New disclosure system welcomed, but potential for challenge remains
A new system for disclosing criminal records has been given a seal of approval by the Faculty, but not quite a guarantee.
Changes had been prompted by a decision of the UK Supreme Court in an English case which said that the blanket disclosure of all convictions fell foul of Article 8 of the European Convention on Human Rights.
The Court held that when a conviction became spent, it should usually become part of private personal history. Disclosure of that conviction thereafter would require to be justified by the State.
In response to the judgment, Scottish Ministers examined the scheme operated by Disclosure Scotland and decided that changes should be made, and introduced a Remedial Order.
Now, there is 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.
The Scottish Government sought observations on the Remedial Order, and in its response, the Faculty said the question was whether the problem identified by the Supreme Court had been resolved.
“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,” said the Faculty.
The Faculty also suggested there might be “odd results” in relation to the Schedule 8B list.
“It is our understanding that the period of 15 years…was selected because the longest period before a conviction becomes spent under the 1974 (Rehabilitation of Offenders) Act is ten years and the intention was to have such convictions ‘disclosable’ for a further time after the end of that period,” said the Faculty.
“There is a difficulty, however, in that the analogous period in England and Wales has now been reduced to seven years…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.”