'soft information'/non conviction data

whosyadaddy

Does anyone know, with the possibility of a referendum concerning the availibility of 'soft information' / non conviction data, if information gathered about a person could be used, as part of Garda vetting for a job application to work with children or with healthcare.

For example, if a person was accused of child sexual abuse, and was interviewd by Gardai, or even suspicions were raised about someone, the allegations were denied, and nothing was proved....could this be used to prevent someone becoming a childrens nurse or working in a creche?

Tom Young

My view is theoretically not in Ireland. The constitution provides a level of protection for all citizens of Ireland to have their case heard in due course of law.

Provision under the latin maxim: In Audi Alteram Partem also applies. This means in practice, let both sides be heard.

Garda privacy is something of an issue. Recent cases including Hanahoe v. Hussey and Gray v. Minister for Justice are interesting. The Gray case saw an award of damages for breach of Privacy Rights by an Garda Siochana. The force is subject to the provisions of Data Protection legislation, S.8 1998.

My summary of the Gray case was an action for damages for breach of privacy in which police officers made reference to a previously known offender of some type residing with the Gray family.

Hanahoe v. Hussey concerned the leak to media by an Garda Siochana of intention to search a solicitors office. Award in damages also found. I believe this may have been Kinlen J. on the bench.

So at Common law there is a requirement to behave properly, particularly where organs of the state are concerned.

I am not sure what you mean by soft information / non conviction data. Privacy is an unenumerated right under the constitution stemming from many cases. Statutory protection can also be found in the Data Protection legislation which has been updated since my cited 1998 example.

I'd have a look into Subject Access requests using a solicitor if grounded fears are well placed.

Per your mail, anaccusation is not a conviction. Negativing should not take place, unless a proven minor charge or indictment can be proven. The unfortunate part of the above is that in small towns people talk!

The above is my opinion only.

Tom

padser

I read something about this yesterday and I have to say it was quite disturbing. The article certainly indicated, that soft data could be used in job applications etc etc, while Tom Young is correct in saying that this is unconstitutional at the moment - the idea of having a referendum would be to make it constitional, obviously you can not argue that something in the constitition is unconstutional. You could however take a case to the ECHR which woudl probably be your best recourse.

However I have to say the referendum looks so draconian in nature that I cant see it getting passed, I for one will be voting against it - I am agaisnt giving the guards any more power to abuse!

Tom Young

Indeed it was remiss of me to refer to the ECHR. As many will know in the legal profession the 2005 Act recognising the ECHR falls short of constitutional amendment and only required the judiciary to take notice of ECHR articles, articles 6 and 8 which deal with Privacy and Freedom of expression.

There would be a national exemption from the ECHR on Religious, moral or national security grounds, so that gives plenty of scope to the government.

I suggest a direct ECHR case would be the best way, in line with Padser's comments. Though these cases are notoriously expensive and protracted.

An action could be taken under the ECHR Act 2005, and at common law. If the Act was weighted the Attorney General can make ex gratia payments in damages but does not amend the law, and likewise (subject to a quick check) the findings of a court are only laid before the Oireachtas as opposed to actioned. One thing that I also query is whether or not you would be able to join the AG as a relator party in an action against ....lets say, the minister for justice. Indeed a complex matter.

I can't see this coming to pass as a constitutional amendment being frank.

Tom

whosyadaddy

I mean, for instance, a well respected gentleman, is accused of sexually abusing a neighbours child. Both are interviewed by Gardai, the man denies it, there is no physical evidence. The case is closed. But the Gardai have records that he was cautioned and questioned in relation to child sexual abuse, also known as "soft information", a suspicion, non conviction data that is held at the station and would not show up on the Pulse Garda system.

Could this information be used againt the person should he apply to work as a Garda himself, or some position of authority....

haz

whosyadaddy wrote:

Could this information be used againt the person should he apply to work as a Garda himself, or some position of authority....

I haven't seen the actual proposed wording of the Constitution after amendment, and it isn't on the Office of the Minster for Children website with the briefing document and Taiseach's speech, but my interpretation of the briefing document is that Article 40.3.2 will no longer say "The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

Yes, the State intends to permit accusations, suspicions and unprosecuted offences to be included in vetting individuals when working with children. It is not clear whether this is purely related to child protection behaviours or could be applicable to other soft data, such as financial impropriety or extremism - there is no reason why it could not.