Disclosure scheme problem solved - maybe, Faculty believes

A proposed new system for disclosing criminal records has been given a qualified seal of approval by the Faculty of Advocates, in comments on the draft order.

Scottish ministers have drafted a remedial order relating to the scheme operated by Discosure Scotland following a decision of the UK Supreme Court in an English appeal which said that the blanket disclosure of all convictions fell foul of the European Convention on Human Rights.

The court held that when a conviction became spent, it was covered by the article 8 protection for an individual's private and family life. Disclosure of that conviction thereafter would require to be justified by the state.

In response, ministers are introducing a three-tier system for disclosures known as “higher level disclosures”. The top tier are convictions which will always be disclosed. The middle tier are convictions which, although spent, feature on a list, the schedule 8B list, and will be disclosed for a fixed period. The final tier are convictions which will not be disclosed from the point at which they become spent.

Addressing the question whether the problem identified by the Supreme Court had been resolved, the Faculty submission states: “Our answer to this is a qualified yes… the particular scheme presented to the Supreme Court no longer exists. It is, however, possible that an article 8 challenge will be made to the new regime, and that the effect of that regime in the particular case brought could be found by the court to breach article 8.”

It suggests that questions are most likely to arise over the court's tests of whether the measures go no further than necessary to accomplish their objective, and whether they strike a fair balance between the right of the individual and the interests of the community.

Although there is a right of appeal to the sheriff over the disclosure of a spent conviction, Faculty comments that this might not prevent a breach of article 8 where there is an issue about the relevance of the conviction to the purpose of the disclosure, as the proceedings themselves may result in the employer or training organisation becoming aware of the conviction.

Regarding the impact of general rules on marginal case, Faculty continues: "We recognise that the general rules, although now more discriminating than under the previous regime, will still be capable of generating 'hard cases'. In principle, however, we consider that this is a situation in which it is possible to defend the use of what are described as 'bright line' rules. In the absence of any right of challenge, there would be a real risk that the general rules would be regarded as arbitrary. However, the remedial order does provide for a right of challenge to a sheriff, and the risk of a finding of arbitrariness has therefore been reduced."

Faculty also suggests that there might be “odd results” in relation to the schedule 8B list, because different periods could apply between Scotland and England before a conviction becomes spent. "This cross-border differential could… create odd results where, for example, two applicants for the same job in Edinburgh each had a conviction for the same offence 12 years ago, but one lives in England and one in Scotland.”

Click here to view the full response.