What are ‘excluded offences’ under the vetting legislation?

Caesar and Brutus. Romeo and Juliet. Sometimes two things are just inextricably linked to each other. And that’s the same in what we’re looking at today: "Section 14A" & "Schedule 3" - excluded offences under the vetting legislation.

Section 14A & Schedule 3 depend on each other in the same way that all these famous pairs do.

To cut a long story short, the vetting legislation now allows for certain offences, in certain limited conditions, to not have to be disclosed on a person’s vetting disclosure issued by the National Vetting Bureau.

Section 14A spells out what offences don’t have to be disclosed.

But – and here’s the kicker – Schedule 3 says that – despite Section 14A - certain offences are excluded from not being disclosed (i.e. they must be disclosed regardless).

That’s why they’re called ‘excluded offences’ – because they’re ‘excluded’ from the effect of Section 14A.

QUICK RECAP: THE 3 VETTING SCHEDULES

You may recall that there are three Schedules to the vetting legislation.

Schedule 1​: Relevant Work or Activities

Schedule 1 is split into two parts.

Part 1 of Schedule 1 deals with ‘relevant work or activities relating to children’.

Part 2 of Schedule 1 deals with ‘relevant work or activities relating to vulnerable persons’.

Schedule 1 exists for one main purpose. People and organisations carry out a wide range of work and activities with children. They do the same with vulnerable persons. The Schedules to the legislation let the reader know if that work triggers vetting (or not).

Schedule 2: Organisations Required to Notify Specified Information to Bureau​

Schedule 2, by contrast, plays a very different role.

So, Schedule 2 isn’t about who does vetting, or doesn’t do vetting.

Instead, it’s about creating a new statutory duty upon certain types of organisations. That duty says, in certain circumstances, they must contact the National Vetting Bureau.

Schedule 3: Excluded Offences

(The title of Schedule 3 is "Excluded Offences for Purposes of Section 14A").

The National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 for the purpose of protecting children and vulnerable persons requires an organisation or employer before employing a person to receive a vetting disclosure from the National Vetting Bureau, where that person will have regular contact with or access to children or vulnerable persons.

A vetting disclosure will contain particulars of the criminal record, if any, of the person.

The disclosure may also contain information concerning a finding or allegation that the person may have harmed another person where such information is received from the Garda Síochána or any of the organisations listed in Schedule 2 of the vetting legislation and the Chief Bureau Officer of the National Vetting Bureau has a bona fide concern that the person may harm to a child or vulnerable person.

Under amendments to the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 made by the Oireachtas in 2016, certain convictions are not included in a vetting disclosure made by the National Vetting Bureau once 7 years has passed since the date of conviction and the convicted person has complied with the sentence imposed.

Among the convictions that are not disclosed are convictions in the District Court for motoring offences and convictions for minor public order offences, with the exception that non-disclosure of a conviction for dangerous driving is limited to one single conviction.

In addition, where a person has one, and only one, conviction (other than a motoring or public order offence) which resulted in a term of imprisonment of less than 12 months (or a fine) that conviction will not be disclosed by the Bureau after 7 years so long as the conviction is not an "excluded offence" under the Act.

The National Vetting Bureau (Children and Vulnerable Persons) Act was commenced on 29th April 2016.

(Note that this section was derived from a Ministerial Parliamentary Q&A).

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).

Here’s the list of offences that are excluded offences under the new Schedule 3:

THE SCHEDULE 3 EXCLUDED OFFENCES IN DETAIL

Note we have added these headers below in this essay for ease of reference, and that they aren’t included in the legislation:

1.BREACH OF A SAFETY ORDER, BARRING ORDER, PROTECTION ORDER UNDER THE DOMESTIC VIOLENCE LEGISLATION

1. An offence under section 17 of the Domestic Violence Act 1996.

This is going to be one of the more contentious areas.

Barring orders have, historically, been used not only for the purposes for which they were correctly intended. They have also been used by couples who are splitting up, seeking and obtaining both interim and permanent orders.

In short, there will be a significant number of couples for whom these orders have played a part in separation, divorce or other family law proceedings. Long after the fact, these orders will now be rearing their heads again.

You can read the relevant legislation by clicking here.

2. NON-FATAL OFFENCES

2. An offence under the Non-Fatal Offences against the Person Act 1997.

You can read the relevant legislation by clicking here.

3.CRUELTY TO CHILDREN

3. An offence under section 246 of the Children Act 2001 (cruelty to children).

Where a person who has the custody, charge or care of a child and where they wilfully assault, ill-treat, neglect, abandon or expose the child, or cause or procure or allow the child to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause unnecessary suffering or injury to the child's health or seriously to affect his or her wellbeing.

Note that section 246(7) states that “For the purposes of this section ill-treatment of a child includes any frightening, bullying or threatening of the child, and “ill-treat” shall be construed accordingly”.

So the ambit of this is pretty wide.

You can read the relevant legislation by clicking here.

4.CAUSING OR ALLOWING SERIOUS HARM TO A CHILD OR CAUSING OR ALLOWING SEXUAL ABUSE OF A CHILD

4. An offence under section 176 of the Criminal Justice Act 2006 (reckless endangerment of children).

Self-explanatory.

You can read the relevant legislation by clicking here.

5.FALSELY REPRESENTING A PERSON IS A REGISTERED HEALTH OR SOCIAL CARE PROFESSIONAL

5. An offence under section 80 of the Health and Social Care Professionals Act 2005.

Self-explanatory.

You can read the relevant legislation by clicking here.

6.FALSELY REPRESENTING A PERSON IS A REGISTERED MEDICAL PRACTITIONER

6. An offence under section 41 of the Medical Practitioners Act 2007.

Self-explanatory.

You can read the relevant legislation by clicking here.

7. FALSELY REPRESENTING A PERSON IS A REGISTERED NURSE OR MIDWIFE

7. An offence under section 44 of the Nurses and Midwives Act 2011.

Self-explanatory.

You can read the relevant legislation by clicking here.

8. FALSELY REPRESENTING A PERSON IS A REGISTERED NURSE

8. An offence under section 49 of the Nurses Act 1985.

Self-explanatory.

You can read the relevant legislation by clicking here.

9. FALSELY REPRESENTING A PERSON IS A REGISTERED DENTIST

9. Any offence under the following provisions of the Dentists Act 1985:

a. section 50;

b. section 51.

Self-explanatory.

You can read the relevant legislation by clicking here (section 50) and here (section 51).

10. FALSELY REPRESENTING A PERSON IS A REGISTERED PHARMACIST, DRUGGIST, CHEMIST

10. An offence under section 32 of the Pharmacy Act 2007.

Self-explanatory.

You can read the relevant legislation by clicking here.

11. FALSELY REPRESENTING A PERSON IS A REGISTERED TEACHER

11. An offence under section 56 of the Teaching Council Act 2001.

Self-explanatory.

You can read the relevant legislation by clicking here.

12. BREACH OF RESTRICTIONS ON THE POSSESSION OF FIREARMS AND OTHER WEAPONS AND AMMUNITION

12. An offence under the Firearms Act 1925.

Self-explanatory.

You can read the relevant legislation by clicking here.

13. THE 1964 FIREARMS ACT

13. An offence under the Firearms Act 1964 (itself an update of the 1925 Firearms Act).

You can read the relevant legislation by clicking here.

14. FIREARMS AND OFFENSIVE WEAPSONS ACT 1990

14. An offence under the Firearms and Offensive Weapons Act 1990.

You can read the relevant legislation by clicking here.

15. SALE OF / PURCHASE (TO PROVIDE) INTOXICATING LIQUOR TO UNDER 18S

15. An offence under section 31 or 32 of the Intoxicating Liquor Act 1988.

These sections relate to the sale of alcohol to under 18s, and the provision of alcohol to under 18s (outside the family home).

You can read the relevant legislation by clicking here and by clicking here (section 31).

16. MISUSE OF DRUGS ACT 1977

16. An offence under the Misuse of Drugs Acts 1977 to 2015, other than a first offence under section 3 of the Misuse of Drugs Act 1977.

Note that section 3 relates to a one-time conviction for possession of a controlled drug.

You can read the relevant legislation by clicking here.

17. RIOT, VIOLENT DISORDER, AFFRAY, BLACKMAIL, ASSAULT WITH INTENT TO HARD, OBSTRUCTION OF A PEACE OFFICER

17. An offence under section 14, 15, 16, 17, 18 or 19 of the Criminal Justice (Public Order) Act 1994.

These sections relate to the offences of riot, violent disorder, affray, blackmail and extortion, assault with intent to cause bodiuly harm or an indictable offence, and obstruction of a peace officer.

You can read the relevant legislation by clicking here for section 14 (riot), section 15 (Violent disorder), section 16 (affray), section 17 (blackmail, extortion and demanding money with menaces), section 18 (assault with intent to cause bodily harm or commit an indictable offence), and section 19 (assault or obstruction of peace officer). (A peace officer is a member of the Garda Siochan, a prison officer or a member of the Defence Forces).

SCHEDULE 1 OF THE CRIMINAL JUSTICE (SPENT CONVICTIONS AND CERTAIN DISCLOSURES) ACT 2016

Section 14A came to life thanks to the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 legislation. Schedule 3 wasn’t even in the original vetting legislation – again, this was introduced by the 2015 Criminal Justice (Spent Convictions and Certain Disclosures) Act.

We’ll look at these in more detail in a later essay, but it’s enough to know that Part 2 of Schedule 1 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 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.

Confused?​

What does that mean in practice?

Well, Part 1 of Schedule 1 principally (but not exclusively) is about clarifying contentious issues on the borderline areas around the age of consent. Part 2 of Schedule 1 is about general codifying as a ‘sexual offence’ a number of offences covered in other areas of specific legislation.

SUMMARY

Caesar and Brutus, Romeo and Juliet, Section 14A and Schedule 3.

Section 14A of the vetting legislation allows certain offence to not be disclosed.

Schedule 3 says that – despite this – there are certain specific offences that fall outside of Section 14A’s effect.

Schedule 3 lists out those offences which are ‘excluded’ from the operation of Section 14.

That's why they're called 'Excluded Offences'.​