Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012

4.

Defences to offence under section 2 or 3.

4.— (1) Subject to this section, in any proceedings for an offence under section 2 or 3, it shall be a defence for the accused person to show—

(a) that the child or vulnerable person against whom the Schedule 1 offence or the Schedule 2 offence, as the case may be, concerned was committed made known his or her view (provided that he or she was capable of forming a view on the matter) that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána, and

(b) that he or she (the accused person) knew of and relied upon that view.

(2) Without prejudice to the right of the child or vulnerable person against whom the Schedule 1 offence or the Schedule 2 offence, as the case may be, concerned was committed to disclose the commission of that offence, or information relating to it, to the Garda Síochána, it shall be presumed for the purposes of subsection (1), unless the contrary is shown, that if—

(a) the child concerned has not attained the age of 14 years, or

(b) the vulnerable person concerned falls under paragraph (a) of the definition of vulnerable person in section 1(1) (whether or not he or she also falls under paragraph (b) of that definition),

he or she does not have the capacity to form a view as to whether the commission of that offence, or information relating to it, should be disclosed to the Garda Síochána.

(3) Where—

(a) in the case of a child referred to in paragraph (a) of subsection (2), or

(b) in the case of a vulnerable person referred to in paragraph (b) of that subsection,

the presumption in that subsection is not rebutted, then, any of the defences provided for in subsections (4), (5) and (8) may be raised by an accused person in any proceedings for an offence under section 2 or 3 in accordance with whichever of those subsections applies.

(4) Subject to subsections (6) and (7), in any proceedings for an offence under section 2 or 3, it shall be a defence for the accused person to show, in the circumstances specified in subsection (3)

(a) that a parent or guardian of the child or vulnerable person concerned against whom the Schedule 1 offence or the Schedule 2 offence, as the case may be, concerned was committed made known his or her view, on behalf of that child or vulnerable person, that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána, and

(b) that he or she (the accused person) knew of and relied upon that view.

(5) Subject to subsections (6) and (7), in any proceedings for an offence under section 2 or 3, it shall be a defence for a parent or guardian of a child or vulnerable person against whom a Schedule 1 offence or Schedule 2 offence, as the case may be, was committed to show, in the circumstances specified in subsection (3), that he or she formed the view, on behalf of that child or vulnerable person, that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána.

(6) The defence provided for in subsection (4) or (5) shall be established only if the parent or guardian concerned had reasonable grounds for forming the view concerned on behalf of the child or vulnerable person concerned and, in so doing, he or she acted and is continuing to act bona fide in the best interests of that child or vulnerable person.

(7) The defence provided for in subsection (4) or (5) shall not apply if the parent or guardian of the child or vulnerable person concerned who formed the view that the commission of the Schedule 1 offence or the Schedule 2 offence, as the case may be, concerned, or information relating to it, should not be disclosed to the Garda Síochána is a family member of the person who is known or believed to have committed that Schedule 1 offence or Schedule 2 offence, as the case may be.

(8) Subject to subsection (11), in any proceedings for an offence under section 2 or 3, it shall be a defence for the accused person (including a parent or guardian of the child or vulnerable person concerned) to show, in the circumstances specified in subsection (3) but where subsection (7) applies to the parent or guardian concerned—

(a) that a member of a designated profession who provided or is providing services to the child or vulnerable person concerned in respect of the injury, harm or damage caused to him or her as a result of the Schedule 1 offence or the Schedule 2 offence, as the case may be, concerned made known his or her view, on behalf of that child or vulnerable person, that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána, and

(b) that he or she (the accused person) knew of and relied upon that view.

(9) A parent or guardian of a child or vulnerable person or a member of a designated profession shall, for the purposes of considering on behalf of the child or vulnerable person whether or not the commission of the Schedule 1 offence or the Schedule 2 offence, as the case may be, concerned against that child or vulnerable person, or information relating to it, should be disclosed to the Garda Síochána, insofar as practicable have regard to the wishes of that child or vulnerable person.

(10) Subject to subsection (11), in any proceedings for an offence under section 2 or 3, it shall be a defence for the accused person who is a member of a designated profession to show that—

(a) he or she is a member of a designated profession who provided or is providing services to the child or vulnerable person concerned in respect of the injury, harm or damage caused to him or her as a result of the Schedule 1 offence or the Schedule 2 offence, as the case may be, concerned, and

(b) he or she formed the view, in relation to that child or vulnerable person, that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána.

(11) The defence provided for in subsection (8) or (10) shall be established only if—

(a) the member of the designated profession concerned had reasonable grounds for forming the view concerned in relation to the child or vulnerable person concerned for the purpose of protecting the health and well-being of that child or vulnerable person, and

(b) the member of the designated profession concerned, in forming that view in relation to the child or vulnerable person, as the case may be, concerned—

(i) acted and continues to act in a manner, and

(ii) applied and continues to apply the standards of practice and care,

that can reasonably be expected of a member of that profession in forming such a view in the circumstances concerned.

(12) Subject to subsection (13), in any proceedings for an offence under section 2 or 3, it shall be a defence for the accused person who is a prescribed person to show that—

(a) he or she is a prescribed person employed or otherwise engaged by a prescribed organisation who provided or is providing services to the child or vulnerable person concerned in respect of the injury, harm or damage caused to him or her as a result of the Schedule 1 offence or the Schedule 2 offence, as the case may be, concerned, and

(b) he or she formed the view, in relation to that child or vulnerable person, that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána.

(13) The defence provided for in subsection (12) shall be established only if—

(a) the prescribed person concerned had reasonable grounds for forming the view concerned in relation to the child or vulnerable person concerned for the purpose of protecting the health and well-being of that child or vulnerable person, and

(b) the prescribed person concerned, in forming that view in relation to the child or vulnerable person, as the case may be, concerned—

(i) acted and continues to act in a manner, and

(ii) applied and continues to apply the standards of practice and care,

that can reasonably be expected of a prescribed person forming such a view in the circumstances concerned.

(14) This section is without prejudice to any other defence recognised by law as a defence to a criminal charge that may be available to a person charged with an offence under section 2 or 3.

(15) In this section—

“Act of 2005” means the Health and Social Care Professionals Act 2005;

“family member”, in relation to a person, means—

(a) a parent, grandparent, child, brother, sister, nephew, niece, uncle or aunt, whether of the whole blood, of the half blood or by affinity, of the person,

(b) a spouse, a civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or a cohabiting partner of the person,

(c) any other person who is ordinarily a member of the person’s household, or

(d) any child who has been placed in foster care with the person or any person referred to in paragraphs (a) to (c);

“member of a designated profession” means—

(a) a registered medical practitioner within the meaning of section 2 of the Medical Practitioners Act 2007,

(b) a registered nurse or a registered midwife both within the meaning of section 2 of the Nurses and Midwives Act 2011,

(c) a psychologist and, following the establishment of the register of members of psychologists under section 36 of the Act of 2005, only a person whose name is entered in that register, or

(d) a social worker whose name is entered in the register of members of social workers established and maintained under section 36 of the Act of 2005;

“prescribed organisation” means an organisation or body prescribed by the Minister under section 5;

“prescribed person”, in relation to a prescribed organisation, means one of a class of persons prescribed by the Minister under section 6;

“services” means—

(a) in relation to a member of a designated profession, services relating to—

(i) the preservation or improvement of the health or well-being of persons to whom the services are provided,

(ii) the diagnosis, treatment or care of persons who are injured, harmed or damaged,

(iii) the resolution, through guidance, counselling or otherwise, of personal, social or psychological problems,

(iv) the care of persons in need of protection, guidance or support,

and

(b) in relation to a prescribed organisation, services relating to—

(i) the resolution, through guidance, counselling or otherwise, of personal, social or psychological problems,

(ii) the care of persons in need of protection, guidance or support,

and, in either case, being services that require a person providing them to exercise skill or judgement in relation to them.

(16) In the definition of “family member” in subsection (15), the reference to any member of a person’s family shall include a reference to any such member of his or her family who is adopted.

Annotations

Editorial Notes:

E1

Organisations and persons prescribed for purposes of section (30.04.2015) by Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 (Prescribed Organisations and Prescribed Persons) Order 2015 (S.I. No. 159 of 2015), arts. 4, 5 and sch., in effect as per art. 2.

E2

Organisations and persons prescribed for purposes of section (2.05.2014) by Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 (Prescribed Organisations and Prescribed Persons) Order 2014 (S.I. No. 197 of 2014), arts. 4, 5 and sch., in effect as per art. 2.

E3

Organisations and persons prescribed for purposes of section (12.10.2013) by Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 (Prescribed Organisations and Prescribed Persons) (No. 2) Order 2013 (S.I. No. 402 of 2013), arts. 4, 5 and sch., in effect as per art. 2.

E4

Organisations and persons prescribed for purposes of section (14.01.2013) by Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 (Prescribed Organisations and Prescribed Persons) Order 2013 (S.I. No. 1 of 2013), arts. 4, 5 and sch., in effect as per art. 2.