In this essay, the next in our series on the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 To 2016 - the new Irish vetting legislation, known until now as garda vetting – we’re going to check out what’s meant by the phrase ‘specified information’ that appears here and there in the legislation. What is it, and what does it mean?
In 12 Things You Should Know about Organisation Registration with the National Vetting Bureau, we discussed the Register of Relevant Organisations, held by the new National Vetting Bureau.
In this essay we look at another register held by the National Vetting Bureau, namely the Register of Specified Information (dealt with in section 10 The National Vetting Bureau (Children And Vulnerable Persons) Acts 2012 To 2016).
1. WHAT IS SPECIFIED INFORMATION
In Number 31 of our 34 Terms You Should Know essay, we looked at the what this term ‘specified information’ actually means.
We described it like this:
Specified information is the fundamental lever of change for the assessment of someone’s suitability to work with children or vulnerable persons. It’s the first time that it’s been put on a statutory basis in Ireland, and the reason for it being put on that footing is due the fact that it does encroach on an individual’s rights to a good name (amongst other things), and the right to a presumption of innocence. The legislation recognises this (hence the creation of the appeals process under s.17 and s.18. Much more on this is a follow up essay to come).
2. SO, WHAT DOES SPECIFIED INFORMATION LOOK LIKE?
This is what the legislation talks about:
- It’s information relating to a person
- Applying for a vetting disclosure
- Where the information’s to do with either a finding of harm to another person, or
- Where the information’s to do with an allegation of harm to another person, and
- Where that information is received by the National Vetting Bureau
- From the national policing authority (the Garda Siochana);
- but only where
- The Garda Siochana received that information pursuant to an investigation of an offence, or
- The Garda Siochana received that information pursuant to any other function they hold through legislation or by common law; or
- Where that information is received by the National Vetting Bureau
- One of the so-called ‘Scheduled Organisations’ listed in the legislation (mainly disciplinary and regulatory bodies);
- And where the information is such as to give rise
- To a bona fide concern
- That the person may
- Harm any child or vulnerable person, or
- Cause any child or vulnerable person to be harmed, or
- Put any child or vulnerable person at risk of harm, or
- Attempt to harm any child or vulnerable person, or
- Incite another person to harm any child or vulnerable person
Let’s have a look at each of these components in turn.
3. IT’S INFORMATION RELATING TO A PERSON…
The first thing to note is that it has the information in relation to a person. There is some ambiguity here. Does the person mean you simply an individual? Or does it, as in case of the relevant organisation mean a body corporate, or an unincorporated body of persons? On balance, it is likely the legislators meant the former (simply an individual, given that it’s introduced in the context of individual person applying for vetting disclosures).
4. APPLYING FOR A VETTING DISCLOSURE…
The definition of specified information relates to the process of applying for a vetting disclosure. The legislation does not anticipate it being applied in the context wider than this.
5. WHERE THE INFORMATION’S TO DO WITH EITHER A FINDING OF HARM TO ANOTHER PERSON…
The information must relate to a finding of harm to another person.
What is a finding of harm? This can be understood to mean a guilty verdict in a criminal trial, where harm was caused to another person. If the person had caused harm to property, then that information would not quality as specified information, as harm hadn’t been caused to a person.
6. WHERE THE INFORMATION’S TO DO WITH AN ALLEGATION OF HARM TO ANOTHER PERSON, OR…
An allegation is a claim or assertion that someone has done something illegal or wrong, usually made without proof. Simply because an allegation is made proves nothing, at law. However, this section anticipates that allegations of harm being made by one person against another (regardless of proof), would qualify as specified information under the legislation. This is arguably a dramatic shift away from the presumption of innocence (where for the state to secure a guilty verdict, it has to prove something in a criminal context, beyond all reasonable doubt).
6. WHERE THAT INFORMATION IS RECEIVED BY THE NATIONAL VETTING BUREAU…
The information must be received by the National Vetting Bureau. Information not held by the Bureau would not qualify as being specified information on which the Bureau can act.
7. FROM THE NATIONAL POLICING AUTHORITY (THE GARDA SIOCHANA);
The information can come from one of two sources. The first source is the national policing authority (the Garda Siochana). But there are limitations on the information that can flow from the Garda Siochana to the Bureau in the context of specified information.
8. BUT ONLY WHERE…
(This is the legitimiser, which allows information to flow from the Garda Siochana to the National Vetting Bureau).
9. THE GARDA SIOCHANA RECEIVED THAT INFORMATION PURSUANT TO AN INVESTIGATION OF AN OFFENCE, OR...
The information passed from the Garda Siochana to the Bureau must have been in the possession of the Garda Siochana as a direct result of their investigation of an offence (a potential criminal act under Irish law).
10. THE GARDA SIOCHANA RECEIVED THAT INFORMATION PURSUANT TO ANY OTHER FUNCTION THEY HOLD THROUGH LEGISLATION OR BY COMMON LAW; OR...
If the information wasn’t received by the Garda Siochana as a direct result of their investigation of an offence, then for it be legitimately passed to the Bureau, it must either have come through the Garda Siochana while the Garda Siochana was carrying out a function imposed on them by enactment, or implied at common law as one of their duties.
11. ONE OF THE SO-CALLED ‘SCHEDULED ORGANISATIONS’ LISTED IN THE LEGISLATION (MAINLY DISCIPLINARY AND REGULATORY BODIES);...
Where that information is received by the National Vetting Bureau from one of the organisations, such as the Teaching Council, Dental Council, HSE etc. Click here for more information on ‘scheduled organisations’.
12. AND WHERE THE INFORMATION IS SUCH AS TO GIVE RISE…
This is the area to drill into next. The information that passes into the control of the Bureau, must be information that ‘gives rise’ (trigger, produce, have the effect)
Again, this is a critical qualifier on the information. It cannot be ‘all’ findings or allegations of harm. Rather it must be ones that ‘reasonably’ give rise to concern. In law, a reasonable person is one who the courts decides what the average person holding a particular duty of care would do that in that situation. Just because one officer in the Bureau thinks the information gives rise to a concern, does not make that opinion to be reasonably held. It has to be tested against objective tests of reasonableness.
14. TO A ‘BONA FIDE’ CONCERN...
Assuming that a finding or allegation of harm has been uncovered, and it’s given rise in a way that is reasonable to happen, then the next bar to get across is this: is the concern identified a bona fide concern?
(It’s interesting in this modern age that the legislators still insisted on using the latin legalese ‘bona fide’ when ‘good faith’ would have done a much clearer job).
The tension here is that for something to be a good faith concern means that, naturally, some concerns must be the opposite of ‘good faith’ i.e. it’s a ‘bad faith’ concern.
The test for establishing if something is a concern that is held in good faith, is to see if disclosure of the information is necessary, proportionate and reasonable in the circumstances (generally held to be a 3-stage test).
15. THAT THE PERSON MAY…
The test for understanding how to process the specified information, is to see if that information, which gives rise, reasonably, to the good faith concern, that the person – looking forward into the future – may do the following:
- Harm any child or vulnerable person, or…
- Cause any child or vulnerable person to be harmed, or…
- Put any child or vulnerable person at risk of harm, or…
- Attempt to harm any child or vulnerable person, or…
- Incite another person to harm any child or vulnerable person
So once the test has been met, and the bona fide concern has been established, the next test is whether the information relates to a potential scenario where that person, going through the vetting disclosure application process, may proactively harm a child or vulnerable person, take actions or omissions to cause harm to a child or vulnerable person; to allow circumstances to arise which would put the child or vulnerable person at risk of harm, or to incite someone else to harm a child or vulnerable person.
16. REGISTER OF SPECIFIED INFORMATION
If the hurdles above are identified, then that information is to be placed on the National Vetting Bureau’s Register of Specified Information.
Responsibility to establish and maintain the register of special information is in the remit of the Chief Bureau Officer. Information can be found be in either electronic or paper format, at the discretion of the Chief Bureau Officer.
This section also passports all information deemed to be specified information, to be entered on the Register of Specified Information.
For those items of information that pass those hurdles, then the information can be legitimately held on the Register of Specified Information. The test will come if it transpires that information held on the Register of Specified Information is information that hasn’t objectively passed the legitimising hurdles identified in section 10 of the vetting legislation (and indeed subsequent amending legislation, of which more below).
Remember that when the original vetting legislation was passed in 2012, it transpired that the legislation was potential in breach of EU requirements about the right to privacy and potentially in breach of constitutional requirements to protect one’s good name.
As a result, an Administrative Filter was put in place by the then Garda Central Vetting Unit, which allowed for a test of reasonableness to be put in place in deciding what information ought to be disclosed. This sought to balance the requirements under the vetting process, with the right of the applicants. With the passing of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, this was put onto a statutory footing.
We will explore in another essay the effect that the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 has on further limiting the effect of certain criminal convictions (in the consideration of what information can be disclosed as part of the vetting process). We will also look at the effect of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 on how long back into someone’s history it’s acceptable now to go in terms of disclosing certain historical criminal convictions.
Specified information is information held by the Bureau, on someone going through the vetting disclosure application process, where that information relations to a finding or allegation of harm to a child or vulnerable person.
That information must be held by the National Vetting Bureay, and be received from the national policing authority acting within the constraints imposed on it by law; or have come from one the regulatory or disciplinary bodies identified in the legislation.
Crucially, allegations (and not simply guilty verdicts or adverse findings against a person) are allowed to qualify as information that can be included in the definition of specified information. This dramatically widens the scope of information that can be included.
The legislators created a number of hurdles that must be overcome to allow for the information to be used as specified information. Getting to grips with these concepts are important for any organisation looking to efficiently and effectively play their part in the administration of the vetting application process; while also understanding the legal and constitutional requirements for certain convictions to not be disclosed as part of the vetting disclosure process, protecting the rights of applicant to their good name and the passing away of the impact of certain offences on their criminal record.
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.