M.P. v Teaching Council of Ireland
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 26 February 2019 |
| Neutral Citation | [2019] IEHC 102 |
| Court | High Court |
| Docket Number | [2018 No. 6400 P.] |
| Date | 26 February 2019 |
[2019] IEHC 102
THE HIGH COURT
Allen J.
[2018 No. 6400 P.]
Injunction – Misfeasance in public office – National Vetting Bureau (Children and Vulnerable Persons) Act 2012 s. 19 – Plaintiff seeking a permanent injunction restraining the defendant from making a notification to the National Vetting Bureau – Whether the decision to make the proposed notification amounted to misfeasance in public office
Facts: The plaintiff was a registered teacher. He was the subject of an investigation and a disciplinary inquiry under Part 5 of the Teaching Council Act 2001. Following the conclusion of the Part 5 inquiry the defendant, the Teaching Council of Ireland, notified the plaintiff of its intention to make a notification to the National Vetting Bureau under s. 19 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. The plaintiff brought an action for a permanent injunction restraining the defendant from making a notification to the Bureau. The plaintiff’s case was that the requirements of s. 19 had not been met; that the defendant had no bona fide concern; and that the decision to make the proposed notification was motivated by malice towards him and amounted to misfeasance in public office.
Held by the High Court (Allen J) that there was no justification for the allegation of misfeasance in public office. Allen J held that there was abundant justification for the concern which the defendant had decided it should notify to the Bureau. Allen J held that there was no justification for the allegation that the defendant’s concern was not a bona fide concern. Allen J held that the defendant’s obligation to notify its concern arose when it decided it had a concern. Allen J held that there was no delay; even if the concern had not been notified “as soon as may be”, that would not have absolved the defendant from making the notification, or prevented it from doing so later. Allen J held that in the event of an application in the future for a vetting disclosure, such time as it may take to comply with the statutory procedures will not be an infringement of, or an impingement upon, the plaintiff’s rights but will be necessary to vindicate his rights.
Allen J held that the action would be dismissed.
Action dismissed.
This is an action for a permanent injunction restraining the defendant from making a notification to the National Vetting Bureau under s. 19 of the National Vetting Bureau (Children and Vulnerable Persons) Act, 2012 which the defendant has notified the plaintiff of its intention to make.
The plaintiff is a registered teacher. He was the subject of an investigation and a disciplinary inquiry under Part 5 of the Teaching Council Act, 2001.
The defendant was established by Part 2 of the Teaching Council Act, 2001 and is a scheduled organisation under the National Vetting Bureau (Children and Vulnerable Persons) Act, 2012. The defendant has a statutory obligation, if it should have a bona fide concern that the person who is the subject of an investigation, inquiry or regulatory process, may harm any child or vulnerable person, to notify that concern, and the reasons for it, to the National Vetting Bureau.
Following the conclusion of the Part 5 inquiry the defendant notified the plaintiff of its intention to make a notification to the Bureau. The plaintiff's case, or at least the case the plaintiff would argue, is that the requirements of s. 19 have not been met; that the defendant has no bona fide concern; and that the decision to make the proposed notification was motivated by malice towards him and amounted to misfeasance in public office.
To understand the issues, it is necessary to look at the broad scheme of the National Vetting Bureau (Children and Vulnerable Persons) Act, 2012 and of the Teaching Council Act, 2001, which was extensively amended by the Teaching Council (Amendment) Act, 2015 to take account of the scheme established by the Act of 2012. It is also useful to recall briefly the law in relation to misfeasance in public office.
6. The National Vetting Bureau (Children and Vulnerable Persons) Act, 2012 came into operation on 29 April, 2016.
By s. 12 of the Act a ‘ relevant organisation’ may not employ or engage or permit any person to undertake ‘ relevant work or activities’ unless the organisation has a vetting disclosure from the National Vetting Bureau.
By s. 13(4)(e) an application for vetting disclosure must be accompanied by a declaration of consent by the subject of the application.
On receipt of an application, the Bureau must make such enquiries of An Garda Síochána as it deems necessary and undertake an examination of its database to establish whether there is any criminal record or ‘ specified information’ relating to the person concerned. ‘ Criminal record’ includes any record of pending prosecutions as well as convictions, whether within or outside the State. ‘ Specified information’ is defined as meaning information concerning a finding or allegation of harm to another person which has been received by the Bureau from An Garda Síochána or from a scheduled organisation, which is of such a nature as to reasonably give rise to a bona fide concern that the subject may
(i) harm any child or vulnerable person,
(ii) cause any child or vulnerable person to be harmed,
(iii) put any child or vulnerable person at risk of harm,
(iv) attempt to harm any child or vulnerable person, or
(v) incite another person to harm any child or vulnerable person.
Significantly, the person who has been harmed, or has been found or alleged to have been harmed, need not be a child or vulnerable person.
If, on completion of the prescribed enquiries and examination, a member of the staff of the Bureau considers that there is specified information relating to the subject of the application, he or she must refer the matter to the Chief Bureau Officer.
Where a matter is referred to the Chief Bureau Officer for assessment and determination, he or she must notify the subject and invite a written submission. Having assessed the application and the specified information, the Chief Bureau Officer must make a determination whether the information should be disclosed. He or she must not make a determination that the information should be disclosed unless he or she reasonably believes that the information is of such a nature as to give rise to a bona fide concern that the subject may harm etc. any child or vulnerable person, and is satisfied that the disclosure is necessary and proportionate in the circumstances for the protection of children or vulnerable persons, or both.
Where the Chief Bureau Officer makes a determination that specified information should be disclosed, he or she must notify the subject of the determination and the reasons for it, and that the subject has a right of appeal. The right of appeal against a determination of the Chief Bureau Officer is to an appeals officer, who must be a barrister or solicitor of at least seven years standing, who is to be independent in the performance of his or her functions, and who will hold office for a term of three years, and be subject to removal only for incapacity or stated misbehaviour.
The notification obligations imposed on scheduled organisations are set out in section 19. This provides, so far as is material:-
‘19.- (1) Where, following an investigation, inquiry or regulatory process (howsoever described) in respect of a person, (including an investigation, inquiry or regulatory process initiated but not yet concluded before the commencement of this section) a scheduled organisation, has as a result of the investigation, inquiry or regulatory process, a bona fide concern that the person who is the subject of that investigation, inquiry or regulatory process, may-
(a) harm any child or vulnerable person,
(b) cause any child or vulnerable person to be harmed,
(c) put any child or vulnerable person at risk of harm,
(d) attempt to harm any child or vulnerable person, or
(e) incite another person to harm any child or vulnerable person,
the scheduled organisation shall, as soon as may be, for the purposes of providing specified information to the Bureau, notify the Bureau in writing of that concern and shall state the reasons for it. …
(3) The scheduled organisation shall, in relation to the person in respect of whom it has a concern under subsection ( 1) or (2), as the case may be, notify the person of the fact of that concern and of its intention to notify the Bureau of it.
(4) If any specified information furnished by a scheduled organisation to the Bureau under subsection ( 1) or (2) is incorrect or is otherwise inaccurate, the scheduled organisation shall, as soon as may be, after becoming aware of its being incorrect or inaccurate, as the case may be, inform the Bureau thereof.
(5) A scheduled organisation shall nominate a person (in this Act referred to as an “appropriate person”) as the appropriate person, for the scheduled organisation, for the purposes of notifying the Bureau under this section.
(6) A scheduled organisation may nominate more than one person as an appropriate person for the scheduled organisation.
(7) Section 9 [which requires the vetting of liaison persons] shall, with any necessary modifications, apply to the nomination of an appropriate person for a scheduled organisation as it applies to the nomination of a liaison person for a relevant organisation under that section.
(8) A person who contravenes subsection ( 1) or (2) shall be guilty of an offence.
(9) For the avoidance of doubt it is hereby declared that the obligation imposed on a person by subsection ( 1) or...
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