Whistle Stop 8-Part Tour of Section 28 Liability

This essay provides a whistle-stop 8-stop tour to the crux of the Irish vetting legislation: Section 28.

Section 28 of the Irish vetting legislation is the section that criminalises the conduct of the senior management team in an organisation, where that team has allowed the organisation to commit serious criminal breaches of the vetting legislation.

It’s critical that all charity and club senior management personnel have an intimate understanding of their responsibilities under the vetting legislation – not just for themselves personally, but also in terms of their organisation’s responsibilities too.

Why so?

Because Section 28 is the prism through which the prosecuting authorities will view both an organisation’s conduct, and also that of the senior management team, if and when a corporate breach of the vetting legislation comes to their attention.

This 8-stop whistle-stop tour is our final essay looking at section 28 of the Irish vetting legislation.

In it, we recap how the section criminalises the conduct of senior management if it’s proved that their organisation committed an offence under the legislation and that offence was committed with the consent, connivance or was attributable to the wilful neglect of any director, secretary, or other senior person.

OVERVIEW OF SECTION 28 SERIES

In our most recent essay, Prove It – Section 28 Liability and the Requirement for Proof, which is Part 8 of our current review of Section 28 – Liability for Offences by Bodies Corporate – National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 – 2016 – we took the opportunity to look at the requirement that there’s actual proof the Section 28 statutory provision was breached, in order for the prosecuting authorities to be able to bring a successful prosecution.

We also explored the different types of proof, the reliability of certain evidence and how, ultimately, having good intentions simply isn’t good enough these days.

If you haven’t already checked them out, you can access the other 8 parts of this series on section 28 liability here:

(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).

Part 1 (YOUR HANDY GUIDE TO SECTION 28)

DIRECTORS’ & OFFICERS’ PERSONAL CRIMINAL LIABILITIES

In Part 1 of this series, 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.

If you haven’t done so already, you should check it out now, circulating amongst your senior management team as a quick ‘aide-memoire’ to how Section 28 works.

Part 2 (LIABILITY FOR OFFENCES BY BODY CORPORATE)

SECTION 28 LIABILITY FOR OFFENCES BY BODIES CORPORATE

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’.

We also looked at the different ideas of ‘civil liability’ and ‘criminal liability’ and on whose shoulders responsibility rests if the organisation commits a vetting offence.

Part 3 (REQUIREMENT FOR THE OFFENCE)

S.28 LIABILITY – DID THE BODY CORPORATE COMMIT AN OFFENCE?

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?’.

WAS AN OFFENCE COMMITTED?

The answer to this is either:

Yes, an offence was committed; or

No, an offence was not committed.

We also look at working how you can actually know if an offence was committed.

Part 4 (INTENTION # 1: CONSENT)

SENIOR MANAGEMENT’S CONSENT TRIGGERS SECTION 28 LIABILITY

In Part 4 we took 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 wilful neglect’.

Or what lawyers call, in old fuddy duddy Latin, ‘mens rea’, or what is more commonly known as ‘intention’.

Section 28 splits up ‘intention’ into 3 different branches:

1. Did someone in senior management consent to the offence being committed by the organisation?

2. Did someone in senior management consent to the offence being committed by the organisation?

3. Was the offence attributable to the wilful neglect of someone in senior management of the organisation?

In Part 4 we’re exploring the first of the 3 branches of intention: consent.

And, in particular, we check out what ‘consent’ can look like, narrowing it down to 3 main forms of consent:

Express Consent

Implied Consent

Unanimous Consent

Part 5 (INTENTION # 2: CONNIVANCE)

LOOKING THE OTHER WAY – CONNIVANCE AND SECTION 28 LIABILITY

What is connivance? How does a court find that someone 'connived' in an offence? How is it relevant to charities and clubs? Learn how, in this, Part 5, of our review of Section 28 of the vetting legislation.

‘Connivance’ is an old-fashioned word, but today it literally means to ‘shut one’s eyes’ to something taking place (con-nictare meaning, more or less, to ‘wink both eyes at the same time’):

Overlook

Deliberately ignore

Not account for

Disregard

Pass over

Gloss over

Take no notice of

Make allowances for

Turn a blind eye to

In Part 5, we’ll see what ‘connivance’ looks like.

We’ll also see how the section 28 provision in the vetting legislation is a mirror of other major Irish laws, where the conduct of senior management is criminalised potentially, where the organisation commits a criminal offence.

And we'll look at an example of connivance taking place in a hypothetical scenario.

Part 6 (INTENTION # 3: WILFUL NEGLECT)

COULDN’T CARE LESS – WILFUL NEGLECT & SECTION 28 LIABILITY

What happens when a charity or club is deliberately neglectful, or reckless, in executing on its vetting procedures? What is 'wilful neglect'? How does it impact on volunteering? Find out here in Part 6 of our series on Section 28 liability under the Irish vetting legislation.

Was the committing of the offence attributable to a person's wilful neglect?

Answering this question is ultimately going to be done on a case by case basis. It involves looking at the facts of what happened, and then coming to a view as to whether the actions involved, which lead to the offence being committed, were deliberately reckless; or caused by a person’s reckless failure.

We’ll see what ‘wilful neglect’ looks like.

Broadly speaking, it’s when a person or organisation:

acts deliberately in a certain way,

acts recklessly as to the outcome of one’s actions/omissions

even though they know there is some risk to a child or vulnerable person due to their actions or omissions, or simply because they do not care about that risk.

We also look at what the volunteering sector can learn from the healthcare sector, and why it’s conduct that matters, not outcomes (such as harm caused) in assessing whether or not liability attaches to the senior management team.

Part 7 (WHO’S WHO?)

THE PERSONALITY TEST: WHO’S WHO IN SECTION 28 LIABILITY

In Part 7 we’re looking at the ‘who’s who’ of section 28, to find out if a person’s role within a charity or organisation could place them in the crosshairs of the section 28 trigger.

In particular, we’re exploring the categories of persons covered by section 28, namely any person who in relation to the organisation is:

A director

A manager

A secretary

Any other officer, or

Any person purporting to act as such

Section 28 is directed at the people in an organisation who have a combination of some form of executive and / or operational control of that organisation.

The label on the tin isn’t so relevant so much as the function carried out by that person.

For the purposes of section 28 of the Irish vetting legislation, a person who is found to be a director, manager, secretary, officer, or person purporting to act as such; potentially finds themselves in the crosshairs of section 28 liability, in the event their organisation commits a criminal offence, where that’s done with the consent, connivance or is attributable to the willful neglect of a person holding that senior management position.

Part 8 (PROOF)

PROVE IT – SECTION 28 LIABILITY AND THE REQUIREMENT FOR PROOF

In Part 8 we’re looking at how, for a Section 28 personal criminal liability to attach to a member of the senior management team, there’s requirement for there to be actual evidence that proves senior management consented to, connived with, or through their wilful neglect, allowed their organisation to commit the underlying vetting offence.

If the Director of Public Prosecutions (DPP) can prove that the senior management team consented, connived, or that their willful neglected helped the organisation commit the offence under the vetting legislation, then the DPP are likely to bring a successful prosecution.

Conversely, if the DPP can’t prove their case – even if the senior management did in fact appear to consent to, connive with, or through their willful neglect allow the organisation to commit the vetting offence – well, without proof, the prosecution’s case will fail.

We explore the following questions:

If a situation of Section 28 potential liability arises, senior management will want to collect proof that they did in fact comply with their Section 28 obligations.

On the flipside, the DPP in bringing its prosecution will be looking for evidence that proves their view that the Section 28 offence has been committed.

Either way, senior management will be well advised to ensure that they take all the relevant steps to not only comply with their vetting legislation responsibilities – and here’s the crux – to be able to prove that they have done so, in case it becomes necessary one day to back up their version of events.

SUMMARY

Section 28 of the Irish vetting legislation is the section that criminalises the conduct of the senior management team in an organisation, where that team has allowed the organisation to commit serious criminal breaches of the vetting legislation.

It’s critical that all senior management personnel have an intimate understanding of their responsibilities under the vetting legislation – not just for themselves personally, but also in terms of their organisation’s responsibilities too.

Section 28 is the prism through which the prosecuting authorities will view both an organisation’s conduct, and also that of the senior management team, if and when a corporate breach of the vetting legislation comes to their attention.

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. If you haven’t done so already, check it out now.