[Updated 11/5/10; 6/4/11] People often wonder if it is possible to carry out a background check on someone in Ireland. The short answer is: not easily.
There is no central agency which deals with background checking. However:
- Many are familiar with the concept of “Garda clearance”, but entitlement to apply for Garda clearance is very limited. Clearance services are provided by the Garda Central Vetting Unit and can only be sought by an organisation registered with it. Vetting is generally only carried out for the purposes of a proposed employment involving a significant amount of access to children or vulnerable adults. The proposed employee must consent to the vetting. The service has been extended to cover employment in the private security services industry and it appears likely that further extensions of the service will occur in future. Of potential relevance to background checking, a private investigator is a provider of a security service for the purposes of the Private Security Services Act 2004 and, accordingly, the regulatory regime operated by the Private Security Authority applies to their services.
- Certain state agencies have specific authority to carry out background checks for licensing purposes (eg. haulage licensing).
- The Irish Credit Bureau provides credit reports, most commonly for the purposes of lending. A credit report can be requested, usually by a bank or lender, with the consent of the customer. An individual is also entitled to request a copy of their own credit report.
One can carry out one’s own background check of an individual by doing basic research. However, a potential employee must be informed of checks that may be undertaken and obtain their consent if the information sought is not already in the public domain. The same principle would likely apply to any other business or organisation carrying a background check, for example on a customer. Even where the information is in the public domain, the general provisions of the Data Protection Acts 1988 and 2003 will apply if the data is retained on file.
Individuals may request a Police Certificate of Character from the Gardaí for specific purposes, for example when applying for a travel visa or authorisation to establish a business in another country, or for the purposes of inter-country adoption. An individual may also make a data access request in relation to their personal data held by an organisation or business. This includes the right to make such a request to the Gardaí, but they may be entitled to withhold certain data and the results of a data access request do not amount to Garda vetting or a statement of no record.
Employers and businesses should note that section 4(13) of the Data Protection Acts provides that it is an offence to require a person to make a data access request or supply the results of such a request in connection with employment or the provision of services.
For more information, see Chapter 4 of the Law Reform Commission report on spent convictions, which contains a comprehensive overview of vetting in Ireland.
Update (11 May 2010)
Fergal Mawe has an article in the May edition of the Law Society Gazette (pp.20-21 of this PDF) about the Garda vetting procedure and potential breaches of rights.
[T]he garda vetting form … refers to “a statement of all convictions and/or prosecutions, successful or not, pending or completed, in the state or elsewhere as the case may be”.
Say, for instance, if one were to be charged, prosecuted – but not convicted – the Garda Vetting Unit would still inform the employer that the applicant had been prosecuted, even if the outcome had been a not guilty verdict. To this end, the applicant would undoubtedly have his or her chances of winning the position severely damaged, if not totally eroded, due to the suspicion of a criminal history and an inference of guilt. On this point, it is hard not to see a series of breaches of a person’s human and constitutional rights – namely the right to a good name, the right to earn a living, the right to privacy, as well as a fair trial and a presumption of innocence.
To put it simply, if we are to live with a just legal system based on the presumption of innocence, an individual ought not to be prejudiced by prosecutions that did not lead to a criminal conviction.
Update (6 April 2011)
The Government has announced that its Summer legislative programme includes a Spent Convictions Bill:
To provide that in the case of convicted persons whose sentence is below a specific threshold (6 months imprisonment or a fine), they may, under certain circumstances, withhold details of the conviction.
One might have thought that such spent convictions would be omitted from Garda vetting by this Bill. However, while we await the text of that Bill, an indication is available in the Spent Convictions Bill 2007, drafted by the last Government. That Bill would effectively have prohibited reference to spent convictions when sentencing an individual on foot of a new conviction. It would also provide that an individual would not have to disclose spent convictions, but the types of employment covered by Garda vetting would have been excluded by section 5. When presenting that Bill (now lapsed) for its second stage in the Dáil on 18 December 2008, Barry Andrews TD said:
An expert group reported in 2004 on the current arrangements operated by the Garda in co-operation with other agencies such as the Health Service Executive. The group’s report recommended that the vetting system should be put on a statutory footing and that it should address the question of soft information as well as hard information. Meanwhile, as Members are aware, a joint committee has been considering children’s rights and it recently recommended the introduction of legislation to put on a statutory footing the vetting arrangements. This recommendation will be pursued as a matter of urgency in the coming months.
However, the legislation was put on the long finger on more than one occasion. The new Government’s legislative programme (p.10) indicates that the heads of the National Vetting Bureau Bill are not yet agreed and a timeframe for expected publication is not yet available.