Month: February 2010

Background checks

[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.

The future of opting out

Google’s avowed aim is to make all the world’s information searchable. It’s real aim is to be the most successful advertising company in the world.

The company is famous for its dotcomisms and, in particular, a great hostage to fortune:

You can make money without doing evil.

Claims that Google fails to adhere to this one of its ten commandments usually involve privacy. As the company’s products have developed and its advertising business blossomed, it is clear that Google’s aim to make all the world’s information searchable includes our information.

The company now has to take privacy concerns seriously, because they are voiced not just by data protection regulators but also by the users of Google’s services.

Defenders of monolithic data controllers often argue that one is not forced to use the services of the data controller: one can always opt-out. But as companies like Google become progressively more pervasive, it becomes impossible to opt-out.

Which reality this Onion News Network piece expresses expertly.

Will less public justice mean more public suffering?

The Criminal Courts of Justice was the first major courts facility built in Ireland since the Four Courts in the late 1700s and, at a cost of €140 million, holds great promise for the contemporary administration of justice. A controversial consequence of the Court’s design is that accused persons are no longer led into court in public view, complicating the job of the court photographer.

It appears that the role of the media was not a significant factor in the design of the Courts. Abigail Rieley covered the Lillis trial and blogged about the facilities provided to journalists:

If you are a journalist however the new courts pose quite significant problems.  Once again the concept of designated seating for the media has been ignored and a single bench provided, if we’re lucky enough to get to it before someone else is sitting there. The new media rooms, which we had been promised such great things about, turned out to be two bunkers on the ground floor, next to the toilets.  Low ceilinged, with no windows whatsoever the new rooms are little more than boxes.

Difficulties with the facilities erupted into controversy during that trial when one witness was given extensive Garda co-operation to facilitate her arrival and departure from the Courts without being captured on film. It was suggested that the witness in question might not have given evidence but for the privacy provided. However, many pointed out that she was unlikely to be a crucial witness in the prosecution. Diarmuid Doyle notes the danger that the behaviour of the authorities in the Lillis trial may give rise to a hierarchy of witnesses (albeit this point appends what appears to be a misunderstanding of the argument that photography should be allowed to ensure the public administration of justice).

The restrictions on photographing accused and convicted persons appear to be spreading and the Courts Service has ruled out releasing mugshots. Paul Cullen quotes the Court of Criminal Appeal in the People (DPP) v. Davis [2001] 1 IR 146:

The dignity of the individual, and the perception that he is a participant in judicial proceedings with specific rights, and on a footing of equality with other participants, is inconsistent with his appearing there chained, manacled, handcuffed and chained, or otherwise manifestly restrained.

But what of a person found guilty of a crime? Rieley continued her criticism of the Courts in the Evening Herald under the provocative headline: “Why do the authorities care more about the privacy of criminals than the public’s right to know?“:

The media facilities have the feeling of a being a grudging after-thought, a sop to a group of pests who are barely tolerated at the best of times. This goes to the heart of the Courts Services’ attitude towards the press. The idea that the media are public representatives seems to be a foreign concept. Justice has to be carried out in public, as laid down in Article 34.1 of the Constitution and it’s through journalists that this happens in the main.

A further concern is that, with no accused person to photograph, the lens will be turned on someone else. A small example of this appeared on the Nine News on 19 February, when a remarkably brave victim of rape waived the anonymity available to victims of sexual assault and made a statement to the media.

The convicted offender could not be filmed, so the report relied on file footage and newspaper photographs. The victim made her statement direct to camera and yet this was, apparently, not enough. She was pursued to the door of a waiting car and filmed until it drove away.


  • The Irish Times, on the opening of the Courts, said that “[p]eople charged with criminal offences will no longer be brought to court handcuffed and in public view”. The change was widely reported as such though it should be noted that female prisoners, even when accused of serious and violent crime, are rarely handcuffed when being led into jail. John Waters has written about the sexism inherent in this practice.

Is Ireland ready for a child rights referendum?

The Oireachtas Joint Committee on the Constitutional Amendment on Children has published the proposed wording of a revised article 42 of the Constitution, dealing with the rights of the child.

This is not a new issue. The 1993 McGuinness report of the Kilkenny incest investigation said that “the very high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving a higher value to the right of parents than to the rights of children” and recommended an amendment to include “a specific and overt declaration of the rights of born children”.

This recommendation was repeated and expanded upon in the 1996 Report of the Constitution Review Group (CRG). Recent years saw the reports of the Oireachtas Committee and the abandoned 28th Amendment of the Constitution Bill 2007.

Repeated returns to the drawing board highlight the difficulty in getting the wording of any amendment right. Dr. Aoife Nolan points out that the new wording “still evidences some serious shortcomings in ensuring holistic protection to the rights of the child.” Certainly, the CRG’s 1996 report emphasises the need for a balancing of constitutional provisions, but the Committee’s wording does not propose any amendment to article 41.

The cross-party support underpinning the new proposal and the fact that it has been applauded by a wide range of interest groups suggest that, subject to the approval of the Cabinet and the Attorney General, the proposed wording will be put to the people in a referendum. It seems fair to assume that the campaign in favour of the amendments will be supported by all major parties and the panoply of child rights organisations. However, recent constitutional history shows that cross-party support can quickly be derailed by non-party pressure grouping.

Within hours of the publication of the Committee’s proposed revisions to article 42, the Iona Institute published a statement warning that the changes would “lower the threshold at which the State can intervene in the family.”

[T]he proposed wording will give recognition to a child’s “best interests” … while “no-one denied that a child’s best interests had to be to the fore when making decisions about children, the crucial question is, who gets to make this decision, parents or the State?

Iona cite a Scottish example where children were taken into care because of concerns that the children’s health was at risk due to obesity and assert that such a move “is itself arguably a violation of the rights of the child”.

The statement by Iona suggests that it might oppose a referendum to introduce the proposed amendment. It might not be alone: the Renew campaign, which has to date only been heard in the media when campaigning against the Civil Partnership Bill 2009, lists the following among its campaign issues:

  • The promotion and protection of marriage and family life
  • To influence government legislation which protects and supports family life

In the February 2010 issue of Solas, the publication of Youth Defence, Maria McMeanmain writes that parents cannot “trust the state to do the right thing by their children”, primarily on the basis of the Ryan report and her surprising assertion that “[a]ny objective observer will conclude that the girl in the C-case was kidnapped by the state.” Ms. McMeanmain concludes:

The most reliable agent of a child’s welfare is almost always his or her parents. Denying a child those agents must only be done where it is absolutely clear that the child’s parents have repudiated that role. That is the position under our Constitution today. Anything else is an attack on children’s rights and must be opposed!

Further tweaking of the wording might result from Cabinet discussions but, whenever a referendum takes place, the contours of the campaign are beginning to emerge.

Update (18 February 2010):

  • Senator Ivana Bacik notes failure to address article 41 and, in particular, to update article 41.2 concerning the life of women “within the home” and their “duties in the home”.
  • Dr. Ursula Kilkelly‘s analysis: “Although not perfect, the proposals represent a significant step forward in Ireland’s commitment to realising the rights of children in Irish law.”


  • Redline showing the proposed changes to the original text is here.
  • Initial analysis of the proposal on the Human Rights in Ireland blog, which will provide further analysis in coming days.

Lady Icarus

On Sunday morning I noticed, for the first time, the below plaques on AIB’s Newcastle West branch.

Sophie Peirce
Lady Icarus honoured in her home town

They commemorate Sophie Peirce, known in later life as Lady Heath and nicknamed Lady Icarus.

Sophie was born in Knockaderry House, a few miles outside Newcastle West. She appears to have spent some of her early youth in Dublin until the untimely death of her mother at the hands of her father, who was sent to the then Dundrum Mental Asylum For The Criminally Insane, resulting in Sophie’s return to West Limerick. At the time of the 1911 census, she was living with her grandfather at 16 the Square, Newcastle West.

As noted in this book review of From Sophie to Sonia: A history of women’s athletics, the record-setting, parachute-jumping aviator is little known in Ireland.

She went to England early in the First World War and served as despatch rider with the Royal Flying Corps. She was married and divorced three times and achieved prominence in varied fields. Sophie, then Mrs. Elliott Lynn, started her athletics career in 1921, and set a world record for the high jump of 4 ft. 10½ in. (1:48 metres). She represented Britain in two Women’s world Games, coming 4th in the javelin. Sophie became involved in athletics administration on the formation of the women’s A.A.A. in 1922, and wrote a seminal coaching manual “Athletics for Women and Girls” in 1925 … Sophie later became a pioneer aviator, made the first solo flight from Cape Town to London and became a pilot with K.L.M. Sadly, she died in a road accident in London in 1939, aged 42.

RedMum wrote about Sophie in late 2006 as part of a series of blog posts on great Irish women, adding to the impression of her as an eccentric maverick in the Roaring Twenties mould.

Her epic trip from Cape Town to London was made with a Bible, a shotgun, a couple of tennis rackets, six teagowns and a fur coat, in a time when men flew with boiled eggs and ham sandwiches.

She even had her portrait painted by Sir John Lavery.

From the website of the Hugh Lane gallery
An Irish Pilot, by Sir John Lavery (linked from the website of the Hugh Lane gallery)

Amelia Earhart gets most of the aviatrix attention but with her movie getting bad reviews, there may be a market for a biopic of Lady Icarus and her exploits.


Everyday justice

Since the conclusion of the Lillis trial, there has been renewed media and public interest in judicial decision making, particular as it relates to sentencing.

Understandably, national media and popular interest is heightened in high profile cases like murder. District Courts handle a greater volume of offences, most of a comparably minor nature, and regional newspapers cover those District Courts in great detail. It is anecdotally thought that such court reports are a popular feature.

For the average citizen, an appearance in their local District Court is far more probable (though not exactly more desirable) than an appearance in the Central Criminal Court. Regional court reports are a useful guide to what one penalty one might expect to receive for driving without a valid tax or NCT disc, for public order offences or for violations of environmental or planning regulations.

Ian O’Donnell‘s article in today’s Irish Times summarises the nature of judicial decision making in arriving at sentencing decisions in the District Courts and notes the importance of regional newspapers in documenting them. He observes that the reports tend to be neutral and dispassionate in style, unlike the often highly charged reports of serious crime in the national media.

In documenting outcomes, regional newspapers enhance the public administration of justice. They also reflect what Mr. O’Donnell terms the judges’ “optimistic view of human nature”, something that might not be popular with the law and order element of Irish society but which suggests judges are far less out of touch than is often claimed and are, in fact, acutely aware that many court appearances result from oversight, foolishness or societal factors.

As a group, judges seemed to attribute behaviour to internal, controllable and stable causes. Yet, contrary to what the academic literature would predict, they did not inflict harsh penalties as a result. This departure from what might have been expected is explained by the existence of a strong belief in the capacity of individuals to redeem themselves.

Demonstrating their belief in redeemability, judges were prepared to suspend prison sentences, or adjourn cases that could have led to a custodial sentence, to give the defendant an opportunity to demonstrate willingness to reform. They used the Probation Act and the court poor box to enable first-time or minor offenders to walk away without a conviction.

The guilty party was regularly offered a second chance, putting the onus on them to change. This was accompanied by a warning that the response would be harsher on any future occasion. These practices were designed to create a relationship of trust between the offender and the judge […]

An examination of local newspaper coverage suggests that these variations are rooted, to some extent at least, in an optimistic view of human nature. This is to be welcomed. The continued existence of a faith in the capacity of the individual law-breaker to choose another path may offer some protection against the rise in punitiveness that has become so evident in other jurisdictions.

Freedom from the conscience of others

Breda O’Brien again makes the argument today, in a somewhat convoluted fashion, that some citizens of the Republic of Ireland ought be permitted to discriminate against others.

In fact, she goes further and suggests that Irish society will not be genuinely tolerant or pluralist unless a self-selecting category of citizen is allowed discriminate against another, naturally arising category. Leaving aside the specific debate about whether or not civil partnerships should be recognised by the State, such a proposal is incompatible with existing equality law and, if accepted, requires a fundamental reshaping of that law.

The Equal Status Acts 2000 and 2004 prohibit discrimination on the grounds of sexual orientation (section 3(2)(d)). The Civil Partnership Bill 2009 provides for the registration of civil partnerships between same-sex couples. The Bill, if passed, will also amend the Equal Status Acts to provide that any reference to “marital status” be replaced with “civil status”. Accordingly, where it is currently unlawful to discriminate against someone on the basis of whether or not they are married, in future it will also be unlawful to discriminate against someone on the basis of whether or not they are or were party to a civil partnership.

Some are unhappy with this consequence and believe that, if a service provider or public servant is of the opinion that a family should consist only of heterosexuals, they should be permitted to refuse service to someone who wishes to have a civil partnership registered. They refer to this as a “freedom of conscience” or “freedom of religion” amendment, often shortened to the “conscience amendment”.

The more accurate term for such an amendment is a “permitted discrimination amendment”.

Opponents of the Civil Partnership Bill are, of course, entitled to make their views known and to lobby for amendments, but they should not misrepresent the nature of the amendment they seek. Neither should the media collaborate in such misrepresentation by repeating this misnomer.

To accept such an amendment would be to roll back the existing law on equality and not, as is suggested, to advance the case of religious equality. The battle currently being waged by Ms. O’Brien, the Iona Institute, Renew and the National Men’s Council of Ireland was lost when the Equal Status Act 2000 became law.

If one is prepared to accept the logic of the permitted discrimination amendment in the case of personal belief and homosexuality, there appears no reason why that logic should not be accepted in the case of the other eight grounds of discrimination, which are:

  • gender;
  • marital status (to be replaced with civil status);
  • family status (ie. pregnancy or being a parent/carer);
  • sexual orientation;
  • religion;
  • age;
  • disability;
  • race; and
  • membership of the Traveller community.

Ironically, the Oxford dictionary defines conscience as:

a person’s moral sense of right and wrong, chiefly as it affects their own behaviour.

Endnote: For excellent coverage on the progress of the Civil Partnership Bill, read the Human Rights in Ireland blog.

Total recall?

Section 2(1)(c)(ii) of the Data Protection Acts 1988 and 2003 provides that a data controller shall not process personal data in a manner incompatible with the purpose for which it was collected by that data controller.

Data protection law is not user-friendly and the full meaning of that rule is not immediately apparent; but one straightforward implication is that personal data cannot generally be disclosed to another party without the consent of the data subject.

Toyota is implementing a massive product recall due to complaints that some of its accelerator pedals stick, while other brake functions are inconsistent.

RTÉ News reported tonight that all Toyota owners would be contacted by letter in the coming weeks informing them of the recall, including those who bought the car second hand or by private sale. How would they contact such Toyota owners? The report said that the owners’ details would be obtained from the vehicle licensing authorities. How does this sit with section 2(1)(c)(ii)?

There are exceptions to the no-disclosure rule: for example, section 8(d) allows disclosure where it is urgently required to prevent injury or damage to the health of a person or serious loss of or damage to property. The important word is “urgently” and guidance from the Irish Data Protection Commissioner says:

This provision does not authorise disclosures of personal information for general health research purposes, or for other medical purposes where there is no immediate or urgent risk to someone’s life or health. In such cases, the normal data protection rules apply, including the obtaining of consent where necessary. (My emphasis)

So, section 8(d) does not permit disclosure.

Section 8(e) permits disclosure when it is required by or under any law or order of court. One such law (with thanks to TJ for pointing it out) was the Finance Act 1993 (section 60) Regulations 1996, which prescribe motor manufacturers and distributors for the purposes of section 60(3) of the Finance Act 1993, thereby providing them with the permission to inspect the records of the vehicle licensing authorities.

The issue of disclosing car owner details to a manufacturer for the purposes of a safety recall has arisen in the past and in Case Study 3/99 the Data Protection Commissioner was satisfied that disclosure was permitted on the basis of the 1996 Regulations.

However, the 1996 Regulations have been revoked and supplanted a number of times over the years, resting with the Finance Act 1993 (Section 60) Regulations 2005. The 2005 Regulations do not mention motor manufacturers and distributors, unlike those regulations passed since 1996. In Case Study 3/99, the Data Protection Commissioner expressed concern at the unqualified access suggested by section 60 and recommended it be reviewed. Could this be why motor vehicle manufacturers and distributors were excluded from the 2005 Regulations?

If so, and if disclosure has not been permitted elsewhere in the law when the change was made in 2005, on what basis can the vehicle licensing authorities now disclose Toyota owner details?

Facing up to mortgage arrears

FLAC is an Irish human rights organisation which advocates equal access to justice. It also provides limited legal services through the legal advice centres which give it the FLAC acronym.

FLAC is sometimes confused with the system of legal aid in Ireland available for criminal matters and for a very limited range of civil matters. Legal aid is state-funded legal representation; FLAC is a voluntary organisation which provides initial legal guidance but cannot represent people.

While FLAC is an independent organisation and not a quango, its evening advice centres are hosted in Citizens Information centres. They provide a service for all manner of legal issues where legal aid may not be available and where the individual cannot afford legal advice.

A contemporary hot topic at FLAC sessions is personal debt. In most circumstances, there is little a solicitor can do when arrears are properly due and cannot be met. However, there are practical steps that can and should be taken to deal with the matter. To that end, FLAC have published a useful guide to mortgage arrears which explains the terminology and issues and provides suggestions as to how arrears should be handled. Karl Deeter also outlines, in today’s Irish Independent, practical steps which a borrower might arrange with lenders.

Borrowers in difficulty should note that repossession does not follow from one month of difficulty. It is clear from repossessions that have occurred in the past two years that a long period of default usually precedes a repossession order, often coupled with a lack of communication from the borrower and no appearance in court. In fact, judges are showing particular lenience toward self-representing borrowers and offering numerous opportunities to reach some accommodation with their lender. Borrowers in difficulty should not, therefore, ignore correspondence from their lender but should follow the advice mentioned at the earliest opportunity.


IP everywhere

Since 2004 most intellectual property litigation in Ireland has taken place in the Commercial Court, which is not a true court with jurisdiction separate to that of the other courts but rather is a list of the High Court.

The Commerical Court was established following the recommendations of the Committee on Court Practice and Procedure, of which my late father was a member, and offers litigants an involved case management system and fast-tracked procedures. For IP claims, there is no minimum claim value to qualify for entry. However, costs in running a Commercial Court case are a multiple of what one might expect in an ordinary High Court case.

Obviously not all disputes require such firepower but we don’t see much IP litigation in the District or Circuit Courts, where costs are lower and the lifetime of a case reasonably short.

One recent example of such everyday IP litigation concerns the payment of damages to a broadcaster for showing pay-tv in public without the appropriate subscription (ie. licence). From the Kerryman:

[A] hotel has been ordered to pay €5,174 in royalty [sic] to British Sky Broadcasting who told the court that the hotel had screened sports events in the bar without a commercial contract from the broadcaster.

Judge Ray Fullam heard that an inspector from IMRO had visited the hotel on four occasions in 2006 and 2007. During the inspections, the court heard, sporting events including English premiership soccer matches and Heineken Cup rugby games were showing on a television in the residents’ bar.

The hotel previously held a contract with Sky but it had not been renewed.

Counsel [for the hotel] argued that as the television in question was in a premises where sleeping accommodation is provided and amenities are exclusively or mainly provided for residents, for which there is no discretionary charge, the hotel was exempt from the need for a contract under section 97 of the copyright act.

Judge Fullam found against the hotel and granted an injunction barring the hotel from showing matches on Sky without a contract.