P.S. to Section 28 | Change of Name | Effective Service of Notices

In our essay last week we went on a whistle-stop tour of Section 28 of the Irish vetting legislation, the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 – 2016.

This week we're looking at 3 new areas:

NVB - Article – Sections 28(2), 29, 30

Section 28 of the Irish vetting legislation is the section that criminalises the conduct of the senior management team in an organisation, where that team has allowed the organisation to commit serious criminal breaches of the vetting legislation.

Section 28 is the prism through which the prosecuting authorities will view both an organisation’s conduct, and that of the senior management team, when a corporate breach of the vetting legislation comes to their attention.

If you haven’t already checked them out, you can access the other 8 parts of this series on section 28 liability here:

Or, if you prefer, you can just check read our summary essay, Whistle Stop 8-Part Tour of Section 28 Liability.

(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).

POST-SCRIPT TO SECTION 28: UNINCORPORATED GROUPS

One important post-script to Section 28 is contained in Section 28(2) of the Irish vetting legislation.

We talked a few weeks ago (see The Personality Test: Who’s Who in Section 28 Liability) about the different ways that an organisation can be structured.

There are, in fact, several organisations that don’t have their own separate legal personality (e.g. they are Tom, Dick and Harry ‘trading as’ or ‘working together’ under the umbrella name of the organisation that they are forming together).

The Wheel provide a helpful definition of an ‘Unincorporated Association’.

‘Unincorporated’ means ‘lacking a body’ (the ‘corpus’), i.e. not formed into a separate legal personality like a company or formal charity.

In essence, there’s minimal paperwork involved in getting one set up, but there are downsides in that members can be automatically liable for the organisation if it gets itself into a spot of bother.

Section 28(2) of the Irish vetting legislation simply makes it clear that, for unincorporated associations, if a member carries out a management function, it’s irrelevant that that person may not hold a formal title within the organisation calling them ‘director’ or ‘trustee’ etc. The law basically says that because of the role you’ve carried out, we’re ‘deeming’ you a director / manager etc. Which puts them potentially on the hook for Section 28 liability.

SECTION 29 – CHANGE OF NAME

Section 29 of the National Vetting Bureau Acts 2012 to 2016 simply sets out the change of name that came about in April 2016 when the Act was fully commenced.

Prior to the vetting legislation, criminal record checks (otherwise known as ‘vetting checks’) were carried out by a part of the national policing authority, under the name the ‘Garda Central Vetting Unit’.

SECTION 30 – SERVICE OF NOTICES

Throughout the vetting legislation, there are a number of procedural safeguards that have been put in place, to protect both the integrity of the vetting system, and the constitutional entitlement to a person’s good name.

The system recognises that it’s possible for innocent cases of mistaken identity to arise occasionally (e.g. where a vetting check confuses one person’s identity (and correspondingly alleged criminal record history) with that of another person with an identical or similar name / address / date of birth etc.).

Appeals processes have been set up, and part of the procedural robustness of those appeals mechanisms, are ensuring that people are kept appropriately and properly informed (‘in the loop’) as to the process as it takes place.

Section 30 – that deals with the service of notices – basically sets out the three ways that a ‘notice’ (think: letter, document) can be sent to a person:

by delivering it in person into their hands (s.30(a))

by leaving it at their usual address or one they’ve given for service of documents

by sending it by registered post (for proof of delivery) or their usual address or one they’ve given for service of documents

Section 30 is therefore an important procedural safeguard – and one that is likely to be cited in a person’s appeal in the event that they don’t receive a formal notice about something under the vetting legislation.

SUMMARY

We looked this week at section 28(2), adding a final post-script to our review of Section 28 liability.

We also looked at what makes up an ‘unincorporated association’ and how members of such groups can’t hide behind the fact that they’re not an official ‘company’, to avoid their responsibilities under the vetting legislation.

Then we checked out the formal recognition of the change of name from the old Garda Central Vetting Unit, to the new National Vetting Bureau.

Lastly, we explored section 30 of the National Vetting Bureau Acts 2012 to 2016, that deals with the service of notices under the vetting legislation, and how this is therefore an important procedural safeguard protecting both the integrity of the vetting appeals process, and a person’s constitutional entitlement to their good name.