Senior Management’s Consent Triggers Section 28 Liability

In our most recent essay, Part 3 of our current review of Section 28 – Liability for Offences by Bodies Corporate – National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 – 2016 – we looked at the basic requirement to check (1) that an offence (as defined by the vetting legislation) was, in fact, committed; and (2) that that offence, if committed, was committed by a ‘body corporate’.

This week we’re 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 wilful neglect’.

Or what lawyers call, in old fuddy duddy Latin, ‘mens rea’, or what is more commonly known as ‘intention’.

Section 28 splits up ‘intention’ into 3 different branches:

This week we’re exploring the first of the 3 branches of intention: consent.

And, in particular, we’re going to check out what ‘consent’ can look like, narrowing it down to 3 main forms of consent: 

(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).

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. If you haven’t done so already, check it out now.

CONSENT IS EVERYTHING

In 2016, the UK’s Thames Valley Police published a video that subsequently went viral on social media.

It’s subject?

Consent.

In the video, they discussed the notions of ‘consent’ in making someone a cup of tea; and cleverly at the end they draw parallels with having a person's 'consent' to make them a cup of tea, with ensuring that a person has consent for sex.

If you haven’t seen the video, you can check it out here (warning: there's a few swear words, so if you inhabit a world where people don't swear, don't watch the video):

In the vetting legislation, we're dealing clearly with consent in a different area of criminal law. 

There are 3 main forms of consent of relevance to section 28.

We’ll touch briefly on all 3 forms of consent today, giving hypothetical examples of the 3 main different forms of consent, and how it could be interpreted that where the organisation commits an offence, a prosecuting authority may argue that senior management ‘consented’ to that offence being committed.

(1) EXPRESS CONSENT

Hypothetical scenario under section 28 of the vetting legislation

OFFENCE # 4: SCHEDULED ORGANISATION’S FAILURE IN DUTY TO REPORT TO NVB

Section 19 of the vetting legislation requires a professional body - as defined by the vetting legislation – to refer a finding (made against one of their members) of potential harm to be caused to a child or vulnerable person by one of their members.

However, let’s assume that, rather than ‘hanging out their dirty linen’ for all to see, the professional body / Scheduled Organisation, decides that it is going to refrain from making referrals to the National Vetting Bureau where an internal investigation or inquiry makes a finding against one of their members (that they either have caused or might cause harm to a child or vulnerable person).

They’re all for transparency, openness and accountability – it’s just they prefer to see it in other organisations first, not theirs.

Let’s assume therefore that at the conclusion of their investigation, which senior management has signed off upon, a decision is made not to make a referral to the vetting bureau, even though their findings should in fact trigger the referral to the Bureau.

In that instance, where it has been ‘expressly’ or openly stated, usually in writing, that a referral won’t be made even though the findings of fact would warrant a referral; then in those circumstances, it’s reasonable to make the case that senior management have ‘expressly consented’ with the committing of the offence (i.e. the non-referral by the organisation of a member with an adverse finding against them, to the National Vetting Bureau).

(2) IMPLIED CONSENT

Hypothetical scenario under section 28 of the vetting legislation

OFFENCE # 2: FAILURE TO OBTAIN VETTING DISCLOSURE IN RESPECT OF CERTAIN WORK OR ACTIVITIES

Let’s imagine a scenario where an organisation allows someone to undertake relevant work or activities on behalf of the organisation, and the organisation has allowed this to happen without receiving a vetting disclosure from the National Vetting Bureau for that person.

This is an offence under section 12(1)(c) of the vetting legislation.

Let’s assume that the Board of Management / Board of Directors haven’t gone out of their way to allow this situation to arise.

However, the Board is aware that their procedures in this area are, charitably put, a little ‘loose’.

But the generally accepted view amongst the Board is that the whole ‘vetting’ malarkey is a bit of ‘overkill’, and that as they’ve never had any issues in the organisation, they’re not going to rock the boat, and so they’re not going to go out of their way to get vetting disclosures.

However, they've been around the block enough times to know that it wouldn’t be very intelligent to ‘land themselves in it’ by actually recording this in their monthly board minutes.

It’s just the generally understood position which people don’t generally bring up in open discussion.

This would qualify as an example of where senior management would be said to have given their ‘implied consent’ to the conduct of the organisation, by failing to raise a red flag up in the face of the organisation’s approach to this area.

True, they didn’t expressly agree to the organisation’s approach, but a court is likely to take the view that they are deemed to have accepted it - to have given their consent to it – implicitly, by implication.

(3) UNANIMOUS CONSENT

Unanimous consent is an interesting form of consent.

It’s close to the idea of implied consent, and yet differs. It’s consent that is given in some form of Board Meeting type arrangement; it's consent given by all parties present.

Remember, ‘unanimous’ means ‘of one mind’.

What’s important to note here is that senior management can therefore be said to have given their unanimous consent to a form of action (or omission) even if they don’t recall actually having voted for a particular course of action.

Unanimous consent is not the same as a unanimous vote – it just means that nobody objected to a particular course of action (or omission) that is proposed at a meeting, and that, in the absence of any objections, the proposed course of action (or omission) is said to have been ‘unanimously consented to’ by the persons present at that meeting.

(Note that this a feature of how minutes of meetings are effectively ‘approved’ at the start of the next Board meeting – not by a having a vote on their accuracy, but by the lack of objection to the minutes being taken, when put to the meeting, as unanimously consented to as representing an accurate depiction of the events at that meeting. Likewise, a meeting is ended when the chair says that ‘unless anyone objects, the meeting is deemed closed’ – that’s an example of unanimous consent).

OFFENCE # 8: OBSTRUCTING OR INTERFERING WITH COMPLIANCE OFFICER OR GARDA

Let’s imagine a scenario where the National Vetting Bureau wants to make enquiries of how an organisation is carrying out vetting checks for persons applying to volunteer in that organisation.

There’s a perception in this imaginary organisation that the National Vetting Bureau are ‘busy-bodies’, and that the organisation knows quite well (thank you very much) how to conduct its own affairs – has done so for years without any outside interference, let alone from some offshoot of the national policing authority.

Let’s imagine the hypothetical scenario where a request is made by the Bureau, to the organisation, to access certain documents.

It’s discussed at Board level within the organisation, and a view is reached that the Bureau is ‘over-reaching’ itself, that this is an internal ‘house-keeping’ matter, and that the Bureau should, frankly, keep its nose out of their business.

(Sound unlikely? Not if you read any of the statutory inquiries from the last 15 years and the litany of organisational obstruction, obfuscation and opaqueness).

In this hypothetical scenario, the chair of the Board meeting flags the request from the Bureau, says that ‘unless anyone has any objection, we’re not going to hand over documents to the Bureau unless and until they obtain a High Court judge’s warrant compelling us to do so’.

This example could well qualify as an example where the Board has given their unanimous consent (even without a vote having taken place; just due to the lack of objections to the proposed course of action) to the obstructions of the Bureau’s Compliance Officers carrying out their statutory duty under section 24(6) of the vetting legislation.

SUMMARY

Did the senior management personnel consent to the organisation committing an offence?

To answer this question, we need to understand what ‘consent’ looks like.

In this essay, we did just that.

We explored ‘express consent’, ‘implied consent’ and ‘unanimous consent’.

Next week, we’ll dig a little into the notion of ‘connivance’, to help us understand better how to answer next week’s question: ‘Did someone in senior management connive to the offence being committed by the organisation?’.

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. If you haven’t done so already, check it out now.