The potentially harmful disclosure of ‘Soft Information’

At the end of District Court proceedings, the Court sometimes has the option to strike a case out with an obligation to make a charitable donation or can choose to give a defendant the benefit of s1(1) of the Probation of Offenders Act, 1907. These options allow the court to leave a defendant without a conviction. When these orders are imposed by the Court, our clients often ask if this outcome can be disclosed as part of Garda Vetting to potential employers.

This question also arises when people have been questioned during an investigation or detention and the Director of Public Prosecutions subsequently declines to prosecute them. An issue can arise when these outcomes and allegations have the potential to be disclosed to an employer during Garda Vetting. The circumstances where this can occur can be found here; (https://vetting.garda.ie/VettingProcedure/SpecifiedInformation).

Under Section 15 of National Vetting Bureau (Children and Vulnerable Persons) Acts 2012-2016, if specified information is to be disclosed to a relevant organisation, the Chief Bureau Officer must, in advance, notify the vetting subject of the intention to disclose the information. At this stage, the vetting subject has 14 days to make a written submission to the Chief Vetting Officer outlining why they do not feel the information should be disclosed. Various factors will be taken into consideration, all outlined at the link provided above and if a decision is made to disclosure the information, the vetting subject then has 14 days to appeal against that decision. The Vetting Bureau will not disclose the information until the time to enter the appeal has elapsed.

On certain Garda vetting forms, a box can be included which indicates a waiver to the above process. This box can sometimes be pre-ticked and requires someone to specifically opt-out if they do not consent to the process. This can be particularly relevant in a case where someone was detained and questioned for an offence, but the Director of Public Prosecutions has declined to prosecute. If this person then subsequently applies for a job working with children or vulnerable adults, their previous arrest or detention might be disclosed to a potential employer, even though they were never prosecuted for any offence. Similarly, if somebody has been left without a conviction when a case has been struck out or has received the benefit of s1(1) of the Probation of Offenders Act, 1907, this information may also be disclosed. These disclosures are a potential breach of privacy rights and the presumption of innocence.

If you are engaging with the Garda Vetting process or would like help on how to avoid this information being incorrectly disclosed, please contact us and we would be happy to help navigate this area.