Appealing a Decision of the Chief Bureau Officer

Section 18 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 - the new Irish vetting legislation, known until now as Garda vetting – deals with the process for appealing a ‘determination’ (or decision) of the Chief Bureau Officer.

Unlike many other sections of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016, this section is basically left untouched by the amending legislation called the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.

In this essay we’ll look at the 14-day period someone has to appeal a decision of the Chief Bureau Officer; the discretionary power of the Appeals Officer to extend that appeal document; the formalities of the appeal document; the power of the relevant Minister to spell out the procedures for appeals; the decision that the Appeals Officer must come to; the obligation on the Appeals Officer to notify the appellant of their decision; the appellant’s right to withdraw their appeal at any stage; and the right to appeal the decision of the Appeals Officer to the High Court.

1. 14-DAY PERIOD TO APPEAL THE BUREAU’S ‘DETERMINATION’

S.18(1) allows someone who is ‘aggrieved’ by the decision (called a ‘determination’) of the Chief Bureau Officer, to lodge an appeal against that decision.

Why would someone appeal?

They might appeal for any number of reasons, but in essence it will be because they disagree with the findings (decision / determination) of the Chief Bureau Officer, and feel that in some way that they have been treated unfairly.

For a person who decides that they want to appeal the decision / determination of the Chief Bureau Officer (we’ll call the person who appeals the ‘appellant’), they have a relatively narrow window of opportunity in which to appeal the determination of the Chief Bureau Officer.

Interestingly, the appeal window doesn’t start, as you might expect, 14 days from the date that the person receives the determination / decision of the National Vetting Bureau’s Chief Bureau Officer. Instead, the appeal window starts 14 days after the notification is sent to the person who wants to appeal. Now, bear in in mind that the Irish postal service can experience delays like any postal service, such that the date between a letter being sent, and it being received, can be several days. The effect of this is to shorten the window of time in which the appellant can decide – and presumably get legal advice – if to appeal the determination / decision of the Chief Bureau Officer.

2. DISCRETIONARY POWER TO EXTEND APPEAL PERIOD

It’s the relatively narrow window of time that the appellant has – and the fact that, by and large, it’s reasonable to assume that they’re not going to be legally represented yet – which produces the discretionary power held by the Appeals Officer, to allow for an extension of the appeals period.

Note however that this extension of time by the Appeals Officer is entirely at the discretion of the Appeals Officer, and can only be extended for an additional 14 days. Furthermore, the Appeals Officer can only appeal if they consider that there is both a reason that justifies that extension, and where that reason is both (1) good and (2) sufficient. Quite what this will look like in practice is something that will come out in the wash in the fullness of time.

3. FORMAT OF THE APPEAL DOCUMENT

First thing to see here is that the appeals process is initially a paper-based process. It’s based on written submissions, not spoken/oral submissions.

The appeal from the appellant must be in writing, setting out why it’s being appealed, and must state if the appellant wants the opportunity to make the case in person as to why their appeal should be allowed:

4. MINISTERIAL POWER TO SPELL OUT APPEALS PROCEDURE

S.18(4) of the vetting legislation carves out the right for the relevant Minister to set out, at a future date, specific procedures as to how the appeals process must play out.

Note, however, the caveat that the requirement imposed on the Appeals Officer to follow these Ministerial (future) regulations, is set in the context of the overarching duty of the Appeals Officer to ‘be independent in the performance of his or her functions’ (as set out in s.17(3)(b)). You may recall from one of our earlier essays that is this overarching duty – to be independent of the National Vetting Bureau and other state apparatus – that is the lynchpin of the Appeals Officer being able to contribute effectively to the integrity of the vetting process overall.

5. THE ‘DETERMINATION’ OF THE APPEALS OFFICER

At some stage, the Appeals Officer ‘may’ either agree with or disagree with the decision of the Chief Bureau Officer. The power held by the Appeals Office is significant.

They can affirm (i.e. ‘agree with’) the decision that is being appealed (which effectively is a dismissal of the appeal filed by the Appellant).

Alternatively, the Appeals Officer can ‘set aside’ the decision. Further, they can set aside a part of the decision of the Chief Bureau Officer, or they can press the nuclear button and reject the decision of the Chief Bureau Officer in its entirety and then replace the decision of the Chief Bureau Officer with a decision of their own.

6. OBLIGATION TO NOTIFY THE APPELLANT

Whatever the decision that the Appeals Officer ultimately comes to, the Appeals Officer is obliged to inform both the appellant and the Chief Bureau Officer, and do so in writing, as well as giving the reasons for the decision taken by the Appeals Officer.

What remains to be seen is the time period within which the Minister decides is appropriate for the Appeals Officer to make their decision .

7. THE APPELLANT’S RIGHT TO WITHDRAW THE APPEAL

At the core of the vetting process is an understanding that people can, at various different stages, decide to withdraw from the vetting process. This same understanding is reflected in the entitlement of the appellant to withdraw their appeal at any stage.

8. RIGHT TO APPEAL TO THE HIGH COURT

For the appellant who feels doubly aggrieved – first of all by the decision of the Chief Bureau Officer, and secondly, by the decision of the Appeals Officer – they have one final dice to throw: an appeal to the High Court.

High Court litigation can be an extremely expensive and risky business and hopefully such decisions will only be taken in light of experienced legal advice as to the strengths of an appellant’s case.

Something to remember, too, is that the right to appeal isn’t limited to the person filing the appeal. Indeed, the Chief Bureau Officer can decide that they want to ‘stick to their guns’ and appeal

One interesting note of curiosity: the statutory prohibition imposed on the appellant from being able to appeal the High Court decision any further. Whether this part of s.18(8) would survive the scrutiny of a High Court challenge is, for the moment, a question for another day.

SUMMARY

Sectoin 18 of the vetting legislation paints a picture of the ebb and flow involved in the vetting process, where an a person feels aggrieved by the decision of the Chief Bureau Officer in relation to the disclosure of certain information to the relevant organization to whom the applicant has filed an application for vetting disclosure.

We’ll look at the 14-day period someone has to appeal a decision of the Chief Bureau Officer; the discretionary power of the Appeals Officer to extend that appeal document; the formalities of the appeal document; the power of the relevant Minister to spell out the procedures for appeals; the decision that the Appeals Officer must come to; the obligation on the Appeals Officer to notify the appellant of their decision; the appellant’s right to withdraw their appeal at any stage; and the right to appeal the decision of the Appeals Officer to the High Court.

The time allowed for the initial appeal is relatively tight. Most appellants are probably not going to have the benefit of legal representation. It’s advisable that they do. Having said that, the legislation recognises the potential unfairness of the short time period. To balance this, the legislation allows the Appeals Officer to extend the time period by a further 14 days.

The actually nitty-gritty of the appeals process will be spelled out by Ministerial regulation in the future. But fairness and natural justice courses its way through the appeals process. The appellant can request an oral hearing; the independence of the Appeals Officer in the process is emphasised; the Appeals Officer can dismiss the appeal, or agree with the appeal, and can dictate what should happen next. Either way, the law imposes a statutory duty on the Appeals Officer to inform both the appellant and the Chief Bureau Officer of the decision in a timely maner, and either side can appeal the Appeals Officer to the High Court.