Informal caution on record?

LauraAK

Hi, I'm wondering if anyone can advise me on this.

My sister received an informal caution when she was 14 years old under the juvenile diversion programme. She was assured at the time that it would not go on any record or be held against her in the future.

She is 21 now and has applied to do a PGCE course in the UK, she just received a conditional offer today.
The way it works for PGCE courses in the UK is that you don't get garda vetting, instead you apply for a Data Protection Access Request.

The college gave her the Data Protection Access Request form to give to the guards. She did that and received it back today, it has the incident recorded on it.

She is meant to give this back to the college, and is very distraught that they could withdraw the offer. She thought that it wasn't going to be recorded.

Is there anything she can do about this? Can she ask for it to be removed from her record?

Thanks

Procrastastudy

The issue here is I would have thought that when you do a request "on yourself" they give you all the info, as opposed to a vetting request which would only include the pertinent info. I am very likely wrong there but just a thought.

Another thing is I wouldn't have thought a minor event when some one was 14 would preclude you from doing a PGCE or indeed from becoming a teacher. Some of the teachers I know were right reprobates when they were younger. That said they were from the UK getting vetting requests going to the police. The UK also has legislation regarding spent offences.

Has she tried contacting a councilor or getting someone to phone up the college anonymously to ask the question?

littlemac1980

That's an awful situation for your sister.

I find it a bit crazy that the informal caution would still be on her record.

s258 of the Childrens' Act 2001 provides for the removal of a record of conviction committed by a person while a Juvenile under certain circumstances, but bizarrely it doesn't appear to apply to this situation.

It appears to me, based on my reading of that section, that your sister would have been better off being charged and found guilty of the offence, as it would not now appear on her record, and she would be entitled to say to anyone, except a court, that she had never been convicted of any offence.

Wow, that makes no sense.

Maybe someone else on here can add to this, that's all I know about it, and it may not be entirely correct.

Delancey

Perhaps the Data Protection Commissioner could advise ?

LauraAK

She is going to speak to the guards about it tomorrow. She is really upset, she wasn't even informed that she was being cautioned at the time, it's only now that we realise that that is what it was.

The college that she applied to had asked her to declare any convictions or cautions. She didn't declare it because she didn't realise that it was a caution or that it would be on any records.

Although the records don't mention a caution specifically, it says she is a "suspected offender". The offense is theft, herself and a group of friends stole a nail varnish from a supermarket. It was actually one of the other girls who did it, but they were together as a group.

If the guards can't help her tomorrow I'll get her to contact the data commissioner.

MagicSean

Its not recorded as a conviction but it is recorded by the juvenile liaison officer. Otherwise how would they keep track of who they'd cautioned. When you make a request under the data protection act you are entitled to all info pertaining to you on the system. Littlemac is incorrect. If she had been found guilty it would show as a conviction as opposed to a caution. She requested all info in relation to her and she got all info. Do you think they should have withheld this info from her or just not keep records of people that receive cautions?

LauraAK

I suppose that the real problem is that the document the college want is the request under the data protection act, instead of the normal garda vetting. They are asking for information that they wouldn't be entitled to access themselves.

But if the offer is withdrawn now it will most likely be because she didn't declare the caution. She is upset because she was never made aware that she was receiving an official caution. She was assured that it wouldn't go on her record and that she would never have any trouble because of the incident.

source

LauraAK wrote: »

I suppose that the real problem is that the document the college want is the request under the data protection act, instead of the normal garda vetting. They are asking for information that they wouldn't be entitled to access themselves.

But if the offer is withdrawn now it will most likely be because she didn't declare the caution. She is upset because she was never made aware that she was receiving an official caution. She was assured that it wouldn't go on her record and that she would never have any trouble because of the incident.

The problem is where I've highlighted, if the college wanted to vet her then there are mechanisms in place for doing so, ie Garda vetting forms.

If the college had used normal channels instead of requesting information that is only for the eyes of the Gardai and the person the information is about. Then there would be no issue.

In normal situations people go through Garda vetting, at the end of which a certificate is produced declaring whether there are any convictions or not. Cautions do not show up on this, so the Garda was right when he told your sister that this wouldn't be on her record. There's a difference between the record that the Gardai keep about a person, and the record that they release to companies is these things don't show in the latter.

littlemac1980

Just to clarify my point.

If she had been convicted, then she would be entitled to ask the Gardaí to provide the information, and request that the conviction be omitted. Under the legislation the Gardaí would be obliged to provide it as requested and sign off that it is an accurate statement.

But because she was cautioned, she doesn't appear to have the same opportunity.

It's provided for as such:

(b) Subject to any order made under paragraph (d), where a question seeking information with respect to a person's previous finding of guilt, offences, conduct or circumstances is put to him or her or to any other person otherwise than in proceedings before a judicial authority-

(i) the question shall be treated as not relating to findings to which this section applies or to any circumstances ancillary to such findings, and the answer thereto may be framed accordingly, and

(ii) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose any such findings or any circumstances ancillary to the findings in his or her answer to the question.

(c) Subject to any order made under paragraph (d)—

(i) any obligation imposed on any person by any rule of law or by any agreement or arrangement to disclose any matters to any other person shall not extend to requiring him or her to disclose a finding to which this section applies or any circumstances ancillary to the finding (whether the finding is his her own or another's), and

(ii) a finding to which this section applies, or any circumstances ancillary thereto or any failure to acknowledge or disclose a finding to which this section applies or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him or her in any way in any occupation or employment.

It appears that the section would automatically refer to a Data Protection Access request also.

lovebikes

The problem here appears to be the different types of requests she can put into the vetting office.

1. A request for a conviction record.
2. A requerst for all information on the garda system about her.

This college is try to do a the second type of check on her, when they clearly are not allowed. Why not submit the form to the vetting unit with a letter explaining her postion and stating that she only requires information on convictions. And to not to answer any questions that goes beyond the first type of request.

After your sister gets into the college she should report this to the students union so it doesn't happen to anyone else.

Don't know if this is any help!!!!!!!!!!!!!!!!!