P (AP) v The Scottish Ministers [2017] ScotCS CSOH_33 (28 February 2017)

P (AP) v The Scottish Ministers [2017] ScotCS CSOH_33 (28 February 2017)

The statutory scheme mandating automatic disclosure of the petitioner's childhood conviction for lewd and libidinous practices, without any opportunity for individual challenge or assessment of proportionality, failed to provide adequate safeguards against arbitrary interference with Article 8 ECHR rights and was not 'in accordance with the law'.

Citation
[2017] ScotCS CSOH_33
Parties
Petitioner: P (AP); Respondents: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
28 February 2017
Procedural Posture
Judicial Review / Substantive First Hearing
Outcome
Petition upheld; statutory scheme found unlawful as applied to petitioner.
Legal Topics
Disclosure of Criminal Convictions, Article 8 ECHR, Protection of Vulnerable Groups, Proportionality, Children's Hearings
Human Rights Law Administrative Law Criminal Law Disclosure of Criminal Convictions Article 8 ECHR Protection of Vulnerable Groups Proportionality Children's Hearings

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Parties

P (AP)

Petitioner

The Scottish Ministers

Respondents

Procedural Posture

Judicial Review / Substantive First Hearing

Legal Issues

  1. 1 Whether automatic disclosure of a childhood conviction violates Article 8 ECHR
  2. 2 Whether the statutory scheme provides adequate safeguards against arbitrary interference with private life
  3. 3 Whether the disclosure is proportionate to the legitimate aim of protecting vulnerable adults

Ratio Decidendi

The statutory scheme mandating automatic disclosure of the petitioner's childhood conviction for lewd and libidinous practices, without any opportunity for individual challenge or assessment of proportionality, failed to provide adequate safeguards against arbitrary interference with Article 8 ECHR rights and was not 'in accordance with the law'.

Court Disposition

Petition upheld; statutory scheme found unlawful as applied to petitioner.

Orders

  • Declarator that automatic disclosure of petitioner's conviction unlawfully and unjustifiably interfered with Article 8 rights.
  • Order under section 11 of the Contempt of Court Act 1981 preventing publication of petitioner's identifying information.