Retrospective Vetting

Section 21 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 retrospective vetting of people currently in your organisation.

Section 21 sets out the new statutory duty; the criminal offence for failure to comply; the potential to plead in one’s defence that a person had a ‘reasonable excuse’ for failure to comply; the penalties for being found guilty of the offence; and the long stop date by which time all retrospective vetting must be complete. We also look at the difference between civil law duty and the criminal law duty in this area.

STATUTORY LONG-STOP DATE FOR RETROSPECTIVE VETTING

For existing volunteers (who were in place before 29 April 2016), if your organisation didn’t have an internal organisation policy-based requirement to vet such a person in the past, your organisation will be obliged to do so now.

Section 21 refers to the application being made “not later than such period as may be prescribed”. This period has in fact been prescribed and is 31 December 2017, according to the statutory instrument number 223 of 2016:

Ministerial regulations have stipulated that the 31 December 2017 is the date by which restrospective vetting for volunteers must be carried out (where those volunteers were in place prior to 29 April 2016) can therefore be seen as a long-stop date by which this retrospective vetting will be required to be done.

POLICY REASON BEHIND THE LONG STOP DATE

(Note that the primary public policy point (not set out in the legislation) for this was to allow for a transition period for the tens of thousands of primary and post-primary schoolteachers who, for historic reasons, weren’t subject to the requirement for vetting when they started work as teachers.

Had the legislators not created this transition period, then all of those teachers would have been prohibited from teaching, and the school system would have basically fallen to pieces in the interim).

THE REALITY ON THE GROUND: DELAYS

In reality, most organisations, and particularly voluntary ones, had introduced already (prior to 29 April 2016) mandatory vetting as a requirement for all volunteers even prior to the statutory commencement of the vetting laws.

This was in response, in part, due to the inordinate 4 year (yes, can you believe it, 4 years) delay between the National Vetting Bureau Act being enacted in 2012, and it being commenced in 2016.

Most organisations working with children and vulnerable adults decided to implement internal policies and procedures to remedy the gaps that the legislators had inadvertently created, with the imposition of vetting on new and existing volunteers under the organisation’s own code of conduct.

CIVIL LAW DUTIES – V – CRIMINAL LAW DUTIES

Understanding this point is important.

There is a significant difference between a statutory obligation (imposed under criminal law); and a civil law duty of care (as expressed through an organisation’s internal policies and procedures).

Sometimes the civil law duty of care mirrors the statutory requirements under the criminal law statutory duty of care.

Sometimes it doesn’t mirror it.

For a long time, there was a gap in Irish child protection legislation between the civil law duty of care, and what statutory legislation required.

MIND THE GAP

The vetting legislation as enacted in 2012 was the primary response to closing this gap.

However, due to significant failings in that legislation, it was another 4 years (29 April 2016) before the 2012 vetting legislation ‘went live’ (as the legislators attempted – successfully – to plaster over the cracks in the original 2012 legislation).

It was in response to this gap that most organisations decided to introduce mandatory vetting as a civil law based internal organizational policy requirement (thereby waiting for the commencement of the criminal law statutory duty to catch up).

While organizations were able to bar persons from volunteering up to 29 April 2016 if those persons refused to go through the vetting process; up to this point this all stemmed from the civil law duty of care.

That of course changed with the passing of the vetting legislation on 29 April 2016, which created this additional (more onerous) criminal law duty (with associated penalties for failure to comply).

You will see that section 21 has some extra words added to in red. These are the changes that were added to ensure that the legislation was brought in line with good practices around human rights legislation.

CREATION OF NEW CRIMINAL OFFENCE S.21(3)

Section 21(3) creates a new criminal offence of ‘failure to comply’ with the obligation to revet.

DEFENCE OF ‘REASONABLE EXCUSE’ FOR FAILURE TO RETROSPECTIVELY VET

As originally passed by the Oireachtas, this was a strict liability offence: a person who contravened the statute would be guility of the offence. As such, the simple ‘act’ of contravening the statutory duty, triggered the committal of the criminal offence.

The amending legislation significantly watered down this statutory obligation, such that someone can know plead a defence that they had a ‘reasonable excuse’ for failing to comply with the statutory requirement to retrospectively vet someone.

Now, in reality, it’s going to be a difficult defence to bring.

How so? Because it’s extremely difficult to envisage the circumstances in which there would be a reasonable excuse for failure to comply with the legislation.

Of course people will claim that they have an excuse, and that their excuse is a ‘reasonable’ one that should be accepted in defence for their failure to comply with the legislation.

But the law looks differently at what a ‘reasonable’ excuse might be.

A judge will ask themselves a series of questions, testing the evidence (the ‘excuse given’) against objective criteria for an acceptable standard of care in a person responsible for the discharge of an organisation’s duty as set out by the vetting legislation.

So, just because a person thinks it’s ‘reasonable’ either to have done or not to have done a certain thing, does not make that action or omission ‘reasonable’.

PENALTIES FOR BREACH OF NEW CRIMINAL OFFENCE S.21(3)

Section 27 of the vetting legislation set out that a person (either a body corporate, and / or an individual) found guilty of breaching the new section 21(3) criminal duty, will be liable a fine or imprisonment (the level of either being dependent on the court in which the case is heard).

SUMMARY

Section 21 of the vetting legislation is the new statutory duty that deals with retrospective vetting.

It sits alongside non-statutory civil duties as encompassed in an organisation’s policies and procedures (where this is addressed).

A long-stop date of 31 December 2017 was created by which time all retrospective vetting must be completed under the new criminal law regime (the vetting legislation).

There’s a new criminal offence created – section 21(3) – for failure to retrospectively vet.

Penalties for failure to comply with the new criminal duty includes fines and / or imprisonment.

The final legislation allows someone who’s breached section 21(3) to plead in their defence that they had a ‘reasonable excuse’ for the breach.

Quite whether the excuse can be fairly described as a ‘reasonable’ excuse will, ultimately, be tested by the prosecuting authority in the courts, and will be decided upon by the presiding judge.