A very detailed and comprehensive judgment of Barr J. delivered on 30th April 2026 where he found that certain sections of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 were unconstitutional.
D.O.C and K.L v GSOC, Chief Bureau Officer, National Vetting Bureau of the Garda Síochána, Commissioner of An Garda Síochána, Ireland and the Attorney General.1
Introduction
This case centres around the arrest of a juvenile in the early hours of 15 November 2018. He took his father’s Mercedes car without permission. There was a passenger in the car who was apparently his girlfriend. He drove the car at very considerable speeds, at times in excess of 200 kilometres per hour, along various major roads around south Dublin. It drove southbound on the N7, Naas and collided with a Garda Armed Support Unit vehicle.
A complaint was made to the Garda Síochána Ombudsman Commission concerning the level of force used by two Gardaí (hereinafter referred to as “Garda C” and “Garda L”) when effecting the arrest of the driver. An investigation was launched. Ultimately, the Director of Public Prosecutions decided that there would be no prosecution arising out of the treatment of the juvenile at the time of the arrest.
On 18 June 2024, the two Gardaí received correspondence from a case manager in GSOC informing them that they (GSOC) were going to make a notification of specified information to the National Vetting Bureau pursuant to s.19 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.
This provision provides that where, following an investigation, a scheduled organisation (of which GSOC is one) has, as a result of its investigation, a bona fide concern that the person who is the subject of that investigation may harm any child or vulnerable person, the scheduled organisation must, as soon as may be, for the purpose of providing specified information to the Garda National Vetting Bureau (NVB), notify the bureau in writing of that concern and shall state the reasons for it.
The Chief Bureau Officer and the Garda Commissioner refused to inform the applicants of the contents of the specified information that was referred to the NVB by GSOC. The Chief Bureau Officer refused to alter or revoke the specified information that is currently held on the register of specified information, on the basis that it was not within his remit as CBO to revoke, remove or delete specified information.
He stated that requests for personal data should be made to the office of the Data Protection Officer for An Garda Síochána. They, in turn, stated that the portion of the request which contained access to the specified information held on the register maintained by the NVB, was being refused on the grounds that the data requested fell within the ambit of s.98 of the Data Protection Act – this restricts access to data compiled in the prevention, detection or investigation of offences or the prosecution of offenders.
The Gardaí submitted that in failing to disclose to them, the content of the specified information, they cannot know whether that information is correct or incorrect, either in whole or in part nor do they know what has been said about them.
They submitted that the indefinite retention of this information, on the register, coupled with the fact that they may only be informed of it in the event that a future request for a vetting disclosure is made to the NVB concerning them and in the event that the CBO makes a determination that the specified information should be disclosed, it will only be that at that time they will be given a summary of the information and have an opportunity to make submissions on it. If having considered any submissions that may be made by the applicants, the CBO decides that the information should be disclosed, the applicants will then receive a copy of it.
It was further submitted that notwithstanding a right of appeal to an appeals officer, with the possibility of a further appeal to the High Court on a point of law, the statutory regime provided by the 2012 Act constitutes a breach of the applicants’ rights under the Constitution (right to a good name, right to be informed and fair procedures) and is in breach of their rights under the European Convention and in particular Article 8 thereof. (right to respect for private and family life, home and correspondence)
The Gardaí further submitted that they know, having regard to the provisions of s.19 of the 2012 Act, that the specified information must be highly discreditable of them because it is a notification of a concern on the part of GSOC that they pose a risk of harm to children or vulnerable adults. They are relatively young men employed as Gardaí and they will have contact with children in the course of their work and possibly in the course of their leisure activities and in this regard, the existence of the specified information on the register is highly injurious to them.
Decision
Mr. Justice Barr, giving judgment in the High Court, held that they are left in a situation where they must go about their ordinary lives as members of An Garda Síochána, and in at least one case, as a father, knowing that there exists on a database held by the NVB, information which suggests that they pose a risk to children and vulnerable adults.
The only way they could hope to learn what has been said about them is by getting some third party to make a vetting disclosure on them. For the applicants this is like playing Russian roulette.
He held this information (sometimes referred to in euphemistic terms such as “soft intelligence” or as a “red flag”) is of the gravest significance to a data subject and must have a chilling effect on them.
He was satisfied that they have a constitutional right to see the information and make submissions on it. In the absence of such an opportunity, he held that the retention of that data on the register is in breach of their rights under the Constitution.
For the NVB to hold on its database specified information about a person, which must be highly discreditable about them, and yet for the legislation not to provide for any mechanism for the person to challenge the accuracy or veracity of that until a Garda vetting request is submitted, is in breach of the applicants’ rights to privacy and their right to their good name and is in breach of fair procedures.
He held that certain provisions of the 2012 Act are repugnant to the Constitution and breach their rights under Article 8 of the European Convention on Human Rights.
Footnotes
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[2026] IEHC 261. ↩