Appeal procedure
There are four potential routes of 'appeal' for applicants.
1. Disclosure Scotland
Disclosure Scotland will review cases where applicants state that the convictions shown are not theirs, that the conviction shown should be spent or that the record is not theirs.
2. Appeals mechanism with the pass issuer
Our legal advice is that in cases where the pass issuer has made the decision not to issue an RZ pass the pass issuer, as a Directed party, should have an appeals mechanism in place. It should consist of an independent appeals officer, not connected with the original decision, with the authority to confirm or overrule the original decision.
3. Employer's grievance procedures
Our legal advice is that if the employer decides not to advance an application to the pass issuer, in the belief that the employee's basic disclosure shows that he has a disqualifying conviction, then the employee would be able to address any issues using the employer's existing grievance procedures.
If an offer of employment, to a candidate member of staff, for a position that requires access to the RZ is made conditional upon the applicant's criminal record then the need for an appropriate appeals procedure should not arise; if the applicant is shown to have disqualifying convictions then he need not be employed.
4. Appeal to Transec (application for a Certificate of Disregard)
An individual with an unspent disqualifying conviction can apply to the Department for Transport (Transec) for his conviction to be disregarded for the purposes of the issue of a full pass. If the application is successful, Transec will issue a Certificate of Disregard which the individual should present to the pass issuer, along with his pass application. The procedure for applying for a Certificate of Disregard is as follows:
Step 1. The pass applicant, whose valid criminal record certificate has revealed an unspent disqualifying conviction(s), and who wishes for his case to be considered by the Secretary of State (Transec), shall provide Transec with information in support of his application for a Certificate of Disregard. The information shall include the valid criminal record certificate and any documentation available from the criminal trial that led to the disqualifying conviction(s). It may also include a note from the pass applicant's solicitor, trade union or other representative. The documentation shall include a character reference[1], which may be from a sponsoring employer or any person or body whom the applicant considers is relevant and is of suitable standing. The application may contain any other information that the applicant considers is relevant in demonstrating his or her good character before/since the conviction(s). It shall be submitted under cover of the form attached to this appendix.
Step 2. The applicant should forward the application, and supporting documentation detailed at step 1, to: Vetting Team (CRCs), Transec, 5/11 Southside, 105 Victoria Street, London SW1E 6DT.
Step 3. Transec will reach a view on whether the disqualifying conviction(s) may be disregarded for the purposes of a full pass being issued by the Aerodrome Manager/pass issuer. Unspent convictions for offences that involve violence, dishonesty or abuse of trust are disqualifying offences as they can indicate that the individual's behaviour makes him or her vulnerable to pressure or improper influence or liable to commit a breach of security. The Rehabilitation of Offenders Act 1974 determines when a conviction becomes 'spent' for example, a sentence of a fine or compensation will normally become spent 5 years from the date of the conviction, so long as no other convictions have since been received. Only unspent convictions will be considered in determining the issue of a full pass or a Certificate of Disregard. Transec will consider the information supplied by the pass applicant and the relevant circumstances of the case, including (but not limited to) the age of the conviction(s) and its seriousness. Transec may need to request additional information from the applicant, such as more details about the conviction.
Step 4. Where Transec does not require additional information from the pass applicant in order to determine an application, Transec will endeavour to issue a determination letter to the pass applicant within 28 days of the application to disregard a conviction(s) being received, or will contact the applicant within the 28-day period to inform the applicant as to when he or she can expect a reply. Notice of the decision will be given to the applicant. Where a decision is made that the disqualifying conviction may be disregarded, a Certificate of Disregard will be issued to the pass applicant. The Certificate of Disregard will state that the disqualifying conviction(s) may be permanently disregarded for the purposes of issuing a full pass at any aerodrome listed at Schedule 1.
Step 5. Appeal
In the event that Transec decides that, in the circumstances, the disqualifying convictions(s) should not be disregarded, reasons for refusing to issue a Certificate of Disregard will be given in the determination letter. The individual has a right to appeal to a higher authority within Transec if he or she disputes the reason for refusal. Details of how and to whom to appeal will be notified to the applicant in the event that his or her application is refused. Any appeal shall be lodged within 28 days of notification of refusal.
Notes: Where a valid criminal record certificate shows an unspent disqualifying conviction(s), a full pass may not be issued unless a Certificate of Disregard has been issued by Transec authorising that the conviction(s) may be disregarded. Neither shall a temporary pass be issued in the interim. A criminal record certificate is valid for up to ten weeks from the date of issue, but the period during which Transec is determining an application for a Certificate of Disregard (and during any subsequent appeal) will not count towards the ten weeks.
An individual may appeal to the Criminal Records Office if he or she believes that the conviction(s) shown on the disclosure certificate are not his or hers or that the conviction(s) shown should be spent.
Subject to the requirements of this schedule, the ultimate decision as to whether a full pass can be issued rests with the Aerodrome Manager/pass issuer, who shall refuse to issue a full pass to anyone who, in his opinion, is not a suitable person to hold such a pass. It is strongly recommended that the Aerodrome Manager/pass issuer have an appeals mechanism in place, consisting of an independent appeals officer, not connected with the original decision, with the authority to confirm or overrule the original decision.
Annex
[1] The character reference should state when the referee became aware of the pass applicant's conviction(s), (if from an employer it should be from someone with direct management responsibility for the applicant and should state the date upon which the pass applicant commenced work for the employer or is due to commence work), the referee's experience of the applicant in terms of his overall integrity, and anything else which reflects upon the applicant’s suitability to hold a full pass.
