Foreword

On the 26^th September 2003 the Government announced my appointment as new Chairperson of the Commission to Inquire into Child Abuse to take effect on the resignation of Ms. Justice Laffoy. At the same time I was asked to conduct a review of the working of the Commission having regard to the interests of victims of abuse, the requirement of a timely conclusion to the inquiry function of the Commission consistent with the needs of a proper investigation and so as to avoid exorbitant costs.

In carrying out this undertaking I have had enormous assistance. Ms. Justice Laffoy and her fellow commissioners have given me every assistance. They have allowed me access to all the Commission’s facilities and have freely and frequently provided me with help and advice on the many occasions when I needed it. To them a special word of thanks is due. Without their help this review could not have been satisfactorily conducted. The personnel of the Commission were also of immense assistance.

When my appointment was announced Mr. Justice Budd contacted me with good wishes and helpful information. He also offered the help of the Law Reform Commission and introduced me to Professor David Gwynn Morgan, former Director of Research and Mr. Darren Lehane, Legal Researcher. I want to thank them particularly. Professor Morgan’s encyclopaedic knowledge of the law of inquiries was immediately available to me, as was his facility in writing on difficult legal topics. The mistakes that remain in this report are however entirely my own.

Ms. Ciara McGoldrick, barrister, was assigned to assist me in researching and preparing this report and I want to record a special word of appreciation for her diligence and efficiency.

The task that I was set was not an easy one. There is of course no simple measure which will bring about the desired result. Any solution to the problems of the Investigation Committee of the Commission will necessarily require some adjustment of existing entitlements but I hope that it will be appreciated by everybody who considers the matter that what is suggested in my report is a scheme which offers the most realistic prospect of a successful conclusion of the important work assigned to the Committee.

A summary of the report is to be found at p71.

November, 2003

Contents

Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Summary

The Commission 4 The First two Years 14 Numbers and Procedures 20 The Challenge 26 Approaches to an Effective Procedure 34 Suggested Amendments of the Act 43 The Commission in the Courts 52 Some Practical Issues 63 Conclusion 68 71

Chapter 1

1. The Commission

2. The Commission to Inquire into Child Abuse came into existence as a statutory body on the 23^rd May 2000. Its non-statutory predecessor of the same name was announced by the Taoiseach on the 11^th May 1999 as part of the scheme designed to respond to revelations of institutional child abuse. The measures announced by the Taoiseach included:-

“….an apology on behalf of the State to victims of child abuse; the setting up a commission to inquire into childhood abuse; expansion nationwide of the counselling services available to assist victims of child abuse; the preparation of a white paper on the mandatory reporting of child abuse; immediate amendment of the limitation laws as they relate to civil actions based on childhood sexual abuse; referral of the question of limitation in other forms of childhood abuse to the Law Reform Commission and priority advancement of legislation to include a register of sex offenders.”

1.2 The Commission and the other measures that were put in place can be seen as fulfilment by the State of its Constitutional obligation under Article 40.3.2:-

“The State shall… in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

1.3 On foot of a remit to consider the broad Terms of Reference assigned to it in order to determine whether they needed to be refined and to make recommendations as to the powers and protections the Commission would need, the original non-statutory commission advised the Government in two reports: the first dated 7^th September 1999 sought clarification as to the kind of inquiry that was envisaged and the second, on the 14^th October 1999, recommended a specific statutory basis for the inquiry and suggested the form of the legislation. The Act of 2000 followed the Commission’s recommendations closely but not precisely.

1. The functions of the Commission as set out in s.4(1) of the Act may be summarised as follows:-

1. To provide for persons who suffered abuse in childhood in institutions an opportunity to recount the abuse and make submissions;

2. To conduct an inquiry into the abuse of children in institutions and to ascertain why it occurred and who was responsible;

2. (iii) To publish a report setting out its findings and recommendations including in particular recommendations on the steps which should be taken to deal with the continuing effects of abuse and to protect children in similar situations from abuse at the present time and in the future.
1. The Commission operates through two Committees known as the Confidential Committee and the Investigation Committee. Each member of a Committee is a member of the Commission. A person may not be a member of both Committees. The Commission chairperson presides over the Investigation Committee.

2. The Confidential Committee has essentially therapeutic and listening functions.

It provides the opportunity for victims of abuse in childhood in institutions “who do not wish to have that abuse enquired into by the Investigation Committee” an opportunity to recount the abuse and make submissions in confidence. The Committee is empowered to make findings of a general nature based on the evidence it hears and to furnish reports to the Commission. If its report contains findings that are based on the work of the Confidential Committee, the Commission must include a statement that the particular findings are based on findings of the Confidential Committee and that the evidence could not be tested or challenged by any person and that it was not corroborated if that is in fact the case. See s.5(4). This Committee does not carry out any investigation but it listens, receives the evidence, makes findings of a general nature based on that evidence and reports to the Commission.

1. The Commission carries out its inquiry into abuse of children in institutions during the relevant period through the Investigation Committee. This Committee like the Confidential Committee has a therapeutic function but in addition to allowing victims of abuse an opportunity to tell their story, it must also investigate cases of abuse, determine the nature of the abuse and why it happened, and ascertain the extent to which the institutions, and the way they were managed, contributed to the abuse and to report to the Commission as a whole.

2. The unique function Committee is to inquire into child abuse. But, as just indicated, that is not its only function. Is it intended that the inquiry function is to be paramount? The fact that the listening function appears before that of inquiring may not in itself be an indication of the relative importance of the two functions. Logic would suggest that in the Confidential Committee, listening would be the principal occupation whereas with the Investigation Committee inquiring would be the main activity. However, it is not easy to construe the Act in that way. The Minister for Education & Science, Dr. Woods, said that the

“telling and listening function, which can be called the therapeutic function of the Commission or the healing forum, is the function to which everything else should be subordinate.” - 516 Dail Debates col. 293.

1.9 The Confidential Committee serves the needs of those victims who wish for privacy and a therapeutic, non-confrontational approach and the Investigation Committee has to combine the functions of listening in a sympathetic way with carrying out an inquiry into child abuse. No difficulty arises with the Confidential Committee in regard to its functions but the position with its sister committee is less clear. It is worth observing that as far as can be discovered no other inquiry into child abuse in other jurisdictions -- and there have been several of these (see paras 7.14 et seq) -- has had the additional express function of providing a forum for therapeutic telling of victims’ stories of abuse. This mixing of purposes may give rise to potential for conflict between the statutory functions of the Investigation Committee.

1.10 The possibility of tension between the functions of the Investigation Committee can be seen more precisely in the words emphasised in s.4(6) of the Act:-

“In performing their functions the Commission and the Committees shall bear in mind the need of persons who have suffered abuse in childhood to recount to others such abuse, their difficulties in so doing and the potential beneficial effect on them of so doing and, accordingly, the Commission and the Committees shall endeavour to ensure that meetings of the Committees at which evidence is being given are conducted

so as to afford to persons who have suffered such abuse in institutions during the relevant period an opportunity to recount in full the abuse

suffered by them in an atmosphere that is as sympathetic to, and as

understanding of them as is compatible with the rights of others and

the requirements of justice and

as informally as is possible in the circumstances.”

The requirements of the sub-section are imposed on both Committees. But the difficulty applies only to the Investigation Committee. One would expect that the approach taken by a statutory inquiry, in which persons are at risk of being labelled as child abusers or as being responsible for permitting abuse, would be likely to differ from that of a listening forum whose purpose was therapeutic. An inquiry cannot come to its task with preconceived conclusions whereas a therapeutic listener on the other hand takes facts to be true because it is not his function to determine the truth of allegations that are made. The inquirer will be inserting the word “alleged” literally or metaphorically before assertions and allegations, aware that due process imposes requirements not only of form but of substance.

1.11 The sub-section seems to impose what is in effect an obligation on the Investigation Committee to hear the accounts of abuse given by persons who come before it and the complainants are to be heard “in full.” A person coming to the Investigation Committee as a victim of abuse in childhood in an institution has in effect a right or entitlement to do so. In the statement delivered at the first public sitting of the Commission held on 29^th June 2000, Miss Justice Laffoy said:

“The Commission, through its Committees, will hear all persons who

come forward to tell of abuse they have suffered in institutions in

childhood. No such person will be refused a hearing.”

1.12 At its first public sitting on the 29^th June 2000 it was stated that the Investigation Committee would conduct its inquiry in two phases. In the first phase it would investigate particular allegations of abuse. This phase would involve in relation to each survivor’s allegation or allegations a preliminary inquiry by an inquiry officer in accordance with the Act, followed by a hearing which would be held in private. If it were established to the satisfaction of the Investigation Committee that abuse occurred, findings to that effect would be made and recorded in an interim report from the Investigation Committee to the Commission. Such findings would be final and not open to challenge in the second phase. The second phase would be conducted in two components, one involving investigation of the context in which the abuse occurred and why it occurred and the attribution of responsibility for it, whether institutional or regulatory. The second component would take a broader view of the legislative framework and the historical and social context in which the abuse occurred. The phased hearings are more fully described in the framework of procedures published by the Investigation Committee on the 11^th November 2002.

1. The Act in s.5(5) directed the publication of the Commission’s report within a period of two years from the establishment day (23^rd May 2000) “or such longer period as the Government after consultation with the Commission, may specify by Order. By Order of the 17^th April 2002 the period was extended to the 22^nd May 2005).”

2. It is intended that meetings of the Commission and of the Investigation Committee should generally be held in public. Section 7(3) gives power to the Commission to hold a meeting otherwise than in public if it considers it appropriate, “having had regard to the desirability of holding such meetings in public.” This provision relating to the Commission is repeated for the Investigation Committee in s.11(3)(b). The exception is a meeting of the Investigation Committee at which evidence relating to particular instances of alleged abuse of children is being given, in which case the meeting is to be held other than in public.

3. The two Committees of the Commission are entirely separate. Each makes a report or reports to the Commission which has under s.4 the function of preparing and publishing reports. The Commission is empowered to publish interim reports. S.5(6) of the Act provided:

“The Commission -

shall, not more than one year after the establishment day, prepare an

interim report on such matters relating to the inquiry aforesaid or

otherwise relating to its functions as it may determine, and

may, if and whenever it considers it appropriate to do so, prepare

other such interim reports, and sub-sections (2) (3) and (4) shall apply

to such interim reports as they apply to the report referred to in those

sub-sections.”

This means that the Commission was required to publish an interim report on its progress within one year and it did so in May 2001. The Commission further reported in November 2001. These reports described the Commission’s progress in its work but did not contain any findings arising out of the work of either the Confidential or the Investigation Committees. The Commission is not confined in interim reports to recording progress in its work or difficulties that it has encountered. It is also entitled under s.5(6)(b) just quoted which brings in sub sections (2) (3) and (4) to make findings as to the occurrence of abuse of children in particular institutions during particular periods and identifying the institution and the persons who committed the abuse, as well as other conclusions relating to the management and supervision of institutions.

1.16 The Commission is authorised to issue interim reports as its work progresses. In its first Interim Report of May 2001 the Commission recorded a general approach to interim reporting as follows:-

“It is the Commission’s view that it would not be appropriate to

publish any determinations or findings made during the course of the

inquiry into abuse of children in institutions on a piecemeal basis

because to do so might give an inaccurate, incomplete or distorted

picture of the prevalence of abuse, why it occurred and who was

responsible for it. Therefore, to avoid such a possibility, and any

unfairness and injustice which might ensue, the Commission does not

intend to make public any determinations or findings until after the

inquiry or, in the case of the inquiry being conducted by the

Investigation Committee, the first phase of the inquiry, has been

completed. The Commission appreciates that persons who have

already participated, or will participate in the near future, in the work

of the Commission may find this approach disappointing and having

to wait for a future report frustrating. However, as it is necessary in

order to protect the integrity of the Commission’s work, the

Commission must ask them to be patient.”

The Commission accordingly took the view that it would inform the public in interim reports about the work it had carried out and any difficulties encountered and it reserved the right to announce policy recommendations.

1.17 Section 4(4)(a) empowers the Government following consultation with the Commission to confer additional functions on the Commission and the Committees. By an Order entitled “The Commission to Inquire to Child Abuse Act, 2000 (Additional Functions) Order, 2001 - S.I.280 of 2001” - the Commission was mandated to conduct an inquiry into certain vaccine trials which were conducted in institutions. The division of the Committee that is inquiring into vaccine trials is comprised of the chairperson Miss Justice Laffoy and Professor Edward Tempany. Judicial Review proceedings claiming that the Order is ultra vires the Act are pending before the High Court. The case is Record No. 2003/782JR - Application Professor Irene Hillary v. The Minister for Education & Science, Ireland, The Attorney General and The Commission to Inquire into Child Abuse, Respondents. It is not proposed in this Review to consider any issues relating to the Vaccine Trials Division first because the problems which require to be considered are entirely separate and distinct, secondly because they relate to the other division of the Investigation Committee, and thirdly because there is a legal challenge to the existence of the Vaccine Trials Division.

1.18 S.20 of the 2000 Act provided somewhat vaguely for the payment of a “reasonable amount in respect of the expenses” incurred by a person attending to give evidence or making an oral submission to the Commission or to one of the Committees. Payment was to be made in accordance with a scheme devised by the Minister for Education & Science with the consent of the Minister for Finance and following consultation with the Commission. Provision was made in subsection (4) for the payment of expenses in respect of making discovery by a person in respect of whom an order had been made by the Commission. In such a case, the expenses incurred by the person were to be agreed between the Commission and the person or, in default of agreement, to be determined by a Taxing Master of the High Court. In its first Interim Report in May 2001 the Commission complained that:

“delay in responding to the Commission’s requests that a viable

scheme for payment of legal expenses be made has been the most

significant obstacle. In the Commission’s view, the delay was

unnecessary and potentially damaging to the credibility and

independence of the Commission.”

The partial scheme that was then considered by the Commission proved to be

unsatisfactory and unacceptable. Negotiations and consultations continued and ultimately it was agreed by the Minister that the costs awarded to parties appearing before the Investigation Committee should be such as are agreed or, in default of agreement, as are taxed by a Taxing Master of the High Court. Reflecting this change, the Act of 2000 was amended by the deletion of s.20 and its substitution by s.20 and 20(A). This change was effected by s.32 of the Residential Institutions Redress Act, 2002.

1. The Commission drew up Rules of Procedure for the Investigation Committee and these were published at the time of the first public sitting on the 29^th June 2000. This has been modified by a Framework of Procedures dated 8^th November 2002. Both documents are available on the Commission’s website. The Commission has emphasised that the rules are not to be construed or applied rigidly and they will be operating in a flexible manner to do justice in different circumstances. Appropriate notice would be given where changes occurred.

2. The Act of 2000 was further amended by the insertion of s.23A that was enacted by s.32 of The Residential Institutions Redress Act, 2002. This provided for the engagement by the Investigation Committee of deciding officers to assist the Investigation Committee in carrying out its functions. A panel of experts was to be provided which would supply members to sit in divisions of the Committee with members of the Committee in simultaneous hearings. The idea was that one member of the Investigation Committee would sit with a selected expert from the panel. This matter is further discussed at 4.9 et seq.

Chapter 2

1. The first two years

2. By way of setting the work of the Commission in its full context, reference ought to be made here to the work of the Residential Institutions Redress Board. The Board has discharged its work smoothly and efficiently and it would appear that the number of appeals to the Review Body has been extremely small.

3. However, at the start of the Commission's work, it had to draw attention to two major obstacles to progress which had been highlighted in submissions. The first related to the establishment of a compensation scheme for the victims of abuse in institutions. The second concerned legal representation at the proceedings of the Investigation Committee and the making of a scheme providing for payment of the costs of such representation.

4. In order to make progress with its inquiry function, the Investigation Committee needed the co-operation of victims of abuse. In the first place, the Committee needed the names of persons who wished to give evidence. Secondly, the Committee wanted statements to be furnished either through the solicitors representing the victims or directly to inquiry officers. The solicitors for many victims took the position that, “Until such time as the issue of a scheme for payment of compensation to their clients was satisfactorily addressed, it would be difficult for them to advise their clients as to whether participation in the work of the Commission was in their personal or legal interest .” -Second Interim Report, November 2001, p.1.

5. The Commission took the view that the establishment of a compensation scheme was a policy issue for the Government. On the 3^rd October 2000 the Minister for Education & Science announced that the Government had agreed in principle to establish a compensation scheme for those who as children were victims of abuse in institutions in which they were resident and in respect of which State bodies had regulatory or supervisory functions. The compensation would be paid on an ex gratia basis without establishing any liability on the part of State bodies, but subject to the claimant establishing to the satisfaction of the scheme that he or she had suffered abuse and resulting injury. The nature of the abuse that would attract compensation was to be defined in the Commission’s Act.

6. The scheme announced by the Minister was embodied in the Residential Institutions Redress Act, 2002. The Act provides for the establishment of a board whose essential function is to:-

“Make awards in accordance with this Act which are fair and reasonable having regard to the unique circumstances of each applicant.”

2.6 Entitlement to an award arises in circumstances set out in s.7(1):-

“Where a person who makes an application (an “applicant”) for an award to the board establishes to the satisfaction of the board -

Proof of his or her identity, That he or she was resident in an institution during his or her childhood, and That he or she was injured while so resident and that injury is consistent with any abuse that is alleged to have occurred while so resident, the board shall make an award to that person in accordance with s.13(1).”

2.7 The Act applies to people who, as children, suffered abuse in orphanages, industrial schools and reformatory schools. It does not include victims of abuse in day schools. Speaking in the Dail on the 23^rd November 2001, the Minister said:-

“The nature of the institutions is also relevant to the decision to pay compensation from public funds to former residents. Unlike ordinary schools, the institutions removed the barriers which normally separate work, play and sleep and controlled every aspect of the child’s life. Residents had little or no say in their lives. In the words of the Kennedy Committee ““the children in care are completely dependent on the residential home staff for all the love, understanding, security and religious formation they need, as well as for support in making their way in life…”” Given the weakness and vulnerability of a child who has been deprived of parental care in such a situation, the authorities mandated in law to protect his or her interests have a particularly onerous responsibility. Failure on the part of those authorities can carry serious consequences for the children who have no other advocate. In the case of ordinary schools, public authorities did not have this level of responsibility and had no authority to exercise it in respect of schools which were privately owned and significantly independent. In the circumstances, the distinction now being made in the provision of financial redress, and in that matter only, between abuse victims in ordinary schools and victims in residential care institutions, is a reasonable one.”

2.8 An application must be made within three years of the establishment day which is 16^th December, 2002. The Board may extend this time limit in exceptional circumstances. Applications are heard in private and there is a right of appeal to a review body. An applicant has one month in which to decide whether to accept the award or to appeal. Acceptance of an award bars civil proceedings arising out of the same or substantially the same acts. Thus an applicant who has a court action for damages for abuse can also apply for an award from the Redress Board. However, when he or she accepts an award the court proceedings can no longer be pursued.

2.9 A question arises as to whether persons who have received awards from the Redress Board will wish to pursue complaints through the Investigation Committee. The Commission was concerned about this and took the view the view that it would be regrettable if valuable evidence was lost by reason of persons pursuing a claim for compensation deciding not to participate in the work of the Commission. It is perhaps inevitable that there will be some loss of applicants who have received awards from the Redress Board. Some victims of abuse may regard themselves as having been sufficiently validated or vindicated by the process of application to the board. Some may feel that the payment of a substantial sum in an award represents a tangible acknowledgement of responsibility which is in itself a matter of satisfaction to them. Some other applicants may have been advised that it would be prudent to make a statement to the Commission in case it subsequently became relevant to the issue of compensation whether somebody had in fact complained to the Commission.

2.10 It is unlikely that persons who have decided not to proceed further with complaints are going to notify the Investigation Committee and the only way of establishing the number of remaining complainants is for the Committee to write to all complainants seeking confirmation of the position.

Legal representation and costs

2.11 At its public sitting on the 20^th July 2000 the Commission made a number of rulings:-

(1)

Each person who comes to the Investigation Committee to make an allegation or allegations of abuse will be granted legal representation by a solicitor and one counsel of his or her choice for the first phase hearing;

(2)

Each person and/or body against whom an allegation of abuse is made will be granted legal representation by a solicitor and one counsel of his, her or its choice for the first phase hearing;

(3)

Each person or body materially affected by an issue raised in the second phase hearing will be entitled to legal representation; and

(4)

The expenses of legal representation will be defrayed in accordance with the scheme made by the Minister for Education & Science under

s.20 of the Commission to Inquire into Child Abuse Act, 2000.

Notice that here each complainant or alleged abuser would have been allowed costs for one counsel only.

1. However, section 20 of the Act of 2000, in so far as it relates to legal representation and costs and expenses, was replaced by s.20(A) which was inserted by s.32 of the Residential Institutions Redress Act, 2002. Subsection (2) provides that the Commission may pay such reasonable costs arising out of the representation permitted by the Investigation Committee as are agreed between the Commission or, in default of agreement, as are taxed by a Taxing Master of the High Court. This means that instead of there being a scale of costs laid down by the Minister in a scheme, a party is entitled to recover costs in respect of any particular work to be assessed independently as in the case of a party who was awarded costs in a court action.

2. As to the level of representation, i.e. the number of lawyers involved, that is essentially a matter for the Investigation Committee to decide in the particular circumstances. The Investigation Committee provided for that in its Final Ruling of 18 October, 2002, at paras.7.4 and 7.5 and also in the framework of procedures at pages14/15. In hearings dealing with more serious allegations, one would anticipate applications for a high legal of representation than is provided generally and it would be reasonable to assume that applications of that kind would be sympathetically considered. This conclusion is fortified by the Judgment of the High Court in The Commission to Inquire into Child Abuse v. Notice Party A & Ors., [2003] 3 IR 459. That case does not deal with this point but rather with the question of the number of legal representatives to be permitted at Investigation Committee hearings but the implications of the Judgment would support this conclusion.

3. It follows that in any consideration of the likely costs which are going to be incurred in future hearings conducted by the Investigation Committee, the safer assumption in the case of the more serious allegations is that two counsel will be permitted and that appropriate costs will be recovered either by agreement or on taxation. The implications of this are considered at para 4.4 et seq.

Chapter 3

1. Numbers

2. The task of the Investigation Committee is formidable by any standards. It is to investigate child abuse alleged to have taken place in more than 100 institutions in respect of some 1,712 complainants over a period of sixty years. Many if not most of the complainants name or identify multiple alleged abusers, sometimes in different institutions. The oldest victim was born in 1926. Those accused of abuse are older than the complainants and some of them are dead, some left their congregations many years ago and some have not been traced. Those who are alive and traced include persons who are confused or not in a condition to defend themselves. These features partly explain the difficulty and complexity of the work to be done and make the Investigation Committee’s functions probably the most challenging ever to have been the subject of an Irish public inquiry.

3. Most of the complainants were in industrial or reformatory schools and accuse more than one person of abuse. On analysis of the figures it appears that the vast majority of complaints are in respect of a relatively small number of institutions and individuals. Of the 1,712 complainants 1,312 make complaints in respect of 20 institutions.

4. Complaints were made against 1195 alleged individual abusers. The total number of complaints made against those individual respondents is 4,128. The overall number of complaints against individual respondents in respect of the 20 institutions giving rise to the largest number of complaints is 3,192, which is 77% of all complaints against individual respondents.

5. At the time of the suspension of the work of the Investigation Committee it had completed hearings in the cases of twenty-one complainants. A further 19 had been part heard by the Committee.

Procedures

1. The Investigation Committee has devised rules of procedure for its work which are contained in Rules of Procedure and a subsequent Framework of Procedures (published on the 11^th November 2002) which are available on the Commission’s website. The procedural rules are designed to ensure compliance with the general law as to fairness of procedures and others are mandated by the provisions of the Act.

2. S.4(1)(b) of the Act requires the Commission acting through the Investigation Committee to inquire into the abuse of children in institutions during the relevant period and “where it is satisfied that such abuse has occurred,” to determine the causes, nature, circumstances and extent of such abuse. The phrase italicised appears in slightly different form in s.5(3)(a) and s.13(2)(a). The Commission has interpreted that expression as creating a preliminary factual issue which has to be decided before proceeding further to inquire into causes and responsibilities. It follows that in any case where the Investigation Committee first satisfies itself that abuse has taken place there will have to be at least one further hearing beyond that at which the particular instances of alleged abuse are in issue. And of course further hearings may also be required in cases where, for instance, a question of context arises in determining whether particular conduct amounted at the time to abuse.

3. S.11(3)(a) provides that a meeting of the Investigation Committee at which

evidence in relation to particular instances of alleged abuse is being given shall be held otherwise than in public. The Act envisages that some or indeed most of the proceedings of the Committee will be heard in public except for occasions when the Committee is hearing evidence relating to particular instances of alleged abuse of children. This requirement of privacy may be contrasted with a trial of a serious sexual offence in which the proceedings are open to the public but there is a ban on identification of the victim and indeed of the accused unless and until there is a conviction, with the proviso that even on conviction the court has a discretion to prohibit identification of the accused if that might lead to identification of the victim.

1. The application of this provision has another consequence. To take an example, if there are three complainants who allege that they were abused by a particular teacher, in the Committee's view, it is not open to it to hear those cases together when complainants two and three would be present at the evidence given by complainant number one. The case of complainant number one is heard entirely separately from the others. This ruling has consequences not only in regard to the likely duration of the work of the Investigation Committee but also on the question of equality of information. Complainant number one does not know what number two has said nor what the alleged abuser has responded to the complaint of number two. Neither do his legal representatives, at least officially. If it is the case that complainant number two has the same representation as complainant number one, that poses a difficulty for the lawyers in trying to exclude from their minds as confidential what has been revealed to them in the other case or cases. On the other side, the teacher who is the alleged abuser has the materials that have been generated in all the cases against him so that he is in a position to cross-examine each complainant on a basis that is derived (entirely legitimately) from a consideration and a comparison of the allegations and statements made by the other complainants.

2. S.13(2)(c) provides that the report of the Investigation Committee “shall not contain findings in relation to particular instances of alleged abuse of children.”

This is the same as the restriction on the Commission’s report which is contained in s.5(3)(d). It is not entirely clear what the provision means and it would be helpful if it could be clarified. It would seem appropriate for the report of the Investigation Committee and of the Commission to contain findings to the effect that abuse of children occurred during a particular period in a particular institution and it may wish to name the institution and the persons who committed the abuse. But, how is it going to do this especially in regard to persons who have committed abuse if it is prohibited from mentioning specific incidents? From a victim’s point of view, it does not seem to be a satisfactory validation of his or her experience to say that this unnamed victim was abused in a particular institution by a particular person without saying what the nature of the abuse was. Bearing in mind the variety of meaning of the word “abuse” as defined in the Act, it may be a very disappointing result for a victim to have his or her experience validated in this quite limited way. In addition, as between perpetrators of abuse, it may well be thought that it is unacceptable to describe everybody as an abuser without being more specific as to which kind of abuse he or she committed. It would certainly be in the interest of a serial sexual abuser or one who committed deliberate acts of physical violence to have associated with his or her all others who were criticised for failures which would properly be located at the other end of the scale of heinousness. The more horrible or frequent the abuse committed by a particular abuser, the more his or her interest is in having as many other listed as abusers whose crime are at the lowest end of the scale of moral outrage. Looking at the third interest in all this, which is the public interest, again it seems that there is justification if not actually a requirement for separation of the different categories of abuse so that the public will know what was occurring in the relevant institutions. What was actually happening is also relevant to the recommendations about the future.

3.10 This prohibition seems wholly inconsistent with s.5(3)(a) and s.13(2)(a) which permit the identification of particular persons who committed abuse. Since the Act in these sub-sections makes specific provision for hearings at which evidence relating to particular instances of alleged abuse is given, the Act expressly contemplates the hearing of evidence of particular instances of abuse with the possibility of detailed rebutting evidence and thus findings in respect of such instances would not be regarded as inappropriate absent a specific prohibition to that effect.

3.11 Section 13(2) drew a critical comment from the High Court. In The Commission to Enquire into Child Abuse v. Notice Party A & Ors., 2002 3 IR 459 at p.473/4:-

“The task of the applicant is not assisted by poorly drafted legislation

under which it has to operate. What for example is one to make of

section 13(2) of the Act? At subsection (a) thereof it provides that the

report of the applicant may if it is satisfied that abuse of children, or

abuse of children during a particular period, occurred in a particular

institution, contain findings to that effect and may identify the

institution and the person who committed the abuse. But subsection

(c) provides that the report “shall not contain findings in relation to particular instances of alleged abuse of children”. This is but one of a number of instances of obscure draftsmanship which does nothing to assist the applicant in its difficult task”.

We return to this question at paragraph 6.16

Divisions/Sub-committees

3.12 The Act envisages that a committee may want to act in divisions. This appears to be somewhat unreal in view of the numbers involved: of the six members of the Commission including the chairperson, two are members of the Confidential Committee and so excluded from the Investigation Committee; one is assigned to the vaccine trials unit; and the remaining three, including the chairperson of course, are members of the Investigation Committee. The Act implies that a division of a committee will have more than one member and this is what one would expect in the absence of express provision to the contrary. It would seem that there is need for a power to have a division or sub-committee of the Investigation Committee comprising one member of the Committee. It would not be usual or normal for the Investigation Committee to sit in three divisions of one each but where non- controversial material was anticipated that might be entirely appropriate and efficient. If during the course of such a hearing conducted by one member of the Investigation Committee some issue arose which was likely to give rise to controversy or about which there was some conflict of evidence, at that stage the division could suspend its operation and simply transfer the further hearing of the issue to the Investigation Committee as a whole. This matter is further considered at paragraph 6.14.

The victim’s option to withdraw

3.13 Section 19 gives a person who is giving evidence of abuse to a Committee the right to withdraw from the Committee at any time and to give evidence to the other Committee. If that happens, the Committee from which the witness has withdrawn disregards for all purposes except for proceedings for a perjury offence or an obstruction offence. In certain circumstances this could be unfair on another party to the Inquiry. For example, if a complainant had made concessions in the course of cross-examination which were of advantage to a respondent it would be unfair to deprive the latter of the benefit of the evidence if it had to be ignored entirely, which is the sequel provided by the section in the event of the exercise of the option by a complainant. It might be better if this provision were qualified so as to give the Investigation Committee discretion whether to allow a witness entirely to withdraw from giving evidence. This matter is further considered at paragraph 6.17.

Chapter 4

1. The Challenge

2. The essential problem with the Commission is the work of the Investigation Committee. And the essential problem of the Investigation Committee is one of case management. How can the allegations made by 1,712 complainants, or whatever reduced number is left when complainants are lost, be handled within a reasonable time and at reasonable cost? Obviously there are practical as well as legal issues and each has to be considered. Having said that, if there is no method by which the allegations can be fitted into a procedural structure that can accommodate them, there is no solution. On the other hand, if a procedural framework can be devised which will enable the core purposes of the Act to be achieved, the question becomes one of how legally that procedural structure can be erected by adaptation of the existing scaffolding.

3. A solution is suggested in this review which it is believed meets the criteria in the Terms of Reference, is fair and reasonable to victims and respondents and which will incidentally result in reduction of expenditure. It must be acknowledged of course that any measures that are adopted in dealing with the situation will work much more efficiently with the co-operation of the various parties and it is hope that they will find the recommendations acceptable.

4. The first issue to be confronted is simply one of numbers. With 1,712 persons opting to give evidence to the Investigation Committee the question arises as to how long it will take to process their complaints. The Committee’s listening function alone involves a substantial time commitment. If half a hearing day were to be allowed for each person to give evidence of the abuse he or she wished to describe, that would take up more than four years.

5. When further time is allowed for hearings in which evidence of complaints is tested by cross-examination by respondents, and rebutted by evidence, the projected duration of Phase 1 of the inquiry must be multiplied. The Commission had found that the first two cases involving major industrial schools which had been heard at that time had taken four days and two and a half days respectively. Even if these hearings were unrepresentative and if the average duration ultimately proved to be shorter, it is clear that with the existing programme of work and procedural arrangements many years would pass before the Investigation Committee could complete its work and even longer before the full mandate of the Commission could be fulfilled.

1. The Committee’s procedures envisaged the following sequence of hearings:-

1. A preliminary hearing attended by the lawyers for the purpose of ascertaining areas of agreement and dispute, procedural questions and issues of admissibility of evidence. Witnesses would not testify at this hearing.

2. The hearing of evidence as to the particular incidents of abuse alleged by the complainant. Individual respondents would give evidence at this phase and any other relevant witnesses would also be heard.

3. If a question arose about whether the conduct alleged by the complainant constituted abuse in the context of the time in which it happened, that question would be considered at this phase with the assistance of appropriate evidence. This issue would not arise in every case but only in those where the context was relevant.

4. If the Committee was satisfied that abuse had in fact occurred, this

phase would consider the responsibility of supervisors and managers of the institution and also the role of departmental inspectors and others. If the Committee decided that abuse had not taken place, this phase would not arise.

(e) When the Investigation Committee had completed its work, the Commission would have to consider making recommendations as to the alleviation of abuse and its prevention in future and this would entail further hearings of a general nature at which evidence would be considered.

1. The preliminary meeting and the hearing as to the specific complaints would be individual to the particular complainant. A debate about the context of abuse would probably be conducted on a fairly general basis concerning a number of complainants. Similarly with the supervisory and inspection issues one would expect there to be joint hearings but it is not entirely clear that that would always be possible consistent with the decision by the Commission as to the requirement for privacy of hearings.

2. Even looking at the hearings as to particular instances of abuse, it is quite clear that the Committee could not hope to reach an end of its inquiry before many years had elapsed. It was suggested that it might take 11 years for the whole of the work of the Commission to be completed but, without substantial changes, it seems to me that even this estimate would be optimistic. A glance at the facts outlined above will reveal why.

3. The members of the Commission and the Investigation Committee, victims’ groups, the respondents and all the legal representatives would probably be in broad agreement as to the situation that obtains at present. And they and the

public would be in agreement that the situation is unsatisfactory and the prospect unacceptable.

4.9 The issue of the duration of the Commission’s work is of the greatest importance to all those who are concerned with its work and also to the public interest. It is in every interest that the work should be completed as soon as possible. The task therefore is to find a method by which this can be achieved consistent with the objectives of the Commission and the interests of all parties.

4.10 The situation in essence therefore is that:

(1)

The number of complaints (even if it is thought likely to reduce as discussed at 3-);

(2)

The individual hearings of cases;

(3)

The phases envisaged by the rules of procedure

combine to produce a result which is unacceptable in terms of time and cost.

1. It is not in anybody’s interest to have to wait for the Commission’s report for a long number of years. Victims of abuse are not young. The age profile was tabulated in the Commission’s first Interim Report of May 2001. 34 of the complainants were over 70. Individual respondents are older. Some are dead and others untraced. Some are incapable of defending themselves against allegations.

2. It is not in the public interest that there should be a long delay. Recommendations should be made as early as possible and implemented as appropriate. There is also a public interest in seeing the victims of child abuse vindicated where the

evidence justifies it and in seeing those who are accused of abuse cleared of allegations of which they are innocent.

1. Time is clearly a major issue but the question of cost also arises. While the search for justice and truth is not to be curtailed by budgetary considerations, it is legitimate in the public interest that value for money should be sought and exorbitant cost avoided. If it is possible to devise a means whereby the Commission’s work can be done within a reasonable time and with increased efficiency, without sacrificing the interests of the parties, there should be a saving of expenditure as an incidental benefit. The approach in this review is to endeavour to improve the working of the Investigation Committee but the goal has not been set of saving of money as an end in itself, still less has it been sought to balance expense against the interests of justice. Having said that, as with the interests of the parties, the public interest in avoiding exorbitant expense is served by a timely conclusion to the Commission’s work.

2. It is not easy to estimate the costs that would be incurred if the Committee’s processes went unchanged. A sum of €150 million to €200 million was mentioned in a press release by the Minister on the 20^th December, 2002 and in correspondence between the Department of Education & Science and the Commission but it is not clear whether that is realistic. One indication of the possible cost is the total sum claimed by legal representatives of parties to a hearing which took one day in respect of a single allegation of physical abuse in a national school involving one complainant and one respondent. The total sum claimed by legal representatives of the parties to the hearing, not including the costs of representing the State or those of the Investigation Committee’s own lawyers, was €50,000.

3. The sum stated above must be treated with caution. First, the costs are those claimed, not what will ultimately be agreed or allowed on taxation or costs. Some

reduction is to be expected. Secondly, too few cases have been heard and too few bills of costs received to enable general conclusions to be drawn. At the same time, if hearings are of longer duration the amounts sought and recovered can be expected to be greater.

1. What can safely be said, however, is that the legal costs involved in 1,712 individual cases usually involving at least three separately represented parties will be a very large sum. When additions are made for multiple hearings, the overall expenditure would be truly alarming. The possibility (one hopes remote) even exists that the costs paid out to legal representatives could amount to a significant proportion of what is awarded to victims by the Redress Board.

2. The Commission publicly acknowledged these problems in its second Interim Report in November 2001. It had earlier made suggestions in correspondence as to the steps it saw as being necessary. The Commission sought increased resources so that the Investigation Committee could work in three or four divisions simultaneously, and proposed the appointment of deciding officers “to assist the members of the Committee”. The proposal was that a panel of experts (deciding officers) would be assembled from whom would be recruited members to sit with personnel of the Investigation Committee in divisions. Deciding officers under the Act are to have expertise in law, medicine, psychiatry, psychology or social work and were to be appointed subject to conditions determined by the Minister for Education & Science with the concurrence of the Minister for Finance. The purpose of appointing deciding officers was to assist by filling the gap in expertise when the Investigation Committee divided into three or four divisions. The plan was for one member of the existing Investigation Committee to sit with one recruit from the panel of deciding officers. The scheme has not been put into effect.

3. It is worth emphasising that the difficulties that were being acknowledged and

addressed by the Commission:

(a)

Were not of its making and

(b)

Could not have been assessed until the cohort of complainants and respondents could be measured.

1. The Commission’s proposal of using outside experts to help the Investigation Committee with its work was accepted by the Government and legislative authority was provided by s.32 of the Residential Institutions Redress Act 2002, which inserted a new section in the Commission’s 2000 Act, s.23A.

2. The scheme was for three or four panels each comprising one member of the Investigation Committee and one deciding officer. A panel would be assigned to a module of the inquiry, i.e., to the investigation of a particular institution.

3. Having different panels, of the inquiry, each chaired by a senior lawyer sitting with another expert(s), hearing and deciding cases in institutions would inevitably give rise to problems of cohesion and consistency of approach. Victims and respondents would be conscious of variations in style and even in substance as between panels. Inconsistent rulings on similar points could be made. All this assuming the formidable practical problems could be overcome.

4. In response to this it might be pointed out that different judges hear cases which are similar in some degree whether in respect of issues or evidence or points of law and that there can be perceived inconsistencies of approach or result. On the other hand, litigants will almost always have a right of appeal, which is not available to a party to an inquiry. Furthermore, an inquiry is essentially a unitary

concept and each of its decisions should reflect to some extent the approach of its chairperson. It may be said that inquiry panels each chaired by a senior lawyer with another expert or other experts have a greater capacity for divergence than individually run tribunals.

1. A review of the work of the Commission conducted by the Attorney General reported to the Government in February 2003. The examination concentrated on the work of the Investigation Committee and had the benefit of full co-operation from the Commission. The review addressed the problems that are here identified here. But its conclusion was that the Commission should adopt a method of selecting cases that would be sufficiently wide, objective and representative to enable the Investigation Committee to fulfil one of its core mandates, namely, the inquiry function. The Attorney General’s study proposed further investigation, consultation and analysis for the purpose of defining the objective criteria that would be employed to identify the cases to be heard. The Commission for its part was willing to assist in the work of clarifying the tests.

2. When the concept of selection was mooted with victims’ representatives it did not find favour. While there was a readiness all round to acknowledge the problems facing the Investigation Committee, the idea of “sampling” the cases was seen as an unacceptable attenuation of the entitlements of victims of abuse to bring their experiences to the Commission via the Committee of choice. And it has to be accepted that the proposal would indeed have deprived a large number of complainants of the opportunity to participate directly in the inquiry process. Thus, the plan did not come to be adopted or refined as it might have been if its reception had been less hostile.

3. The position is therefore that the Commission’s proposal of multiple simultaneous divisions, despite having been authorised by statute, was not put into practice. Neither was the Attorney General’s method of selection adopted. Each plan was

directed to solving the same problems which remain to be confronted.

Chapter 5

1. Approaches to an effective procedure

2. Any suggestions that are made in this draft report must be regarded as tentative until it is known what proposals are forthcoming from the parties to the work of the Investigation Committee. Before deciding finally on the changes in procedure to be recommended it is intended to hold a procedural meeting on a relatively informal basis to get the parties’ views, as to how the work can be completed in a time and manner consistent with the criteria in the Terms of Reference of the review.

3. Devising a solution is made more difficult by the background to this review. There is unease among the parties and their legal representatives about the circumstances which gave rise to Miss Justice Laffoy’s resignation. Victims of abuse are concerned that their interests may be sacrificed or compromised in pursuit of completing the work of the Commission without huge costs. Respondents have anxieties that the Investigation Committee and ultimately the Commission might approach the work on the basis that there was indeed widespread and systematic abuse of children in every institution under consideration.

4. We know from the Christian Brothers litigation in the High Court Michael Murray and David Gibson v. The Commission to Inquire into Child Abuse, The Minister for Education & Science, Ireland & The Attorney General (unrep. - 17^th October 2003, Abbott J. which is discussed in some detail in Chapter 7) that they are particularly concerned, as are other respondents’ groups, about investigation of complaints of abuse that are made against people who are

dead or incapable of responding whether by reason of infirmity of mind or simply because there was a long delay between the alleged events and the present. The declarations which resulted from the High Court action are a reflection of these concerns.

1. Honouring the rights of persons against whom allegations are made has the consequence that proceedings take a longer time to complete. But it must be remembered that these rights are not simply there to afford protection to persons against whom serious allegations are made and who may be severely criticised if the allegations are proven. That is a primary purpose but it is not the only one. The quality of an investigation and the validity of any report following from it are dependent on the integrity and fairness of the investigation process. There is accordingly a public interest in seeing that the Investigation Committee carries out its work thoroughly and in accordance with fair procedures.

2. It is not likely that any of the interests represented before the Committee is going to dispute the general propositions stated above. Our legal authorities are clear on the entitlement of persons who are in danger of having serious criticisms made against them in a report of an inquiry. They are specified in a series of cases beginning with In re Haughey [1972] IR 217 and most recently set out in the High Court and Supreme Court Judgments in the Abbeylara Case, Maguire & Ors. v. Ardagh & Ors. [2002] 1 IR 385. The Investigation Committee decided that these entitlements would be respected not only in the case of individual respondents who are alive but also for the representatives of deceased persons or disabled respondents and also for the institutions in which the abuse is alleged to have occurred. No proposals can be put forward accordingly which conflict with the exercise of these rights.

3. No inquiry of this kind can predict that every decision is going to be correct.

There are inevitably going to be victims who feel that they have been let down by the process because their experiences have not been validated by decisions of the Investigations Committee. Any proper investigative process must keep in mind the dangers and difficulties of reviewing events that took place a long time ago. Mr. Justice Abbott in the Murray/ Gibson case has drawn attention to difficulties that undoubtedly exist in proving allegations of abuse that took place a long time ago. On the other hand, it can be argued that a reluctance to make clear findings in properly proven cases is unfair to those who worked in institutions without ever being guilty of abuse and who gave dedicated service over the years.

1. Having discussed these general considerations and bearing in mind also the problems identified in Chapter 4, a scheme of procedure is now considered that would seem to be a basis for carrying out the work of the Investigation Committee.

2. As with any large task, the first approach is to see how the work may be divided up into smaller units. The Committee has already decided on division into units by institution. That seems entirely sensible: the institution is an obvious subdivision. The biggest unit is Artane which was the largest industrial school in Britain or Ireland. One can regard Artane as a microcosm of the work of the Investigation Committee as a whole. If a solution can be found for dealing with Artane, one can expect that the method will work for the other institutions that have to be investigated. For this reason it is proposed to consider Artane in a little detail.

3. Three hundred and fourteen complainants were resident in Artane. Almost every complainant names more than one respondent. The managers of the school are the Christian Brothers and they are obviously concerned with every complainant. Similarly the Department of Education & Science is also a respondent in each

case. The relevant period is from 1939. This is still a very large unit and the Committee could not undertake a joint hearing dealing with all the complainants and all the respondents. The Investigation Committee must sub-divide the Artane phase of its work further.