We’re digging today into the critical section 14A of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 - the new Irish vetting legislation, known until now as Garda vetting – which talks about certain convictions that don’t have to be disclosed as part of a person's application for vetting disclosure.
We’ll look at what convictions the section applies to. We’ll check out how far back the convictions go, and when the clock starts ticking on them. We’ll explore an overlooked section of the action – namely the importance of compliance with the original sentence or order of the court, if a person wants to be able to rely on section 14A. We’ll see how multiple convictions are handed (arising out of one incident, and out of multiple incidents). Finally, we’ll see how failure to properly understand this section could unwittingly lead persons to make false applications for vetting disclosures, itself a new criminal offence with serious sanctions under the vetting legislation.
1. SECTION 14A – CONVICTIONS NOT REQUIRED TO BE DISCLOSED
Section 14A is a part of Part 3 of the vetting legislation which deals with the procedures for vetting disclosures. It replaces something called the ‘administrative filter’, which was a stop-gap mechanism to allow for proportionality and balance to be used in the consideration of what offences needed to be disclosed as part of the application for vetting disclosure. (Specifically it allowed for certain minor criminal offences to be removed from disclosures where the conviction was over 7 years old).
While the ‘administrative filter’ played its stop-gap role admirably, the legislators caught up with the gaps in the original 2012 vetting legislation, and came up with the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 – which effectively plugged the legislative gaps in the 2012 vetting legislation, thereby removing the need for the operation of the so-called ‘administrative filter’.
This is what the National Vetting Bureau advise in relation to convictions that have be disclosed, specifically touching on section 14A.
Remember here that 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.
You may recall that the new subsection 6A of section 13, specifically statutorily permits the non-disclosure of certain prior criminal convictions.
Section 21 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016
Section 21 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, with the introduction of a new section 14A.
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.
And it’s this section 14A that we’re exploring in this essay.
2. THE ORIGINS OF SECTION 14A
21. The Act of 2012 is amended by the insertion of the following section after section 14, i.e. a new Section 14A:
Again, it’s very important to understand this bit. This section only is of relevance to convictions imposed in the District Court. To understand the hierarch of the Irish judicial criminal court system.
Remember that in Ireland there are two ways that a criminal offence can be tried. A summary offence can be dealt with simply by a judge (there’s no jury present, so it’d be tried in the local District Court); compared to an indictable offence, which is more serious, and which is therefore tried in one of the higher courts (Circuit Criminal Court, Central Criminal Court) before a jury and a judge. There’s a pretty solid explanation of the difference between the offences here.
3. A NATURAL PERSON, OVER 18
So the person needs to have been an adult (someone over 18) when the offence took place (‘the date of the commission of the offence’).
Also, they need to have been a ‘natural person’. Say what? A ‘natural person’ basically means someone like you or me, reading this essay, and not a ‘corporate person’ (like a company) or an ‘unincorporated group of persons’ (e.g. Tom, Dick and Harry t/a ABC Sports Club).
4. NOT AN ‘EXCLUDED OFFENCE’
We’ll come to the notion of an ‘excluded offence’ below. It’s essentially to do with the fact that the section 14A non-disclosable list of convictions only goes so far; and that there are a number of offences whose seriousness means that they are not included in the list of offences that someone doesn’t have to disclose after a certain period of time.
5. 7 YEARS SINCE DATE OF CONVICTION
And there’s the magic number.
It’s the number of years, looking backwards, from the date of a person’s application for a vetting disclosure (let’s call that today’s date), to the ‘effective date of conviction’. Note that it’s not the date of the offence that ‘starts the clock ticking’ on the 7-year period: it’s the date of conviction. More on this at a later date.
6. COMPLIANCE WITH THE COURT’S SENTENCE / ORDER
A very important point here is that for a person to benefit from the protection of section 14A, they have to be able to say that they served / underwent / complied with any sentence / order made by the court.
This section has significant implications, and has arguably been overlooked to date.
Compliance with the court’s original order (made over 7 years ago) is a crucial element, under section 14A, in allowing that conviction to not be disclosed.
If there was in fact non-compliance or some other such issues to do with how the person the sentence, then that would mean that they would not in fact be able to benefit from this section 14A protection.
In practice, of course, this is a difficult area to get one’s head around.
How can an organization know whether or not an applicant complied with, or breached, a sentence made more than 7 years ago?
This does introduce an element of complexity to the area.
If a person relies on the section 14A protection so as not to disclose a 7-year-old conviction, but does so knowing that either they failed to comply with the sentence of that conviction, or that the court considers that they objectively failed to comply with the sentence that was handed down at that time, then they are relying on section 14 when they are not in fact able to do so.
Knowledge here is going to be important. If incorrect reliance on section 14A is down to someone being ignorance of the element of compliance with the sentence that’s handed down, well, that’s one thing; but if someone tries to rely on section 14A, knowing that they failed to comply with the sentence at the time, then that’s quite another matter.
7. ACCIDENTAL OR DELIBERATE FALSIFICATION OF A VETTING DISLCOSURE
Why is this important to a club or charity or organisation today?
Because it’s important that you explain to your applicants that reliance on section 14A is in fact a two-step process, and that fulfilling one step’s not going to be sufficient. Firstly, was the offence a section 14A offence? Secondly, did you comply with or undergo the sentence or order that was handed down? Only if both of these steps have been met, can someone safely rely on the section 14A provisions.
Fairness to persons applying to an organisation is, however, key. Clubs and charities need to be able to make this clear to people, so that they’re not inadvertently tripped up by it down the line.
This is particularly important in the context of the creation of the new criminal offence of ‘falsification of vetting disclosures’ under section 26(b) of the vetting legislation. That creates the offences of making a false statement for the purpose of obtaining, or enabling another person to obtain, a vetting disclosure. Under section 27 a person found guilty of this offence is liable to a fine, imprisonment or both, depending on the level of seriousness involved.
8. ONE STRIKE ONLY
So ‘one’ is the magic number here. One single conviction only. Where there’s more than one, a person simply cannot rely on section 14A.
9. MULTIPLE STRIKES IF FLOWING FROM THE SAME INCIDENT
This, however, is a sensible recognition that sometimes the law looks at an incident that took place, and finds that in fact, at law, there were multiple offences committed (at law), even though they all flow out of the one incident that took place. In this limited circumstance, where multiple convictions are handed down, these multiple convictions that flow out of the one incident, will be considered as one conviction (only) for the purpose of section 14A.
10. THE ROLE OF THE CONVICTION
Note that the application of this subsection only takes effect where there is only ‘a conviction’, other than as described above. Where there are multiple (more than one) convictions that arose out of separate incidents / occasions, then an applicant cannot rely on section 14A to non-disclose certain historical convictions – they must disclose them all.
The purpose of this is to allow for a one-off historical offence to be effectively legitimately overlooked / not taken into account; but that where that offence forms part of a pattern of offences, then the fact of the multiple convictions removes the protection afforded the applicant by section 14A.
11. LISTING THE NON-DISCLOSABLE OFFENCES
This related to under-age drinking by persons under 18 years of age.
These are convictions over 7 years for the following offences under the Public Order Act 1994:
- Intoxication – section 4
- Disorderly conduct – section 5
- Threatening, abusive, insulting behaviour – section 6
- Distribution or display of material which is offensive – section 7
- Failure to comply with the direction of a Garda – section 8
- Wilful obstruction – section 9
12. WHEN DOES THE CLOCK START TICKING?
The date of a person’s offence, or at least what the law considers as the date of the offence, is important, not least in terms of the process of calculating the 7-year period and when it goes back to. For the purpose of the vetting legislation, the ‘effective date of conviction’ is therefore ‘the date on which the sentence becomes operative in accordance with the order of the court’.
What’s that mean? Well, it means knowing what the court actually order in terms of the sentence, and the date when the court considered that sentence to have become ‘operative’ (another way of saying: ‘started’).
13. WHAT’S AN ‘EXCLUDED OFFENCE’
Section 29 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 specifically changes / amends the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012, with the introduction of a new area in the vetting legislation, called ‘Schedule 3’. The list of offences which are excluded from the operation of Section 14A’s ability to allow them to be non-disclosed include but are not limited to: domestic violence, non-fatal offences against a person, cruelty to children, reckless endangerment of children, a variety of offences under professional dental / medical / nursing / pharmaceutical pieces of legislation; along with various firearms offences, the vast majority of drug offences (bar first time offences in certain circumstances and a number of public order offences.
We’ll go into what these offences are in more detail in another essay, but for the moment here’s the list of offences that are excluded offences under the new Schedule 3:
Again, we’ll look at these in more detail in a later essay, but it’s enough to know that Part 2 of Schedule 1 lists out a wide range of sexual offences, and Part 1 of Schedule 1 sets out various offences that, though listed in the schedule as sexual offences, aren’t going to be counted as such for the purposes of the legislation.
What does that mean in practice?
Principally (but not exclusively) it’s about clarifying contentious issues on the borderline areas around the age of consent.
14. THE HIERARCHY OF THE COURTS
Remember that the Circuit Court is a more important court (‘higher’ in the ‘ranking order’ of importance) than the District Court, such that a Circuit Court can affirm or vary a District Court conviction.
The purpose of this subsection is to simply confirm that the simple act of someone appealing their District Court conviction, to the higher court (the Circuit Court), does not make that offence one that’s categorised as being a Circuit Court offence.
Why’s that of any interest to me, you ask?
Well it simply clarifies that someone can appeal a District Court conviction and not fear that it’ll be categorised as a more ‘serious’ offence than the law actually considers it to be.
Section 14A plays an incredibly important role in the protection of an applicant’s good name, especially in the light of limited historical mistakes in a person’s past, which lead to their getting a criminal record in certain circumstances.
Understanding – even if only at a high-level view – what these offences are, help build confidence in people looking to get involved in a club or charity, and show that the club or charity have a solid understanding that yes, people do make mistakes, but that we’re not tied down to the follies of our youth.
A person who has committed an offence, such that the offence satisfactorily meets the section 14A criteria, is not an offence that should today have an effect on an organisation’s assessment of a person’s suitability to work or volunteer in an organisation. The situation differs where there are multiple such offences.
This essay is for general information purposes only and does not constitute legal or other professional advice.
Specific legal advice from a firm of solicitors should always be sought on the application of the law in any particular situation.
Whilst all reasonable endeavours have been made to ensure the accuracy of the content, no liability whatsoever is accepted for any omissions or errors or for any action taken in reliance of the information in this essay.