph 36.09).
[35] From these definitions it is clear that the offence of lewd and libidinous practices is classified as a crime against an individual victim who is a child under the age of puberty. Applying the accepted definition of the crime to the circumstances of the petitioner’s case, it is not easy to understand how his conduct in masturbating in the bush could properly have constituted the offence of lewd and libidinous practices since there was no victim of that aspect of the petitioner’s behaviour. So, it was presumably the indecent exposure to his younger sister in the family home that brought the petitioner’s conduct within the scope of the crime.
The Petitioner’s Arguments
[36] 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. It was accepted that the present scheme had fewer of the flaws identified in T, but it still did not meet the standard required. The amended legislation was said to be remarkably broad. As examples, counsel pointed out that the Schedule 8A list included at paragraph 58: “An offence, the conviction for which indicates that it was committed against a child”; and at paragraph 59: “An offence, the conviction for which indicates that it included a sexual element”.
[37] It was submitted that any interference with the petitioner’s Convention rights had to be individually justified; reference was made to Dickson v United Kingdom (2008) 46 EHRR 41, paragraphs 68, 81, 82, 84 and 85; Vinter v United Kingdom (2016) 63 EHRR 1, paragraphs 111-115; and Christian Institute v Lord Advocate 2016 SLT 805, paragraph 80.
[38] 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. There were said to be a number of factors pointing to a lack of proportionality: the offence was trivial and had been dealt with at a Children’s Hearing; it was committed very many years ago when the petitioner was a child; despite his previous mental health issues, there was nothing to suggest that the petitioner was likely to engage in sexually inappropriate behaviour; with the exception of the minor conviction for theft when he was 22 the petitioner had not been in any further trouble; and the offence was not relevant to work in a care home.
The Respondents’ Arguments
[39] For the respondents it was submitted that the list of offences in Schedule 8A included offences which because of their nature should always be disclosed as the passage of time would not diminish their relevance for a potential employer. The less serious nature of the offences in Schedule 8B was such that the disposal in the case or the passage of time, coupled with the age of the offender at the time made them become less relevant. Counsel for the respondents observed that persons engaged in regulated work are in positions of authority, power or responsibility in relation to children or vulnerable adults. A conviction for a criminal offence that resulted in serious harm to a person, or that represented a significant breach of trust and/or responsibility, or that demonstrated either exploitative or coercive behaviour, or demonstrated dishonesty against an individual, or abused a position of trust or displayed a degree of recklessness that resulted in harm or a substantial risk of harm, is evidence that a person’s conduct has caused harm to an individual and/or is evidence of misconduct in a position of authority.
[40] Counsel went on to submit that the offence of lewd and libidinous practices constituted indecent conduct against a specific victim within a class of persons whom the law protects. It was a serious offence demonstrating exploitative or coercive behaviour and, as such, it would always be relevant for a prospective employer to be aware of such conduct. I was informed that it was an offence that would always be disclosed under the disclosure schemes operated in England and Wales.
[41] The respondents argued that prospective employers of persons intending to work with children or vulnerable adults should be encouraged to exercise a higher level of scrutiny than would normally be considered necessary and appropriate; the objective was to protect the public. Once the information had been disclosed, it was for the prospective employer to assess its significance.
[42] Counsel for the respondents submitted that the concerns expressed by the Supreme Court in T had been adequately addressed by the amendments introduced by the revised remedial order. Careful consideration had been given to the nature of the offences included in Schedules 8A and 8B when the Schedules were drawn up. Likewise, the relevance of conviction for the offences included in Schedules 8A and 8B for an individual carrying out regulated work with children or protected adults had also been addressed at that stage. The disposal in the case, the offender’s age at the date of conviction and the time elapsed since the offence are all taken into account in the definition of “protected convictions”. The relevance of a conviction for an offence listed in Schedule 8B in relation to a particular type of regulated work could be considered by the sheriff where an application for review is made in relation to offences which are not yet protected.
[43] The type of individualised, discretionary system desiderated by the petitioner would, according to the respondents, be unworkable given the number of PVG scheme record requests made to Disclosure Scotland. Reliance was placed on Mr Hart’s explanation in his affidavit that there are about 300,000 PVG applications each year. Disclosure Scotland work on the basis of a 4 to 5-day turnaround. They operate an IT driven process with manual intervention. Mr Hart said that it would be impractical to exercise discretion as to what should be disclosed in relation to an individual. Disclosure Scotland would not have sufficient information to enable them to exercise individual judgment. As he put it: “there are far too many applicants and too little is known about them to administer an individualised, discretion based system.”
[44] In summary, counsel for the respondents submitted that the legislation governing the disclosure of the petitioner’s conviction satisfies the requirements for the disclosure to constitute an interference “in accordance with the law” as it contains adequate safeguards against arbitrary interference with Article 8 rights (T, paragraphs 13 and 114). Disclosure of spent convictions for Schedule 8A offences, including convictions for lewd and libidinous practices, was said to be necessary for the protection of the safety of vulnerable adults and children. Counsel submitted that in this respect the national authorities are permitted a margin of appreciation in recognition of the fact that they are often in the best position to determine the necessity for the interference (T, paragraph 114). In determining the circumstances in which a spent conviction is disclosed, a fair balance had been struck between public protection and an individual’s right to respect for his or her private life.
Analysis
[45] The first question I have to consider is whether the mandatory requirement for disclosure of the petitioner’s deemed conviction before the Children’s Hearing on 14 October 1987 when he was 14 years old is “in accordance with the law”, as that expression is to be understood in the context of the jurisprudence on Article 8 of the Convention. That approach, as the majority of the justices in the Supreme Court explained in T, requires the court to consider whether the disclosure scheme, as it operated in the petitioner’s case, provided him with sufficient protection against arbitrary interference with his Article 8 rights and with sufficient safeguards to allow the proportionality of the admitted interference with his rights under Article 8 to be fairly and adequately examined. 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.
[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. It is clear that, in its application to the petitioner’s case, the system operated on the basis of the principle that any conviction (including a deemed one before the Children’s Hearing) for the offence of lewd and libidinous practices justified automatic disclosure. The argument for the respondents was that this is a sound principle (or at least one to which the court should defer) because any conviction for the offence of lewd and libidinous practices, whenever and in whatever circumstances it occurred, is by its nature of sufficient gravity to exclude any need for individual assessment as to whether it should be disclosed. It was said on behalf of the respondents that any such conviction inevitably raised a real and substantial concern about the offender’s suitability to work with vulnerable adults. This was because the offence, or so the respondents argued, is constituted by indecent conduct directed against a class of persons whom the law protects, namely children under the age of puberty.
[47] In my opinion, this approach is too sweeping and indiscriminate. The offence of lewd and libidinous practices is capable of extending to a wide spectrum of behaviour; at one end of this spectrum it may involve relatively minor sexual misconduct; at the other it may entail serious sexual abuse of young children. In my opinion, it cannot realistically be said that every such offence necessarily signifies lifelong dangerousness to the extent that indefinite disclosure is justified. The circumstances leading to the petitioner’s deemed conviction appear to have involved an element of adolescent sexual experimentation in the form of masturbation and a single incident of indecent exposure to his younger sister in the family home. There is no evidence that she suffered any lasting harm because of this conduct. The offence was committed when the petitioner was a child and he has never done anything remotely similar over the next 27 years. The relatively minor nature of the conduct giving rise to the deemed offence, the fact that the petitioner was a child at the time of its commission, the fact that his case was dealt with by the Children’s Hearing and not through the court system, and the lack of any repetition of sexual misconduct for more than a quarter of a century all seem to me to be highly relevant considerations when it comes to assessing whether it is now proportionate to disclose the deemed conviction. Yet despite the cogency of these factors (especially when viewed cumulatively), the respondents’ system does not allow for them to be considered at all at the stage of deciding whether to disclose the conviction. There is simply no mechanism for testing the proportionality of the interference with Article 8 rights in the light of the individual circumstances of the petitioner’s case.
[48] Counsel for the respondents relied on the policy justification for inclusion of the offence of lewd and libidinous practices in the Schedule 8A list and urged me to extend a substantial measure of deference towards that policy on the ground that it had been the subject of close consideration by the Scottish Government and had been put before the Scottish Parliament. It will be recalled that the policy view underlying the scheme was that conviction for a criminal offence that resulted in serious harm to a person, or that represented a significant breach of trust and/or responsibility, or that demonstrated either exploitative or coercive behaviour, or that demonstrated dishonesty against an individual, or that abused a position of trust or displayed a degree of recklessness that resulted in harm or a substantial risk of harm all amounted to evidence that a person’s conduct had caused harm to an individual and/or was evidence of misconduct in a position of authority. When one applies these considerations to the facts of the petitioner’s case, it can be seen that his deemed conviction is not truly one that falls within the ambit of the policy. There is no evidence that his conduct in masturbating on his own or in exposing himself to his younger sister in the family home on one occasion resulted in serious harm to another person; in view of the petitioner’s youth at the material time, it can hardly be said that his conduct amounted to a serious breach of trust or responsibility; his behaviour cannot realistically be characterised as having been exploitative, coercive, dishonest or reckless; and there is no evidence that his behaviour gave rise to a substantial risk of harm. For these reasons, I consider that disclosure in the petitioner’s case was not in fact justified by the policy. In the circumstances, the proposition that the court should extend deference to the policy is not, to my mind, an attractive one.
[49] There is a further difficulty with the respondents’ argument urging deference. It is now clear that when one is considering whether the admitted interference with the petitioner’s Article 8 rights in the present case was in accordance with the law, the concept of a margin of appreciation does not have any part to play. As Lord Reed JSC said in T at paragraph 115:
“Whether a system provides adequate safeguards against arbitrary treatment, and is therefore ‘in accordance with the law’ within the meaning of the Convention, is not a question of proportionality, and is therefore not a matter in relation to which the court allows national authorities a margin of appreciation.”
[50] In R (P) v Justice Secretary [2016] 1 WLR 2009 a Divisional Court (constituted by McCombe LJ and Carr J) held that provisions in Part 5 of the Police Act 1997, as amended, mandating disclosure of all criminal convictions when there was more than one conviction on an offender’s record were not “in accordance with the law” for the purposes of Article 8(2). At paragraph 84 of his judgment McCombe LJ explained that the effect of the Supreme Court’s approach in T represented an important development in our understanding of the requirement for an interference with Article 8 rights to be “in accordance with the law”. His Lordship continued as follows:
“85 As I understand it, the question must now be whether the present statute affords the individual adequate protection against arbitrariness, but also, in order for an interference with article 8 rights to be ‘in accordance with the law’ there must be adequate safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. As Lord Reed JSC put it in the T case, at para 144:
‘This issue may appear to overlap with the question whether the interference is “necessary in a democratic society”: a question which requires an assessment of the proportionality of the interference. These two issues are indeed interlinked…’”
[51] In paragraph 87 McCombe LJ continued as follows:
“…when the rules are capable of producing such questionable results, on their margins, there ought (as it seems to me) to be some machinery for testing the proportionality of the interference if the scheme is to be ‘in accordance with the law’ under the wider understanding of that concept that emerges from the T case… following the MM case…”
[52] At paragraph 88 of his judgment, McCombe LJ said this:
“If, as I now think, the present scheme, as represented by the 1997 Act at least, is not in accordance with the law, within the meaning of article 8.2, then (as Lord Reed JSC explained) the state’s ‘margin of appreciation’ falls away. The deference that a judge would always feel towards a scheme expressly sanctioned by Parliament cannot be engaged in this case. Equally, therefore, it seems to me, that questions of administrative convenience which trouble the defendants so much can have no operative place in assessing the lawfulness of the interference with Convention rights. For my part, in any event, I am far from convinced that a review scheme would be unworkable, in some cases ad hoc related to a specific application for a certificate or more generally after the lapse of suitable time, with a time bar to a further application for review after an unsuccessful attempt.”
[53] I note that the Court of Appeal in Northern Ireland in Gallagher’s (Lorraine) Application (Judicial Review) [2016] NICA 42 adopted the same approach in holding that the equivalent legislation in that jurisdiction, which required indefinite disclosure where there was more than one conviction, was not “in accordance with the law”. Gillen LJ in giving the judgment of the court, said this:
“[68] We have come to the conclusion that such a provision is not in accordance with the law for the following reasons. First, it is important to appreciate that ‘in accordance with the law’ does not merely refer back to domestic law but also relates to the quality of law, requiring it to be compatible with the rule of law. Hence there must be a measure of legal protection against arbitrary interference with Article 8 rights. We do not consider that there are any or adequate safeguards with this provision which would have the effect of enabling the proportionality of the interference to be adequately examined.
[69] In particular there is no system:
- to review the keeping of the records of the convictions indefinitely and for their disclosure,
- to carry out a rational risk assessment of the need for disclosure,
- to relate the relevance of the convictions to any proposed job.
[70] In short, this legislation failed to draw any distinction on the basis of the nature of the offences, the terms of the disposal of the cases, the time that had elapsed since the offences had taken place or, importantly, their relevance to the employment sought. The cumulative effect of these omissions together with the absence of any mechanism for independent review effectively excluded such safeguards.”
[54] In R (on the application of G) v Chief Constable of Surrey Police & others [2016] EWHC 295 (Admin) Blake J applied the approach of the majority of the Supreme Court in T and that of the Divisional Court in P in finding that amended provisions in the Police Act 1997 requiring indefinite disclosure of reprimands and cautions for offences of sexual activity with a child, which were issued to the claimant at a time when he was himself a child, were not “in accordance with the law” for the purposes of Article 8(2). Blake J summarised the circumstances of the case as follows in paragraph 37:
“What (the claimant) does dispute is the justification for and proportionality of the statutory scheme that seriously interferes with the private life of a young adult who for the rest of his life will face the serious disadvantage of disclosure of these reprimands when seeking future employment. It is apparent from the statistics that increasing numbers of employers, academic institutions and others require enhanced disclosure certificates for one reason or another. The reprimand was issued to him shortly after his 13th birthday for conduct committed aged 12. Despite the label attached to the offences, this was not exploitation or abuse of young children, but sexual experiments between members of the same peer group, that can and should be seen as part of the process of growing up and nothing more sinister than that. Despite this, he will bear the reprimand indefinitely as a mark of Cain and with no ability to demonstrate that its disclosure is irrelevant and unnecessary in the light of who he is now.”
[55] In the submissions before me brief reference was made to a judgment of Simon J (as he then was) in R (on the application of W) v Secretary of State for Justice [2015] EWHC 1952 (Admin). In that case Simon J held that mandatory disclosure under Part V of the Police Act 1997, as amended, of a historical conviction for an offence of assault occasioning actual bodily harm was not a disproportionate interference with the claimant’s Article 8(2) rights. I note, however, that the case did not involve a challenge to the lawfulness of the applicable statutory regime; it turned only on the issue of proportionality.
[56] 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.
[57] I would add that I am not, in any event, convinced by the respondents’ arguments on the alleged impracticability of designing a system which allows for a more nuanced approach to be taken towards disclosure of information on historical convictions for offences such as the one with which the present case is concerned. It is not, of course, for the court to devise what it considers to be a scheme providing for sufficient safeguards; that is a matter for the executive and the legislature. I would, however, make the following observations. A scheme that allows for some degree of judgment or discretion to be exercised in a case such as the petitioner’s need not be unduly expensive, time-consuming, or resource-intensive. The core facts of the petitioner’s case were in short compass. No elaborate investigation would have been necessary. I would have thought that the absence of any rational connection between the deemed conviction and the petitioner’s proposed employment would have been obvious upon consideration of the basic facts by a trained administrator. There are other possible ways in which some greater element of flexibility might be built into the scheme as it applies to the type of conviction which the present case involves. For example, provision could be made for a cut-off date for automatic disclosure of convictions such as the petitioner’s after the expiry of an appropriate length of time following the conviction; or there could be derogation from automatic disclosure where the offence was committed during the offender’s childhood and a suitable period has elapsed since then. Another possibility would be to make provision for an application to be presented to the sheriff or by way of an administrative appeal process for a finding that the conviction was not relevant in the context of the proposed employment. None of these possible solutions appears to me to be necessarily impracticable, as can be seen from the approach taken in the case of the Schedule B convictions. I acknowledge that the line has to be drawn somewhere, but ultimately that is no answer to the point that the inclusion of the offence of lewd and libidinous practices in the Schedule 8A list means that no account can be taken of the many cogent factors in favour of non-disclosure that seem to me to arise in the circumstances of the present case.
[58] In conclusion on this branch of the case, I find that, as it operated in the petitioner’s case, the statutory scheme was not “in accordance with the law” in terms of Article 8. It follows that the disclosure of the conviction information violated the petitioner’s human rights.
[59] Having reached that conclusion, it is strictly not necessary for me to go on to address whether the admitted interference with the petitioner’s Article 8 rights was necessary in a democratic society in the interests of public safety; in other words, whether the interference was proportionate. In deference to the submissions advanced, I shall, however, briefly express my views on the issue.
[60] The respondents’ arguments on this branch of the case were largely based on the proposition that, when viewed in its totality, the amended disclosure system introduced by the revised remedial order amounted to a reasonable balancing of the competing interests. This was said to be illustrated by the fact that there were different approaches taken towards the offences listed in Schedule 8B as compared to those contained in Schedule 8A. For example, in the case of a Schedule 8B offence there was the option of an application being made to the sheriff. The disposal in the case, the age at the date of conviction and the time elapsed since the offence were all matters that were taken into account in the definition of a “protected conviction”.
[61] In my opinion, the respondents’ focus on the system as a whole is misconceived. The right approach is to consider whether disclosure of the conviction information in the particular circumstances of the petitioner’s case was proportionate. When the issue is framed in that way, it seems to me that disclosure was disproportionate. I say this largely for the reasons advanced by counsel for the petitioner. 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.
Other Matters
[62] For completeness, I should mention that there was some discussion at the first hearing about the role of the Scottish Social Services Council (“SSSC”) in regard to the regulation of workers in the care sector. At my request, parties provided a short note after the hearing in which they addressed this. In summary, a social service worker, which includes anyone involved in caring for or supporting adults in a care home, must apply for registration with the SSSC within six months of commencing employment. The SSSC has the power to decide whether a conviction is relevant to the applicant’s role in the care home and may refer the matter to an independent panel for decision. In practice, such a referral would be mandatory in the case of an applicant with a conviction for the offence of lewd and libidinous practices. There is a right to appeal to the sheriff against a decision to refuse an application for registration.
[63] In my view, the role of the SSSC has no relevance to the issues raised in the present case, the focus of which is on whether disclosure of the conviction information by Disclosure Scotland infringed the petitioner’s rights under Article 8. I do not consider that any decision that might possibly be taken by the SSSC has any bearing on that question. In this connection, the observations made by Lord Wilson JSC in T at paragraph 45 are, with respect, pertinent. His Lordship observed that in these days of keen competition and defensive decision-making a candidate with a clean record is very likely to be ranked by any prospective employer ahead of one without such a record. An applicant for employment with a “negative” PVG scheme record will inevitably be at a significant disadvantage when it comes to finding work in the care sector. The possibility that he or she might nonetheless succeed in securing registration with the SSSC does not, as it seems to me, detract from that reality. So, wrongful and unjustified disclosure cannot be said to be saved or somehow put right by the theoretical possibility that the conviction will be disregarded by a prospective employer or by the SSSC in its role as the statutory regulator.
[64] The petitioner sought an order under section 11 of the Contempt of Court Act 1981 preventing the publication of his name and address or any image of him or any other information likely to result in his identification. The making of such an order is obviously appropriate in view of the sensitive nature of the conviction information. Counsel for the respondents did not oppose the application for such an order. In the circumstances, I shall make an order under section 11 of the 1981 Act in the terms sought by the petitioner.
Conclusion
[65] For the reasons I have given in this opinion, I conclude that the petitioner’s challenge is well-founded. The automatic disclosure of the conviction information constituted, in my judgment, an unlawful and unjustifiable interference with his rights under Article 8 of the European Convention on Human Rights. To give effect to this finding, I would be minded to make an order declaring that, insofar as they require automatic disclosure of the petitioner’s conviction before the Children’s Hearing, the provisions contained in the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial (No. 2) Order unlawfully and unjustifiably interfered with the petitioner’s rights under and in terms of Article 8 and that the Scottish Ministers did not, to that extent, have power to make the provisions (section 57(2) of the Scotland Act 1998). I shall put the case out by order so that I can be addressed more fully by parties on the question of remedy, on the precise formulation of the appropriate decree and on whether and, if so on what terms, it might be appropriate for the court to make an order suspending the effect of my decision under section 102(2) of the Scotland Act 1998 to allow the respondents the opportunity to consider whether they wish to make any changes to the statutory scheme in the light of the defects I have identified in it. It would assist if parties could lodge short written notes before the by order hearing setting out their submissions on these issues.
[66] I shall reserve all questions as to expenses.