How do you know when to vet someone?

In this essay on the Irish vetting legislation we’re going to look at the procedures set out for vetting disclosures.

We’ll look at what was set out in the original 2012 legislation, and how that was changed/amended by the 2016 legislation.

We’ll check out the statutory prohibition on a relevant organization engaging someone to work with children or vulnerable persons, where they haven’t obtained a vetting disclosure in respect of that person.

We will review the new criminal offence of this failure to vet; as well as the two-stage defence to the offence (and the difficulty in successfully mounting that defence).

Finally, we’ll have a look at the new defence introduced by the 2016 legislation (joint liability with another relevant organization allowing an applicant to rely on another organisation’s vetting disclosure, as a defence to their failure to vet).

The National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016, more commonly known as the  'vetting legislation', is broken down into four main parts:

In this essay we kick off our review of Part 3 of the legislation i.e. the procedures for vetting disclosures.

In particular, we will look today at section 12 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016, and the requirement for vetting disclosure in respect of certain work for activities.

1. THE REQUIREMENT FOR VETTING DISCLOSURE IN RESPECT OF CERTAIN WORK OR ACTIVITIES

So, what exactly is so important about this section 12 of the vetting legislation?

Let's see what it says:​

2. THE STATUTORY PROHIBITION

In 12 Things You Should Know About Organisation Registration with the National Vetting Bureau, we looked at how an organization falls into the requirement for vetting in part if it has people carrying out “relevant work or activities” with children, where the relationship between the organization and the person undertaking that work on behalf of the organisation is based on:

Section 12 is the statutory prohibition on the organization from allowing people in these situations to carry out the relevant work or activities, unless a vetting disclosure has been received back from the National Vetting Bureau (i.e. they have successfully gone through the Garda Vetting / criminal background check process).

3. THE SECTION 12(2) CRIMINAL OFFENCE – FAILURE TO VET

S.12(2) creates the new criminal offence, where a ‘person’ who allows this to take place (someone who should be vetted, isn’t vetted, but still carries out the relevant work or activities with children), breaches the criminal law.

Remember, too, that a ‘person’ is a legal term which has multiple meanings, including meaning:

4. THE SECTION 12(3) DEFENCE

But hold on. It’s not a one-way street here for the prosecution. If the ‘accused person’ (chairman, secretary, volunteer manager) can show that

then in those limited circumstances, the ‘accused person’ (remember, this is the organisation and its representative, not the person who actually carried out the work), has a defence that they can use.

5. THE DIFFICULTY IN PRESENTING THE S.12(3) DEFENCE

The problem with mounting the defence successfully (from the accused person’s point of view) is that while they can plead ignorance and say “Sorry, I didn’t know that I should have had the person vetted”; the second part of the defence is the objective test (and this asks: was it ‘reasonable’ that a person in your position wouldn’t know that that person should have been vetted?).

This second part of the test is what will make the defence incredibly hard to use, as it’s hard to anticipate the circumstances in which someone given the responsibility of safeguarding the welfare of children in their care, is ignorant of their child protection requirements.

6. IMPORTANT CHANGES TO THE 2012 LEGISLATION

One important word of caution here.

The original 2012 vetting legislation had a number of constitutional and other problems connected to it that necessitated additional legislation be written to rectify those problems (primarily related to the rehabilitation of offenders and the proportionality on information disclosed as part of the vetting process).

Part 3 of the original vetting legislation (which we’re starting to look at today) was therefore significantly amended by another law called the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016. To understand the vetting legislation, it’s therefore helpful to have an outline understanding of its sister law, the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.

The Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 is an act whose purpose, amongst other matters, is to limit the effect of certain criminal convictions in certain circumstances and after certain periods of time, and specifically to amend the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.

For our purposes today, we’re interested in section 18 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, and we’re interested in this section as it specifically changes / amends section 12 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012.

7. THE AMENDED SECTION 12 - HOW IT LOOKS NOW

So in fact, to get a clear view on what section 12 of the vetting legislation means, we actually need to do some work.

This (below) is what the amended Section 12 would look like, once we’ve:

8. NEW SECTION 12(3A) – ADDITIONAL DEFENCE TO FAILURE TO VET – JOINT LIABILITY

So in fact as you can see the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, introduced an additional defence to the failure to vet.

(3A) Where 2 or more relevant organisations jointly agree in writing to the employment, contracting, permitting or placement of a person to undertake relevant work or activities, it shall be a defence in any proceedings brought against a person for an offence under subsection (2) to show that another relevant organisation who was party to the agreement received a vetting disclosure in respect of the employment, contract, permission or placement of the person concerned

To rely on this defence however the accused person must be able to show that:

9. NEW SECTION 12(4) – CASUAL, OR PART-TIME WORK, WHERE PREVIOUSLY VETTED

This subsection was, in the original legislation, limited in scope to teachers working from time to time as examiners in the context of state examinations. Under the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, its scope is broadened dramatically so that it now covers:

(4) In the case of the employment of, entering into a contract for services with, permitting or placement of any person to undertake relevant work on a casual or part-time recurring but non-continuous basis with the same relevant organisation, the obligations placed on a relevant organisation pursuant to subsection (1) shall, subject to section 20, be regarded as being satisfied where the relevant organisation concerned received a vetting disclosure in respect of the person in respect of that initial employment, contract, permission or placement, as the case may be

As I understand it, this means that people who’ve been involved in the past, and who were vetted as a result of that prior involvement, have had their involvement lapse for a period of time, but now help out from time to time in a way that meets the criteria set out in the subsection 12(4) – won’t have to be automatically vetted again from afresh.

The exception to this is the requirement for all persons to be revetted after a certain period of time (not simply persons whose initial involvement has lapsed, and they’re now re-engaging on a part-time casual recurring basis which is non-continuous).

(It’s a pretty convoluted subsection, and problems are likely to arise in terms of its correct interpretation. Unfortunately, there’s no definition in the legislation for exactly what ‘casual’ or ‘part-time recurring basis’ is which is ‘non-continuous’).

However, for the purposes of this essay, simply note that section 20 of the National Vetting Bureau Act deals with the ability to get someone re-vetted after a certain period of time. This section was also amended by the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, and we’ll come to it in a future essay.

10. NEW SUBSECTION 12(5)

This is what the original subsection said:

This is what the new subsection, as amended by the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, now says:

11. SUMMARY

One of the primary drawbacks of the vetting legislation is that the fact that you actually have to two read 2 pieces of legislation in tandem with one another in order to get a clear understanding of how it works.

Having said that, the result of is a strengthened, more effective, fairer result.

The statutory prohibition on allowing someone to be involved in your organization while carrying out the relevant work or activities, is fundamental to the whole purpose of the vetting legislation.

The new criminal offence created for breach of that statutory duty is one that all persons would do best to avoid.

While there are limited defenses you can rely upon, it’s better to avoid having to square the circle and fit the defence to the situation you find yourself.