How the Bureau processes an application for vetting disclosure

We’re taking another look today at Part 3 of the vetting legislation which deals with the procedures for vetting disclosures. In particular, we will look today at section 14 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 - the new Irish vetting legislation, known until now as Garda vetting – and what the National Vetting Bureau needs to consider each and every time it receives an application for vetting disclosure.

SECTION 14: BUREAU PROCESSING OF AN APPLICATION FOR VETTING DISCLOSURE

Points covered out by Section 14 include:

How section 14 is the trigger for the Bureau to process an application

The steps the Bureaus take to engage with the Irish policy authority

The steps the Bureau must take to examine its own database

The assessment the Bureau must make of specified information revealed

The applicant’s right of reply to specified information revealed

The Bureau officer’s judgement call

The limitation on use of specified information

The convictions that no longer need to be disclosed

THE SECTION 14 TRIGGER FOR PROCESSING AN APPLICATION

So the first point to note is that section 14 doesn’t even come into effect unless and until the requirements of section 13 have been met. As a quick reminder, section 13 sets out the process for making an application for vetting disclosure, and details who may apply to make such an application for vetting disclosure. Section 13 also introduces the new limitation on the requirement to self-disclose certain prior criminal convictions, in certain circumstances.

STEP 1: EXTERNAL STATUTORY AGENCY ENQUIRIES

The National Vetting Bureau makes enquiries of the national policing body in Ireland – the Garda Síochána, for two reasons, namely to establish for the person making the application for vetting disclosure:

If there’s a criminal record for that person

If there’s specified information relation to that person

STEP 2: INTERNAL BUREAU ENQUIRIES

Having liaised with the policing authority, the Bureau next undertakes an examination of its own database, for a similar dual purpose, to see if that database contains:

Particulars of any record of the person

Specified information relating to that person

Section 14(2) is the mechanism by which the Bureau’s able to trigger the creation of the ‘vetting disclosure’. Note that this vetting disclosure – which is the essentially the ‘paperwork’ recording the outcome of the (a) external enquiries and (b) internal database examinations – goes (in the normal course of things) direct to the Liaison Person for the organisation that submitted the application for vetting disclosure. i.e. it doesn’t go directly to the person who is being ‘vetted’.

STEP 3: THE SECTION 15 ASSESSMENT & THE APPLICANT’S RIGHT TO REPLY

You might have spotted that the creation of the vetting disclosure by the Bureau may also include a new step.

We’ll look in more detail in an upcoming essay at the ins and outs of section 15. It’s enough to know for today’s purposes, that section 15 is the detailed process under which an assessment is made of an ‘specified information’ that comes to light during the course of the Bureau’s examination of the vetting database that it holds.

SPECIFIED INFORMATION: THE INS & THE OUTS

Remember there that ‘specified information’ isn’t mere tittle-tattle gossip.

‘Specified information’ has a particular legal meaning: it’s number 31 in our 34 Vetting Terms You Should Know essay.

For a deeper dive into the ins and outs of ‘specified information’, have a read of What is Specified Information & Where Does it Come From?

So, assuming that section 15 is triggered during the course of the processing of a person’s application for vetting disclosure, then it’s only when the timelines and steps set out in section 15 have been fully complied with, can a vetting disclosure be then issued to the Liaison Person.

WHO RECEIVES THE FINAL VETTTING DISCLOSURE

You’ll see that the applicant isn’t actually being provided with the final ‘vetting disclosure’.

That goes to the Liaison Person in due course.

But what section 15 does is provide a process that enables the applicant to comment on any of the specified information that’s come to light, before the Bureau uses that information to inform their final decision on the vetting disclosure that they’ll issue to the Liaison Person.

THE SECTION 14(3) JUDGMENT CALL

Section 14(3) is, in fact, a subjective test, which requires the exercise of the judgment of the Bureau staff member.

How so?

Well, the key point here is that the legislation says it’s in the gift of the Bureau staff member to decide if they ‘consider’ that there’s specified information that requires following up.

FISHING PROHIBITED

Also, note that the existence of ‘specified information’ is, on its own, not enough.

The specified information must additionally related to the person making the application for the vetting disclosure.

This is, in part, to avoid the risk of ‘fishing expeditions’ being carried out in relation to specified information held on the Bureau database, limiting the ability for it to be acted upon to only those persons who are actually making an application for vetting disclosure – and none others.

WHAT THE FINAL VETTING DISCLOSURE WILL SAY

So the vetting disclosure, once issued, will state either

That the person applying has no criminal record

That there’s no specified information held relating to them

Alternatively, it will state:

particulars (a fancy legal word for just ‘details’) of the person’s criminal record (if any); and

a statement of the specified information (if any), but only where

the Chief Bureau Officer has decided that this specified information should be disclosed to the Liaison Person (following the section 15 protocol for answering this question

so long as the disclosure of specified information only occurs once, and if triggered by the applicant, the appeals process has been exhausted (e.g. if the applicant is challenging the veracity of the alleged specified information apparently relating to them).

SECTION 14A – CONVICTIONS NOT REQUIRED TO BE DISCLOSED

For completeness, we’ll include the new section 14A of the vetting legislation.

As it’s a substantial section in its own right, we’ll look at in more detail in another essay.

SUMMARY

We looked in this essay at section 14 of the Irish vetting legislation, specifically drilling into:

How section 14 is the trigger for the Bureau to process an application

The steps the Bureaus take to engage with the Irish policy authority

The steps the Bureau must take to examine its own database

The assessment the Bureau must make of specified information revealed

The applicant’s right of reply to specified information revealed

The Bureau officer’s judgement call

The limitation on use of specified information

The convictions that no longer need to be disclosed

The original 2012 vetting legislation had a number of constitutional and other problems connected to it that necessitated supplementary 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 was therefore significantly amended by another law called the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.

Section 20 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 specifically changes / amends section 14 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012.

Section 14 – which details how the National Vetting Bureau is to process an application for vetting disclosure – has a crucial amendment to it, introduced by s.20 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.

You may recall that new subsection 6A of section 13, specifically statutorily permits the non-disclosure of certain prior criminal convictions.

The new section 14A of the Irish vetting legislation will tell us what those actual prior criminal convictions are which can be discounted / non-disclosed.

It’s a complex piece of legislation, of that there’s no doubt.

But it’s also surprising simple as well, once you get ‘under the hood’ of what the legislation actually requires.

Understanding how the National Vetting Bureau processes an application for vetting disclosure is important for many reasons. One particular reason is to better understand the role that a club or charity plays in the chain between the applicant (the person applying for the vetting disclosure) and the National Vetting Bureau (who process the application once received from the club / charity via the Liaison Person).

With that understanding comes an insight into the important role that vetting plays in the volunteer recruitment process.

Clubs and charities that embrace that understanding, are doing a good service to both themselves, and their applicants and volunteers.