• Skip to main content
  • Skip to primary sidebar
  • Skip to footer

Complyfile Blog

Cloud software for better volunteer recruitment.

You are here: Home / Legislation / S.28 Liability – Did The Body Corporate Commit An Offence?

S.28 Liability – Did The Body Corporate Commit An Offence?

January 27, 2017 by David Miller Leave a Comment

Section 28 vetting legislation

In this week’s essay we’re going to start by breaking section 28 into its constituent parts.

Section 28 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 – 2016 deals with the fall-out for senior management if a criminal offence is committed by the organisation to which the senior management belongs.

(Remember, for those looking for a quick recap, that section 28 of the Irish vetting legislation creates personal criminal liabilities on charities and clubs’ senior management (directors, officers, managers, or persons purporting to act as such) where it’s found that a criminal offence has been committed not by them, but rather by the body corporate (i.e. the charity / club), in circumstances where it can be proven that the offence was committed either with the senior management personnel’s personal consent, connivance, or willful neglect).


STARTING AT THE START

A few essays back, we created this Handy Guide to Section 28, for anyone involved in an organization with volunteers, where they hold the position of director, manager, secretary, or another officer position.

This week we’re checking out the very first part of the legislation, and the question we’re asking is this: ‘Was an offence committed by the body corporate?’

Section 28

Now, the reason why this is important is as it’s the very first hurdle to be jumped for someone to avoid finding themselves entangled in the thorns of section 28.

  • (1) Was an offence committed?
  • (2) If 'yes', did a body corporate commit that offence?

WAS AN OFFENCE COMMITTED?

The answer to this is either:

  • Yes, an offence was committed; or
  • No, an offence was not committed.

HOW DO YOU KNOW IF AN OFFENCE WAS COMMITTED?

The first analysis to be done is to know what the offences actually are under the vetting legislation.

To refresh your memory, you can check out The 12 Criminal Offences In The Vetting Legislation.

For the purposes of this essay, let’s assume that one of those offences have been committed.

Section 28 slam-dunk?

Not quite.

Section 28 of the vetting legislation

A QUESTION OF FACT

The next question to ask is: did the ‘body corporate’ commit the offence?

Essentially this is a ‘factual’ question. Or, put another way, it turns on the facts of a particular case.

But, by and large, it’s probably safe to err on the side of caution and assume that where an offence has been committed, liability will accrue to the body corporate in the first instance.

So, for example, Offence # 2: Failure to Obtain Vetting Disclosure In Respect of Certain Work or Activities creates an offence for, funnily enough, failure to obtain a vetting disclosure in respect of certain work or activities. That offence is deemed under section 12(2) of the vetting legislation to have been committed by the ‘person’ who contravened section 12(1).

The responsibility under section 12(2) falls upon the ‘relevant organisation’ which is forbidden (‘shall not’) from employing, contracting with, allowing, or placing, someone into relevant work or activities (as defined by the legislation) unless and until that organisation has received the vetting disclosure from the National Vetting Bureau.

So, in a case where an organisation has in fact employed, contracted with, allowed, or placed, someone into relevant work or activities (as defined by the legislation) before / without that organisation receiving the vetting disclosure for that person from the National Vetting Bureau, then we can say that:

  • An offence has been committed (in this case, under section 12(2) of the vetting legislation); and
  • That offence was committed by a body corporate (as set out in section 12(1) of the vetting legislation)

In those circumstances – where an offence has been committed by a body corporate – section 28 kicks in, and an analysis must take place to see what, if any, responsibility / liability will fall on the shoulders of senior management within that organisation for that organisation’s corporate breach of the criminal law vetting legislation.


SUMMARY

In this essay, we checked out how section 28 does require, at the first hurdle, that an offence has been committed, and that that offence can be said to have been committed by the body corporate.

In our next essay, we’ll take a helicopter view of the required ‘intention’ for senior management to find themselves in the cross-hairs of section 28, as we explore the notions of ‘consent, connivance and willful neglect’.

Join us next week, and if you haven’t done so already, take a moment to download this Handy Guide to Section 28.

YOUR HANDY GUIDE TO DIRECTORS' & OFFICERS' POTENTIAL PERSONAL CRIMINAL LIABILITIES UNDER SECTION 28 OF THE VETTING LAWS

Anyone in senior management in a club, charity or organisation with a volunteer workforce, should ensure that they are properly acquainted with the potential personal criminal liabilities created by section 28. Click the big red button to download your handy guide as a PDF.

Download your free guide

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 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.

Filed Under: Legislation, National Vetting Bureau Act 2012, Process Improvements

Avatar for David Miller

About David Miller

David used to be a litigation solicitor (in London and Dublin) and is today the CEO & co founder of Complyfile. When he's not helping organisations with their management of risk, he's either coaching children's football, or running around after one of his own five children.

Complyfile's cloud based software solution helps organisations to:

~ bullet-proof safeguarding practices across the organisation;
~ increase volunteer numbers, while improving compliance and accountability; and
~ streamline the administrative efforts of recruiting volunteers ‘on the ground’.

Interested in a demo?

Get in touch with David and the Complyfile team by:

~ calling him on +35319060995 (Ireland) or +442080685096 (UK)

~ connecting via LinkedIn>

"Complyfile - Improving Risk Management in Voluntary Organisations"

Reader Interactions

Leave a Reply Cancel reply

You must be logged in to post a comment.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Primary Sidebar

Why Should Your Voluntary Organisation Have a Knowledge Base?

Whistle Stop 8-Part Tour of Section 28 Liability

Which old minor criminal convictions do I have to disclose?

Brought to you by

complyfile

Learn More

Privacy Statement and Cookie Policy

Footer

© Complyfile 2016-2020

Godaddy Siteseal

Copyright © 2023 · Genesis Sample Theme on Genesis Framework · WordPress · Log in