Section 28 Liability for Offences by Bodies Corporate

In our last essay, we looked at an introduction to the backbone to the vetting legislation, section 28 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 – 2016.

Section 28 if of such significance to the legislation that we decided that we were going to break up our analysis of the section – and its impact – into several different essays.

The title of section 28 is the subject of today’s essay.

“Liability for offences by bodies corporate”.

In that last essay, Directors' & Officers' Personal Criminal Liabilities, we created this handy guide to Section 28. Anyone involved in an organization with volunteers, where they hold the position of director, manager, secretary, or another officer position, should acquaint themselves with Section 28.

This is the relevant section as you see it in the legislation:

The title of section 28 is the subject of today’s essay.

“Liability for offences by bodies corporate”.

This is essentially the explanatory introduction to the section, and sets the tone for what’s to come.

It introduces two important concepts to the reader.

The first concept is: who is responsible when an offence is committed under the vetting legislation?

The second concept is: distinguishing that an offence can be committed by different ‘legal entities’.

CIVIL LAW AND CRIMINAL LAW

Underpinning the area is a distinction the ‘civil law’ and the ‘criminal law’.

The basic thrust is around who brings a ‘case’ or ‘action’ against another person.

CIVIL LAW

Simply put, ‘civil law’ deals with the regulation of agreements between individuals and companies etc, and where there is a dispute over e.g. a contract, then one side can ‘issue court proceedings’ against the other side.

In civil law proceedings, the State is not involved.

Generally speaking, in civil law matters, sanctions usually involve a court ordering one side to pay money to another, or ordering that a particular be taken by one side; or a court finding that the defendant has ‘no case to answer’, and ordering that the costs of the case be paid by the person or company who brought the case against them.

CRIMINAL LAW

In ‘criminal law’ actions, it is the State – the prosecuting authority – that brings a case against a person (known as the defendant), where the prosecuting authority considers that there has been a breanch of the criminal law (e.g. theft, rape etc).

Generally speaking, in criminal law matters, sanctions range from the imposition by the court of monetary fines, all the way up to potential terms of imprisonment.

WHO'S RESPONSIBLE WHEN AN OFFENCE IS COMMITTED UNDER THE VETTING LEGISLATION?

In criminal law, one of the first thing that a prosecutor does is to ask herself ‘Who is the defendant here? Who has committed this alleged offence?’.

The novelty of the Irish vetting legislation, and specifically section 28, is that it creates a form of vicarious criminal liability.

In employment law situations for example, where a wrong is committed (e.g. negligence) by an employee, the employer is deemed to be liable on the basis that the employee was negligent in the course of their duties as an employee.

In the vetting legislation, the law states that where a situation arises in which an offence is committed by the organisation for which the person works or volunteers, the individual person can be held personally liable.

And – importantly, remember here that we’re talking specifically about criminal liability – that person can be found guilty of the criminal offence at the same time as the body corporate.

SUMMARY

It’s important to understand the difference between civil law and criminal law in dealing with section 28 of the vetting legislation.

Section 28 – and its introductory text – outlines the concept that the division of liability for offences committed by a body corporate is not as simple as it once was.

Section 28 is the skeleton of the vetting legislation, without which, in our view, the legislation would crumple into a heap.

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.