Court of Appeal dismisses appeal against Teaching Council's delay in vetting notification under National Vetting Bureau Act 2012.

THE COURT OF APPEAL

Neutral Citation Number: [2019] IECA 204

Record No. 2019/139

Peart J.

McGovern J.

Kennedy J.

BETWEEN/

M.P.

APPELLANT

- AND–

THE TEACHING COUNCIL OF IRELAND

RESPONDENT

JUDGMENT of Mr. Justice McGovern delivered on the 23rd day of July 2019

1. This appeal arises out of a challenge by the appellant to the respondent’s invoking of s. 19(1) of the National Vetting Bureau

(Children and Vulnerable Persons) Act 2012 (hereinafter referred to as “the Act of 2012”) to refer a matter to the National Vetting

Bureau. The appellant brought an application for an interlocutory injunction restraining the respondent from making the notification

and on the 1st August, 2018 the High Court made an order restraining the respondent from making the notification until further order.

The appellant gave an undertaking not to carry out any activities for which a vetting disclosure would be required pending the trial of

the action.

2. Section 47 of the Teaching Council Act 2001 (“the Act of 2001”) provides at sub-s.(1):-

“Where the Council is satisfied that it is in the public interest, the Council may, in relation to a registered teacher, apply

to the High Court for an order that during the period specified in the order his or her registration shall be suspended.”

Such an application shall be made in a summary manner and shall be heard otherwise than in public.

3. The appellant took these proceedings by way of plenary summons and directions were given from time to time as to how the action

should proceed. The parties agreed that documents which had been discovered could be put into evidence without formal proof and

neither party called evidence at the trial of the action but relied on the pleadings, affidavits which had been exchanged at the

interlocutory application and a core bundle of documents from the respondent’s discovery.

4. The matter proceeded to a full hearing and the plaintiff’s claim was dismissed in a judgment delivered by Allen J. on the 26th

February, 2019. This is an appeal against that decision. The appeal is brought on the following grounds.

(i) The High Court judge erred in law in finding that s. 19 did not impose successive obligations at the end of each of any

investigation enquiry or regulatory process;

(ii) the High Court judge erred in fact and in law in finding that the reason for the collapse of an enquiry are matters

which would be of great weight in deciding whether there is a bona fide concern;

(iii) the High Court judge erred in fact and in law in acknowledging that there was a significant lapse of time between the

complaint and the decision to make the notification but not having any concern about that delay;

(iv) the High Court judge erred in fact and in law in finding that the views formed by the statutory committee of the

respondent do not amount to an assessment by the respondent for the purposes of s. 19;

(v) the High Court judge erred in fact and in law in finding that while the papers show that at the time of the s. 47

application some consideration was given to the respondent’s obligations under s. 19. This showed that the respondent’s

obligations under s. 19 had not at that stage been “teased out”;

(vi) the High Court judge erred in fact and in law in finding that there was no delay by the respondent;

(vii) the High Court judge erred in fact and in law in finding that even if there had been a delay on the part of the

respondent in deciding whether it had a concern or in notifying any such concerns that would not have absolved the

respondent of its obligations, or deprived it of its power to make a notification;

(viii) the High Court judge erred in fact and in law in finding that while the scheme of vetting has the potential to impact

on the rights of the subject of an application for disclosure, those rights are affected not by the collection of information

but by its disclosure; and

(ix) the High Court judge erred in fact and in law in finding that the s. 19 protections in terms of matters to be considered

by the chief bureau officer are proportionate to the requirement to balance the rights of the subject and the declared

purpose of the act.

Background

5. The appellant is a registered teacher. A complaint was made to the respondent arising out of an incident that occurred at night

between the 28th-29th November, 2016 involving a male student, student A, who was aged nineteen at the time and who was picked

up by the gardai in a distressed state on a motorway shortly after midnight on the 29th November, 2016. There was a smell of alcohol

on his breath but he was not drunk. He explained that he was a student at a nearby school and he was brought back there where he

was interviewed by the headmaster and later by a detective at a garda station. Student A described how he and the appellant had

spent the evening drinking together and that the appellant tried to remove his tracksuit bottoms and had become angry when student

A had refused to let him. After an argument, student A left the room on the pretext of looking for a cigarette but instead made his

way onto a nearby motorway with a view to getting to Dublin Airport and going to his home which was in another E.U. country.

Student B was also interviewed and gave evidence of drinking and smoking cannabis with the appellant and student A and described

how the appellant had taken students A and B to his cottage in the country on weekends when they should have been at school. He

also described the appellant’s attempts to groom student A into engaging in a relationship describing how the appellant had said “…

that he loves [student A] in a weird way”. Evidence was given in the High Court that after student A was brought back to the school

by the gardai the appellant approached him and said “You don’t have to do this. Come here now and talk to me.” This upset student

A. Evidence was also given of an exchange of WhatsApp messages between the appellant and student A in which the appellant tried

to persuade student A to change his account of events. The judgment of the High Court judge sets out in some detail the text of

these messages.

6. When questioned by a detective garda, student A did not wish to make any complaint and the assessment of the gardai was that

there did not appear to have been any offence disclosed.

7. At 7.30 a.m. on the 29th November, 2016 the school headmaster sent for the appellant who was suspended on full pay pending the

outcome of an investigation. He was also required to leave the school premises immediately.

8. An internal investigation took place within the school which led to a disciplinary hearing before a panel of three board members.

The panel found that some of the allegations formulated by the headmaster had been made out and others not. It concluded that the

allegations which had been made out amounted to gross misconduct and recommended that the appellant be dismissed with pay in

lieu of notice and this was done by letter of the 23rd December, 2016. The appellant exercised his right of appeal under the school’s

disciplinary procedures but later decided not to pursue the appeal.

9. On the 16th March, 2017 the headmaster filed a complaint with the respondent under Part 5 of the Act of 2001. Part 5 of the Act

deals with fitness to practice enquiries, professional misconduct and other related matters. The headmaster expressed the view that

the findings of gross misconduct made by the panel on the disciplinary hearing amounted to professional misconduct under. s. 42(1) of

the Act of 2001.

10. At the commencement of the appeal, the Court was informed that the appellant was not proceeding with the grounds of mala

fides or misfeasance. Essentially, the appeal turned on the question of delay and the meaning of the words “as soon as may be” in

s.19 of the Act of 2012.

The Law

11. The respondent was established by Part 2 of the Act of 2001 and is a scheduled organisation under the Act of 2012. If the

respondent has a bona fide concern that a person who is subject to an investigation enquiry or regulatory process may harm any child

or vulnerable person it has a statutory obligation to notify that concern and the reasons for it to the National Vetting Bureau.

12. In this case following the conclusion of the Part 5 enquiry the respondent notified the appellant of its intention to make a

notification to the bureau.

13. The Act of 2012 came into operation on the 29th April, 2016. Section 12 provides that “[a] relevant organisation shall 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”. Section 13(4)(e) provides that an application for vetting disclosure must be accompanied by a declaration

of consent by the subject of the application. Section 13 provides that when the bureau receives an application it is obliged to 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. In this context “criminal record” includes any record

of pending prosecutions as well as convictions and 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 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.

14. It is not necessary that the concerns of the bureau relate to a child or vulnerable person who was the subject matter of the

finding or allegation which has been received by the bureau. Nor does the person alleged or found to have been harmed have to be a

child or vulnerable person. The question is whether the finding or allegation gives rise to a concern that the person against whom the

finding or allegation is made may pose a risk to children or vulnerable persons.

15. When the prescribed enquiries and examinations have been concluded, if a member of staff of the bureau considers that there is

specified information relating to the subject of the application, that person must refer the matter to the chief bureau officer. That

officer must then notify the subject of the finding or allegation and invite a written submission from them. At that stage the chief

bureau officer must make a determination whether the information should be disclosed, but must not make a determination that the

information should be disclosed unless he or she reasonable believes that the information is of such a nature as to give rise to a bona

fide concern that the subject may harm any child or vulnerable person or cause that child or vulnerable person to be harmed or put at

risk of harm or that he or she might attempt to harm any child or vulnerable person or incite another to do so; (see s. 15). The chief

bureau officer must be satisfied that disclosure is necessary, proportionate and reasonable in the circumstances for the protection of

children or vulnerable persons or both, as the case may be; (s. 15(3)(b)).

16. If the chief bureau officer determines that specified information should be disclosed, he or she must notify the subject of the

determination and the reasons for it and inform the subject that he or she has a right of appeal to an appeals officer.

17. The notification obligations imposed on scheduled organisations are set out in s. 19 of the Act of 2012.

18. The statutory regime of the Act of 2001 and the Act of 2012 are comprehensively set out by the trial judge in his judgment. It

has not been necessary to set them out in extenso in this judgment save where they are relevant to the points raised in the appeal.

19. While the notice of appeal raised issues of whether or not the respondent had a bona fide concern this was not pursued.

Essentially the appeal turned on the question of delay on the part of the defendant in deciding whether it had a concern or in

notifying any such concerns and the meaning of the words “as soon as may be” in s. 19 of the Act of 2012.

20. The respondent has power under s. 47 of the Act of 2001 to apply to the High Court for an order for the suspension of

registration of a registered teacher if it is satisfied that it is in the public interest to do so. The executive committee of the defendant

convened to consider whether such an application should be made. The appellant was unable to attend the meeting but was

represented by solicitors. Having considered materials submitted to the meeting and written and oral submissions from the parties a

decision was made in the public interest to make an application to the High Court for an order pursuant to s. 47 the Act of 2001. This

was done by proceedings commenced by special summons on the 28th April, 2017.

21. The decision of the executive committee has not been challenged by the appellant and in the course of his judgment the High

Court judge stated that it was never suggested that the concern which motivated the s. 47 application was not a proper concern or

that the application was not properly brought in the public interest.

22. At the hearing of the s. 47 application the appellant offered a voluntary undertaking not to teach in any school in this jurisdiction

or any member state of the European Union until further order of the court and he consented to the council making a notification of

the terms of the order to the competent authorities identified in E.U. Directive 2005/36/EC, as amended. The directive facilitates the

recognition of professional qualifications and to that end provides for, inter alia, competent authorities and single points of contact in

each of the member states.

23. One of the reliefs sought by the respondent in the s. 47 application was an order giving liberty to communicate the terms of any

order that the Court might make to the National Vetting Bureau. The issue is resolved by the respondent giving an undertaking in the

following terms:-

“(a) Advance reasonable notification will be given to [M.P.’s] solicitors should the [Council] decide in the course of its

investigation that the statutory application of s. 19 of the Natural Vetting (Children and Vulnerable Persons) Act, 2012

[is] applicable and it decides to inform the Natural Vetting Bureau of this matter.

(b) Should the aforesaid investigation be determined in favour of [M.P.] the [Council] will give notification of same to all

relevant parties even if there is no express statutory obligation to do so.”

24. The undertaking was a reflection of the respondent’s statutory obligations imposed by s. 19(3). The Court gave liberty to the

appellant to apply in the event that he alleged that the respondent delayed in progressing with the investigation against him.

25. The following significant findings made by the trial judge have not been contested on the appeal:-

(i) There was no evidence to support an allegation misfeasance in public office;

(ii) there was ample justification for the concern held by the respondent which required it to notify the National Vetting

Bureau;

(iii) there was no justification for the allegation that the respondent’s concern was not bona fide and that it therefore had

an obligation to notify the National Vetting Bureau;

(iv) the respondent delegated the task of assessing whether the circumstances gave rise to a concern to the evidence of

character panel which met on the 18th June, 2018 and decided that they did;

(v) the respondent sought and took advice regarding the requirements of s. 19 between January and June 2018;

(vi) the evidence of the Character Panel was unconnected with the disciplinary process; and

(vii) the reasons given by a “specified organisation” are not amenable to judicial review. The quality and weight of the

reasons are matters to be considered by the chief bureau officer in deciding whether the information is such as to give

rise to a reasonable belief.

26. The respondent argues that in view of these uncontested findings it follows that the respondent’s decision to notify the National

Vetting Bureau in June 2018 is unimpeachable on the merits.

27. I accept the submission of the respondent that the intention of the Oireachtas in enacting s. 19 of the Act of 2012 has to be

construed in the context of the legalisation as a whole and that the long title of the Act is instructive in that regard. The title of the

Act identifies its objects as being:-

“…to make provision for the protection of children and vulnerable persons and, for that purpose, to provide for the

establishment and maintenance of a National Vetting Bureau (Children and Vulnerable Persons) Database System; to

provide for the establishment of procedures that are to apply in respect of persons who wish to undertake certain work or

activities relating to children or vulnerable persons or to provide certain services to children or vulnerable persons; to

amend the Garda Siochana Act 2005; to provide for the change of name of the Garda Central Vetting Unit to the National

Vetting Bureau; and to provide for related matters.”

28. A s. 19 notification does not involve a determination of facts but simply carries into effect the obligation of any scheduled

organisation to notify the National Vetting Bureau of the specified information and also to notify the person affected of the fact of

that concern and of the intention to notify the Bureau.

Discussion

29. The appellant argues that the steps taken by the respondent in relation to him fell into three separate processes. The section 47

regulatory process was followed by an investigation which in turn was followed by an enquiry. He complains that the investigation

ended in July 2017 but the enquiry ended in January 2018. The appellant argues that s. 19 imposed successive obligations at the end

of each and any investigation enquiry or regulatory process. The High Court judge did not accept that contention and it seems to me

that he was correct in so doing. What is required is that at the end of the investigation process the scheduled organisation has

formed a bona fide concern.

30. In suggesting that each of the seven requirements of s. 19 be addressed separately, the appellant sets up an artificial construct

which is at odds with the expressed intention of the Act. This court must consider whether the section imposes mandatory

requirements of such a nature that a failure to observe any of the requirements deprives the respondent of the power to make a

notification. The High Court judge accepted the argument of the respondent that the appellant’s argument on this point was

contrived and that the Court should focus on the purpose of the Act.

31. It seems to me that the High Court judge was correct in placing some reliance on the decision of the Supreme Court in Gillen v.

Commissioner of An Garda Siochana [2001] 1 I.R. 574 which required that a disciplinary complaint against an garda “shall be

investigated as soon as practicable”. In Gillen it was argued that a lapse of three and a half years precluded an investigation. In Gillen

Finnegan J. quoted with approval from the decision of the Supreme Court in The State (Elm Developments Limited) v. An Bord

Pleanála [1981] I.L.R.M. 108 at 110:-

“Whether a provision in a statute or statutory instrument, which on the face of it is obligatory (for example, by the use of

the word 'shall'), should be treated by the courts as truly mandatory or merely directory depends on the statutory

scheme as a whole and the part played in that scheme by the provision in question. If the requirement which has not

been observed may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold

it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a

requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, non-

compliance may be excused.”

32. He went on to quote from Lord Steyn in R v. Soneji [2006] 1 A.C. 340 at 353 where he said:-

“…the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can

fairly be taken to have intended total invalidity.”

33. At para. 52 Finnegan J. stated:-

“In having regard to the dual purpose of the statutory requirement for expedition in garda disciplinary proceedings, in each

case regard must be had not just to the interests of the individual garda concerned, but also to the public interest in

maintaining public confidence in An Garda Síochána.”

34. The 2012 Act has at its heart the protection of children and vulnerable persons with an in-built balance to protect the

constitutional rights of a person against whom findings or allegations have been made.

35. The trial judge held that the obligation to notify “as soon as may be” does not arise until a bona fide concern has been formed by

the scheduled organisation. This finding has not been appealed. He also found that the respondent designated his decision making

function under s.19 to its evidence of character panel which decided on 18th June, 2018 that it did have a concern. Its decision to

notify the National Vetting Bureau was communicated to the appellant by way of letter dated 5th July, 2018. That evidence was not

contradicted. Yet the appellant submits that the respondent had formed a prior bona fide concern for the purposes of s. 19 although

this submission is unsupported by evidence.

36. A detailed examination took place in the High Court of the timeline from the events of the 28th/29th November, 2016 through to

the complaint to the respondent on the 16th March, 2017 (received 21st March) section 47 regulatory process. A number of material

facts that were considered by the judge were the unwillingness of student A and student B to participate in the enquiry and the

reasonable steps taken to obtain legal advice regarding the implications of the Act of 2012 as this was only the second enquiry

conveyed under the Teaching Council Acts. The evidence offered on behalf of the respondent regarding the timeline was not

contradicted or challenged and it was open to the High Court judge to accept that evidence.

37. In the High Court the respondent gave evidence that part of the reason for the delay was the necessity to take legal advice.

While the appellant argued that this was an unconvincing explanation the trial judge stated:-

“…but the fact of the matter is that the evidence of the need for that advice, and the time taken to get and consider it,

is unchallenged. Effectively the court is asked either to disregard the unchallenged evidence of the need for, and taking

of, advice or to infer that in the teeth of the advice taken, a decision was made to abuse a statutory power to injure the

plaintiff. I can see no conceivable justification for such an approach…”, (para. 103).

38. At para. 112 of his judgment the High Court judge stated:-

“It seems to me that if, as is argued on behalf of the plaintiff, the defendant is precluded from notifying a bona fide

concern other than ‘as soon as may be’ the result would be that the database would be permanently, rather than, in the

case of any delay, temporarily deficient. Such a construction, in my view, might very well lessen the protection that

otherwise would be available to children and vulnerable persons and would be contrary to the declared purpose of the

legislation. I cannot think that the Oireachtas would have intended such a consequence.”

39. I agree with those observations of the trial judge.

Conclusion

40. This appeal turned on the question of delay and the meaning of the words “as soon as may be” in s. 19 of the Act of 2012.

41. I am satisfied that the learned trial judge was correct in concluding that the respondent complied with the requirements of s. 19.

In paras. 96-112 of his judgment the High Court judge set out the reasons why he was satisfied that the respondent’s decision to

make a notification to the National Vetting Bureau was made “as soon as may be” having regard to the matters he referred to therein

and the scheme and purpose of the Act of 2012.

42. I find no error in the conclusions reached by the High Court judge and I would therefore dismiss the appeal.