The National Vetting Bureau (Children and Vulnerable Persons) Acts creates 12 new criminal offences. We discussed in our most recent essay – Handle That Vetting Disclosure With Care: 3 New Criminal Offences – the concept that when legislators feel the need to write laws to regulate the conduct and behaviour of people in a society, there’s a balance to be struck between the ‘carrot’ (to incentivize compliance with best practice) and the ‘stick’ (to punish wrong doers for deliberate, or negligent non-compliance with best practice).
In that essay we touched on how the new criminal offences created by the vetting legislation are, effectively, lines in the sand set down; and the criminal law consequences in the event of crossing those lines in the sand.
Today we’re going to wander onto the shores of the legislation, and look at the criminal law consequences of crossing those lines in the sand.
We explore section 27 of the vetting legislation, which deals with the criminal law penalties for a person found guilty of committing any of the criminal offences; and we look at the dozen underlying criminal offences which section 27 relate to.
One of the significant features of the vetting legislation is the creation of 12 new criminal offences.
Let’s get a birds’ eye view of them now:
- Section 8(9) – Failure to register on the register of relevant organisations
- Section 12(2) – Failure to obtain vetting disclosure in respect of certain work or activities.
- Section 16(4) – Using or disclosing information contained in a vetting disclosure in an unlawful way
- Section 19(1) –Scheduled Organisations failing in its duty to notify National Vetting Bureau of bona fide concerns arising out of regulatory-type investigations, and reasons for that concern
- Section 19(2) – HSE failing in its duty to notify National Vetting Bureau of bona fide concerns arising out of regulatory-type investigations, and reasons for that concern
- Section 20(3) – Failure to re-vet without having a reasonable excuse
- Section 21 (3) – Failure to retrospectively vet without having a reasonable excuse
- Section 24(6)(a)– Obstructing or interfering with a Compliance Officer or member of the Garda Siochana carrying out their duties under the vetting legislation
- Section 24(6)(b)– Impeding the performance of a Compliance Officer or member of the Garda Siochana carrying out their duties under the vetting legislation
- Section 26(a) – Falsification or alteration of a vetting disclosure
- Section 26(b) – Making a false statement for the purpose of obtaining, or enabling another person to obtain, a vetting disclosure
- Section 26(c) – Allowing a vetting disclosure which relates to him or her to be used by another person in such a way as to give rise to the reasonable belief that the record relates to that other person
OFFENCE # 1: FAILURE TO REGISTER ON THE REGISTER OF RELEVANT ORGANISATIONS
Register of relevant organisations.
Section 8(9) creates the offence...
....which is triggered by breach of section 8(2) of the vetting legislation:
THE PENALTY
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both
OFFENCE # 2: FAILURE TO OBTAIN VETTING DISCLOSURE IN RESPECT OF CERTAIN WORK OR ACTIVITIES
Section 12(2) creates the offence, which is triggered by failure to comply with section 12(1) of the vetting legislation:
Requirement for vetting disclosure in respect of certain work or activities.
THE PENALTY
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.
OFFENCE # 3: USING OR DISCLOSING INFORMATION CONTAINED IN A VETTING DISCLOSURE IN AN UNLAWFUL WAY
Section 16(4) creates the offence...
...which is triggered by breach of section 16(3) of the vetting legislation:
Assessment and use of vetting disclosures by relevant organisations
THE PENALTY
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both
OFFENCE # 4: SCHEDULED ORGANISATION’S FAILURE IN DUTY TO REPORT TO NVB
Section 19(8) creates the offence...
...which is triggered by breach of section 19(1) of the vetting legislation:
Scheduled organisations required to notify specified information to Bureau
THE PENALTY
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.
OFFENCE # 5: HSE’S FAILURE IN DUTY TO REPORT TO NVB
Section 19(8) creates the offence...
...which is triggered by breach of section 19(2) of the vetting legislation:
Section 19(2) –HSE failing in its duty to notify National Vetting Bureau of bona fide concerns arising out of regulatory-type investigations, and reasons for that concern
THE PENALTY
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both
OFFENCE # 6: FAILURE TO REVET WITHOUT HAVING A REASONABLE EXCUSE
Section 20(3) creates the offence...
..., which is triggered by breach of section 20(1) of the vetting legislation:
THE PENALTY
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.
OFFENCE # 7: FAILURE TO RETROSPECTIVELY VET WITHOUT HAVING A REASONABLE EXCUSE
Section 21(3) creates the offence...
...which is triggered by breach of section 21(1) of the vetting legislation:
THE PENALTY
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.
OFFENCE # 8: OBSTRUCTING OR INTERFERING WITH COMPLIANCE OFFICER OR GARDA
Obstructing or interfering with a Compliance Officer or member of the Garda Siochana carrying out their duties under the vetting legislation
Section 24(6) creates the offence, which is triggered by breach of section 24(6)(a) of the vetting legislation:
THE PENALTY:
(2) A person guilty of an offence under section 24(6) shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 6 months or both.
OFFENCE # 9: IMPEDING A COMPLIANCE OFFICER OR GARDA MEMBER
Section 24(6) creates the offence, which is triggered by breach of section 24(6)(b) of the vetting legislation:
THE PENALTY:
(2) A person guilty of an offence under section 24(6) shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 6 months or both.
OFFENCE # 10: FALSIFICATION OR ALTERATION OF A VETTING DISCLOSURE
Falsification of vetting disclosures, etc.
Section 26 creates the offence, which is triggered by breach of section 26(a) of the vetting legislation:
THE PENALTY
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.
OFFENCE # 11: MAKING A FALSE STATEMENT WITH INTENT
Section 26 creates the offence, which is triggered by breach of section 26(b) of the vetting legislation:
THE PENALTY
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.
OFFENCE # 12: ALLOWING USE BY ONE PERSON OF ANOTHER PERSON’S DISCLOSURE
Section 26 creates the offence, which is triggered by breach of section 26(c) of the vetting legislation:
THE PENALTY
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.
SUMMARY
The National Vetting Bureau Act was born in no small part as a result of a co-ordinated legislative response to the historical failings across Irish society as regards the safe recruitment of persons working with children and vulnerable persons.
While much of the vetting legislation deals with processes and procedures, it also draws proverbial lines in the sand around certain areas of (mis)behaviour. In particular, in elevating breaches of the legislation into new criminal offences, the vetting legislation represents a paradigm shift in the regulation and, crucially, enforcement and prosecution of child protection failings in organisations.
It’s important for any person involved in the chain of handling, submitting, processing or otherwise responsible for vetting in a relevant organization, that they have at least a passing familiarity with the new criminal offences; if only to ensure that these offense aren’t committed deliberately, negligently or, indeed, recklessly.
This essay is for general information purposes only and does not constitute legal or other professional advice.
Specific legal advice from a firm of solicitors should always be sought on the application of the law in any particular situation.
Whilst reasonable endeavours have been made to ensure the accuracy of the content, no liability whatsoever is accepted for any omissions or errors or for any action taken in reliance of the information in this essay.
