Handle That Vetting Disclosure with Care: 3 New Criminal Offences

We’re looking this week at the central importance of vetting in the policing and security of the Irish state; at three new criminal offences around the mishandling and falsification of vetting disclosures; and we look at the criminal penalties for breaches of the legislation.

Section 26 of the vetting legislation creates three new criminal offences, relating the falsification of a vetting disclosure; making a false statement to facilitate a vetting disclosure being obtained; and allowing fraudulent misuse of a vetting disclosure so it appears to relate to a different person.

Section 27 then goes through the criminal law sanctions that will apply in the event of a successful prosecution of a person who has committed any of the section 26 offences.

AMENDING THE GARDA SIOCHANA ACT

Vetting - a criminal background check - is now at the heart of policy and security services provided to the State by the Garda Siochana, and its close cousin, the National Vetting Bureau.

There are now 3 new criminal offences created for the mishandling or falsification of a vetting disclosure, by virtue of section 26 of the vetting legislation.

Those offences deal with:

Section 25 of the vetting legislation has its purposes as the amendment of section 7 of Garda Síochána Act 2005:

Section 7 Garda Siochana Act 2005 as amended:

Section 25 of the vetting legislation therefore enshrines the notion of vetting not merely at the peripherary of the purpose of the Garda Siochana, but places vetting at the heart of the raison d’etre of the Garda Siochana.

Section (2) of section 7 Garda Siochana Act 2005 as amended points out that the Garda Siochana have to co-operate with other statutory agencies and organisations that enable the Garda Siochana to fulfil their functional mandate as set out in section s.7(1) of the Garda Siochana Act.

What does that mean in reality? Basically the Garda Siochana are now statutorily obliged to liaise and co-operate with the National Vetting Bureau on vetting matters.

Now that’s not to suggest that that co-operation wasn’t present when the National Vetting Bureau operated under the mantle of the Garda Vetting Unit. However, the enshrinement into statute changes the nature of that co-operation, putting it onto a legal footing.

SECTION 26: FALSIFICATION OF VETTING DISCLOSURES

Let’s look at these three new criminal offences in turn, but, before doing so, let’s remind ourselves of the terminology here: I don’t know about you, but I want to be sure that I know exactly what a ‘vetting disclosure’ actually comprises?

A VETTING DISCLOSURE: WHAT IS IT?

Let’s go back to Number 32 of our 34 Terms You Should Know essay about vetting. In it, we talked about a vetting disclosure being, in respect of a person, meaning a disclosure made by the National Vetting Bureau in respect of a person, under section 14 of the vetting legislation.

Section 14, as we discuss in this essay here, talks about how a person applies to the National Vetting Bureau for ‘an application for vetting disclosure’.

On receipt of the application, and after confirming it’s in good order, the National Vetting Bureau then go about their job of making enquiries both (a) internally inside the National Vetting Bureau and then (b) externally if required.

In addition, the Bureau considers if theirs is any ‘specified information’ that requires their examination and review.

After all avenues have been exhausted, the National Vetting Bureau (under section 14(2) of the vetting legislation) can then ‘make, in accordance with this section a vetting disclosure... to the liaison person for the relevant organization who made the application for it’).

FALSIFICATION OR ALTERING A VETTING DISCLOSURE

Section 26(a) creates a new criminal offence. The offence is committed one of two ways. The first way is for a person to falsify a vetting disclosure. The second way is for someone to alter a vetting disclosure.

What is 'falsification'?

Falsification is not a regularly used word. But it means to do with the action of fabricating, distorting, doctoring, manipulating or misrepresenting information in a deliberate way so as to give an untrue version of something.

Oftentimes it comes down to boring old mundane documents and the respect with which they’re treated. ‘Respect’, I hear you say? Yes, respect. It’s about understanding that the information and documentation involved in the vetting process aren’t just regular office documents, or personal correspondence.

Rather, these documents are creations of the law, and have a quasi-sacred value to them, such that they have to be treated carefully, handled respectfully, and appreciated for the significant role that they play in the vetting process as part of the security of the state.

Now, ‘surely that’s stretching it a bit too far’, I can hear some hecklers at the back muttering as they read this.

Not at all, in my view.

Remember, it’s these documents that communicate to the National Vetting Bureau the relevant information that enables them to make an informed, unbiased, objective judgment on a person’s criminal record history, that eventually leads to the Bureau being able to issue, with confidence, a vetting disclosure.

Now, for that process to work, there are a significant number of moving parts. But ultimately those moving parts work on the basis that the information being acted on is accurate.

And it is for that reason that three new criminal offences in section 26 were born.

What is 'altering'?

The concept of ‘altering’ a disclosure is therefore very closely allied to the notion of ‘falsifying’ a disclosure. While an ‘alteration’ can seem innocuous, and almost ‘innocent’ by comparison the act of ‘falsification’, an alteration though tiny, can have huge effects.

So by changing a vetting disclosure issued in the name of Padraig Smyth to Padraig Smith – only one letter changed – the effect can be devastating: a disclosure issued legitimately to one person, altered to give illegitimate credibility to someone with a similar but differently spelled surname.

MAKING A FALSE STATEMENT

Section 26(b) creates another new criminal offence. The offence is committed

Intention is key

The words ‘for the purpose of’ are important. In legal terms this particular criminal offence therefore requires something called ‘mens rea’, or, in layman’s terms, the intention to do the thing which commits the offence.

So, if someone accidentally or inadvertently makes a false statement (either by accident, or omission), even if they end up making a false statement that is used to obtain or enable someone else to obtain, a vetting disclosure – then they have not committed the offence. Why? Because they lack the necessary ‘intent’ (mens rea) as set out by the inclusion of the phrase ‘for the purpose of’.

ALLOWING FRAUDULENT MISUSE OF A DISCLOSURE

This is a multi-part offence where all parts of the offence have to occur in order for the offence to be committed.

The word 'allows' is itself slightly ambiguous.

Does it mean allow in the sense of ‘giving permission’?

Or does it also mean allow in the sense of ‘enabling’?

If it is limited to the first part (i.e. giving express permission) then this is a relatively narrow offence in its ambit.

However, if the word allow is interpreted by the prosecuting authorities and/or judge to mean allow in the sense of ‘enabling’, then the offence is throwing out a far wider net.

How so?

Because if someone can be said to have ‘allowed’ their vetting disclosure to be used by someone else, but didn’t do so intentionally – rather, did it accidentally, in advertently, or negligently – then in this latter instance, it’s conceivable that far more persons could end up being caught in the net of the section 26 (c) offence.

Time will tell.

PENALTIES

SUMMARY

When legislators feel the need to write laws to regulate the conduct and behavious of people in a society, there’s a balance to be struck between the ‘carrot’ (to incentivise compliance with best practice) and the ‘stick’ (to punish wrong doers for deliberate, or negligent non-compliance with best practice).

Section 25 of the vetting legislation drives vetting into the heart of the policing and security structures of the Irish State, statutorily establishing it as one of the bedrock functions that the national policy authority is designed to deal with (and co-operate with other agencies on).

Section 26 of the vetting legislation takes a step back the big picture of section 25, and looks at the nitty-gritty of the handling (and mis-handling) of vetting disclosures, first by codifying three new criminal offences; and then (in section 27), setting out the penalties for breach of the new section 26 criminal offences. In the carrot and stick context, section 26 - and 27 - is the stick, certainly as they relate to vetting disclosures.