Protecting our children: breaks in the chain

The government is failing to protect children from sexual predators by not having a comprehensive vetting system or a proper sex offender's register. By Emma Browne

Last month it emerged that a trainee garda and a teacher had been involved in inappropriate sexual behaviour with a 14-year-old boy. Amid the widespread coverage on the case were concerns that the vetting of people who work in these and other professions is less than comprehensive.
Although the vetting of potential employees has improved dramatically in the last few years, there are still glaring gaps in our vetting process, leaving children vulnerable to sexual predators. There is still no legislation allowing for Garda vetting to take place, which means that the process has developed on an ad-hoc basis.

At present, vetting is only done for potential new employees. Existing teachers, health workers and those working with children have not been vetted by the gardaí. Retrospective vetting – vetting of those already employed – will not even begin until 2008. The Department of Justice, Equality and Law Reform cannot give a timeframe on when the retrospective vetting of all professions working with children and vulnerable adults will be complete. Considering there are 80,000 in the teaching profession alone, this will take some time.

The vetting of new pre-school and crèche staff has not even begun, and has been delayed for eight months until September 2007. This is because the vetting unit is under-resourced and overloaded.

According the SAVI Report on Sexual Abuse and Violence in Ireland, published in 2002, one in five women in Ireland have suffered some form of sexual abuse in their lifetime and one in four have been raped. One in six men have suffered sexual abuse.

At present, all prospective employees of the HSE are vetted, as are special-needs assistants, people employed by health and social service agencies in receipt of funding from the HSE, all new staff in the primary and post-primary education sectors, and all new people working in the youth sector. Sporting organisations have also begun vetting. Through 2007, vetting will be extended to private hospitals, residential childcare centres, agencies working with the homeless, arts organisations and private tuition centres.

In 2002, the Central Vetting Unit was set up to deal with increased demand from employers for Garda vetting. In the years since, the staff has doubled to 33 civilians, and the unit has a purpose-built office in Thurles. But even that level of staff still cannot cater for the growing demand for vetting. According to the Garda Síochána, in order to vet all those working regularly with children or adults, the unit would need to be vetting 555,000 people a year. 

A vet reveals all convictions and unsuccessful prosecutions in a person's history. If there are any cases pending, this is not revealed. 
There are two major deficits in the current vetting system. Firstly when the Central Vetting Unit vets a person through their Garda computer system called PULSE, they have no access to the sex offenders' register. The sex offenders' register is paper-based and is not entered into the PULSE system. Hypothetically a paedophile from Northern Ireland or Britain could get a job working with children in the Republic, as his conviction would not be on the Garda computer system checked by the Central Vetting Unit.

Secondly a vet only reveals hard information, as in convictions. In Britain and Northern Ireland, a vet will also reveal soft information on a person – that which falls short of a criminal conviction but which raises concerns about that person's suitability to work with children. For instance the person may have had an accusation of child abuse against them, have been investigated for child abuse, or been dismissed from work due to inappropriate conduct towards children. Norah Gibbons of Barnados calls this an “absolute lack”.

There have also been problems with the UK authorities vetting Irish people who may have lived in England for a while, or English people living here. At present they are refusing these applications unless the Irish authorities provide fingerprints along with the vetting request. Ireland is unable to do this.

The law

The government has proposed a constitutional amendment, as part of the general referendum on children's rights, which would allow them to bring in legislation allowing for the exchange of soft information.

They argue that the constitutional reform is needed in order to prevent a constitutional challenge by somebody arguing that their constitutional right to a good name has been damaged by some “soft information” relating to them being revealed. Under Article 40 of the Constitution a person has a right to a good name. 

A 1997 case, MQ v Gleeson, also indicated that legislation was needed. In the case, a student of social studies and community care sought judicial review of a decision by the Vocational Education Committee to suspend him from his course following information passed on to them by the Health Board regarding his inappropriate conduct with children.

Justice Barr concluded that the Health Board had an implied duty under the Child Care Act 1991 to communicate information in relation to a possible child abuser, if by failing to do so the safety of some children might be put at risk.

In the Ferns report, former Supreme Court judge Frank Murphy highlighted this case and argued that the judgment showed the Health Board had an implied duty to communicate soft information but did not have the express legislative power to do so. He concluded therefore that legislation needed to be brought in to support this implied duty.

However there is existing law which allows for the exchange of soft information under a defence to defamation called qualified
privilege.

Defamation is the wrongful publication (the communication to a third party) of a false statement about a person which tends to lower that person in the eyes of the right-thinking members of society. However there is a defence to defamation under qualified privilege which could apply in the case of the exchange of soft information. Qualified privilege is when the law recognises the right of the person to communicate freely provided it is not done maliciously. The specific circumstances of when privilege is allowed have not been specifically established but generally they apply when the maker of the statement has a duty to speak or is obliged to protect an interest. In a case this has been interpreted to mean not just a legal duty, but a moral and a social duty. The privilege will only hold if the person communicating the information has a duty or interest, as does the person receiving the information.

Sex register

As well as the problems with vetting, Ireland is without a proper and adequate sex offenders register. There are repeated references in the media to individuals being “put” on the sex offenders register after being convicted of a sex crime, but this in fact does not happen.

The Sex Offenders Act 2001 makes no reference to a register of sex offenders. Instead, the act places minimal requirements on convicted sex offenders to notify the Garda Síochána of changes to their personal details. The legislation places the onus on the offenders, not on the gardaí, said a Garda spokesman.

Within seven days of being released from prison (or, in the case of a suspended sentence, of conviction), a sex offender must notify the Garda of his name, any other names he uses, and his home address, according to the act. If he subsequently changes address, or stays elsewhere, he is required to notify the Garda of these addresses within seven days of moving.

The act also provides for a court to make a “sex offender order” in certain cases to place “prohibitions” on a sex offender doing anything which could lead to a sexual offence being committed.

The UK's sex offenders' register places sex offenders under similar obligations to notify the police of their address and movements as the Irish legislation, but the UK register may contain a greater level of detail and “soft” information on people who have come to the attention of police, or who have received cautions but not convictions.

One anomaly under the act is that you do not even have to register with the Garda station in your area. The government is hoping to address this in new legislation.

Ireland has additional problems in relation to tracking foreign sex offenders who have entered Ireland. When a foreign-national sex offender comes into Ireland they are supposed to register with the gardaí in the same manner as Irish sex offenders under the legislation. But at the moment the Garda Síochána has no power to arrest that person if they do not comply with the Sex Offenders Act and register at a Garda station. Barnados has called our current system of monitoring and tracking sex offenders “woefully inadequate”. And last year there were concerns when one of Britain's most dangerous sex offenders breached his probation in Northern Ireland and was later located in Dublin.
At present there are 971 people on the sex offenders' register.