Job rejection illegal, rules judge

work supervision order that was lifted a year later.

When he applied to work in a care home in 2015, his employer was required to make checks under Protection of Vulnerable Groups (PVG) laws and Disclosure Scotland had no option but to pass the information to the potential employer.

Although a care home had already agreed to hire him, learning of the 1987 offence the employer withdrew the job offer.

The case, heard at the court of session, could be significant in relation to other adults who have acquired the equivalent of criminal convictions by accepting a referral to a children’s hearing on offence grounds – which may effectively never be expunged from their record.

Lord Pentland found against the Government on several issues, saying disclosure breached the man’s human rights because it was disproportionate, because of the length of time that had passed in the interim, because there was no other information to suggest that the man might pose a risk to vulnerable people and because “A” had been unable to challenge the decision to share the information from his past.

Disclosure Scotland had no discretion as to whether or not to disclose the information about him.

Ministers had argued any complaint that his rights under article eight of the European Convention of Human Rights had been breached was unfounded and said disclosure of such convictions, even when they are spent, is necessary for the protection of vulnerable adults and children.

But Lord Pentland ruled the PVG scheme failed to provide any safeguards to ensure interference in a person’s right to a private life was proportionate and there was no opportunity for his situation to be evaluated fairly and objectively.

In a written opinion, he said: “The fundamental deficiency in the system ... 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”.

A spokesman for the Scottish Government said: “Ministers will review Lord Pentland’s judgment and respond to it in due course.

“The PVG scheme is a vital part of safeguarding people in Scotland and we will ensure that we remain entirely focused on securing that outcome as well as balancing fairness to individuals when considering the appropriate response.”