S.28 Liability – Did The Body Corporate Commit An Offence?

In this week’s essay we’re going to start by breaking section 28 into its constituent parts.

Section 28 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 – 2016 deals with the fall-out for senior management if a criminal offence is committed by the organisation to which the senior management belongs.

(Remember, for those looking for a quick recap, that section 28 of the Irish vetting legislation creates personal criminal liabilities on charities and clubs’ senior management (directors, officers, managers, or persons purporting to act as such) where it’s found that a criminal offence has been committed not by them, but rather by the body corporate (i.e. the charity / club), in circumstances where it can be proven that the offence was committed either with the senior management personnel’s personal consent, connivance, or willful neglect).

STARTING AT THE START

A few essays back, we created this Handy Guide to Section 28, for anyone involved in an organization with volunteers, where they hold the position of director, manager, secretary, or another officer position.

This week we’re checking out the very first part of the legislation, and the question we’re asking is this: ‘Was an offence committed by the body corporate?’

Now, the reason why this is important is as it’s the very first hurdle to be jumped for someone to avoid finding themselves entangled in the thorns of section 28.

WAS AN OFFENCE COMMITTED?

The answer to this is either:

HOW DO YOU KNOW IF AN OFFENCE WAS COMMITTED?

The first analysis to be done is to know what the offences actually are under the vetting legislation.

To refresh your memory, you can check out The 12 Criminal Offences In The Vetting Legislation.

For the purposes of this essay, let’s assume that one of those offences have been committed.

Section 28 slam-dunk?

Not quite.

A QUESTION OF FACT

The next question to ask is: did the ‘body corporate’ commit the offence?

Essentially this is a ‘factual’ question. Or, put another way, it turns on the facts of a particular case.

But, by and large, it’s probably safe to err on the side of caution and assume that where an offence has been committed, liability will accrue to the body corporate in the first instance.

So, for example, Offence # 2: Failure to Obtain Vetting Disclosure In Respect of Certain Work or Activities creates an offence for, funnily enough, failure to obtain a vetting disclosure in respect of certain work or activities. That offence is deemed under section 12(2) of the vetting legislation to have been committed by the ‘person’ who contravened section 12(1).

The responsibility under section 12(2) falls upon the ‘relevant organisation’ which is forbidden (‘shall not’) from employing, contracting with, allowing, or placing, someone into relevant work or activities (as defined by the legislation) unless and until that organisation has received the vetting disclosure from the National Vetting Bureau.

So, in a case where an organisation has in fact employed, contracted with, allowed, or placed, someone into relevant work or activities (as defined by the legislation) before / without that organisation receiving the vetting disclosure for that person from the National Vetting Bureau, then we can say that:

In those circumstances – where an offence has been committed by a body corporate – section 28 kicks in, and an analysis must take place to see what, if any, responsibility / liability will fall on the shoulders of senior management within that organisation for that organisation’s corporate breach of the criminal law vetting legislation.

SUMMARY

In this essay, we checked out how section 28 does require, at the first hurdle, that an offence has been committed, and that that offence can be said to have been committed by the body corporate.

In our next essay, we’ll take a helicopter view of the required ‘intention’ for senior management to find themselves in the cross-hairs of section 28, as we explore the notions of ‘consent, connivance and willful neglect’.

Join us next week, and if you haven’t done so already, take a moment to download this Handy Guide to Section 28.