It shouldn’t happen to a vetting officer

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A version of this essay by Matthew Holmes first appeared in the Law Society Gazette and is republished with the kind permission of the editor of the Law Society Gazette. Matthew Holmes is a practising barrister, lecturer at the Dublin Institute of Technology (DIT) and is the author of the book Administrative Law Nutshell and the forthcoming nutshell on EU law.

Matthew Holmes

Matthew Holmes Barrister Lecturer

Background checks on employees are important, particularly where they may have access to children or vulnerable people.

Vetting allows employers in certain sensitive fields find out information about a potential employee’s history, in particular their criminal record.

Two acts were commenced on the 29th of April 2016 which change the way vetting is carried out in Ireland. They are the National Vetting Bureau (Children and Vulnerable Persons) Database System Act 2012 (Vetting Act) and the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 (Spent Convictions Act). The former was amended in part by the latter. These acts have to juggle the right to disclosure of sensitive information with respecting people’s privacy rights. On one hand no-one wants a sex offender working as a teacher. On the other the potential disclosure of convictions is enough to cause anyone anxiety or distress.

CHANGES IN VETTING PROCEDURE

The Vetting Act sets up the National Vetting Bureau which replaces the Garda Central Vetting unit. Before this Act the Garda Vetting Unit did not operate under any specific statutory power. The Law Society’s Criminal Law Committee raised concerns with the Irish Human Rights Commission in March 2014 about this and the extent to which Garda vetting interfered with privacy rights. The Act also creates the position of Chief Bureau Officer and sets up a national database known as the National Vetting Bureau (Children and Vulnerable Persons) Database System. This database contains registers of relevant organisations, specified information and vetted persons.

The Bureau is now in charge of vetting. Vetting is only conducted on behalf of registered organisations and is not conducted for individuals. Under s12 of the Vetting Act a “relevant organisation” cannot permit anyone to do “relevant work or activities” on its behalf, unless it receives vetting disclosure about that person from the National Vetting Bureau. It is an offence to do otherwise.

“Relevant work or activities” means work or activities relating to children or vulnerable persons and “relevant organisation” means anybody who employs or permits someone to carry out this “relevant work or activities” with children or vulnerable persons.

Vetting requirements do not apply to everyone who works with children or vulnerable persons, under s.3 there is an exception for family or personal relations where work is done for free. These vetting requirements also do not apply to employment which began before the 29th of April 2016, although there is the possibility of retrospective vetting under s21 of the Act and re-vetting under s20.

The Chief Bureau Officer is required to create and maintain a register of relevant organisations. Relevant organisations are required to apply to be on this register and to give their relevant information. The Act takes the release of personal information very seriously- not just anyone can apply. It can only be relevant organisations, and even then it is only the liaison person within that organisation who can apply for the information and receive it. Once registered the relevant organisation will nominate in writing a liaison person. This is the person who will apply for and receive vetting disclosures.

The formalities for a vetting disclosure application are found in s13 of the act. An application for vetting disclosure shall identify the relevant work or activity to which the application relates, and the persons to whom it relates personal information. Relevant organisations can apply for vetting on behalf of other organisations they represent. One area that is particularly sensitive is “Specified Information”. “Specified Information” means information concerning a finding or allegation of harm to another person which is received by the vetting bureau from the Gardai or from a number of bodies such as the HSE, the Teaching Council or the Medical Council.

Once the Bureau receives the application for vetting disclosure it will make enquiries with the Gardai to establish whether or not there is a criminal record and examine its databases to see if it contains particulars of any record of, or specified information relating to, the person concerned. The standard is higher where it relates to specified information, as this is not a conviction. Here the Act has to balance the presumption of innocence against protecting children and the vulnerable. Where a Bureau staff member considers there is specified information relating to a person the subject of an application they will refer matters to the Chief Bureau Officer to see if it should be disclosed. When this happens the Chief Bureau Officer will notify the person being vetted in writing and let them know of the information and allow them to make written submissions about it. The Chief Bureau Officer will assess the information and only disclose it if there is a risk that the person being vetted is a danger to children or vulnerable persons and the Officer is satisfied that it is necessary, proportionate and reasonable to disclose it. The decision can be appealed by a person “aggrieved” by it, under s18 of the act. Up to 85% of vetting applications are now done online and the majority of applications are processed within 5 days.

WHAT IS DISCLOSED?

Vetting disclosure includes particulars of the criminal record (if any) and a statement of the specified information (if any) relating to the person. If there is no criminal record or specified information relating to the person then a statement will be given to that effect.

Vetting disclosure will not include certain convictions under s.14A of the vetting act (as inserted by the spent convictions act). This applies where;

This only applies to one conviction (other than public order and road traffic offences), where a person has more than one conviction does not apply. A wide range of offences are excluded from s.14A, including sexual offences, domestic violence, assaults, cruelty to children, drugs offences (other than a first offence of simple possession), riot type offences, firearms and weapons offences, and a number of offences relating to various professions.

The test under s.14A is similar to the test for a spent conviction under s5 of the Spent Convictions act. This however is narrower as Circuit Court sentences of less than a year can become spent, whereas 14A only applies to District Court and District Court Appeal Convictions. Spent convictions do not have to be disclosed to an employer generally. Vetting only applies to those who will be working with children or vulnerable persons. (For further information on spent convictions see my Article “As Crimes Go Bye” in the July 2016 Gazette.)

CASE LAW

There is some case law from the English Courts and the ECHR which provides useful guidance on the limits of vetting.

The leading case from the ECHR is MM v the United Kingdom [2013] App. No. 24029/07. Here the applicant had received a caution for child abduction and an offer of employment was withdrawn when vetting disclosed this. The applicant claimed this disclosure was a breach of her right to privacy under Article 8 of the ECHR. The ECHR found that the retention and disclosure of the applicant’s was not in accordance with the law under section 8(2) ECHR. This was because, under the legislation, no distinction was made based on the seriousness or the circumstances of the offence, the time which had passed since the offence was committed and whether the caution is spent. There was no scope for the exercise of any discretion in the disclosure exercise. It was also taken into account that there wasn’t any mechanism for independent review of a decision to retain or disclose data.

The most recent case was P&A v Secretary for State [2016] 1 W.L.R. 2009. There one of the applicants was a schizophrenic former teacher who had convictions for shoplifting a sandwich and a book valued at 99p. This stopped her getting voluntary positions and work as an assistant teacher.

The other was a 51 year old financial director whose work and family life were threatened by theft convictions from when he was a teen. They claimed that changes to the disclosure system were a violation of their article 8 ECHR rights. Here it was found that disclosure by the police of spent convictions was unreasonable.

This case is useful as it gives an overview of how the vetting system worked in England. It drew on the Supreme Court decision in R(T) v Chief Constable of Greater Manchester Police [2014] UKSC 35, where the disclosure of cautions and warnings was found to fall foul of MM. The English vetting system had had to be changed in the aftermath of R(T) and this case concerned the new system

Lord Justice McCombe found in P&A that the test is whether the statute requires the provision to set out adequate safeguards which would enable the proportionality of the interference to be adequately examined, as well as protecting against arbitrariness. He also went on to hold that there was no reason why a second conviction would require an entire lifetime of disclosure of those convictions and that there was no “rational relationship” with the objectives of the legislation (namely rehabilitation) and was therefore unnecessary in a democratic society.

CONCLUSION

It should be noted that there is nothing stopping employers from employing people after they have been vetted, even if they have previous convictions. Potential employees may have a reasonable explanation or be able to show they have changed. It is safe to assume that in many cases however this disclosure will cause employers to reject employees with a chequered past. The Irish Times reported on 11 January that over 32 thousand teachers will have to be vetted this year under this legislation and will face fitness to practise inquiries if vetting reveals a risk to children or vulnerable adults.

The Irish legislation contains safeguards which meet many of the concerns raised in the English case law. The nature of the offence is taken into account as well as the time passed since conviction. There are tighter restrictions on the disclosure of specified information and there is an appeals mechanism. These may still be criticised; for example there is no reason why a minor matter dealt with by a small fine in the Circuit Court would have to be disclosed whilst another case which got up to a year’s custody in the District Court would not be.

The fact that multiple convictions will have to be disclosed was criticised in P&A. An offender may go through a period of offending before turning their life around and the legislation does not reflect this. Overall, however, this Act does a good job of balancing rights against the public interest.