The High Court in D.OC. & Anor .v. Garda Síochána Ombudsman Commission & Ors [2026] IEHC 261 recently found that the obligation on regulators (scheduled organisations) to notify the National Vetting Bureau (NVB) under the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 (“the 2012 Act”) of “specified information” where there is a bona fide concern that an individual may pose a risk to children or vulnerable persons is unconstitutional and incompatible with the European Convention on Human Rights (ECHR).
Under section 19 of the 2012 Act, scheduled organisations must notify the NVB in writing if, after an investigation, they have a bona fide concern that a person may harm or put at risk children or vulnerable persons. "Scheduled organisations" are those listed in Schedule 2 of the 2012 Act and include the Teaching Council, Medical Council, Nursing and Midwifery Board of Ireland, Dental Council, Health and Social Care Professionals Council and Pharmaceutical Society of Ireland. On receipt of this information, the NVB then retains this “specified information” on its register, but the affected individual is not given access to the content unless and until a vetting disclosure is contemplated in future (for example, when they apply for a role requiring vetting).
The applicants, serving Gardaí, were subject to a complaint and subsequent investigation about their conduct during an arrest. After the investigation, the Garda Síochána Ombudsman Commission (a scheduled organisation) notified the NVB of a bona fide concern regarding the applicants, as required by section 19 of the 2012 Act. The applicants argued that they were unable to know, access, or challenge the content of the specified information retained about them, which could remain indefinitely on the NVB register. They contended this breached their constitutional rights (fair procedures, good name, privacy) and ECHR rights (private life).
The High Court found that the 2012 Act does not provide affected persons, the subject of a notification, with the right to see, or make submissions on, the specified information held about them, unless and until a vetting disclosure is triggered. Therefore, the Court held that the relevant provisions of the 2012 Act—sections 10, 15, and 19—are repugnant to the Constitution and incompatible with Article 8 of the ECHR. The Court did not accept that fair procedure rights are only engaged at the point of potential disclosure and held that the mere retention of such information, which is highly damaging to an individual’s reputation, is sufficient to engage constitutional and ECHR rights, triggering a right to be heard and to challenge the information. The Court was also concerned that the statutory regime allowed no mechanism for independent review, correction, or deletion of the information except in very limited circumstances. While the Court did not order the removal or disclosure of the specific information in this case (since it did not know its content), it made declarations of unconstitutionality and incompatibility.
Take Away from Judgment:
- The judgment strikes down the obligation on regulators and other scheduled organisations to notify the NVB of a bona fide concern of harm to children or vulnerable persons, to the extent that the affected person is not given an opportunity to know and challenge the information.
- The decision emphasises the need for procedural fairness and transparency in the retention of potentially damaging information by state bodies, especially where it may affect a person’s constitutional rights, including reputation or entitlement to earn a livelihood.
- Unless the decision is overturned on appeal, the statutory provision will require legislative amendment to restore the obligation on regulators to make notifications to the NVB and, in doing so, it will be necessary to expressly afford affected persons the right to access and challenge such information at the point of its entry onto the NVB register.
