Looking The Other Way – Connivance and Section 28 Liability

What is connivance? How does a court find that someone 'connived' in an offence? How is it relevant to charities and clubs? Learn how, in this, Part 5, of our review of Section 28 of the vetting legislation.

In our most recent essay, Part 4 of our current review of Section 28 – Liability for Offences by Bodies Corporate – National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 – 2016 – we introduced the idea that a person’s ‘intention’ needs to be examined, in deciding whether or not the member of the senior management team falls foul of the Section 28 liability triggering provision.

Remember, for senior management to find themselves in the cross-hairs of section 28, they must consent to, connive with, or through their willful neglect, allow the organisation to commit the underlying criminal offence.

This is what lawyers call, in old fuddy duddy Latin, ‘mens rea’, or what is more commonly known as ‘intention’ – i.e. a person’s state of mind.

You’ll recall that section 28 splits up ‘intention’ into 3 different branches:

We’ll see what ‘connivance’ looks like. We’ll see how the section 28 provision in the vetting legislation is a mirror of other major Irish laws, where the conduct of senior management is criminalised potentially, where the organisation commits a criminal offence. And we'll look at an example of connivance taking place in a hypothetical scenario.

SECTION 28 - A RECAP

(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.

LOOKING THE OTHER WAY: CONNIVANCE

The word ‘connivance’ is not one that you come across much in day to day life.

It literally means to ‘shut one’s eyes’ to something taking place (con-nictare meaning, more or less, to ‘wink both eyes at the same time’).

ARE CHARITIES AND CLUBS BEING SINGLED OUT?

If you’re reading this essay and thinking to yourself, ‘Surely this is deeply unfair to people holding the reins of charities and clubs, we’ve quite enough on our plates without having our actions or inactions potentially criminalised! Why are we being singled out?’.

Well, it may only be cold comfort, but the legislative provision embodied in section 28 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016, is in fact seen in several of the major pieces of legislation governing Irish society, e.g.

POLICY OBJECTIVE

The underlying public policy objective here is stark: the criminalisation of the conduct of directors, officers and senior management in circumstances where the organisation, to which they belong, commits an offence, with their consent, connivance or wilful neglect. Specifically, where they:

...conduct which allows the organisation to commit the underlying offence.

SO, WHAT IS 'CONNIVANCE'?

(Side note: Originally the concept of 'connivance' comes from marriage and divorce law, it comes from ecclesiastical law, see Turton v Turton, 3 Hag. Ecc. 336, at 351, 162 E.R. 1178, at 1183 (Consistory Court of London, per Dr Lushington, 1830) - OpenJurist.org).

AN INCREASING TREND

Criminalising not only the conduct of the club/charity/organisation, but also the conduct of directors and senior managers is a trend that is only going to increase.

Let’s imagine a scenario where someone has expressed an interest in volunteering in your organisation.

OFFENCE # 11: MAKING A FALSE STATEMENT WITH INTENT

Section 26 of the Irish vetting legislation creates a criminal offence when someone makes a false statement for the purposes of obtaining, or enabling another person to obtain, a vetting disclosure:

Excellent! You’re delighted, you’re actively seeking more people to get involved, to lighten the load of those people currently engaged volunteering.

Ok, so you’re in a bit of a quandary now. Do you:

Clearly the correct approach is the second approach – make another appointment for them to show you the originals.

However, there are still many organisations whose practices differ from this, and who simply ask for emailed copies of the underlying documents.

In that case, they will need to decide if they consider that the directors, officers and senior management team effectively turned an institutional blind eye to this practice of skipping inspection of the original identity documentation.

If they feel that this was the case, then section 28 liability will come into effect, not only for the person who botched the inspection requirement; but also for the other directors, officers and senior management team too.

SUMMARY

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

Connivance is the art of internally forbearing of seeing a fault or act; of generally implying your consent to a course of conduct.

Literally, a winking at; intentional forbearance to see a fault or other act; generally implying consent to it.

The problem for directors, officers and senior management is this: where an organisation’s practices falls short of statutory requirements, liability for the shortfall targets potentially not only the person who breaches the specific statutory provision; but all persons who are found to have glossed over / ignore what should have been done.

Next week, we’ll dig a little into the notion of ‘wilful neglect’, to help us understand better how to answer next week’s question: ‘Did someone in senior management, through their willful neglect, allow 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.