A conviction for any offence, particularly a sexual offence, can have extremely serious consequences when it comes to applying for jobs. Both Scotland and England and Wales operate systems of disclosure where certain previous convictions have to be disclosed when applying to work with vulnerable groups.  In Scotland, the relevant scheme is known as the Protection of Vulnerable Groups Scheme and is operated by Disclosure Scotland.

A case in point: P (AP) v The Scottish Minsters

In a recent judicial review case before the Scottish Court of Session, the compatibility of disclosure with human rights law was examined.

In that case, a man had applied for a job working as a carer.  28 years previously, at a Children's Hearing, he had been made subject to a supervision requirement for the offence of lewd and libidinous practices (for ease of reference, this supervision requirement is referred to as a conviction within this blog).  Aged 14, he had been found masturbating in public and he had separately exposed himself indecently in the presence of his younger sister.  When he applied for the position as a care worker, this conviction was disclosed and he was unable to take up employment.

By way of background, the crime of lewd, indecent and libidinous practices in Scots law is a crime against an individual victim, which can be committed in several ways, for example by indecent physical contact with the victim, by indecent exposure or by showing indecent photographs to the victim.  In short, the essence of the offence has been summed up as the ‘tendency of the conduct to corrupt the innocence of the complainer.’  There was some discussion in this judicial review about whether the individual’s actions had actually amounted to the crime.  For example, masturbating in public did not have an individual victim and so would not fall within the relevant definition of the crime.  While the present case did not hinge on this matter, this point does illustrate the importance of having high quality representation throughout an investigation, as there may never have been any supervision requirement made at all if high-quality defence had been available from the outset.

The individual in this case took a judicial review to the Court of Session, arguing that his rights under Article 8 of the European Convention on Human Rights had been breached.  Article 8 provides that everyone has the right to a private and family life and he argued that the automatic disclosure of his conviction interfered with this right/ 

The Scottish Government argued that the offence was serious and relevant to the work he sought to undertake.  Equally, it was noted that the offence would also be disclosed under the system in England and Wales.  They argued that automatic disclosure was necessary to protect the public.

However, the Court found that the disclosure of the conviction was in fact unlawful.  The Court held that the ‘automatic disclosure of the conviction information constituted an unlawful and unjustifiable interference with his rights under Article 8.’  The Court stated that the scheme did not provide safeguards to allow the proportionality of the interference with his article 8 rights to be evaluated fairly and objectively. 

The Court found that the system was fundamentally deficient as it disclosed this information automatically.  The individual had no opportunity to challenge the disclosure or explain the circumstances and context around the conviction. 

It was also significant that there was no procedure requiring Disclosure to Scotland to decide whether the conviction itself was relevant.  The assumption was that any conviction for lewd and libidinous practices should automatically be disclosed.  In short, there was no need for individual assessment because any offence of lewd and libidinous practices, regardless of context or passage of time, was so serious that it had to be disclosed.  The Court found this approach to be unacceptable, stating that it was 'too sweeping and indiscriminate.'

The Court emphasized that ‘the offence of lewd and libidinous practices is capable of extending to a wide spectrum of behavior; 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... it cannot realistically be said that every such offence necessarily signifies lifelong dangerousness to the extent that indefinite disclosure is justified.'

The Court therefore concluded that the interference with article 8 rights in this case was unlawful.  It was noted that a more nuanced system was required and, while it was emphasised that it is not for the Court to decide what the scheme should look like going forward, it would need to involve some degree of discretion.

Importance of the judgment

This judgment is interesting as it demonstrates the huge impact a conviction for any sexual offence - even a relatively minor offence committed many years ago – can have. This individual was prevented from pursuing his chosen career for a relatively minor offence committed 28 years previously.  It is also important to remember that there is some doubt about whether his actions even truly constituted the offence in question.  Yet nevertheless, the individual's personal and professional life was decimated by the disclosure of this conviction. 

It is not only convictions for sexual offences that can cause serious distress personally and professionally.  Allegations of sexual offences can also have a devastating impact, particularly for certain professionals. 

This is why it is important to be represented at every stage of a sexual offences investigation by a barrister with extensive experience in this field.

I have worked on a number of serious sexual offences cases, including historic allegations. These cases involve complex legal and evidential issues.  I have a particular understanding of the impact allegations can have on certain professions as I have developed a niche practice of defending carers accused of sexually abusing children in their care. These cases have very serious professional implications for those involved and it is important that you ensure your rights are protected throughout the process. Contact me directly.