GS v Commissioner of an Garda Síochána

JurisdictionIreland
JudgeMr. Justice McDermott
Judgment Date10 March 2017
Neutral Citation[2017] IEHC 190
CourtHigh Court
Docket Number[2014 No. 225 J.R.]
Date10 March 2017

[2017] IEHC 190

THE HIGH COURT

JUDICIAL REVIEW

McDermott J.

[2014 No. 225 J.R.]

BETWEEN:
G.S.
APPLICANT
AND
THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE GARDA CENTRAL VETTING UNIT, THE PROVOST, FELLOWS

AND

SCHOLARS OF THE UNIVERSITY OF DUBLIN (TRINITY COLLEGE), THE HEALTH SERVICE EXECUTIVE, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

Administrative and Constitutional law Garda vetting disclosures – Disclosure of non-convictions – Breach of fair procedures – The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 as amended by the Criminal Justice (Spent Convictions and Certain Disclosures) Act, 2016 – Art. 8 of the European Convention on Human Rights Act, 2003 – Art. 40.3 of the Constitution – Proportionality between right to private life and protection of vulnerable children.

Facts: The key issue in the present matter related to the disclosure of information pertaining to the prosecution of the applicant for two separate offences and the subsequent striking off those charges, to the employer of the applicant. The applicant sought an order of mandamus for compelling the first and the second respondents to retract the vetting disclosure made to the third respondent without reference to non-convictions along with a declaration that the vetting system operated by the first and the second respondents was unconstitutional, and breached the applicant's right to fair procedures. The applicant argued that he was prevented from taking part in the placement as a result of the disclosures. The respondent contended that the information revealed was not of private nature and factually correct, and did not impact the applicant's right to earn a livelihood or interference in private life.

Mr. Justice McDermott granted a declaration that the vetting process adopted by the first and the second respondents was in breach of the applicant's right to fair procedures and to earn his livelihood under art. 40.3 of the Constitution, and also the right to private life under art. 8 of the European Convention on Human Rights Act, 2003. The Court, however, refused to grant the other reliefs as the matter had been settled between the parties in that the applicant was afforded placement. The Court observed that the vetting procedure was fundamentally flawed. The Court pointed out that the said procedure had failed to achieve the proportionality test as the balance should be maintained with the rights of vulnerable persons for whose benefit the disclosure was necessary and the right to private life of an individual. The Court noted that the disclosures of charge under s. 3 of the Misuse of Drugs Act 1977 and the charge of criminal damage served no purpose and had no bearing with the placement of the applicant in a suitable employment. The Court held that the vetting system should operate in order to achieve its legitimate aims, which was to protect the children and the vulnerable adults. The Court found that the respondents did not identify any aim, which was satisfied by the disclosure of the impugned information. The Court opined that the person-in-charge should weigh the information available to him before revealing it out, as to the impact it would likely have on the subject and the necessity of such a revelation.

JUDGMENT of Mr. Justice McDermott delivered the 10th day of March, 2017
1

By notice of motion dated 10th April, 2014 the applicant seeks inter alia the following reliefs;

(i) an order of mandamus compelling the first and second named respondents to retract the vetting disclosure made to the third named respondent and to restate same without reference to non-convictions;

(ii) an order of certiorari quashing the decision of the second named respondent to communicate two non-convictions relating to the applicant through the vetting process;

(iii) a declaration that the vetting system operated by the first and second respondents is unconstitutional, breaches the applicant's right to fair procedures, does not adequately respect his right to earn a livelihood and that the system infringes his rights under Article 8 of the European Convention on Human Rights Act, 2003.

The applicant also seeks damages for breach of constitutional rights pursuant to the European Convention on Human Rights Act, 2003 and an order for costs for the present proceedings.

Background
2

The applicant commenced a degree course in Psychiatric Nursing at Trinity College in September 2013. This course involved a number of practical placements before which it was necessary for students to undergo Garda vetting for the purpose of the protection of children and vulnerable persons.

3

The Garda Vetting Disclosure procedure was operated by An Garda Síochána subject to a Code of Practice: it was an administrative non-statutory process. Bona fide organisations might register to avail of Garda Vetting disclosures. Vetting could only be carried out with the consent of the person who was the subject of the vetting. Disclosures could then be made to a designated individual within an organisation. This individual was referred to as an authorised signatory and trained in the procedure.

4

The applicant signed a Garda Vetting Application Form on the 17th October, 2013 whereby he consented to the following process:-

‘I, the undersigned who have applied to work as/employed as Student Nurse/General/Children's Intellectual Disabilities/Mental Health hereby authorise An Garda Siochána to furnish the Health Service Executive (HSE) a statement that there are no convictions recorded against me in the Republic of Ireland or elsewhere, or a statement of all prosecutions, successful or not, pending or completed in the State or elsewhere as the case may be.’ [Emphasis in original]

In the body of the form the applicant declared that he had never been convicted of an offence in the Republic of Ireland and though asked to provide the details ‘of all prosecutions successful or not, pending or completed in the State or elsewhere’ left the box provided for the details thereof blank. The vetting was processed by Ms. Frances McHugh. An application was sent to the Central Vetting Unit, following which a disclosure was made to Ms. McHugh on the 13th of December, 2013.

5

The relevant chronology of events is as follows:-

(i) Superintendent Meyler made the Vetting disclosure to Ms McHugh the HSE Garda Vetting Liaison Officer on 13th December, 2013. The records established that on the 22nd December, 2007 (when he was twenty years old) the applicant had been convicted in the District Court of intoxication in a public place and fined €100 contrary to s.4 of the Criminal Justice (Public Order) Act, 1994. On the 17th May 2010 a charge laid against him for unlawful possession of drugs contrary to s.3 of the Misuse of Drugs Act, 1977 as amended, was struck out in the District Court. On the 18th February 2011 a charge of criminal damage contrary to s.2 of the Criminal Damage Act, 1991 was also struck out.

(ii) The applicant was due to begin his first placement on the 6th January, 2014.

(iii) Having undergone the vetting procedure, he attended a meeting in early January. Present at this meeting were Ms. Maria McGuinness of Cherry Orchard Allocations and Mr Colum Bracken, Director of Nursing. He claimed that this meeting was ‘conducted in an accusatorial fashion where the applicant was effectively cross-examined.’ He informed them that he was unaware that the payment of the fine was recorded as an actual conviction. He believed that he had paid money into the court ‘poor box’. He accepted the record in respect of this conviction. He explained in his affidavit that the drugs charge arose from the improper furnishing of his name to Gardaí by another and that he was not present at the location of the alleged offence. The case was struck out when he attended court and the Garda realised that he was not the same person. He stated that the criminal damage charge was made by a former girlfriend who did not make a statement or attend court. The issue concerned alleged damage to what he states was his own television during a domestic ‘occurrence’. It was struck out after it had been set down for hearing.

(iv) The applicant was informed that he would not be permitted to take part in the placement as a result of the disclosures. The applicant authorised the HSE to obtain further details in respect of the drugs and criminal damage charges from the Garda Vetting Office.

(v) It was alleged that Mr. Bracken misunderstood the meaning and effect of an order striking out a charge and accused the applicant of trying to hide convictions. The applicant denied this assertion. He explained that he viewed the criminal damage charge which was struck out as a vexatious claim by an ex-girlfriend and the s.3 charge as a case of mistaken identity and believed them to be irrelevant. In relation to the s.4 offence, the applicant believed he had made a donation to charity but accepted he had been convicted and fined. The applicant noted that he had previously worked in many placement locations and did not understand why the Garda vetting would preclude him from taking part in placements. It is stated that Mr. Bracken surmised that the applicant had previously incorrectly filled out Garda vetting forms and should not have worked at the locations in question. At the end of the meeting Mr. Bracken and Ms. McGuinness expressed their dissatisfaction with the applicant's explanations.

(vi) The applicant was asked to attend a second meeting on the 7th February, 2014 and was asked to provide a comprehensive written explanation of the matters which had been struck out and to obtain three letters; (i) a letter from the Garda who prosecuted the s. 3 of the Misuse of Drugs Act, 1977 offence to clarify the sequence of events leading to the strike out; (ii) a letter from the applicant's former employer Three Q to include a...

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2 cases
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