THE HIGH COURT [2026] IEHC 261 Record No. 2025/246 JR Record No. 2025/272 JR BETWEEN D.OC. AND K.L. APPLICANTS AND GARDA SÍOCHÁNA OMBUDSMAN COMMISSION, CHIEF BUREAU OFFICER, NATIONAL VETTING BUREAU OF

the Constitution and is in breach of their

the Convention and in particular their rights pursuant to Art. 8 thereof.

The respondents submit that while the applicants are not made aware of the content of the specified information when it is placed on the register held by the NVB, but are aware of its existence; and in the event that a disclosure is thought necessary in the context of a vetting disclosure request, their rights are fully protected at that stage by being given a summary of the information and an opportunity to make submission on its disclosure, prior to any disclosure of it being made.
If the CBO decides that disclosure is necessary, the applicants will then be given a copy of the information and will have an opportunity to appeal the decision to disclose it to the appeals officer before any disclosure of it is made.
The respondents submit that in these circumstances, the regime put in place under the 2012 Act is balanced and reasonable and fully protects the applicants’

the Constitution and under the ECHR. 5 The Arrest.

The event that was the catalyst for the investigation that was carried out by the first respondent concerned an unauthorised taking of a vehicle on the evening of 14 November
A juvenile took his father’s Mercedes car without permission. There was a passenger in the car, who was apparently his girlfriend. It appears that the juvenile drove the car at very considerable speed, at times in excess of 200 kmph, along various major roads and motorways.
Garda C gave the following account in a statement that he made concerning his part in the arrest of the juvenile: “I heard on the radio that the stolen vehicle was involved in a ramming incident with a Garda vehicle. After some time after the Naas North slip exit of the M7 I came on traffic congestion including civilian vehicles in a long tailback, and could go no further. I do know that the M7 was still being widened at this time. I left my vehicle and walked towards the blue lights ahead. There were gardaí everywhere. On arrival at the scene, I saw the Mercedes crashed into one or two armed support vehicles. I know there was no one in the vehicles by the time I arrived. There was someone sitting on the roadside and someone standing. Both were in Garda custody. I was at the scene for some time and eventually when traffic began to free up I returned to my car and returned to Blackrock Garda Station. I did not see any person in Garda custody being assaulted by any member of An Garda Síochána. Furthermore, I refute any claim that I assaulted [name redacted] or any other person on this night.”
Garda L made two statements in relation to the arrest. His first statement was made on 18 November
Having described the pursuit of the vehicle at very considerable speed down the M7 and its collision at high speed with a Garda vehicle; he described the effecting of the arrest in the following way: 6 “All traffic came to a stop and I immediately exited my vehicle as I observed a male driver stumble from the driver's side of the Mercedes, he turned to me and put his hands up and lay on the ground. I immediately assisted other members in restraining him until handcuffs were placed on him… I had no further dealings with the prisoner once he was restrained and returned to my vehicle to secure same.”
On 6 June 2020, Garda L made a further statement in the matter, wherein he described arriving at the scene and seeing his colleagues attempting to arrest the juvenile. He stated that he directed his attention to the stolen car. He then continued as follows: “I could hear shouting and screaming behind me and turned to observe two gardaí struggling on the ground with the suspect. It was clear to me that both members were struggling to gain control over the driver of the stolen Mercedes as he resisted being arrested.… Therefore reverting to my ASU training I used my foot to pin his shoulder to the ground. I believed my intervention was vital to assist my colleagues gain control of the situation. I applied sufficient pressure to his shoulder to pin his arm to the ground and kept my foot in the same position until control was gained over both his arms. He continued to shout abuse at gardaí and attempt to swing his arms free. I placed no more force than was necessary on his shoulder to assist my colleagues gain control over and fully restrain the suspect. I was aware of other Garda members arriving at the scene at this point and attempting to get involved in the arrest. I felt that there were sufficient gardaí now present to gain control of the suspect. Pinning his shoulder had allowed the members on the ground to gain control of his arms, therefore I pushed these other members back with my hand, believing they were unnecessarily encroaching on the prisoner and arresting members on the ground. Once I saw handcuffs had been securely placed on the suspect I removed my foot from his shoulder and holstered my 7 Taser. At this stage I walked back to my patrol car because my MP7 remained in the car and I was unsure if the car was secure.” Background to the Present Proceedings.
Arising out of the arrest of the juvenile, a complaint was made to the first respondent that excessive force had been used by the arresting gardaí. It is not entirely clear how that complaint came to be made. It is not clear whether the complaint was made directly by the juvenile to the first respondent, or was referred to the first respondent by the Garda authorities. In any event, a notice of complaint was served on each of the applicants. While the notice is undated, in the statement made by Garda C, he stated that it was sent to him on 28 July 2021 by Chief Superintendent Peter Duff. That notice stated as follows: “A stolen vehicle was pursued by gardaí around South Dublin over an extended period of time. The vehicle drove southbound on the N7 to Naas and collided with an ASU vehicle on the motorway. At the point of detention of the driver, a male juvenile, the footage from the Air Support Unit appears to capture a number of assaults by gardaí in attendance.”
Arising out of the submission of the complaint to the first respondent, each of the applicants were interviewed by investigators from the first respondent. According to Garda C, he was interviewed at Dundrum Garda Station on two occasions concerning the incident. However, he states that at the interview it was stated that he was a witness and not a suspect in relation to the complaint. He states that he answered any questions that were put in that interview openly and honestly. 8
It appears that both applicants were interviewed by arrangement on 7 October
Those interviews were attended by the solicitor representing the applicants. In relation to that interview, there is a memorandum which is a matter of some concern.
The memorandum was drawn up by the applicant's solicitor. It sets out details of a conversation with which one of the solicitors from that office had had on the previous day with the investigator who was then investigating the matter on behalf of the first respondent. That telephone conversation had occurred on 6 October
Apparently, Ms. O'Connell phoned to ensure that the investigator from the first respondent had received a copy of the statements that had been furnished by her clients. She stated that in the course of that telephone call, the investigator acting on behalf of the first respondent stated that the statement made by Garda L was “a bunch of lies”. She stated that the investigator told her that the video footage taken by the Air Support Unit had been enhanced and that it showed that gardaí had stamped on the juvenile's head when effecting the arrest.
There is also a memorandum drawn up by another solicitor in the same firm in relation to the interview that occurred on 7 October
This is exhibited at exhibit KL1 to the affidavit sworn by Garda L on 20 February
In that memorandum it is stated that there was deep hostility shown to the applicants’ solicitor by the two investigators who were representing the first respondent on the day of the interview. The memorandum recorded that the questions posed by the investigators showed a certain amount of prejudice, with questions such as: “How do you feel about [name of juvenile]?”; “This statement is not correct”; “You stamped on his head” ; “Recommend that you sit while pinning someone with your foot”; “[name of juvenile] said I don't care you could have killed someone”. It was stated in the memo that while the CCTV recording was being played, the investigator pointed at the screen and said to Garda L “That's you kicking and talking to him”. The memo went on to record that the 9 applicants’ solicitor expressed his strong concern that the investigator was not approaching the investigation in a fair and unbiased manner.
On 22 August 2022, Garda L received an email from Mr. Gerard Curley, an investigating officer with the first respondent. That email informed him that Mr. Curley had taken over the investigation of the complaint since June
Mr. Curley stated that he had examined and reviewed the material in the case. He had interviewed a number of witnesses. He stated that further enquiries were necessary to progress the investigation. Garda L was assured that every effort would be made to complete the investigation as soon as was possible. Mr. Curley stated that he would contact Garda L again in due course to advise him of further progress. Mr. Curley advised that if he had any further queries he could contact him.
At that time, the investigation being conducted by the first respondent was an investigation pursuant to s.98 of the 2005 Act. That section relates to the investigation of complaints that appear to involve the commission of criminal offences. That investigation resulted in a report being prepared pursuant to s.101 of the 2005 Act. An external legal review report was furnished on 9 April
On 23 May 2024, a decision was made by the first respondent to send the investigation report and file to the DPP. The applicants were informed of that referral by letter dated 17 June
On 18 June 2024, the applicants received correspondence from Ms. Louise Dwyer, a case manager in the first respondent, informing them that the first respondent was going to make a notification of specified information to the NVB pursuant to s.19 of the 2012 Act. That letter was in the following terms: “I wish to inform you that GSOC is a scheduled organisation under the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 –
Accordingly, it is obliged to inform the Garda National Vetting Bureau of specified information in accordance with the provisions of s.19

(1)of the Act. 10 This letter is to inform you that GSOC will be notifying the Garda National Vetting Bureau of specified information in relation to the allegations which GSOC has investigated regarding a 102 referral received on 26 April

Further information on the role of the Garda National Vetting Bureau can be found at (website details given).”
On 20 June 2024, the referral of specified information was made by the first respondent to the NVB. In some of the documents it is asserted that that referral was made on 4 July
Nothing of relevance turns on this discrepancy.
On 1 October 2024, Ms. Dwyer of the first respondent sent an email to Garda L giving him some further information in relation to the referral that had been made by the first respondent. In that email she stated that she had been directed by the Garda Ombudsman Commission to send a GSOC vetting referral to the NVB regarding a 102 referral that had been received on 26 April
She stated that the concern was due to the apparent level of violence against a child and the potential risks to other children. She stated that the person identified in the referral was [name of arrested juvenile redacted]. She went on to state that in her referral she provided a summary of what Garda L had provided to the first respondent's investigators when he had been interviewed by them on 7 October
She stated that the first respondent was legally obliged to make a referral to the NVB when there was a bona fide concern identified. She concluded by stating that Garda L may wish to contact the NVB to discuss how they process referrals once they have been sent to it.
On 1 November 2024, a letter was written by the applicants’ solicitor to the first respondent. In that letter he complained about the delay in investigating the complaint which had arisen out of an alleged incident on 15 November
The letter went on to complain that the specified information had been referred by the first respondent prematurely, in that it had been made prior to the conclusion of their investigation. The letter stated that the first 11 respondent was required to await the completion of its investigation prior to notifying the NVB. It also stated that the notification which had been made almost six years after the incident was completely unexplained. The letter ended by stating that the delay in concluding the investigation and the unlawful referral that had been made was having a serious impact on the career and private life of each of his clients. The first respondent was called upon to immediately discontinue any further investigation and to confirm that it would retract the notification that it had sent to the NVB under the 2012 Act.
On 22 November 2024, Garda L received an email from Mr. Gerard Curley informing him that the DPP had directed that there would be no prosecution in the case. The email went on to state that as the complainant had a right to request the DPP for a review of reasons within 28 days and a review of the decision within 56 days, the file held by the first respondent would remain open.
By letters dated 3rd and 4th December 2024, the applicants’ solicitor wrote in each case to the first respondent stating that as the first respondent had made a notification of specified information to the NVB concerning their clients and as their clients were concerned regarding the lawfulness of that notification; in view of their decision to ignore the previous request for information, they were again requesting that the first respondent would provide full details of the specified information concerning their clients which had been referred to the NVB.
By letter dated 18 December 2024, the applicants’ solicitor wrote to the NVB. The letter stated that as the first respondent had ignored their request for details of the specified information that had been notified to the NVB, they were therefore requesting that the NVB would provide full details of the specified information that had been referred to it by the first respondent. The letter went on to state that the DPP had directed that there should be no prosecution in relation to their clients. The NVB was asked to confirm that this decision had been brought to their attention. They were further asked to confirm that they would revoke, 12 remove and delete all specified information concerning their clients from all databases and/or registers maintained by them.
A response was furnished on behalf of the NVB by letter dated 23 December 2024, from Superintendent Niall Featherstone, the Chief Bureau Officer in the NVB. In the letter, it was pointed out that the first respondent was a scheduled organisation. It noted the request that the specified information should be deleted from the database. Superintendent Featherstone stated that it was not within his remit as CBO to revoke, remove or delete specified information.
He went on in the letter to point out that under s.19

(4)of the 2012 Act, it was provided that if any specified information was found to be incorrect, or was otherwise inaccurate, the scheduled organisation shall inform the NVB thereof. He stated that to date, the first respondent had not informed the Bureau that the information was either incorrect or inaccurate. Superintendent Featherstone noted the request that had been made for provision of the full details of the specified information notified by the first respondent to the NVB in relation to their clients. He stated that requests for personal data should be made to the office of the Data Protection Officer for An Garda Síochána. He gave the relevant contact details for that department. He stated that he had forwarded their request to that office. He advised that they should follow up with the office in regard to that request.

By email dated 24 January 2025, Mr. Curley replied to the letters that had been sent by the applicants’ solicitor on 1 November 2024 and 3 December
He denied that the referral of specified information had been made prematurely by the first respondent. He stated that following submission by the designated officer of a report pursuant to s.101 of the 2005 Act at the conclusion of the investigation, the Commission had made a decision on 23 May 2024 to submit a file to the DPP for consideration of criminal charges. Following that decision and after the conclusion of the investigation, the Commission further directed that a s.19 referral be 13 submitted to the NVB. He denied that any actions taken by the first respondent had been in violation of fair procedures. He stated that a letter had been furnished to the applicants on 18 June 2024 in which they had been notified of the fact of the bona fide concern held by the first respondent and of their intention to notify the NVB of it.
Mr. Curley went on to point out that the provisions of s.19

(1)of the 2012 Act, provided for a mandatory requirement that a scheduled organisation notify any bona fide concern to the NVB. He stated that the first respondent was such a scheduled organisation. He pointed out that s.19

(8)of the 2012 Act provided that a person who contravened sub-ss.

(1)or

(2)shall be guilty of an offence. He concluded by stating that as the applicants were aware, the DPP had directed that there should be no prosecution in the case. 40. By further email dated 29 January 2025, the applicants were informed by Mr. Curley that an investigation under s.98 of the 2005 Act had been conducted in relation to the complaint. He stated that pursuant to s.93

(1)(c) of the 2005 Act, he wished to inform the applicants that having regard to all the circumstances of the investigation into the complaint made, the first respondent considered that further investigation was not necessary. He stated that that decision had been made for the following reasons: an investigation file had been forwarded to the DPP and a direction of no prosecution had been received. While the first respondent had considered s.101

(5)of the 2005 Act, as amended, he stated that he could confirm that a s.95 (Discipline) investigation would not be instigated in the matter. He concluded by stating that the investigation had therefore been discontinued. The applicants were notified of that pursuant to s.93

(2)(c) of the 2005 Act. Accordingly, the first respondent would take no further action in relation to the complaint.

By letter dated 30 January 2025, the applicants’ solicitor wrote to the NVB asking it to remove the specified information from its register on the basis that the referral had been made prematurely in circumstances where the first respondent had not concluded its investigation; 14 which investigation had only recently concluded. The letter went on to state that having regard to that fact, the retention of specified material on the register was entirely unmerited and unlawful. The letter stated that it was irrational to retain specified information (to which they had been unlawfully denied access) in circumstances where a decision had been taken by the relevant agency i.e. the first respondent, to discontinue the investigation into the allegations concerning their clients; as had the DPP. The NVB was requested in these circumstances, to arrange for the immediate removal of the specified information from the register.
By letter of the same date, the applicants’ solicitor requested the first respondent to bring to the attention of the NVB that they had concluded their investigation and that there was going to be no further investigation by them into the matter. They were requested to inform the Bureau that they wished to have the specified information revoked from the register.
By letter dated 6 February 2025, the CBO stated that in accordance with the provisions of the 2012 Act, as amended, it was not within his remit as CBO to remove specified information. He stated that pursuant to s.19

(4)of the Act, if any specified information was found to be incorrect or was otherwise inaccurate, the scheduled organisation was obliged to inform the Bureau thereof. He stated that as of that date, the first respondent had not informed the Bureau that the information was either incorrect or inaccurate. 44. Prior to that, on 7 January 2025, the applicants’ solicitor had made a data access request on behalf of their clients to the Data Protection Office of An Garda Síochána. Having acknowledged receipt of the data access request and having apologised for the delay in dealing with the request, the Data Protection Office by letter dated 11 March 2025 stated that that portion of the request which concerned access to the specified information held on the register maintained by the NVB, was being refused on grounds that the data requested fell within the ambit of and s.94

(3)(a) of the Data Protection Act

That section restricts access to data compiled in relation to the prevention, detection or investigation of offences or the prosecution 15 of offenders. The letter advised the applicants of their entitlement to lodge a complaint with the Data Protection Commission (as it then was) and/or pursuant to s.128 of the 2018 Act to seek a judicial remedy in relation to the application of the restriction of access to the requested data.
There is an undated letter on the file from Mr. Curley addressed to the applicants’ solicitor in which he refers to the request that had been made of the first respondent to have the specified information deleted from the register maintained by the NVB. He stated that the first respondent did not accept that the notification that had been made by it to the NVB had been done prior to the conclusion of its investigation; nor was it premature or unlawful. He stated that the first respondent as a scheduled organisation had complied with its mandatory obligation pursuant to s.19

(1)of the 2012 Act. He stated that all the information provided by the first respondent to the NVB had been correct, accurate and in accordance with legislation. He stated that the first respondent would not be contacting the Bureau any further in relation to the matter.

On 10 March 2025, a request for a vetting disclosure had been received by the NVB from a sporting organisation in relation to Garda L. Having considered the matter, the CBO determined that it was not necessary to make a disclosure of the specified information that had been notified to it by the first respondent. Accordingly, a “No Trace” outcome was furnished in relation to that vetting disclosure.
Finally, by order dated 7 April 2025, the applicants were given leave to proceed by way of judicial review for the reliefs sought in their respective statements of grounds. Relevant Legislation.
There is a significant amount of legislation that needs to be considered in this case. However, it will suffice just to give a general overview of the relevant statutory 16 provisions. To begin with the powers and functions of the first respondent, the first relevant section in the Garda Síochána Act 2005, is s.93, which gives the first respondent the power to discontinue an investigation in a number of circumstances, including where, having regard to all the circumstances, the first respondent considers that further investigation is not necessary or reasonably practicable.
Section 95 of the 2005 Act provides for investigations by the first respondent of complaints that do not appear to involve offences. Under s.96, the first respondent is given limited powers in relation to the investigation of such complaints. Broadly speaking these complaints would deal with matters that could come within the ambit of breach of garda discipline regulations, or otherwise bringing the Garda Síochána into disrepute. The Act provides in s.97 that following any such investigation of a disciplinary matter, a report shall be prepared.
Of more relevance to this case are the provisions of s.98 of the Act, which deals with the powers of designated officers of the first respondent for the purpose of investing complaints that appear to involve offences. Under the section the designated officer is given wide powers. The first respondent is given a power to enter and search premises; to arrest with or without a warrant; to bring a charge against any person; to issue a summons to a person; to search a person to include taking his photograph, fingerprints and palm prints; there is provision for the detention and questioning of a person and the taking of bodily samples for the purpose of forensic testing.
The section further provides that for the purposes of exercising the powers provided for in s.98

(1)an enactment conferring a power of immunity or privilege or imposing a duty on a member of An Garda Síochána in relation to any of the matters specified in that subsection, applies subject to certain modifications as set out in the subsection. The section further provides 17 that any person who delays, obstructs or interferes with a designated officer in the exercise of his powers under the section, is guilty of an offence.

Section 101 of the 2005 Act provides that on completing an investigation under s.98, the designated officer concerned shall report in writing to the first respondent the results of the investigation. The section further provides that if the first respondent, after considering the designated officer's report, is of opinion that the conduct under investigation may constitute an offence by a member of An Garda Síochána, it shall send a copy of the report and the investigation file to the DPP, together with any recommendations that appear to the first respondent to be appropriate. The section further provides that the DPP shall inform the first respondent of her decision about whether she intends to direct that a prosecution be brought in relation to the conduct concerned.
Section 102 of the Act provides that the Garda Commissioner shall refer to the first respondent any matter that appears to the Garda Commissioner to indicate that the conduct of a member of An Garda Síochána may have resulted in the death of or serious harm to a person. This section is relevant having regard to the fact that in the email dated 1 October 2024, Ms. Dwyer on behalf of the first respondent stated that she had been directed by the first respondent to send a referral of specified information to the NVB regarding a “102 referral received on 26/4/2019”. Thus, it is possible that the complaint in this case came before the first respondent not by way of a direct complaint from the juvenile, but by way of a referral from Chief Superintendent Sutton pursuant to s.102 of the 2005 Act.
Turning to the Act that is of most relevance to these proceedings, being the National Vetting Bureau (Children and Vulnerable Persons) Act 2012, as amended, the first relevant provision is the definition of “specified information” in s.2 of the Act. It provides that “specified information” in relation to a person who is the subject of an application for vetting disclosure, means information concerning a finding or allegation of harm to another person that 18 is received by the Bureau from An Garda Síochána or a scheduled organisation in respect of a person and which is of such a nature as to reasonably give rise to a bona fide concern that the person may: harm any child or vulnerable person; cause any child or vulnerable person to be harmed; put any child or vulnerable person at risk of harm; attempt to harm any child or vulnerable person; or incite another person to harm any child or vulnerable person.
The term “scheduled organisation” is defined in s.2 of the Act as being the organisations set out in schedule 2 to the Act. These organisations include: the HSE; the Teaching Council; the Medical Council; the Nursing and Midwifery Board of Ireland; the Dental Council; the Health and Social Care Professionals Council; the Mental Health Commission; the Pharmaceutical Society of Ireland; the Pre-Hospital Emergency Care Council; HIQA; the National Transport Authority; the Child and Family Agency; and the first respondent.
The establishment of the database maintained by the NVB is provided for in s.6 of the 2012 Act. It provides that the database shall comprise the following registers: a register of relevant organisations; a register of specified information; and a register of vetted persons. The section provides that the database can only be used in connection with the provision of vetting disclosures in accordance with the Act or as otherwise provided for by law.
Section 7 of the Act provides that the NVB shall operate and maintain the database for the purpose of providing vetting services, which shall include the assessment for the purpose of disclosure (or otherwise) of specified information relating to the persons concerned for the purposes of determining whether it should be disclosed. The main function of the NVB is the making of vetting disclosures in respect of persons concerned to relevant organisations.
Section 10 of the Act provides that the Chief Bureau Officer shall cause to be established and maintain in such form (including electronic format) as he or she considers appropriate, a register of specified information. 19
Section 12 of the Act provides that a relevant organisation, being an organisation that carries on activities concerning children or vulnerable adults, shall not employ or enter into a contract of service or permit any person to undertake relevant work or activities unless the organisation has received a vetting disclosure from the Bureau in respect of that person.
Section 13 provides for the making of applications for a vetting disclosure and sets out who may apply for same. The section provides that when making an application for a vetting disclosure, a declaration must be provided from the person who is the subject of the vetting request consenting to the making of the application and to the disclosure of the information by the Bureau to the liaison person in the relevant organisation.
Section 14 deals with consideration by the Bureau of an application for a vetting disclosure. It provides that the NVB may make such enquiries of An Garda Síochána as it deems necessary in relation to whether there is any criminal record or specified information relating to the person. It may also undertake an examination of the database to see whether it contains particulars of any record of, or specified information relating to, the person concerned. Subsection 3 provides that where a member of the staff of the Bureau considers that there is specified information relating to a person who is the subject of an application for vetting disclosure, he or she shall refer the matter to the CBO for assessment and determination under s.15 as to whether the specified information concerned should be disclosed.
Section 15 of the Act provides that where a matter is referred to the CBO for assessment and determination, he or she shall notify in writing the person who is the subject of the application for vetting disclosure concerned of that fact; shall furnish that person with a summary in writing of the specified information relating to him or her; and inform that person that he or she may make written submission in relation to the specified information.
A person so notified, may make a submission in writing to the CBO within fourteen days, or such longer period as the CBO may allow. The section further provides that the CBO 20 shall assess the application for vetting disclosure and the specified information relating to the person who is the subject of that application, but he or she shall not make a determination that the information concerned should be disclosed unless: (a) he or she reasonably believes that that information is of such a nature as to give rise to a bona fide concern that the person concerned may harm any child or vulnerable person, or do any of the other things that come within the definition of specified information; and (b) he or she is satisfied that its disclosure is necessary, proportionate and reasonable in the circumstances for the protection of children or vulnerable persons or both, as the case may be.
Section 15

(4)provides that in assessing whether the specified information should be disclosed, the CBO shall have regard to the information concerned; its relevance to the type of relevant work or activity to which the application for vetting disclosure concerned relates; the extent to which the proposed relevant work or activity is likely to necessitate contact with children or vulnerable persons or both; the nature of that contact; the source and reliability of the information; any submission made by or on behalf of the person; whether the rights of the person have been considered and taken account of in a manner that is consistent with fairness and natural justice; and any other matter which the CBO considers relevant to the application for vetting disclosure. 65. Sub-section

(5)provides that the CBO may make a request for further information of An Garda Síochána. Sub-section

(6)provides that where the CBO makes a determination under s.15 that specified information should be disclosed, he or she shall do the following: notify the person concerned in writing of the determination and of the reasons for it; provide the person with a copy of the specified information proposed to be disclosed; notify the person of the intention to disclose the specified information to a liaison person for the relevant organisation concerned after the expiry of fourteen days from the notification; and inform the person that he 21 or she may appeal the determination to an appeals officer not later than fourteen days after the receipt of notification. 66. Section 15

(7)provides that the NVB shall not make a vetting disclosure in respect of a person until the period of fourteen days has elapsed or where a notice of appeal has been lodged, until the determination or withdrawal of the appeal.

Section 17 deals with the appointment of appeals officers. They are appointed by the Minister and will act for a period of three years. The person appointed as an appeals officer must be a practising barrister or solicitor of not yet less than seven years standing.
Section 18 provides that a person who is aggrieved by a determination of the CBO under s.15 of the Act may, not later than fourteen days after the date of notification of the determination, appeal that determination to an appeals officer. The appeal shall be in writing and must be accompanied by a statement of grounds. It must also indicate whether the appellant wishes the appeals officer to conduct an oral hearing. The section provides that on the hearing of an appeal, the appeals officer may affirm in whole or in part the determination of the CBO, or may set aside the determination in whole or in part. The appeals officer must inform the appellant and the CBO in writing of his or her determination of the appeal and give reasons for it. Finally, a party to an appeal may appeal the decision of the appeals officer to the High Court on a point of law.
Section 19 of the 2012 Act is of central importance to this case. Section 19

(1)sets down the obligation which rests upon a scheduled organisation to make a notification of specified information to the NVB. Section 19

(1)is in the following terms: “

(1)Where, following an investigation, inquiry or regulatory process (howsoever described) in respect of a person, (including an investigation, inquiry or regulatory process initiated but not yet concluded before the commencement of this section) a scheduled organisation, has as a result of the investigation, inquiry or regulatory 22 process, a bona fide concern that the person who is the subject of that investigation, inquiry or regulatory process, may— (

a)harm any child or vulnerable person, (
b)cause any child or vulnerable person to be harmed, (
c)put any child or vulnerable person at risk of harm, (
d)attempt to harm any child or vulnerable person, or (
e)incite another person to harm any child or vulnerable person, the scheduled organisation shall, as soon as may be, for the purposes of providing specified information to the Bureau, notify the Bureau in writing of that concern and shall state the reasons for it.” 70. Section 19

(3)provides that the scheduled organisation must in relation to the person in respect of whom it has a concern under sub.

(1)or

(2)as the case may be, notify the person of the fact of that concern and of its intention to notify the Bureau of it. 71. Section 19

(4)provides that if any specified information furnished by a scheduled organisation to the Bureau is incorrect or is otherwise inaccurate, the scheduled organisation shall, as soon as may be, after becoming aware of its being incorrect or inaccurate, as the case may be, inform the Bureau thereof. 72. The final two subsections are also important. Section 19

(8)provides that a person who contravenes sub-ss.

(1)or

(2)shall be guilty of an offence. This means that failure to notify the Bureau of specified information when a person has a bona fide concern in relation to a data subject, is an offence. Section 19

(9)provides that for the avoidance of doubt, it is declared that the obligation imposed on a person by sub-s.

(1)or

(2)to disclose specified information to the Bureau is in addition to, and not in substitution for, any other obligation that the person has to disclose that information to An Garda Síochána. 23 73. Finally, the provisions of the Data Protection Act, 2018, as amended, and in particular s.94 thereof are relevant. The applicants’ request to the Data Protection Office of An Garda Síochána for access to the specified information was refused on the basis of s.94

(3)(a) of the 2018 Act. As already noted, that section provides that a data controller may restrict or refuse access to a data subject to his personal data where the refusal or restriction of access to data is necessary to ensure the prevention, detection or investigation of offences, the apprehension or prosecution of offenders, or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of those matters. Submissions on behalf of the Applicants.

It will suffice at this juncture to set out in very brief terms the main grounds of challenge that were put forward on behalf of the applicants in this case. The applicants’ submission in respect of these grounds and the response of the respondents thereto, will be examined in more detail later in the section dealing with the conclusions that have been reached in this judgment.
The first submission made by Mr. Harty SC on behalf of the applicants was to the effect that the notification of specified information that had been made by the first respondent to the NVB in June 2024, had been made prematurely. It was submitted that the provisions of s.19 of the 2012 Act made it clear that a notification or referral of specified information was only to take place after the conclusion of any enquiry or investigations that were carried out by the scheduled organisation.
It was submitted that as the first respondent had stated in its email of 29 January 2025, that its investigation had been closed, this meant, ipso facto, that the referral of specified information which had been made approximately six months earlier, had been made prior to the conclusion of that investigation. It was submitted that as the wording of s.19 made it clear that such referral or notification should only be made at the conclusion of the investigation or 24 enquiry conducted by the scheduled organisation, and as the referral of specified information in this case had taken place prior to the conclusion of the investigations being carried out by the first respondent, it ought to be set aside as having been made prematurely.
The second submission on behalf of the applicants was to the effect that the CBO had failed to carry out any assessment of the specified information when it had been first notified to the Bureau by the first respondent in or about June
It was submitted that insofar as it had been argued on behalf of the CBO that the Act provided that any assessment of the specified information would only be carried out by the CBO at the time when disclosure was being contemplated in the context of a request for a vetting disclosure, that had constituted an admission by the CBO that no assessment of the specified information had been carried out by the NVB upon its receipt of the information. It was submitted that the CBO had failed to carry out the initial assessment that was required upon receipt of the specified information.
It was submitted that such assessment was mandated due to the definition of specified information contained in s.2 of the 2012 Act, which provided that it was information which is of such a nature “as to reasonably give rise to a bona fide concern that the person may” harm children and/or vulnerable adults. It was submitted that in placing information that was notified to it by a scheduled organisation onto the register, the CBO had to carry out any form of preliminary analysis to ensure that the information concerned could reasonably give rise to a bona fide concern that the person may harm children or vulnerable adults. It was submitted that the CBO had failed to carry out its gatekeeper role in relation to information that had been submitted to it, before putting it onto the register of specified information. It was submitted that as this preliminary assessment had not been undertaken by the CBO, the information ought to be removed from the register.
Thirdly, it was submitted that each of the respondents had acted unreasonably and unlawfully in failing to take account of events that had occurred subsequent to the referral of 25 the specified information to the NVB in or about June
In particular, it was submitted that they had acted unlawfully and unreasonably in failing to take account of the fact that the DPP had directed that there should be no prosecution in the matter and that the first respondent had made a decision that there were no grounds for continuing any disciplinary investigation pursuant to s.95 of the 2005 Act.
It was submitted further that the first respondent had acted unreasonably in failing to exercise the power that was open to it under s.19

(4)to notify the NVB that the information that had been furnished to it was incorrect or was otherwise inaccurate. It was submitted that the information that had been referred to the NVB, whatever it was, had to be inaccurate in light of the subsequent decision of the DPP not to prosecute in the matter; and in light of the decision of the first respondent that the conduct did not merit an investigation as to whether it constituted a breach of discipline, even of such a minor one as conduct tending to bring the An Garda Síochána into disrepute. 81. Finally, it was submitted on behalf of the applicants that if the court was against the applicants’ submissions as outlined above, which were to the effect that the respondents had acted in breach of the terms of the 2012 Act, the court should then consider whether the regime established by the 2012 Act was in breach of the applicants’

the Constitution or their

the European Convention on Human Rights.

In this regard, it was submitted that it was highly relevant that the applicants did not know what information had been referred by the first respondent to the NVB. All they knew was that something discreditable had been communicated by the first respondent to the NVB, because it had been stated that that information gave rise to a bona fide concern on the part of the first respondent that the applicants posed a risk of harm to children or vulnerable adults. The applicants did not know what that information was. They could not say whether it was accurate 26 or wildly inaccurate. All they knew was that something that was seriously discreditable about them had been communicated by the first respondent to the NVB.
It was submitted that the only way that the applicants could obtain any information about what specified information had been communicated by the first respondent to the NVB, was by having some third party make a vetting disclosure request in relation to the applicants, which would have to be done with the consent of the applicants. It was only in such circumstances, that the applicants may be furnished initially with a summary of the specified information, in the event that the CBO decided that it was necessary to communicate that specified information to the liaison person of the relevant organisation as part of the vetting disclosure. Until such time as a request for a vetting disclosure was made in relation to the applicant, the specified information would remain on the register of specified information.
It was submitted that the existence of such specified information on the register engaged the applicants’ constitutional rights to fair procedures, the right to be heard, their right to natural justice and to privacy; their right to their good name and the presumption of innocence, as well as the right to work. It was submitted that where such specified information would remain on the register for an indefinite period, possibly for the remainder of the applicants’ lives, without any opportunity for them to know the specified information and, if necessary, to have it removed or corrected, constituted a breach of these constitutional rights.
It was submitted that even in the case of Garda L, in respect of whom a vetting disclosure request had been made and which revealed a “No Trace” response; the specified information remained on the register and remained unknown to him. Because neither of the applicants knew the content of the specified information that had been communicated by the first respondent to the NVB, they could not challenge its accuracy. Yet they would be forced to live under the cloud of some highly discreditable information being on a register concerning them. It was submitted that it was a breach of their constitutional rights to have no avenue of 27 redress unless and until a decision had been made by the CBO that it was appropriate to disclose such specified information in the context of a vetting disclosure.
Finally, it was submitted that the existence of the specified information on the register constituted personal data of the applicants which engaged the protections provided for under Art. 8 of the European Convention on Human Rights.
It was submitted that while the right to a private life was recognised in the Convention, it was accepted that it was not an absolute right. However, the case law of the European Court of Human Rights had made it clear that any intervention into the private life of a citizen, was only permissible insofar as it was necessary in a democratic state. It was submitted that the collection of this information and its retention for an indefinite period on the register, without any opportunity on the part of the data subject to know what that information was until a disclosure was sought to be made of it to a third party, constituted a breach of the applicants’

Art. 8of the ECHR.

It was submitted that in all the circumstances, the applicants were entitled to the reliefs sought in their statements of grounds. Submissions on behalf of the Respondents.

While the positions of the respondents were not identical, their arguments proceeded along very similar grounds. For that reason, it will be appropriate to take the submissions that were made by the respondents in a cumulative fashion.
On behalf of the first respondent, Mr. Farrell SC submitted that the applicants should be refused relief in relation to the decision taken by the first respondent to notify the NVB because the applicants had been aware of that decision as of 18 June
They had not taken any steps to proceed with the matter in relation to that referral until they sought leave to proceed by way of judicial review proceedings, which leave had been granted on 7 April
It was submitted that that was long outside the time provided for under the Rules of the Superior 28 Courts. It was submitted that where no reasons had been furnished by the applicants for their delay in proceeding for relief by way of judicial review within the appropriate time, there was no basis on which the court could extend the time period for bringing these proceedings and therefore they ought to be struck out.
In relation to the submission that the first respondent had acted prematurely in making the notification of specified information at the time when it did, it was submitted on behalf of the first respondent that it had not acted prematurely in this regard.
It was pointed out that the investigation that had been conducted into the complaint under s.98 of the 2005 Act had culminated in the provision of a report by the designated officer. That had been presented to the first respondent which had decided to obtain an expert legal report in the matter. That had been provided in April
Following the provision of that report, a decision had been made by the first respondent on 23 May 2024 to refer the matter to the DPP. It was submitted that that series of steps constituted the effective conclusion of the investigation that would be carried out by the first respondent under s.98 of the Act. It was submitted that in these circumstances, the first respondent had acted at the conclusion of its investigation under that section. It was submitted that the court should have regard to the wording of the obligation in s.19

(1)of the 2012 Act, which mandated the specified organisation to make a referral of specified information “as soon as may be” after the conclusion of its investigation. 92. It was further submitted that the court should have regard to the provisions of s.19

(8)which created an offence if the specified organisation failed to make a notification of specified information as it was obliged to do under s.19

(1). It was submitted that the circumstances, the first respondent had acted appropriately as it was obliged to do under s.19 of the 2012 Act in making the referral of the specified information to the NVB when it had done so in June

29
In relation to the submission that the CBO had some form of gatekeeper role in relation to the specified information when notified to the NVB by a scheduled organisation, it was submitted by Ms. Geoghan SC on behalf of the second to sixth named respondents that on a proper reading of the 2012 Act, it was clear that the CBO had no such role at that stage in the proceedings. It was submitted that the Act made it clear that the obligation was on the scheduled organisation to make a notification of specified information in the circumstances outlined in s.19

(1)of the 2012 Act. There was no obligation or duty on the CBO, or any member of the NVB, to assess the reasonableness of that information at the time that it was received by the NVB. It was submitted that this was made clear by the absence of the word “reasonable” from s.19

(1), but by its inclusion in s.15, which was at the time when the CBO had to consider whether it was appropriate and necessary to include the specified information as part of the vetting disclosure.

It was submitted that the terms of s.15 of 2012 Act made it clear that the obligation to assess the specified information and to assess whether it was appropriate, necessary and proportionate to include it in the vetting disclosure, only arose on the part of the CBO at the time when he or she was considering whether such specified information should be included in the vetting disclosure. Counsel submitted that this construction was supported by the decisions in MP v The Teaching Council in both the High Court, [2019] IEHC 102 and on appeal to the Court of Appeal, [2019] IECA
In relation to the submission that the respondents had acted unreasonably or unlawfully in failing to revoke or amend the specified information on the register of specified information in light of the decision taken by the DPP not to prosecute in relation to the incident, or in light of the decision taken by the first respondent not to continue with any investigation under s.95 of the 2005 Act; it was submitted that the making of those decisions did not invalidate the 30 holding of a bona fide concern by the scheduled organisation on the basis of the specified information that it had communicated to the NVB.
It was pointed out that very often a prosecution or other investigation cannot continue for reasons unconnected to the veracity or credibility of the information. For example, a prosecution may not be possible because the victim of the alleged crime or mistreatment, refuses to cooperate with the investigation or prosecution. Or it may be the case that there is delay, or loss of relevant evidence due to that delay, which renders it impossible for an accused person to obtain a fair trial and therefore no prosecution may be directed by the DPP. It was submitted that the mere fact that a prosecution was not directed, or the fact that the first respondent decided not to proceed with any investigation pursuant to s.95 of the 2005 Act, did not invalidate the information upon which the bona fide concern was said to arise at the time that the notification was made. Nor did it mean that the notification which had been made prior to the subsequent events in this case, had become inaccurate or incorrect such that the first respondent was obliged to make a further notification pursuant to s.19

(4)of the 2012 Act.

It was submitted on behalf of the respondents that the information which could give rise to a bona fide concern did not necessarily mean that any specific findings were being made against the person. The section made it clear that the specified information could relate to an allegation that had been raised against the person, but which, for one reason or another, may have remained unproven. It was submitted that the collection of this “soft intelligence” and its retention on the register, was necessary, because it was effectively a red flag in relation to the person concerned. If there happened to be a number of red flags on the database, that could give rise to a negative vetting disclosure being made at a later time. It was submitted that this cumulative effect was very important in relation to the protection of children and vulnerable adults into the future. It was submitted that in these circumstances, the mere fact that a prosecution was not directed in relation to any specific event or allegation, did not mean that 31 that event or allegation was not necessarily a cause of concern in relation to the conduct of the person into the future.
An alternative submission made on behalf of the respondents was to the effect that the applicant should be denied the reliefs that were sought in their statements of grounds due to the fact that they had not exhausted the alternative remedy that was provided to them under the Data Protection Act 2018, as amended.
In that regard, the applicants had made a request to the Data Protection Office of An Garda Síochána for sight of the specified information that had been notified to the NVB in respect of each of them. That request had been denied by the Data Protection Office in March 2025, wherein they had refused to allow access to the information. The letter notifying the applicants of that refusal had specifically informed them of their right to challenge that refusal by making a complaint to the Data Protection Commission. They were further informed that they would have a further right of appeal to the High Court from any negative decision given by the DPC. It was submitted that where the applicants had an alternative remedy under the 2018 Act and had not pursued that remedy, it was inappropriate for them to proceed for the same relief by way of judicial review proceedings.
Finally, in relation to the arguments raised under the Constitution and the European Convention on Human Rights, it was submitted that the applicants’ submissions on these grounds were misconceived. It was submitted that the mere existence of the specified information on the register maintained by the NVB did not give rise to any breach of the applicants’ rights per se. This was due to the fact that that register was entirely secret. It was only available to designated officers within the NVB. Insofar as the applicants had asserted that their employer, being the Garda Commissioner, had access to the database maintained by the NVB, that was incorrect. That had been clarified by the subsequent affidavits sworn by Superintendent Featherstone. It was submitted that the reality of the situation was that the 32 information that had been supplied by the scheduled organisation would lie dormant on the specified information register. It would only be accessed by designated officers of the NVB in the context of a vetting disclosure request that would be made at some point in the future, which request would only be made with the consent of the data subject.
It was submitted that a right to fair procedures under the Constitution only arose in the context of some process that was ongoing which involved the person. The 2012 Act had set out a detailed set of provisions that were to apply when a request for a vetting disclosure was made. These were set out in s.15 of the Act, which has been summarised above. It was submitted that the suite of rights afforded to the applicants under this section gave more than adequate protection to their constitutional rights.
It was submitted that in these circumstances, the applicant's rights, both under the Constitution and under the European Convention on Human Rights, had been fully protected. It was submitted that where the 2012 Act was carrying out a balancing exercise between the interests of the data subject and the interests of a very vulnerable group in society, being children and vulnerable adults, a wide margin of appreciation was given to the Oireachtas in deciding how that balance should be calibrated.
It was submitted that the balance that had been struck in the 2012 Act ensured that the rights of the data subject were protected, while at the same time ensuring that the greatest possible protection was given to children and vulnerable adults. It was submitted that in these circumstances, the court should refuse the reliefs sought by the applicants herein. Discussion and Conclusions.
This case raises several issues of considerable importance. A brief outline of the submissions made by the parties on each of these issues has been given above. Accordingly, it will not be necessary to restate the submissions of the parties at great length in this section of 33 the judgment. The court will confine itself to giving its conclusions on each of the issues that are raised in the proceedings. Are the applicants out of time to challenge the referral that was made of the specified information by the first respondent to the NVB be in June 2024?
Order 84 of the RSC provides that an application for liberty to proceed by way of judicial review against a decision must be brought within three months of the making of the decision. In this case, the applicants were notified by letter dated 18 June 2024 that the first respondent intended to make a referral of specified information to the NVB. Thus, they were aware as of that date that a decision had been taken and that the first respondent intended to proceed upon it. If the applicants considered that such action was being taken prematurely, or was otherwise unlawful, they ought to have instituted their judicial review proceedings within three months of being notified of the taking of that decision by the first respondent.
The court has the power to extend the time for the bringing of judicial review applications where there are good and sufficient reasons for so doing. In the present case, no reasons have been forthcoming from the applicants as to why the time period provided for under the rules should be extended. Accordingly, I hold that the applicants are out of time to challenge the decision made by the first respondent to make a referral of specified information to the NVB. Was the notification of the specified information by the first respondent in June 2024 premature?
The question of when a scheduled organisation is obliged to make a notification of specified information under s.19 of the 2012 Act, was considered and by Allen J. (then sitting 34 as a judge of the High Court) in MP v The Teaching Council of Ireland [2019] IEHC
Ironically, that case concerned an allegation that the respondent had delayed in making a notification of specified information because they had not made it “as soon as may be”, they were therefore precluded from making one at a later date. In considering when the scheduled organisation was obliged under s.19 to make the notification of specified information, Allen J. held that in the ordinary way the scheduled organisation should consider at the end of its process or processes whether a notification should be made. However, he went on to state that he did not altogether rule out the possibility of a notification before the process had concluded, but in general, he thought that the scheduled organisation's procedures would have to run their course before a decision was made whether a notification was required (see para 101).
However, Allen J. went on to state that the obligation imposed on a scheduled organisation by s.19 did not arise by reason only of the conclusion of the investigation, enquiry or regulatory process, but rather it arose when the scheduled organisation formed a bona fide concern (see paragraph 106).
I accept the submission made on behalf of the first respondent by Mr. Farrell SC to the effect that the investigation that the first respondent had conducted pursuant to s.98 of the 2005 Act had concluded with the provision of the report by the designated officer, followed by the decision of the first respondent to obtain a legal expert’s report, which was provided in April 2024, followed by the decision made by the first respondent to refer the file to the DPP. It was at that stage that the first respondent decided that it would make the notification of specified information to the NVB.
I hold that in so doing, the first respondent had acted at the conclusion of its investigation under s.98 of the 2005 Act. The fact that it also retained the power to pursue an investigation for breach of disciplinary matters pursuant to s.95 of that Act, did not alter the fact that it had concluded its investigation in relation to the complaints that could give rise to 35 the commission of a criminal offence. That investigation had concluded by the provision of the two reports referred to and the making of the decision to refer the file to the DPP. Accordingly, I hold that the first respondent did not act prematurely in making the notification of specified information to the NVB in or about June
Was the CBO or any officer of the NVB required to assess the specified information upon receipt of it?
This has been referred to as the “gatekeeper” requirement on the part of the CBO. In effect, the applicants argued that due to the definition of specified information in s.2 of the 2012 Act, which includes the word “reasonably”, there was an obligation on the CBO to assess the reasonableness of the information provided by the scheduled organisation at the time that it was received by the NVB, prior to placing it on the register of specified information.
I do not think that this submission is well-founded for a number of reasons. First, the scheme of the Act is clear in that it mandates scheduled organisations to make a referral of specified information once they have a bona fide concern as a result of their investigations that the person being investigated may pose a risk of harm to children or vulnerable adults. The obligation which arises on the scheduled organisation arises once they have a bona fide concern. It does not have to be one that is reasonably justified.
There is no provision in the 2012 Act which obliges the CBO or any officer of the NVB to analyse or assess the specified information upon receipt of it by the NVB. It is clear that assessment of the specified information is carried out by the CBO when exercising his or her powers under s.15 of the 2012 Act.
In the MP case, Allen J. considered the question of assessment of specified information and in particular whether there was any requirement that it be a reasonably held concern in order for it to be specified information. He held that the purpose of s.19 was to collect 36 information and therefore the absence in s.19 of the word “reasonably” was significant. It meant that the only requirement on the scheduled organisation was that it should bona fide hold a concern in relation to the person concerned. He held that the lower threshold was intended to apply to the collection of information rather than its release, which arose when a vetting disclosure request had been received. It was at that stage, when the CBO was considering whether it was reasonable, necessary and proportionate to disclose the specified information that the concept of reasonableness of the concern came into play (see para 115).
The decision of the High Court in the MP case was affirmed on appeal by the Court of Appeal, reported at [2019] IECA 204, where it was held that a s.19 notification did not involve a determination of facts, but simply carried into effect the obligation of a scheduled organisation to notify the NVB of the specified information and also to notify the person affected of the fact of that concern and of the intention to notify the Bureau. The court rejected the appellant's submission that there was a successive series of obligations placed on the scheduled organisation to make a notification of specified information at various stages of the investigation process. The court held that what was required was that at the end of the investigation process the scheduled organisation has formed a bona fide concern. Once that was done, the obligation arose to make a notification of specified information to the NVB.
This court is satisfied that in looking at the purpose of the 2012 Act and in looking at the architecture that is created under the Act for the creation of databases and the submission of specified information by scheduled organisations and the assessment of that information at the disclosure stage under s.15 of the Act, that there is no obligation on the CBO or on any of the officers of the NVB to perform a gatekeeper function and analyse the specified information when it is received by the NVB. 37 Did the respondents act unreasonably or unlawfully in failing to amend the register in light of subsequent events?
It was submitted on behalf of the appellants that the first respondent acted unreasonably and unlawfully in failing to make a further notification under s.19

(4)of the 2012 Act to the effect that the previously supplied specified information was incorrect or had become inaccurate, due to the fact that a decision had been reached by the DPP not to prosecute in relation to the matter and due to the decision by the first respondent not to conduct any investigation in relation to any alleged breach of discipline pursuant to s.95 of the 2005 Act.

I accept the submissions made on behalf of the respondents in this regard. The fact that the DPP elected not to prosecute in this case, does not mean that the first respondent’s bona fide concern was therefore undermined or rendered inaccurate or incorrect. There may be many reasons why the DPP considers that it is not appropriate to bring a prosecution in a particular case. The DPP has to have regard to all the evidence that is put before her. In this case that would have included the statements of the juvenile and his girlfriend (if any); the statements made by all the gardaí who were involved in the pursuit of the vehicle and in particular, those that were involved in the arrest; the statements made by any independent witnesses (if any) and the enhanced CCTV footage from the Air Support Unit. It may well have been that in reviewing the totality of the evidence that was available, the DPP may have come to the conclusion that the accounts given by the applicants, which may have been supported by other credible evidence, did not support the bringing of any criminal prosecution against the applicants.
It is also possible that other considerations may have come into play, in particular, it is not clear whether the juvenile or his girlfriend actually made any complaint to the first respondent, or were prepared to participate in any prosecution that may have been brought against the applicants. I accept the submission that the mere fact that the DPP reached a decision not to prosecute in the matter, does not render the information on which the first 38 respondent states that it formed a bona fide concern in relation to the risk posed by the applicants to children and vulnerable adults, as being undermined or untenable.
The facts of the MP case provide a good example of where there may not be a prosecution, but there may be grounds for the notification of specified information by the scheduled organisation. In that case the gardaí had received a call shortly after midnight on 29th November 2016 that there was a man walking on the M50 motorway. A patrol car was dispatched to investigate the sighting. They came across a young man who was in a distressed state. There was a smell of alcohol on his breath, but he was not intoxicated. The young man told the gardaí that he was a student in a nearby boarding school. He stated that he was walking to the airport to get a flight to his home in Germany. When asked why he was doing that, he kept repeating that he did not want to get anyone into trouble.
The gardaí decided to bring the young man back to his school. While they were walking towards the headmaster's house in the school grounds, an older man approached the group. He spoke to the student saying “You don't have to do this. Come here now and talk to me”. When the gardai told the man to move away, the student told them that the man was a housemaster in his school. He stated that he had spent the evening drinking with the man. He stated that the man had tried to remove his tracksuit bottoms and had become angry when the student had refused to let him do that. The student stated that he left the room on the pretext of looking for a cigarette. He stated that he had run through the school grounds and out on to the M50 to try to get to the airport.
The gardaí brought the student to the headmaster's house. They concluded that as the student was of full age, there was no evidence of the commission of a criminal offence. Upon being a made aware of the facts, the headmaster initiated a complaint in relation to the teacher with the Teaching Council. Ultimately, when the matter had passed through various committees of the Teaching Council, and when the investigation had effectively run into the 39 ground because the student, and a fellow student who had relevant evidence to give, had both refused to take any further part in the disciplinary proceedings, the teacher brought an application seeking a permanent injunction to prevent the Teaching Council from making any notification of specified information to the NVB.
That application for a permanent injunction was refused both at first instance and on appeal. Thus, it would appear that a notification of specified information was probably made by the Teaching Council in that case. The case is an example of a situation where a notification of specified information could be made even though no prosecution and no findings of a disciplinary nature were made against the person concerned.
The fact that in this case the first respondent reached a decision not to pursue any investigation under s.95 of the 2005 Act, does not of itself mean that the previously held concern was either not held bona fide or was undermined by the subsequent decision not to pursue an investigation under s.
Nor does it mean that the specified information was incorrect or was inaccurate.
The obligation that is imposed by s.19

(4)is that if any specified information furnished by a scheduled organisation to the NVB is incorrect or is otherwise inaccurate, the scheduled organisation shall, as soon as may be, after becoming aware of its being incorrect or inaccurate, as the case may be, inform the Bureau thereof. Neither the applicants, nor the court, know what specified information was furnished by the first respondent to the NVB in June

Therefore, this court cannot find that that information has become incorrect or inaccurate. Accordingly, this Court cannot hold that there was an obligation on the first respondent to correct or amend the specified information that it furnished to the NVB in June
40 Failure to pursue an alternative remedy.
It was submitted on behalf of the respondents that as the applicants had made an application pursuant to the Data Protection Act 2018 to the Data Protection Office of An Garda Síochána for sight of the specified information and as that had been refused by the DPO, the applicants ought to have pursued the remedy that was open to them to make a complaint in respect of that refusal to Data Protection Commission (as it then was); and, if necessary, pursue a further appeal to the High Court. It was submitted that as they had not pursued this alternative remedy they ought to be denied the reliefs sought in their statements of grounds.
The authority for that proposition is set out in EMI Records (Ireland) Limited v The Data Protection Commissioner [2013] IESC 34 , where the principles in relation to the existence of an alternative remedy are discussed in the judgment of Clarke J. (as he then was) at paras. 34 (4.1) et seq. The court accepts the statements of principle set out therein. In The State (Abbeyglen Properties) v Corporation of Dublin [1984] IR 381, O'Higgins C.J. set down the well-known general rule that where the Oireachtas has set down a statutory appeals procedure, a party will not generally be allowed to challenge the first instance decision if there is an adequate remedy available to him under the statutory appeal mechanism.
While that rule has been applied in very many cases, it is not an inflexible rule. In Stefan v Minister for Justice [2001] 4 IR 203, it was recognised that whilst the presence of an alternative remedy in the form of an appeal process is a factor, the court always retains jurisdiction to exercise its discretion to achieve a just solution. In McGoldrick v An Bord Pleanála [1997] 1 IR 497, Barron J, noted that the true question which arises as to whether the court should decline jurisdiction due to the fact that there is an alternative remedy, was which is the more appropriate remedy considered in the context of common sense, the ability to deal with the questions raised and principles of fairness; provided that the applicant had not gone too far down one road to be estopped from changing his or her mind. 41
The case law also establishes that the court must be sure that the appeals process that is provided for under the statutory regime is capable of determining all the issues that the applicant wishes to raise and have determined in his judicial review proceedings. In Koczan v Financial Services Ombudsman [2010] IEHC 407, Hogan J. (then sitting as a judge of the High Court) reviewed the principles that are applicable when the court is considering whether to decline jurisdiction on the basis of the existence of an adequate alternative remedy. He pointed out that there may well be cases such as those touching on the constitutionality of legislation or the validity of statutory instruments, where the legal issues could not properly be raised by way of a statutory appeal.
In determining this issue, it seems to me that this is a somewhat novel application of the alternative remedy submission. Usually the submission is made where the applicant in judicial review proceedings is attempting to bring judicial review of a first instance decision where there is an adequate appeal provided for under statute from that very decision. This is not the situation in the present case. Here the applicants are challenging the legality of the decisions taken by the respondents under the 2012 Act and are challenging the legality of that legislation itself. The respondents seek to block them so doing, due to the fact that they made a separate application under the Data Protection Act 2018 to the Data Protection Office of An Garda Síochána. The respondents submit that because they made that application they should be forced to pursue the appeal mechanism that is provided for under the 2018 Act, rather than proceeding by way of the present judicial review proceedings.
I do not think that it is permissible to argue that an applicant cannot bring one set of proceedings, because there is a totally separate avenue open to him under a different statute, which is not the subject matter of the proceedings before the court. On this basis I refuse this application made by the respondents. 42
Even if I am wrong in that, I would hold that this case comes within the exceptions that are recognised in the case law. In particular, in these proceedings the applicants are seeking to challenge the constitutional validity of the 2012 Act and its compatibility with the European Convention on Human Rights. These are not matters that can be determined by a complaint made to the Data Protection Commission, or an appeal therefrom. Therefore, I am satisfied that even if the respondents were entitled to make the alternative remedy argument, this is a case in which the exception to that rule should be applied. Are the provisions of the 2012 Act repugnant to the Constitution?
The essential argument between the parties on this issue is one of timing. The applicants submit that they are greatly prejudiced by the fact that they are aware that a notification of specified information has been made about them by the first respondent to the NVB. They know having regard to the provisions of s.19 of the 2012 Act that that specified information must be highly discreditable of them. This is because it is a notification of a concern on the part of the first respondent that the applicants pose a risk of harm to children or vulnerable adults.
The applicants submit that having regard to the fact that they are relatively young men employed as police officers in the State and as they will have contact with children in the course of their work and possibly in the course of their leisure activities, the existence of the specified information on the register is highly injurious to them.
It is submitted on behalf of the applicants that their constitutional right to their good name and their right to fair procedures means that they have a right to be informed of the specified information that has been notified to the NVB and if necessary, to challenge its accuracy. 43
The respondents submit that the applicants do not have a freestanding right to fair procedures. They submit that one only has a right to fair procedures within the context of a particular process, be that civil or criminal proceedings, or a disciplinary process, or a process leading to a decision that can affect a person's interests, be they personal or commercial.
The respondents submit that the key issue here is one of time. It is submitted that the referral of specified information by scheduled organisations merely constitutes “soft intelligence” where a scheduled organisation makes a referral of specified information once it has a bona fide concern that the person represents a risk of harm to children or vulnerable adults. They point to the fact that the range of scheduled organisations catered for in Schedule 2 to the 2012 Act, and the range of matters that may be investigated by them, and the range of investigations that they may carry out, will vary considerably. In those circumstances the threshold for submission of specified information is deliberately set very low. All that is necessary is that the scheduled organisation has a bona fide concern. Once that threshold is reached it must make a referral of specified information. If they do not do so “as soon as may be” they are guilty of a criminal offence.
However, it is pointed out that the receipt of information by the NVB and its retention on the register of specified information has no practical effect on the lives of the applicants or on any third parties. This is because such information is restricted solely to designated officers of the NVB. The only circumstances in which that information may be disclosed is in the context of a vetting disclosure request that is submitted and in respect of which the data subject consents to the disclosure of information by the NVB to the liaison person in the relevant organisation.
It is submitted that the relevant time therefore is when a vetting disclosure request is received; at which point a decision has to be made whether or not to disclose the specified information as part of the vetting disclosure. That is provided for in s.15 of the 2012 Act, which 44 provides that the CBO must determine whether or not disclosure of the specified information is appropriate, necessary and proportionate. If he or she comes to the preliminary view that it is, then he or she must disclose a summary of the specified information to the person concerned and allow him or her time to put in written submissions.
If the CBO, upon receipt of the written submissions (if any), decides that it is necessary to disclose the specified information, he or she must then notify the person concerned of that fact; must furnish them with a copy of the specified information and inform them that they have fourteen days within which to lodge an appeal. If an appeal is lodged the vetting disclosure is put on hold and the person concerned has an opportunity to make further submissions to an independent appeals officer; with the further possibility of an appeal on a point of law to the High Court. No disclosure of specified information is made until the end of the appeals process. It was submitted that in these circumstances where the right to fair procedures is engaged at the disclosure stage, the rights of the applicants are adequately catered for and therefore the legislation does not breach the applicants’ constitutional rights to fair procedures or their right to their good names.
While that argument may appear attractive at first sight, the court does not accept that because the applicants are given the right to see a summary of the specified information at the disclosure stage and to make submissions thereon; and thereafter, to receive a copy of the specified information; and, if necessary, to appeal against the determination to disclose it to the person seeking the vetting disclosure, that on that account the applicants’ rights to fair procedures and their rights to their good name are adequately vindicated.
That is because it ignores the situation with which the applicants are faced at present. They know that something highly discreditable has been said about them. It is highly discreditable because there is almost nothing worse that someone could say about another person than that they pose a risk of harm to children or vulnerable adults. 45
So, the situation as of June 2024, is that the two applicants in this case know that something highly discreditable has been said about them by the first respondent to the NVB. They do not know what that is. Therefore, they cannot argue that what has been said is untrue or is inaccurate.
They are left in a situation where they must go about their ordinary lives as members of An Garda Síochána and, at least in 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 that the applicants can hope to learn what has been said about them by the first respondent and what is recorded on the register of specified information, is by getting some third party to make a request for a vetting disclosure on them. For the applicants it is like playing Russian roulette. They must get the third party to make the vetting disclosure request, not knowing what information there is about them on the register of specified information.
That Garda L had the courage to consent to a vetting disclosure application in relation to him being made by a sporting organisation; and the fact that the CBO came to the conclusion that it was not necessary to disclose the specified information and that it was appropriate to make a response of “No Trace”; does not provide an adequate answer to Garda L. This is because the specified information, whatever it is, remains on the database. If Garda L has to obtain Garda vetting clearance on another occasion, perhaps for another sporting organisation or for some other purpose, he must run the risk again of that information being disclosed, perhaps if it is considered by a different CBO.
As for Garda C, if his statement is correct, he appears to have been very much in the nature of a minor witness to the arrest of the juvenile. He states that he arrived on the scene after the arrest had been effected and when the juvenile and his passenger were at the side of the road. He denies that he assaulted the juvenile or his girlfriend. He too is in the position that 46 he knows that something discreditable has been said about him, but he does not know what it is. The court can readily understand that the existence of the specified information on the register and its retention thereon for an indefinite period must be a cause of very great concern to each of the applicants in both their professional and personal lives.
In an argument at the bar, the parties referred to the decision in Dellway v NAMA 2011 IESC
Mr. Harty SC submitted that the decisions of the divisional court in the High Court and in the Supreme Court recognised what may be termed “a right to be heard”, which was an aspect of the right to fair procedures and was an example of the maxim at common law of audi alteram partem. He stated that that right was engaged upon receipt of the specified information by the CBO from the first respondent pursuant to s. 19 of the 2012 Act.
It was submitted that having been notified by the first respondent of its intention to make such a notification of specified information, that gave rise to the applicants’ rights to make submissions on it, which had to include their right to be informed by the CBO of its content, otherwise they could not make any meaningful submission on the truth or accuracy of the specified information.
On behalf of the Garda & State respondents, Ms. Geoghan SC submitted that while the decision in Dellway recognised the existence of a right to be heard as part of the right to fair procedures under the Constitution, that decision made it clear that that right was only engaged when a decision might be made which could affect a person's rights or interests.
Counsel submitted that in the present case that only arose at the disclosure stage; at which time, the applicants’ rights to be informed of the specified information and to make submissions on it, where fully catered for by the rights afforded to the applicants under s. 15 of the 2012 Act. 47
Thus, both the applicants and the State respondents accept that there is what may be termed “a right to be heard” within the right to fair procedures provided for in the Constitution. They differ as to when that right is engaged.
At paragraph 43 of their statement of opposition, the Garda and State respondents have asserted that as the notification of specified information “lies dormant” on the register until a vetting disclosure request is made and until the CBO reaches a preliminary view that it should be disclosed; the applicants’ rights to fair procedures are not engaged until that time. I cannot accept that submission.
While the decision in Dellway was very comprehensive and largely turned on its own specific facts, the core position was pithily summarized by Murray CJ at paragraph 25 of one of the judgments he delivered in that case, where he stated as follows: “For quite some time the general principles of fairness or due process derived from the Constitution have recognised, inter alia, that a person has a right to be heard by the decision maker exercising a statutory power before a decision is finally made when that decision may materially affect rights vested in them or impose obligations.”
I hold that the right to be heard is not suspended until a vetting disclosure request is received and until the CBO makes a preliminary decision that it ought to be disclosed. I hold that the retention on a database of highly discreditable information concerning a person is sufficient in and of itself to engage that person's right to be informed of it and to make submissions on it.
While such information can be referred to in euphemistic terms, such as “soft intelligence” or as being merely a “red flag”, that does not diminish the fact that the information concerned is of the gravest significance to the data subject, being the expression of a concern by a scheduled organization that he/she may pose a risk to children or vulnerable adults. 48
Label the information as one might, the knowledge of the existence of information of that character on a database, must have a chilling effect on the data subject. I am satisfied that they have a constitutional right to see the information and to make submissions on it. In the absence of such opportunity, I hold that the retention of that data on the register is in breach of the applicants’

the Constitution.

I hold that for the NVB to hold on its database specified information about a person, which information must be highly discreditable about that person, and yet for the legislation not to provide for any mechanism for the person to challenge the accuracy or veracity of that information until a Garda vetting request is submitted, is in breach of the applicants’ rights to privacy and their rights to their good name and is in breach of fair procedures.
The court does not accept the submission that the applicants’ rights to fair procedures only arise at the disclosure stage. I hold that where a state body holds information on a database about a person, unless there are very strong reasons why disclosure of that information cannot be made, the person ought to have some mechanism to have sight of the information and, if necessary, to challenge its veracity or accuracy.
In the present case it is not argued that the disclosure of the specified information would be prejudicial either to the interests of the common good, such as in the detection or prevention of crime; nor is it asserted that its disclosure would be prejudicial to the interests of the State in terms of informant privilege or on the grounds of national security; nor is it asserted that its disclosure would be prejudicial to the interests of any children or vulnerable adults whom the legislation is designed to protect.
This is because disclosure of the specified information occurs at the disclosure stage, initially through a summary of the specified information being given to the data subject and thereafter, by production of a copy of the specified information itself. Thus, no case is made 49 by the respondents that disclosure of the specified information per se would be contrary to the common good or to the interests of those who are intended to be protected by the legislation.
Accordingly, I hold that the making of a notification of specified information pursuant to s.19 of the 2012 Act and its retention on the register of specified information, without any opportunity being given to the data subject to have sight of that information or to challenge its accuracy until the disclosure stage, constitutes a breach of the constitutional rights of the applicants. Accordingly, I must hold that the provisions of sections 10, 15 and 19 of the 2012 Act are repugnant to the Constitution. Are the provisions of the 2012 Act contrary to the provisions of the European Convention on Human Rights?
The final issue which the court has to determine is whether the regime that is put in place by ss.10, 19 and 15 of the 2012 Act are in breach of the applicants’ rights pursuant to the European Convention on Human Rights and in particular pursuant to Art. 8 thereof, which protects the right to a private life.
Article 8 of the European Convention on Human Rights provides as follows: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
In S and Marper v United Kingdom (30562/04 & 30566/04), the European Court of Human Rights had to determine whether it was permissible to retain the applicants’ fingerprints, cellular samples and DNA profiles after the criminal proceedings against them 50 had ended with an acquittal in one case; and in the other, where the prosecution had been discontinued.
The court noted that the concept of “private life” was a broad term not susceptible to exhaustive definition. It covered the physical and psychological integrity of a person. It embraced multiple aspects of a person's physical and social identity, including elements such as gender identification, name and sexual orientation, and sexual life. Beyond a person's name, his or her private life and family life could include other means of personal identification and of linking to a family. Information about a person's health or political opinions also came within the definition. The court also held that the concept of private life included elements relating to a person's right to their image.
The court held that in determining whether the personal information retained by the authorities involved any of the private life aspects mentioned above, the court would have due regard to the specific context in which the information at issue had been recorded and retained, the nature of the records, the way in which the records were used and processed, and the results that may be obtained.
In its judgment, the court had interesting comments to make in relation to the risk of stigmatisation stemming from retention of data on a database. It stated as follows at para 122:“Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. In this respect the court must bear in mind that the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accused’s innocence may be voiced after his acquittal… It is true that the retention of the applicant's private data cannot be equated with the voicing of suspicions. Nonetheless, their perception that they are not being 51 treated as innocent is heightened by the fact that their data are retained indefinitely in the same way as the data of convicted persons, while the data of those who have never been suspected of an offence are required to be destroyed.” In that case, the court concluded that the retention of the data constituted a disproportionate interference with the applicant's right to respect for private life and could not be regarded as being necessary in a democratic society.
The issue of retention of data was revisited by the European Court of Human Rights in Catt v United Kingdom (43514/15). In that case, the applicant had been arrested twice at Smash EDO demonstrations for obstructing the public highway. However, he had never been convicted of any offence. The police had retained data on a database known as the “extremism database” which recorded the fact that he had attended at various demonstrations along with recording his name; presence at the demonstration; date of birth; and address. In some cases, his appearance was also described. A photograph of the applicant had been taken at one demonstration in September
Under the retention of data policy in operation in the UK at that time, the retention of the data on the database was to be reviewed every six years.
In the course of its judgment, the court noted that it was well established in the case law of the court that the mere storing of information amounted to an interference with the applicant's right to respect for private life as secured by Art. 8 of the Convention (see para. 93).
After the decision of the UK Supreme Court had been handed down, the UK government conceded that the collection and retention of the applicant's personal data interfered with his Art. 8 rights.
When considering the retention and use of data, the court referred to its decision in MM v the United Kingdom (24029/07) where the court had found a violation of Art. 8 on the basis that the retention and disclosure of personal data was not in accordance with the law. The court had observed that the indiscriminate and open-ended collection of criminal record data was 52 unlikely to comply with the requirements of Art. 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and setting out the rules governing, inter alia, the circumstances in which data can be collected, the duration of their storage, the use to which they can be put, and the circumstances in which they may be destroyed. It also noted the absence of any mechanism for independent review of the decision to retain or disclose data.
In the Catt case, the court was concerned about the indefinite duration of the retention of the data, notwithstanding that the policy provided for six yearly reviews, because the court held that it was not clear that the six-year reviews or any later reviews were conducted in any meaningful way. The court noted that at least some of the applicant's personal data concerning his involvement in non-violent protest had been collected over six years previously. It had remained on the extremism database despite the fact that the police concluded, and the domestic courts had affirmed, that the applicant was not considered a danger to anyone. The court also noted that the decision to retain the applicant's personal data did not take into account the heightened level of protection it attracted as data revealing a political opinion and that in the circumstances its retention must have had a “chilling effect”.
In the present case, this Court is satisfied that, while it does not know the content of the specified information that was notified by the first respondent to the NVB, the nature of that information is clear, being discreditable information concerning the applicants, which supposedly gave rise to a concern on the part of the first respondent that the applicants pose a danger or risk of harm to children or vulnerable adults. In these circumstances, the court holds that the mere existence of that information, whatever it is, must have had, and must continue to have, a chilling and detrimental effect on the applicants.
This court is also concerned that there appears to be no mechanism provided for amendment or correction of the specified information once it is placed on the register, other than that provided for in s. 19

(4)of the 2012 Act. 53

In the present cases, when the applicants’ solicitor asked for the register to be corrected to reflect that fact that the DPP had directed that there should not be any criminal prosecution brought against either of the applicants and to reflect that the first respondent had decided not to carry out any further investigation and had closed its file in the matter; both the first respondent and the CBO refused to amend, correct, or add this information to the specified information on the register. In these circumstances, the specified information currently on the register concerning the applicants must, at a minimum, be seen as being incomplete, in that important subsequent facts appear not to be recorded on the register.
The court is further concerned that in the absence of a further notification by the scheduled organisation under s. 19

(4)of the Act, the specified information appears to remain permanently on the register, with no provision for correction or review of it. This is demonstrated by the fact that even in Garda L’s case, where a “No Trace” response to a vetting request has been given, the specified information concerning him remains on the register. 178. Thus, unless the first respondent exercises its power under s. 19

(4)of the Act, which it has refused to do to date, it would appear that the specified information concerning the applicants, whatever it may be, will remain on the register until they die. That seems extraordinary. Particularly in light of the fact that such information may only concern allegations which are said to have given rise to a bona fide concern on the part of the referring organisation in June 2024, but without any stipulation that that concern be reasonably held, and where such allegations have not resulted in any findings of a criminal or civil or disciplinary nature being made against the applicants.

Finally, in the Catt case the ECtHR examined the meaning of the phrase “necessary in a democratic society”. The court held that whether an interference in an applicant's Art. 8 rights was necessary and therefore justified, depended on the following:- 54 “109…It will be necessary in a democratic society if it answers to a ‘pressing social need’, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are relevant and sufficient. A margin of appreciation must be left to the competent national authorities in this assessment.”
The principles which apply when considering whether an interference with Art. 8 rights is necessary in a democratic society, was revisited by the Court in Vavricka & Ors v The Czech Republic (47621/13), which was an action concerning the rules on compulsory vaccination of children in the Czech Republic. The court set out the relevant principles at paras. 273-275 of its judgment. It stated that an interference will be considered “necessary in a democratic society” for the achievement of a legitimate aim if it answers a “pressing social need” and, in particular, if the reasons adduced by the national authorities to justify it are “relevant and sufficient” and if it is proportionate to the legitimate aim pursued.
The court stated that it was primarily the responsibility of the national authorities to make the initial assessment as to where the fair balance lay in assessing the need for interference in the public interest with an individual’s

Art. 8of the Convention.

Accordingly, in adopting legislation intended to strike a balance between competing interests, states must, in principle, be allowed to determine the means which they consider to be best suited to achieving the aim of reconciling those interests. However, the assessment by the national authorities remains subject to review by the European Court of Human Rights. The court noted that a certain margin of appreciation was, in principle, afforded to domestic authorities as regards that assessment. The court reiterated that the respondent State’s margin of appreciation will usually be wide if it is required to strike a balance between competing private and public interests or Convention rights. 55 182. In GS v Commissioner of An Garda Síochána [2017] IEHC 190, McDermott J. held, in applying the decision in Rotaru v Romania

(2000)8 BHRC 449 (28341/95), that retention of material on the register engaged the right to private life. 183. Having regard to these authorities, this court holds that the retention of the specified information on the register prima facie constitutes an interference with the applicants’ rights to private life as guaranteed by Art. 8 of the Convention. This is further supported by the fact that, subject to a notification being made by the scheduled organisation under s. 19

(4)of the 2012 Act, the specified information remains indefinitely on the register without any periodic review as to its accuracy.

This is primarily a case about whether the applicants have a right to see what is recorded about them on the database and to challenge that data in terms of veracity and/or accuracy. The applicants do not make the case that specified information can never be retained on the specified information register maintained on the database of the NVB. Their complaint is that they are not given access to that information unless and until a decision to disclose it is made at some point in the future in the context of a vetting disclosure request.
Where no pressing social need or other reason has been put forward by the respondents as to why the applicants should be furnished with the information at the disclosure stage, but not at the earlier stage where the information is on the database, but has not been sought to be disclosed because a vetting disclosure request has not been made; in these circumstances, the court holds that the interference with the applicants’ Art. 8 rights by the indefinite retention of this data without the opportunity to see it and/or challenge it, save in the context of a vetting disclosure request being made, constitutes a violation of the applicants’

Art. 8of the Convention.

186. Accordingly, the court holds that the structure created by ss. 10, 15 and 19 of the 2012 Act constitute a breach of the applicants’

Art. 8of the Convention.

Therefore, this 56 court must declare that ss. 10, 15 and 19 of the 2012 Act are incompatible with the European Convention on Human Rights. Proposed Final Order. 187. In light of the findings contained in the judgment, it is proposed that the final order should contain the following:(

a)A declaration that the provisions of ss. 10, 15 and 19 of the 2012 Act are repugnant to the Constitution insofar as they do not afford an affected person the right to see the specified information concerning them and to make submissions on the veracity or accuracy of that information as held by the NVB on the register of specified information on its database, in the absence of a request for a vetting disclosure being made and a preliminary decision being made by the Chief Bureau Officer of An Garda Siochana that it be disclosed as part of the vetting disclosure; (
b)A declaration that the provisions of ss. 10, 15 and 19 of the 2012 Act are incompatible with the European Convention on Human Rights and, in particular, in contravention of Art. 8 thereof insofar as they do not afford to an affected person the right to see the specified information concerning them and to make submissions on its veracity or accuracy in the absence of a request for a vetting disclosure being made. 188. In terms of the specific reliefs sought by the applicants in their statements of grounds, the court proposes to make the following orders: refuse the relief sought at para. (c)(
i)of the applicants’ rspective statements of grounds, as it has not been established what information is contained in the register of specified information concerning the applicants at present. In the 57 absence of knowing what the information is, the court cannot know whether it would be appropriate to make any order directing the Garda respondents to remove that information from the register. 189. The court will not make the order sought at para. (c)(
ii)of the statements of grounds, as the court cannot make an order directing the Garda respondents to disclose specified information to the applicants as that would involve the court effectively inserting provisions into the 2012 Act, which is something that it cannot do. This court can only grant injunctions either to prevent a person acting in breach of the law; or it can grant a mandatory injunction to compel a person to comply with the law. The court cannot order the Gardaí to do things that they are not obliged by the terms of the relevant legislation to do. 190. The court will not make the order sought at para. (c)(iii) of the statements of grounds requiring the first to fourth named respondents to facilitate the making of, and to take into account, the applicants’ submissions to date and into the future on the content of the specified information on the register. The court cannot make such an order, as that would involve it effectively inserting new provisions into the 2012 Act. 191. The court refuses the reliefs sought at para. (c)(
iv)of the statements of grounds. The court cannot quash the referral that was made by the first respondent to the NVB because the court does not know the content of that specified information; therefore, the court cannot know whether it was appropriate or not for the first respondent to make a notification of that specified information to the NVB. 192. In light of the findings of the court in its judgment herein and in light of the declarations which the court has set out above, it appears to be appropriate to make the order sought at para. (c)(
v)of the statements of grounds. 58 193. Similarly, having regard to the content of this judgment, it appears to the court to be appropriate to make the declaration sought at para. (c)(vii) of the statements of grounds. The declarations that the court proposes to make have been set out above. 194. The issue of damages was not canvassed before the court on the hearing of this application. Accordingly, the court does not propose to make any order in that regard. Indicative order as to Costs. 195. Having regard to the findings in this judgment, it would appear that the following would be the appropriate orders to make in relation to costs: 196. The applicants are entitled to an order for payment of their costs as against the fifth and sixth respondents; 197. As the applicants have not established that the first respondent acted in breach of the terms of the 2012 Act, the first respondent is entitled to an order for payment of its costs by the applicants; 198. As the applicants have not established that the Garda respondents, being the second, third and fourth respondents, have acted in breach of the 2012 Act, these respondents are entitled to an order for payment of their costs by the applicants; 199. As the court is satisfied that it was appropriate and necessary for the applicants to bring these proceedings against all the respondents, it is appropriate that the applicants should get an order over in respect of the costs that they must pay to the first to fourth respondents inclusive, as against the fifth and sixth respondents; 200. All orders for costs are to be adjudicated upon by the Office of the Legal Costs Adjudicator in default of agreement. 59 201. As this judgment has been delivered electronically, the parties shall have four weeks within which to furnish brief written submissions of not more than 1,500 words on the terms of the final order, and on costs, and on any other matters that may arise. 202. The matter will be listed for mention at 10.30 hours on 10 June 2026 for the purpose of making final orders.

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.

2026 IEHC 261

THE HIGH COURT [2026] IEHC 261 Record No. 2025/246 JR Record No. 2025/272 JR BETWEEN D.OC. AND K.L. APPLICANTS AND GARDA SÍOCHÁNA OMBUDSMAN COMMISSION, CHIEF BUREAU OFFICER, NATIONAL VETTING BUREAU OF

Art. 8of the ECHR.

Art. 8of the Convention.

Art. 8of the Convention.

Art. 8of the Convention.