Prove It – Section 28 Liability And The Requirement For Proof

This week, we’re looking at how, for a Section 28 personal criminal liability to attach to a member of the senior management team, there’s requirement for there to be actual evidence that proves senior management consented to, connived with, or through their wilful neglect, allowed their organisation to commit the underlying vetting offence.

In our most recent essay, The Personality Test: Who’s Who in Section 28 Liability, which is Part 7 of our current review of Section 28 – Liability for Offences by Bodies Corporate – National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 – 2016 – we took the opportunity to explore in detail the main players for whom Section 28 is relevant.

Why? Because unless a person is a director, manager, secretary, other officer of the organisation, or person purporting to act as such; well, simply put, section 28 doesn’t affect that person (‘nothing to see here Sir, nothing to see here Madam, kindly move on now’).

If you haven’t already checked them out, you can access the other parts of this series on section 28 liability here:

This week is our penultimate look at Section 28. Today we’re concentrating on one simple idea, that is a critical element of Section 28 liability.

When the prosecuting authorities receive a referral from either the National Vetting Bureau or An Garda Siochana, the national policing authority, they will have to decide whether or not they have sufficient proof of a person’s breach of the Section 28 requirements.

If they feel that they have sufficient proof, it’s likely that they prosecute the case.

If they feel that they have insufficient proof, it’s unlikely that they prosecute the case.

(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, you might want to check it out now.

‘AND IT IS PROVED THAT’

At the end of the day, if a crime has been committed, and the policing authority feel comfortable recommending a prosecution, it’s still down to the prosecuting authority to take the decision to prosecute a case in a court.

And, to a significant degree, that decision is going to be driven by the Director of Public Prosecutions (DPP)’s view of achieving a successful (i.e. guilty) conviction in a court.

And that view is driven by the strength or otherwise of the proof backs up the allegation that a person has committed a crime.

WHAT IS PROOF?

Proof is the reliability of evidence that backs up the prosecuting authority (or defendant)’s position.

WHY IS PROOF NEEDED?

Proof comes down to fairness – proving to a court / judge that one person’s version of events should be preferred over another’s person’s version of events.

And that comes down to trust – the ability of the court to trust that the evidence being presented is a fair and accurate version of events.

RELIABILITY OF EVIDENCE

But as in many things in life, not all evidence is created equal.

In a civil case, a court / judge simply must be satisfied, on the balance of probabilities, that the court prefers one version of events over another person’s events. Think of it like a court saying I believe Person A’s version 51% of the time, and Person B’s version 49% of the time – so, on balance, I prefer Person A’s version (this is on the balance of probabilities).

In a criminal case, it’s different, where the penalties are arguably that much more severe (including criminal record / term of imprisonment), the threshold to ‘prove’ a case is higher: the prosecution has to prove a case ‘beyond reasonable doubt’.

Or, put differently, if the defence can persuade a court that there is a reasonable doubt about the prosecution’s version of events, a court should not find the defendant guilty.

DIFFERENT TYPES OF EVIDENCE

Evidence are like pieces of thread, that once all pulled together are meant to persuade or dissuade the court of a particular version of events.

Sometimes it’s a single piece of evidence that sways the court.

Quite often, however, it’s the totality of evidence that a court looks at, in determining which version of events to prefer – beyond reasonable doubt if preferring the prosecution case.

Evidence in support of a case can therefore include:

Whatever format it takes, its purpose is simple: to prove one side’s version of events.

SECTION 28 AND THE REQUIREMENT FOR PROOF

It’s well worth remembering this in the context of Section 28 liability.

If a situation of Section 28 potential liability arises, senior management will want to collect proof that they did in fact comply with their Section 28 obligations.

On the flipside, the DPP in bringing its prosecution will be looking for evidence that proves their view that the Section 28 offence has been committed.

Either way, senior management will be well advised to ensure that they take all the relevant steps to not only comply with their vetting legislation responsibilities – and here’s the crux – to be able to prove that they have done so, in case it becomes necessary one day to back up their version of events.

If the DPP can prove that the senior management team consented, connived, or that their willful neglected helped the organisation commit the offence under the vetting legislation, then the DPP are likely to bring a successful prosecution.

Conversely, if the DPP can’t prove their case – even if the senior management did in fact appear to consent to, connive with, or through their willful neglect allow the organisation to commit the vetting offence – well, without proof, the prosecution’s case will fail.

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.

SUMMARY

Having good intentions isn’t good enough.

Organisations need to not only comply with their vetting legislation obligations – but also be able to prove that they’ve done so.

Not being able to prove one’s version of events may not cause a big issue in the short term.

But, if a situation arises, and people start looking for a paper trail, that’s when being able to prove what you’ve done is going to be key.