COMMISSION TO INQUIRE INTO CHILD ABUSE PUBLIC HEARING HELD AT HERBERT PARK HOTEL BALLSBRIDGE, DUBLIN 4 ***THIS TRANSCRIPT HAS BEEN EDITED BY ORDER OF THE CHAIRPERSON OF THE INVESTIGATION COMMITTEE *** ON MONDAY, 19TH JUNE 2006 - DAY 227A EVIDENCE OF MR. JAMES MARTIN BEFORE: MR. JUSTICE SEÁN RYAN CHAIRPERSON OF THE INQUIRY and MS. MARIAN SHANLEY MR. FRED LOWE I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action. ______________________ MEMBERS OF THE COMMISSION PRESENT: REGISTRAR TO INVESTIGATION COMMITTEE: MR. B. REEDY COUNSEL FOR THE COMMISSION: MS. FERGUS SC MR. P. WARD BL Instructed by: MS. E. McHUGH MR. P. GAGEBY SC Instructed by: MR. D. McGRATH SC MR. M. DOWLING BL Instructed by: FOR THE DEPT. OF JUSTICE, EQUALITY AND LAW REFORM: MR. FERRITER SC Instructed by: CSSO COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to by other party without written permission of Gwen Malone Stenography Services. INDEX WITNESS EXAMINATION QUESTION NO. MR. MARTIN EXAMINED - MR. GAGEBY 1 - 90 EXAMINED - MR. O'hOISIN 91 - 155 EXAMINED - MR. McGRATH 156 - 215 EXAMINED - MS. KIRBY 216 - 217 QUESTIONED - THE COMMISSION 218 - 219 1 THE HEARING COMMENCED AS FOLLOWS ON MONDAY, 19TH JUNE 2 2006: 3 4 THE CHAIRPERSON: Good morning. 5 MS. FERGUS: Good morning, Chairman. 10:28 6 This morning we will 7 hearing evidence from Mr. James Martin, Assistant 8 Secretary to the Department of Justice, Equality and 9 Law Reform. I think after the witness has been sworn 10 in he would like to make an introductory statement, if 10:28 11 that's all right, after he has been sworn in. 12 THE CHAIRPERSON: Yes. 13 14 MR. JAMES MARTIN, HAVING BEEN SWORN, WAS EXAMINED, AS 15 FOLLOWS, BY MR. GAGEBY: 10:29 16 17 THE CHAIRPERSON: Please sit down, 18 Mr. Martin. Thank you very 19 much. Now, Ms. Fergus. Mr. Martin, you want to make 20 an introductory statement. 10:29 21 A. If I may. Thank you, Chairman. I would just like to 22 make a few brief introductory remarks before I respond 23 to any questions. 24 25 The Department of Justice, Equality and Law Reform is 10:29 26 most anxious to assist the Commission in any way it can 27 and I will endeavour to answer all the questions raised 28 with me in an open and forthright manner, having 29 familiarised myself with the material on the files held 4 1 within the Department. I wish to begin by referring 2 back to the Taoiseach's statement of 11th May 1999 and 3 to publically state that the Department fully endorses 4 this apology on behalf of the State and its citizens to 5 those abused in residential institutions. 10:30 6 7 I will, if I may, state briefly what responsibilities 8 the Department of Justice had regarding detention of 9 children. We had full responsibility for the detention 10 of offenders 16 and over and we had responsibility for 10:30 11 certifying and maintaining a register of places of 12 detention for children under 16 for purposes of remand 13 or sentence to such a place of detention for a period 14 not exceeding one month. 15 10:30 16 While the Children Act 108 in Section 108 appears to 17 entrust full responsibility to the Department of 18 Justice as the police authority to provide such places 19 of detention, it has always been accepted that this 20 task in practice fell to the Department of Education 10:30 21 who were designated under Section 109(3) of the act of 22 1908 as responsible for the inspection and making of 23 rules for these places of detention. 24 25 It would appear from Department of Justice files that 10:31 26 wherever possible reformatory and industrial schools 27 already approved, funded and subject to inspection by 28 the Department of Education were registered under 29 Section 108 of the 1908 Act as places of detention. 5 1 They remain so certified unless they indicated that 2 they were no longer willing to serve as a place of 3 detention. Similarly, when Marlborough House was 4 established as a place of detention in 1944 it was 5 certified as a place of detention under the 1908 Act by 10:31 6 the Department of Justice. 7 8 Up to very recent times the Department of Justice has 9 consistently held the view that responsibility for the 10 detention of offenders under 16 was not appropriate to 10:31 11 it. The reasons for this were that children should not 12 be treated in the same manner as adult criminals, that 13 if the task fell to the Department the perception would 14 be that we were running prisons for children, that the 15 Department had no particular expertise in dealing with 10:32 16 children and that there was no overall benefit in 17 efficiency to the State in transferring the function 18 from the Department of Education to the Department of 19 Justice. 20 10:32 21 There was a very significant change in the Department's 22 thinking in this matter following a review of the area 23 initiated by the Secretary General in 2004, with the 24 support of the Minister and the Minister of State. 25 Following this, in December 2005 the Government 10:32 26 endorsed the creation of a youth justice service in the 27 Department of Justice, Equality and Law Reform to 28 deliver a joined-up approach across Government bodies 29 in the area of youth justice, operating under the aegis 6 1 of the office of the Minister for Children. The net 2 effect of this important Government decision is that 3 the responsibility for detention of all young offenders 4 under the age 18 will pass from both the Department of 5 Education and Science and the Irish prison service to 10:32 6 one service, the new agency. 7 8 In preparing this statement the Department reviewed all 9 files which came within the terms of discovery orders 10 made to us. We have sought to give a fair and 10:33 11 objective overview of the relevant material on the 12 Department's files. It has proved difficult and in 13 many cases impossible for me or staff in the Department 14 to attempt to look behind the material in the files or 15 to try and put context or attach a particular relevance 10:33 16 to written comment where we are not privy to what 17 discussions may have taken place which may have 18 influenced decisions. 19 20 The Department wishes to assist the Commission in its 10:33 21 important work. In the evidence I will give to the 22 Commission I will make every effort to deal with the 23 questions raised by all of the parties represented 24 before the Commission today and will be pleased to 25 provide written clarification on any point of detail 10:33 26 where the information is not immediately available. 27 THE CHAIRPERSON: Thank you very much. 28 MS. FERGUS: I think Mr. Gageby now is 29 going to... 7 1 1 Q. MR. GAGEBY: Yes, Mr. Chairman. Good 2 morning, Mr. Martin. 3 Patrick Gageby is my name and I'm appearing today with 4 Ms. Ní Raifeartaigh as amicus curiae to the Commission. 5 10:34 6 You have obviously studied the extant files with a 7 degree of care, because I see from your statement of 8 some 50 or so pages that you have looked at the 9 historical matters really from about the 1940's onwards 10 in some detail? 10:34 11 A. Yes. 12 2 Q. Now, this is obviously to look back at very different 13 times in Ireland in terms of the relationship between 14 the Government and religious who ran education, 15 industrial schools, reformatories, etc.? 10:34 16 A. Yes. 17 3 Q. Could I come to one issue which obviously figures very 18 largely in your papers, because it is the consideration 19 of Marlborough House? 20 A. Yes. 10:35 21 4 Q. Now, as the Commission and members of the public are 22 aware, Marlborough House was effectively a short term 23 remand institution for boys and it had originally, I 24 think, in historical terms been situated, I think, in 25 the city and was then moved out to an old house in 10:35 26 Glasnevin? 27 A. Yes, it moved from Summerhill out to Glasnevin. 28 5 Q. And it was run and staffed and paid for by the 29 Department of Education. Boys who had got into trouble 8 1 could be remanded by a judge of the district court 2 there for, I think, a maximum of approximately one 3 month. Was it also the theory that in a period of one 4 month there would be some, let's say, examination of 5 the boys? 10:35 6 A. Just to clarify that, they could be remanded by the 7 courts, that remand I don't think was limited to one 8 month because they could be on conviction, sentenced to 9 one month, a maximum of one month's imprisonment so as 10 to be there, so I don't think the remand necessarily 10:36 11 refers to one month, they could be remanded for 12 whatever period the court thought necessarily. I 13 presume it would normally be shorter than that. 14 6 Q. Okay. Is it possible to discern whether that 15 institution was there with a view to assisting the 10:36 16 Court later on in deciding what should be done, in 17 other words, did it perform any assessment functions at 18 all? 19 A. I'm not aware of it. As I said, it was run by the 20 Department of Education, my understanding is that its 10:36 21 primary function was as a place of detention rather 22 than a place of assessment. It is clear from the file 23 that in a later period, in the 1940's and 1950's, that 24 the courts could have access to probation officers or 25 medical assessments of that, but that didn't relate 10:36 26 specifically to the Marlborough House or the remand. 27 7 Q. That's in fact something I just wanted to come on to 28 because this is looking at the area from reformatories 29 as opposed to industrial schools. But when a judge was 9 1 coming to decide on what should be done with a child 2 who had apparently offended, so therefore leaving aside 3 children who are destitute or found wanting. What sort 4 of materials could the State in one form or another 5 provide to a judge in that circumstance? Was there a 10:37 6 core of psychologist and people like that to assess 7 children? 8 A. Well it obviously depended on the period that you are 9 talking about. 10 8 Q. Let's say take the 1940's and 1950's? 10:37 11 A. There was no specific arrangement in Marlborough House 12 for any kind of assessment, that I am aware of. As I 13 said, I think it was purely a place of detention. From 14 looking at our files, the question of assessment did 15 come up on the question of medical assessment and 10:38 16 psychiatric assessment and it wasn't directly related 17 to Marlborough House as such, but there was provision 18 for doctors, there was a panel of doctors that the 19 courts could refer to and there was some material -- 20 whether those doctors should have psychiatric 10:38 21 qualifications, there seemed to be a period where there 22 were no doctors with psychiatric qualifications in the 23 late 1940's and certainly prior -- just looking at the 24 files, it looked like prior to that the head of 25 Grangegorman was one of the doctors so they would have 10:38 26 had -- prior to 1944, they would have had access to him 27 or her and certainly by the 1950's there was at least 28 one doctor with psychiatric qualifications. There could 29 have been a period there in the middle when there was 10 1 none. There was no professional probation officers in 2 the sense of professionally qualified probation 3 officers until the 1960's. 4 9 Q. Prior to that, how many probation officers were there 5 in the country? 10:39 6 A. There was six. Since the foundation of the State there 7 was six full time paid probation officers. 8 10 Q. They were all in Dublin, I think? 9 A. They were all based in Dublin. A lot of use was made 10 at the time for probation purposes of voluntary 10:39 11 societies like Vincent de Paul or the Legion of Mary. 12 The probation service as a professional service wasn't 13 really established until the 1960's as a result of an 14 interdepartmental committee chaired by...(INTERJECTION) 15 11 Q. What type of qualifications would a probation officer 10:39 16 in Dublin, one of the six, have had in the 1940's and 17 1950's? 18 A. There was no set qualification. I think I read 19 somewhere that they expected them to have experience or 20 interest in social work. But there wasn't a 10:39 21 requirement to have a degree in sociology or social 22 studies. 23 12 Q. In fact, they were all men as well; weren't they? 24 A. I don't know that for certain, but I presume they were, 25 I didn't see any evidence that they were woman. 10:40 26 13 Q. Just to expand on that, probation officers, in theory, 27 if the system was functioning, could firstly make some 28 class of a report to a judge on a juvenile offender 29 prior to sentence, that's No. 1; isn't that right? 11 1 A. The practice now is one of the main functions of the 2 probation officer is to do an assessment prior to 3 sentencing for judges. 4 14 Q. I think we are all reasonably au fait with what's 5 happening now. I am just trying to look at the type of 10:40 6 information that was available to judges in the 1940's 7 and 1950'ss in relation to juveniles. Is there any 8 indication as to what class of information a probation 9 officer could bring other than a bit of family 10 background? 10:40 11 A. No. I have seen no evidence in any of the files that 12 they came up with a kind of a structured assessment of 13 children or what should be done with them. 14 15 Q. Do I also understand it that children who weren't going 15 to be sent to an institution could be put on probation 10:40 16 which would suggest some class of supervision by the 17 probation officer? 18 A. They would be put on probation. It didn't necessarily 19 mean supervision by a probation officer, it could be 20 supervision by any individual, it could be by Vincent 10:41 21 de Paul, by the legion of Mary, there was a kind of 22 informal arrangement. But it could be a probation 23 officer, but it wasn't necessarily a probation officer. 24 16 Q. Am I right in saying that outside of Dublin there was, 25 I think, calls in, particularly from Limerick, for 10:41 26 assistance with provision of probation officers; is 27 that right? 28 A. I'm not aware of that, but I have no reason to dispute 29 that. 12 1 17 Q. Can I just note one thing, am I right and I may be 2 wrong, in thinking that there would be an ambivalence 3 perhaps in having people from either the Vincent de 4 Paul or the Legion of Mary functioning professionally 5 at that level? For instance, people might consider 10:41 6 there was some slur on the family or that there was 7 some moral judgment being made on them? 8 A. Possibly. The only thing I would say is that the 1908 9 Probation Act it refers to the duty of a probation 10 officer to befriend the offender. So it wasn't the 10:42 11 legislation for probation didn't envisage them as 12 necessarily professional people, it was more a kind of 13 guardian or a role model. 14 18 Q. So, I mean, certainly in 1950's there seems to have 15 been no disquiet at the idea that either that the 10:42 16 Legion of Mary or the Vincent de Paul, both of a 17 reasonably strong religious impulse, were going to be 18 involved in, I am going to say, non-residential minding 19 of people who have gotten into trouble? 20 A. Well, I don't know enough to answer that question. 10:42 21 Certainly the feedback I get from probation officers, 22 that prior to the establishment of a probation service, 23 it was people involved in voluntary work and obviously 24 some of the more significant bodies would have been of 25 a religious nature. 10:43 26 19 Q. That, of course then also has its mirror in the sense 27 that, I think, all of the main institutions, barring 28 Marlborough House, were themselves run by religious 29 orders? 13 1 A. Certainly dealing with children, yes. 2 20 Q. Marlborough House, I think as was apparent, was an 3 institution which had many faults and I think it is 4 quite apparent in the papers and I think even the 5 Department of Education has admitted that it wasn't, I 10:43 6 think the phrase was, a model of its kind. Do you 7 derive any information from the fact that it seems to 8 have been a relatively small institution with what we 9 would say would be a relatively good staff ratio and 10 still had difficulties in maintaining, let's say, a 10:43 11 reasonable regime? 12 A. Sorry, I am not sure I understand the question. 13 THE CHAIRPERSON: What's the point, 14 Mr. Gageby, because we 15 couldn't get it right in Marlborough House with a 10:44 16 reasonable ratio, why on earth are you complaining when 17 we didn't get it right with the worse ratio, that's 18 really what your asking? 19 MR. GAGEBY: No, it isn't. 20 THE CHAIRPERSON: Well, it is really close. 10:44 21 MR. GAGEBY: One of the things that 22 comes 23 through...(INTERJECTION). 24 THE CHAIRPERSON: What are you asking, 25 Mr. Gageby, if that is not 10:44 26 it? 27 MR. GAGEBY: Well, does anybody learn 28 from the fact that a small 29 institution will require, and a large institution will 14 1 require, larger amounts of staff. That's not a wee 2 question, that's a learning process, Mr. Chairman. 3 THE CHAIRPERSON: Say the question again, 4 Mr. Gageby. 5 MR. GAGEBY: Perhaps if I put 10:44 6 it...(INTERJECTION). 7 THE CHAIRPERSON: Put it because I'm not sure 8 I'm getting it. 9 21 Q. MR. GAGEBY: It is quite clear the 10 Department of Justice is 10:44 11 critical of the Department of Education's running of 12 Marlborough House? 13 A. The Department of Justice looked at the question of the 14 running of Marlborough House in the interdepartmental 15 committee in the 1960's and when it was coming towards 10:45 16 the end of its term in the 1970's the Department was 17 very critical of it. The criticism in the Barry 18 Committee (sic) in the 1960's was the way the staff 19 were recruited, they were recruited from the labour 20 exchange. 10:45 21 22 Q. And they were undesirables? 22 A. Well they weren't regarded as suitably qualified 23 certainly for -- yes. 24 23 Q. Well the correspondence is there, and it is -- I am not 25 trying to -- do you understand? 10:45 26 A. Yes. 27 24 Q. I am trying to elicit what does one learn from 28 something like Marlborough House? Let me put it out 29 what seems certainly from the correspondence to be so. 15 1 It was a relatively small institution catering for an 2 average of boys and it might have been 10 or 15 or 3 sometimes more, there was a reasonable amount of staff 4 for that amount. It was subject to the Department of 5 Education and a large amount of the boys would 10:46 6 regularly reappear in court. So, to that extent it was 7 slightly different from other institutions because 8 those who were remanded were appearing before courts? 9 A. Yes. 10 25 Q. We also know, because even before the Kennedy Committee 10:46 11 asked for complaints, boys had made complaints about 12 ill-treatment? 13 A. Yes. 14 26 Q. And some of these had been made to district justice, 15 District Justice McCarthy and I think others 10:46 16 afterwards, and there had been a history of complaints 17 the truth or otherwise of which just for the moment 18 isn't here. All right. That was against the backdrop 19 in which this was being actually run by the Department 20 of Education and the persons who were actually employed 10:46 21 in it and to run it had no actual experience in 22 childcare, barring, I believe, the matron, who I think 23 had a nursing qualification. Am I right? 24 A. I'm not familiar with the full detail of running 25 because it is run by the Department of Education. 10:47 26 Certainly I would say the Department of Justice didn't 27 think -- compared to the institution being run by the 28 Department of Justice, they didn't think it was very 29 professionally run, that's clear in their assessment of 16 1 it. 2 27 Q. Yes. There seems to have been a pattern of complaints 3 good, bad or indifferent for a minimum of 20 years 4 before Marlborough House is closed in about 1972? 5 A. Our knowledge of the complaints, the first knowledge 10:47 6 came up in 1951 when the Department of Education 7 suggested an interdepartmental conference on the future 8 of Marlborough House and we sought the views of a 9 district justice whether he would participate. He said 10 that he had heard complaints about it, he had 10:48 11 complaints himself. That's the first time the 12 Department of Justice ever heard complaints. They 13 weren't pursued because they came up in the context of 14 different things. 15 28 Q. I'm not trying to pursue a blame game of who and when. 10:48 16 I am trying to simply establish that it would seem 17 there had been a pattern of some people involved being 18 unhappy with this institution and it took quite a while 19 to close it? 20 A. Yes. Certainly by the time of the interdepartmental 10:48 21 committee in the 1960's it was quite clear that 22 everybody concerned felt it should be closed and it 23 took a long time to close but there was an expectation 24 it would be replaced by Finglas as early as 1963, I 25 think. 10:48 26 29 Q. I think there was a move to change the staff from those 27 who had been recruited from the local unemployment 28 register to people who had experience, either guards, 29 prison officers, I think was one other category, am I 17 1 right in that? 2 A. Yes. I think the interdepartmental committee suggested 3 retired guards, retired prison officers and retired 4 army people. 5 30 Q. Army NCOs, okay. That's with a view to dealing with 10:49 6 what was probably seen as rather troublesome young boys 7 in this institution? 8 A. Well I think it was that they were not happy with the 9 quality of the staff and they felt that the type of 10 personnel we just mentioned would be more professional 10:49 11 and were used to dealing with these kind of 12 circumstances. 13 31 Q. These kind of circumstances would be the control and 14 discipline of other people? 15 A. Yes. 10:49 16 32 Q. I'm not trying to fix you with that, I'm just trying to 17 explore the idea because it didn't -- I mean, obviously 18 a prison officer who might have worked in, let's say, 19 St. Patrick's institution or if there is any other 20 institution might have experience with younger children 10:49 21 but it doesn't strike me that the army would and while 22 obviously the guards would have in their normal duties? 23 A. No, it is quite clear, if I take your inference you are 24 quite clear that they were suggesting that they would 25 get a better quality of staff for the running of the 10:50 26 institution but they certainly didn't seem to be 27 recommending that they would be particularly qualified 28 in dealing with children or in childcare. 29 33 Q. Yes. This seems to be against a background of what 18 1 appears to be a rather poor quality, old building. Yet 2 one of the interesting things that has shown up is that 3 it appears to have been very little provision for the 4 boys to do anything in the institution? 5 A. Well that's correct. 10:50 6 34 Q. To occupy themselves? 7 A. Yes, that's correct. Because it was intended as a 8 remand home, a remand centre, so the expectation was 9 that boys would only be there for a very short period 10 of time, the maximum period they could be for a place 10:50 11 of detention was one month, so it wasn't a long term 12 institution it was more a holding centre while they 13 were processed by courts and the expectation they then 14 would be referred to industrial schools or reformatory 15 schools. 10:51 16 35 Q. Subsequently there was a minor disturbance in the early 17 1970's before its closure and some guards had to be 18 called in. One of the interesting things reading the 19 reports of that is that it indicates that the only 20 amusement afforded to the boys there was the ability to 10:51 21 watch the television in the evenings and there was poor 22 exercise facilities? 23 A. Yes, it is quite clear that there wasn't a range of 24 facilities for young boys there. 25 36 Q. It would seem that that effectively had endured from 10:51 26 the time it was opened in the 1940's until the time it 27 closed in the 1970s? 28 A. Yes, I presume so. 29 37 Q. Now just moving on a little bit, one of the functions 19 1 which then fell to be decided by the Department in the 2 early 1970's was how an assessment centre would be set 3 up by which children who were coming into contact with 4 the law would actually be assessed in a way that hadn't 5 happened before; isn't that right? 10:52 6 A. Yes. 7 38 Q. I am talking about the establishment of the Finglas 8 centre? 9 A. Yes, that was addressed, it came up in the context of 10 the interdepartmental committee in the 1960's that 10:52 11 there was an expectation that Finglas would have a 12 specialised assessment centre and that it would be 13 child orientated, so to speak, yes. 14 39 Q. So in the early 1960's there was certainly some 15 thinking that prior to children being sentenced, in 10:52 16 whatever shape or form, there ought, in fact, to be 17 some professional assessment of them and seeing what 18 problems they might have had and that sort of stuff? 19 A. Yes. I am not sure exactly what happened there but it 20 looks from reading the files on the interdepartmental 10:52 21 committee it was the Department of Education was coming 22 with this approach, the Department of Justice was happy 23 with that approach, the Department of Justice didn't 24 really have any expertise in child psychology so they 25 weren't really in a position for things. They were 10:53 26 happy that there would be a professional assessment but 27 I am not sure did they push it or, I think, it was the 28 idea of the Department of Education. 29 40 Q. In fact, that was a centre that was going to be built 20 1 in Finglas west, I think is the description? 2 A. Yes. 3 41 Q. And that was ultimately built in Finglas; wasn't it? 4 A. It was, yes. 5 42 Q. And it came to be known as St. Lawrence's; is it? 10:53 6 A. According to the files, yes. 7 43 Q. It would seem that when St. Lawrence's was built and 8 established in, I think, 1973, but I am quite capable 9 of being wrong by a year or two, it was, in fact, given 10 to the Franciscans, was it, to be run? 10:53 11 A. I understood it was Del La Salle. 12 44 Q. Yes, Del La Salle. 13 A. The Department of Education were involved. The 14 Department of Justice was, so to speak, interested but 15 not directly involved. 10:54 16 45 Q. I am just interested in one aspect, is that obviously 17 expertise in the Del La Salle order had to provide this 18 service, I am just interested in the thing because so 19 much of what we have been looking at is from the 19th 20 Century and well into the 20th Century when the 10:54 21 religious orders run most of these? 22 A. Unfortunately I'm not able to answer that question 23 because it was an Education project as the Department 24 of Justice was looking on but we didn't have any direct 25 interaction with the Del La Salle order, it was all the 10:54 26 Department of Education. 27 46 Q. I am just simply noting that it is quite late, if you 28 want to look at it as a history of moving from the 29 religious to the religious not being involved in these 21 1 matters? Can I ask you, do you sense -- as a general 2 aspect, do you sense that there was a great feeling 3 from the 1950's onwards that the system of juvenile 4 justice, be it for offenders or otherwise, was 5 something that really ought to be reformed? Do you get 10:54 6 that feeling from the Department, in records? 7 A. It was quite clear in the late 1950's the question of 8 juvenile delinquency was an issue that was coming up in 9 various foray. And the Minister for Justice at the 10 time, Mr. Haughey, established this interdepartmental 10:55 11 committee on the prevention of crime and treatment of 12 offenders. One of the issues that it was to look at 13 specifically was juvenile delinquency. So within the 14 Department that was, so to speak, the engine that was 15 picked to drive forward developments in that area so. 10:55 16 47 Q. So, to what extent does the Department of Justice in 17 the 1940's and 1950's really know much about what's 18 happening to children who have been committed either to 19 industrial schools because of family difficulties or 20 children who have been sent to reformatories by reason 10:55 21 of a brush with the law? To what extent does the 22 Department know much about the children? 23 A. Very little. From a departmental point of view we took 24 no interest in children unless they were breaking the 25 law, that's where they come into our ambit as the 10:56 26 Department. The view, obviously the Department was 27 responsible for the running of the Gardaí and the court 28 system so it was aware of obviously crimes being 29 committed by young people and the interaction with 22 1 guards. The line they would draw it was our job to 2 deal with the probation service, the court service and 3 the guards. When it came to the disposal of young 4 offenders under the age of 16 that was the specialty of 5 the Department of Education. But the interdepartmental 10:56 6 committee in 1960's it recommended the establishment of 7 the probation service and the professional service and 8 it established the juvenile liaison officers scheme in 9 the Garda Síochána to deal with juvenile to try and 10 divert them away from the court system before they got 10:56 11 to the stage that they were going to be convicted. 12 48 Q. Can I ask you, the correspondence which we have seen in 13 the files certainly seems to indicate a belief in the 14 Department of Justice that the Department of Education 15 was a bit inert on reforming the system. Am I right in 10:57 16 putting it that bluntly? 17 A. Well I wouldn't like to put it so bluntly, but there is 18 obviously criticisms of the Department of the way the 19 Department of Education is responding to its ideas. 20 The interdepartmental committee made certain 10:57 21 recommendations about industrial schools and 22 reformatory schools and it was quite clear from the 23 files that they felt that the response from the 24 Department of Education wasn't as proactive as they 25 would like. 10:57 26 49 Q. Why do you think that was, Mr. Martin, let's open it 27 out? Why do you think the Department of Education 28 seemed to have to be prodded by Justice who didn't 29 really seem to know, in a sense, an enormous amount 23 1 about the children themselves? 2 A. I don't know, is the answer. All I can say is that in 3 one sense it is easy for the Department of Justice to 4 criticise another Department but they drew a very clear 5 line that they had views that the Department of 10:58 6 Education should be more active but they were not going 7 to take over that role themselves. 8 50 Q. Would it be fair to say that there is a couple of 9 themes which are obvious, obviously the costings of 10 reform is something that everybody keeps in mind; is 10:58 11 that right? 12 A. Yes, well, obviously for any proposal the cost 13 involved. 14 51 Q. For instance, the grant for industrial schools doubled, 15 I think, in 1969, which was I think the most -- the 10:58 16 largest increase that had ever happened; isn't that 17 correct? 18 A. Well it was a matter for Education, I don't know, but I 19 presume that's correct. 20 52 Q. Okay. So I mean obviously this is a system in which 10:58 21 there is a large amount of legal bodies concerned. The 22 Department of Justice, as you say, is by and large only 23 concerned with children if they appear to infringe the 24 law and have been prosecuted? 25 A. (WITNESS NODS). 10:59 26 53 Q. And have some responsibility for probation officers? 27 A. Yes. 28 54 Q. Although, it is historically not actually clear what 29 the exact service they provided was. Do we know are 24 1 there any actual records of documents the probation 2 officers brought into being in the 1940's, 1950's and 3 early 1960's? This isn't a complaint about discovery, 4 I am just simply exploring. 5 A. I am not sure about the situation for -- I got the 10:59 6 impression that the -- prior to the establishment of 7 the professional service it would be left very much to 8 the individuals, there might be some records but I am 9 just not in a position to answer that in any detail. 10 55 Q. Okay. Could I go back to the interdepartmental 10:59 11 committee concerned with the question of aftercare. 12 Aftercare is something that spans both the industrial 13 schools and reformatories and what we are talking about 14 here is the probation level of some service to 15 children, young people who have being discharged from 11:00 16 either industrial schools or reformatories or something 17 like that. That's something that, I think, the Cussen 18 Committee had been thinking about as well in the 19 1930's. When does it seem that the interdepartmental 20 committee began to look at this, is this the early 11:00 21 1960's? 22 A. The interdepartmental committee was established in 1962 23 and it did mention aftercare as one of the issues. 24 56 Q. That was obviously partially in the context of juvenile 25 delinquency, which children are likely to get into? 11:00 26 A. Yes. 27 57 Q. The theory there, I am sure the good practice was, that 28 with some support, presumably from the probation 29 officers or the social workers or something like that 25 1 children who had been in trouble could be steered a bit 2 away from that, maybe help with jobs, accommodation or 3 something like that? 4 A. I think the idea was that children who came out of the 5 industrial schools or reformatory schools that rather 11:01 6 than just being put out on the street that there should 7 be a support structure there. I don't think -- like, 8 the probation officers are limited to people who were 9 on probation, they couldn't deal with somebody whose 10 finished, so to speak, their term in an industrial 11:01 11 school, they wouldn't have any power to get involved 12 there. I think the Department was trying to encourage 13 Education and the institutions that that would make 14 arrangements for when their charges were finished in 15 their term that there was some mechanism to get them 11:01 16 into jobs and into a settled structured lifestyle. 17 58 Q. Yes, because one of the complaints, for instance, in 18 relation to some of the larger main institutions that 19 an enormous amount of the boys on leaving either 20 emigrated or those who stayed perhaps joined the army, 11:01 21 now that may not be a complaint, but there really 22 didn't seem to be any aftercare for quite a number of 23 children. In a sense, what was actually done about 24 that, I know there is talk about it in the early 25 1960's, but what was actually done? 11:02 26 A. All I can say is that the Department of Justice made 27 that recommendation on to Education and then they said 28 it was a matter for Education to pursue it. 29 59 Q. Yes. In a sense in that's Justice looking at 26 1 Education, certainly ideas there could be a structure 2 there, isn't that right, probation officer, social 3 workers, whatever form that the State could actually 4 provide some class of a service? 5 A. At the time. Obviously one of the options, instead of 11:02 6 pursuing that they could have tried to establish some 7 kind of a structure to deal with that. 8 60 Q. That's because there wasn't a structure? 9 A. Well, I am not very familiar with that. 10 THE CHAIRPERSON: Was it not in the rules 11:02 11 that the industrial school 12 was required to follow up, was that not in a rules? 13 MR. GAGEBY: I'm talking about a 14 structure. 15 THE CHAIRPERSON: But is that not in the 11:03 16 rules? 17 MR. GAGEBY: Yes, but I am talking about 18 on actual structure, people 19 and persons and... 20 A. I think there was some reference, for 11:03 21 example...(INTERJECTION) 22 THE CHAIRPERSON: So it was the job of the 23 industrial school, it had a 24 statutory obligation and a contractual obligation to 25 follow up. 11:03 26 MR. GAGEBY: Yes, but I am actually 27 talking about the 28 actual...(INTERJECTION)? 29 THE CHAIRPERSON: ... whether the 27 1 interdepartmental committee 2 said it would do so, they had it. 3 61 Q. MR. GAGEBY: And what about 4 reformatories? 5 A. That was also fall under -- I presume because 11:03 6 reformatories are education, I think they were covered 7 by the same rules, I am not sure not sure now, it is a 8 matter for Education. 9 62 Q. And St. Patrick's Institution? 10 A. St. Patrick's Institution is different, yes, that's run 11:03 11 on a different principle. And there was always. 12 THE CHAIRPERSON: Am I not right about that, 13 Mr. Gageby, the rules 14 actually require the institution to follow that up? 15 MR. GAGEBY: You may well be right, 11:03 16 Mr. Chairperson. 17 THE CHAIRPERSON: Which is not to say that 18 nobody else should interest 19 themselves in the matter, whether the interdepartmental 20 committee, Justice, Education or anybody else, but if 11:04 21 the primary responsibility rested on the institution it 22 is worth observing that, I think. 23 63 Q. MR. GAGEBY: Can I just come back to a 24 couple of other things. 25 You are aware of an interesting document because it was 11:04 26 pulled from your files of a series of lectures by 27 Mr. O'Connor? 28 A. Yes. 29 64 Q. Now that is essentially on juvenile delinquency? 28 1 A. Yes. 2 65 Q. So it didn't touch very much on the issue of industrial 3 schools. One of the things that Mr. O'Connor -- and I 4 think this is about 1957/58; am I right? 5 A. I think the papers said it was read through Turim in 11:04 6 1959, so it could have been that. 7 66 Q. And he had cold figures from the previous two years or 8 so in Ireland; isn't that correct? One of the things 9 that he was interested in was that where children were 10 committed to industrial schools he believed for until 11:05 11 they were 16 and he was critical of that, critical of 12 that system; isn't that right? 13 A. I think he was critical generally of the system in 14 existence, yes. 15 67 Q. Mr. Chairman, I have here, which I was going to put on 11:05 16 the monitor, now it is not really for this witness to 17 answer but it is just as a question of information. 18 THE CHAIRPERSON: Yes, sure. 19 68 Q. MR. GAGEBY: This is an abstract of -- I 20 have about 300 committals 11:05 21 to St. Vincent's Industrial School, Goldenbridge and I 22 am going to put up the first three pages just of what I 23 have and the rest of it is going to be submitted to you 24 in any event. 25 THE CHAIRPERSON: This is statistical 11:06 26 material, is it? 27 MR. GAGEBY: It is, yes. What it is 28 going to show is that from 29 1954 there was a pattern of short term committals and I 29 1 think when we put our materials to you, Mr. Chairman, 2 it would seem that between 1955 and 1965 350 girls 3 admitted by court order and 220 were for less than the 4 expiry of their 16th, so I am going say 220 for the 5 less than the maximum, as it were. Just by way of 11:06 6 reference, I am going put it up on the monitor, if I 7 may. 8 THE CHAIRPERSON: Yes. Maybe Mr. Ward can 9 help you fit it in. I can 10 see the right-hand side no problem, Mr. Gageby, but I 11:07 11 can't see the left-hand side. Slide it over, keep 12 going that way and we will... 13 MR. GAGEBY: Mr. Chairman, what I am 14 going to point out is that 15 they are all from St. Vincent's, the admission records 11:07 16 and I have the names for ...(INTERJECTION) 17 THE CHAIRPERSON: Surely we shouldn't be 18 using the names, 19 Mr. Gageby. 20 MR. GAGEBY: Very good. I will put the 11:07 21 names out so. 22 MS. FERGUS: No, the names of the 23 pupils. 24 MR. GAGEBY: I am just going to 25 indicate, Mr. Chairman, I 11:07 26 am just asking you to look at a couple of things here. 27 THE CHAIRPERSON: Let's take it down from the 28 screen, first of all, 29 Mr. Gageby, because I can understand -- now, tell us 30 1 what you are telling us, Mr. Gageby. You are saying 2 that one of the complaints was that children were 3 ordered to be detained, not just in Goldenbridge but in 4 many other industrial schools until they were 16. 5 MR. GAGEBY: Yes. 11:08 6 THE CHAIRPERSON: No matter what reason there 7 was for -- I know this 8 doesn't directly concern you, Mr. Martin, but it is an 9 Inquiry so let's not worry about that. No matter what 10 the original reason was, let's just use a neutral term, 11:08 11 for bringing the child before the court, a boy or a 12 girl, he or she went off to an industrial school until 13 16, that's a big complaint made. 14 MR. GAGEBY: Absolutely, yes, 15 Mr. Chairman, yes. 11:08 16 THE CHAIRPERSON: You are acknowledging that. 17 You are acknowledging that. 18 But you are saying there is nonetheless a significant 19 number of admissions which are for a lesser period, 20 which are short term. Is that what you are saying? 11:08 21 MR. GAGEBY: Yes, and perhaps this isn't 22 the place to be doing that, 23 but it seems to come up in Mr. O'Connor's report. Thee 24 reason I said this and I am sorry to cut across 25 Mr. Martin and argue...(INTERJECTION). 11:09 26 THE CHAIRPERSON: That's all right. 27 MR. GAGEBY: But this is an appropriate 28 time. Mr. O'Connor was of 29 the view that committals had to be until the age of 16, 31 1 now he may be right -- and because this material came 2 in very late I just can't help the Commission at the 3 moment. He may be right in terms of offending and it 4 may have been a different legal practice in relation to 5 children who came in as being found destitute, and I 11:09 6 use that for all the reasons advanced. But one of the 7 things that came up is that my solicitor, Mr. McDonald, 8 had a memory of being told that the Resident Manager in 9 Goldenbridge in 1954 had approached District Justice 10 McCarthy and asked if they could in be shorter 11:09 11 committals. That therefore is how on very late on 12 Friday night I got this abstract which covers 1955 to 13 1965 and which shows short term committals, because the 14 interesting thing is not the question that people were 15 committed until their 16th birthday, of which many 11:10 16 obviously were, but possibly released on application of 17 parents or guardians before that. But there seems to 18 be quite a number of committals beginning, in fact, in 19 1954 -- sorry, I think there might be one in 1954 but 20 mainly 1955, of approximately a year. 11:10 21 22 Now, that doesn't actually trench with what Mr. Martin 23 is saying and Mr. O'Connor may still be right, but I 24 just thought that...(INTERJECTION). 25 THE CHAIRPERSON: But you mention it at this 11:10 26 point because you say it is 27 something that came up -- 28 MR. GAGEBY: I don't know about other 29 institutions. 32 1 THE CHAIRPERSON: -- to your information and 2 it is relevant because 3 Mr. O'Connor in his Turim paper is making the 4 assumption that everybody went until they were 16. He 5 actually may have believed that they had to be sent 11:11 6 until 16. 7 MR. GAGEBY: He may only have been 8 speaking ...(INTERJECTION). 9 THE CHAIRPERSON: Don't worry, Ms. Buckley, I 10 am on to this. We are all 11:11 11 understanding exactly what the issue here is, don't 12 have fear that you need to intervene, you don't need to 13 intervene. 14 MS. BUCKLEY: Great, because I don't 15 agree with Mr. Gageby. 11:11 16 THE CHAIRPERSON: All I am telling you is 17 don't worry, we know exact 18 think point. Ms. Shanley, Mr. Lowe and myself, without 19 having to debate, know exactly what the point is. But 20 nonetheless we are interested in the point that 11:11 21 Mr. Gageby is making to us and if he has information in 22 writing we will be happy look at that, that's as far as 23 it goes. 24 MR. GAGEBY: I will put it in 25 statistically. I just 11:11 26 thought it was convenient, while the material was 27 there, to do it. 28 THE CHAIRPERSON: I understand. 29 69 Q. MR. GAGEBY: Could I come back then -- 33 1 sorry, I have ignored you, 2 Mr. Martin, for a while. Could I just come back to one 3 thing which is a matter really of general application, 4 childcare at the moment is a million miles from what it 5 was 40 or 30 or 50 years ago and there is a large 11:12 6 amount of people now employed in minding the small 7 amount of children who are in institutions of one form 8 or another, whatever they are called, I think that's a 9 given; isn't it? 10 A. (WITNESS NODS). 11:12 11 70 Q. Also the situation is that the care of children is more 12 centralised in terms of what agency deals with them; am 13 I right in that? 14 A. I can't really speak for areas outside the Justice 15 area, but it certainly only very recently that the 11:12 16 policy decision has been decided to centralise the care 17 of people who are coming into -- young offenders coming 18 into criminal but while we are in the process of doing 19 it it hadn't actually been effective yet. So it is 20 only now, only in the 21st Century, that the care of 11:13 21 young people who are coming into criminal is being 22 centralised. 23 71 Q. I think one of the things that anybody might take is 24 that nobody would actually have built a system for 25 detaining young people in the way that it actually 11:13 26 evolved, in a sense that you wouldn't sit down and say 27 this is the way to do it. For a start, the Department 28 of Justice didn't -- you weren't responsible for 29 children who were committed either because of parental 34 1 difficulties or, in fact, they offended; is that right? 2 A. Yes. 3 72 Q. The Department of Justice had some licensing 4 responsibilities and of course ran the prisons; isn't 5 that right? 11:14 6 A. Yes. 7 73 Q. That would include the follow on from the Borstal, 8 St. Patrick's? 9 A. Yes. 10 74 Q. The Department of Education only ran one institution, 11:14 11 which was Marlborough House? 12 A. Directly, yes. 13 75 Q. Of course you are right. One residential institution. 14 Local authorities had some instructions in relation to 15 industrial schools; isn't that right. Or am I asking 11:14 16 the wrong person? 17 A. You are asking the wrong person. But I know the 18 way...(INTERJECTION) 19 76 Q. Yes. What we have seen is from the 1940's, 1950's and 20 1960's that, certainly from your departmental view 11:14 21 point the papers that are coming up in the discovery 22 are really about juvenile delinquency; isn't that 23 right? 24 A. Yes. 25 77 Q. But of course the vast majority of the children in the 11:14 26 care system weren't delinquent in the slightest sense, 27 they were just simply unfortunate? 28 A. Certainly in the early days there was very few actual 29 people who had actually come through the criminal side. 35 1 78 Q. In a sense, one gets the feeling that some portions of 2 the State were really cruising, there really wasn't a 3 great impetus for change by the State through the 4 1940's and 1950's? 5 A. I am not sure I can answer the question. 11:15 6 79 Q. I know you are not personally responsible for it, I am 7 just asking you what you think? 8 A. Certainly our records don't show any -- the first 9 consideration of juvenile delinquency in a considered 10 way that we see on the files is 1962 when the 11:15 11 interdepartmental committee set up. Up to then we 12 don't see any -- much thought given to the issue. 13 80 Q. One of the things that strikes me is that on the 14 discovery there there is a letter from the Minister, 15 Mr. Haughey, to a local residents group, who had some 11:15 16 worries about the building, I think in the early 1960's 17 of what was going to be, at the end of the day, 18 St. Lawrence's; is that right? 19 A. That's correct, yes. 20 81 Q. It would seem there is about nine years between the 11:16 21 apprehension of the local people and the actual 22 building of the local place; is that right? 23 A. There was quite a long period. Now I can just say from 24 our own experience of building prisons it is quite a 25 long period because there is normally lots of 11:16 26 resistance from local people to even the suggestion 27 that you might purchase land in their area for these 28 kinds of institutions. 29 82 Q. Do you think therefore that the changes which have come 36 1 about, I mean the Childcare Act is 1991, that's the 2 first effective alteration of the legislation since 3 1941 and then 1908? 4 A. Certainly from looking at things it was the Kennedy 5 Committee that really instigated the change. 11:16 6 83 Q. Well they certainly made the recommendations? 7 A. Yes. There was work, I know, the Department of Health 8 originally ran with the ball so to speak, reviewing the 9 whole area of childcare, including the juvenile justice 10 area, but I think their first efforts weren't 11:17 11 successful. So it was the 1991 Act was the childcare 12 side and the Department of Justice -- it was only at 13 that stage that the Department of Justice started 14 looking at the juvenile justice side of things. 15 84 Q. Was the issue of law reform and the alteration of 11:17 16 Statutes was that any part of the brief for the 17 Department of Justice? 18 A. Yes, in a broader sense, but specific areas. My 19 recollection is that the Kennedy Report specifically 20 suggested that the administration of childcare 11:17 21 generally, including the administration of detention 22 centres for young people, should be centralised and it 23 should be centralised in the Department of Health. And 24 the Department of Health took that issue up and I 25 believe they produced draft legislation in 1985. 11:17 26 85 Q. Which would be about 15 years after the Kennedy Report? 27 A. Yes. But it was, I belive, unsuccessful, it didn't 28 meet with general claim for the voluntary or 29 professional sectors dealing with childcare and our 37 1 Department had difficulties with what they were 2 proposing on the juvenile side. 3 86 Q. In retrospect, and there is nothing obviously personal 4 about it, do you believe that there would have been 5 speedier change if your Departments had been involved, 11:18 6 because one certainly senses that there is an element, 7 I don't say quite a turf war, but it does appear there 8 is sensibilities between the Department of Education 9 and the Department of Justice which have to be 10 respected? 11:18 11 A. There was, I think, certainly from my experience in the 12 Department, there has always be this unhappy allocation 13 of responsibility between the Department of Justice, 14 the Department of Education and the Department of 15 Health as to who was responsible for what area and it 11:18 16 has only been finally resolved hopefully forever at 17 this late stage. 18 87 Q. If I could just come to some particulars. A couple of 19 things that came to the Department's attention were 20 reasonably specific to places, there is Marlborough 11:19 21 House, there is Daingean, which is mentioned in 22 pejorative terms and also Artane; isn't that right? 23 A. (WITNESS NODS). 24 88 Q. In a sense if the Department was hearing about, I am 25 going say, pejorative or criticisms about a particular 11:19 26 institution, if it was hearing them, what was it 27 hearing with a view to doing? For instance, Fr. Harry 28 Moore had a lot of complaints which exercise the 29 Department in the early 1960's, so what did the 38 1 Department, in your view, actually see its view was to 2 deal -- I mean, why was it listening to those and what 3 was it going to do if it thought they were right; if 4 you understand me? 5 A. I presume, and this is just a presumption, it is clear 11:19 6 that when they established the interdepartmental 7 committee some publicity was given to it because there 8 is talk about interviewing people before they make 9 submissions to the committee. I presume it was in that 10 context Fr. Moore approached. And they were looking at 11:20 11 the question of the juvenile delinquency generally. It 12 is not quite clear why they strayed into the area of 13 Artane, because that particular school didn't deal with 14 juvenile delinquent at all, it was the non-criminal 15 side. The Department obviously would be very conscious 11:20 16 that people who aren't going turn out to be structured 17 members of a structured society they tend to end up in 18 jail. So it has always been the view of the Department 19 of Justice if you are going try and stop people turning 20 into criminals you want to get them at the youngest 11:20 21 possible age, so we would always have a general 22 interest in what's happening there. 23 24 But I think it is quite clear, even though the 25 Department took quite an active role in dealing with 11:21 26 education on the question of Artane, there was a line 27 they drew in the end of the day they made 28 recommendations, it is a matter for Education to follow 29 it up, it is not our job. I think that's quite clear 39 1 from the files, that even though the Department 2 expressed a view to Education about how things might be 3 improved they drew a line and said this is as far as we 4 go, it is over to you then to decide what you do with 5 those recommendations. 11:21 6 89 Q. I just want to tease out one thing. There is three 7 institutions in the papers are ones about which 8 complaints are made and -- in fairness, battles about 9 that. Do you think the complaints -- leaving 10 Marlborough House, do you think complaints about 11:22 11 Daingean and Artane caused anything to happen? 12 A. Well, if we are talking about Daingean in particular, 13 the involvement of Mr. Crowe, I think, did result in a 14 change in the regime of corporal punishment in that 15 institution. 11:22 16 90 Q. Yes. Because one of the interesting things is that one 17 of the things that is in your discovery is a series of 18 four articles from the Irish Times in 1950 which seems 19 to be quite a moderate and reasoned and modern view of 20 how a juvenile justice system ought to be. One of the 11:22 21 things that is noted there it appeared that the author 22 was of the belief that corporal punishment had been 23 abolished a number of years before in Daingean, which 24 may or may not have been right. Is there any 25 indication of -- I mean, looking at those series of 11:22 26 articles, other than being clipped out, how they moved 27 things on? 28 A. No. All I can say is that they were clipped out and 29 put on the files so someone read them, but whether it 40 1 may or may not have influenced their attitudes 2 subsequently. 3 MR. GAGEBY: Mr. Chairman, if there is 4 anything else that I can be 5 of assistance on. I mean, I don't feel any obligation 11:23 6 to be partial to my... 7 THE CHAIRPERSON: No, thank you very much. 8 MR. GAGEBY: I think that's all. 9 10 END OF EXAMINATION OF MR. MARTIN BY MR. GAGEBY 11:23 11 12 THE CHAIRPERSON: Now, MR. O'hOisin, you 13 represent the Oblate 14 fathers or specifically for Daingean. MR. O'hOisin, 15 will you be some time, it is simply a practical thing, 11:23 16 if you are going to be some time, we will make 17 arrangements so that you are more comfortably located. 18 If you have only a brief few questions then it is 19 probably not worth doing so. 20 MR. O'hOISIN: I am happy enough with 11:23 21 where I am. I think I will 22 be -- provided that you are, Chairman, I think I will 23 probably be about 15 or 20 minutes. 24 THE CHAIRPERSON: But if you are comfortable 25 there, MR. O'hOisin, in 11:24 26 normal circumstances with that I would have said we 27 will rise and we will give you a few minutes or 28 whatever. 29 MR. O'hOISIN: I am happy enough to stay. 41 1 THE CHAIRPERSON: Very good. Let's get on 2 with it. Thank you very 3 much, MR. O'hOisin, if you change your mind tell us. 4 5 11:24 6 MR. JAMES MARTIN WAS THEN EXAMINED, AS FOLLOWS, BY 7 MR. O'hOISIN: 8 9 91 Q. MR. O'hOISIN: Mr. Martin, my name is Colm 10 O'hOisin and I am appearing 11:24 11 on behalf of the Oblate Order, who operated the 12 reformatory in Daingean and I have just a few questions 13 to ask you about that. 14 15 Daingean, as you know, operated from 1940 through to 11:24 16 its closure in 1973 as a reformatory and it was the 17 only reformatory in the State for boys. You are aware 18 of all of that? 19 A. Yes. 20 92 Q. Insofar as the Department of Justice is concerned I 11:25 21 appreciate from your statement that it is accepted by 22 you that the Department of Justice had responsibility 23 in relation to Criminal Justice Act system during all 24 of this period? 25 A. We had overall responsibility for the criminal justice 11:25 26 system but not every aspect of it. 27 93 Q. Yes. And the juvenile justice system was obviously 28 part of that criminal justice system; isn't that 29 correct? 42 1 A. Yes, we had responsibility for aspects of the juvenile 2 justice system as well. 3 94 Q. You obviously had responsibility in relation to -- some 4 responsibility in relation to the courts or 5 administrative matters in relation to the courts? 11:26 6 A. Yes. 7 95 Q. Responsibilities in relation to An Garda Síochána and 8 responsibilities in relation to probation service? 9 A. The probation service, yes. 10 96 Q. I think you said also that you had an interest in -- or 11:26 11 the way you put it is that: 12 "The Department did not take interest in children unless they were breaking 13 the law". 14 15 But we can take from that that you were interested in 11:26 16 children that were breaking the law, you were 17 interested in a system of dealing with juvenile 18 delinquency? 19 A. We were interested obviously -- in fact, one of the 20 functions of the Department of Justice is to maintain 11:26 21 law and order in all aspects. 22 97 Q. Yes. Now, you also appreciate and I think you 23 indicated in your evidence to Mr. Gageby that the 24 Department of Justice appreciated that it was important 25 to try and get people when they were young, that if 11:27 26 people were offending when they were young that they 27 were likely to turn out to do the same when they 28 reached adulthood? 29 A. There was always that danger obviously, yes. 43 1 98 Q. And that was another reason for the 2 Department...(INTERJECTION)? 3 A. It would be a reason why the Department would stray 4 outside its strict brief that general social conditions 5 can influence the crime rate and things like that. So 11:27 6 the Department does occasionally stray outside what we 7 would regard as strict remit to address issues that may 8 lead to an increase of crime, or things like that. 9 99 Q. When you say a strict brief, the position was that 10 insofar as the running of Daingean was concerned that 11:27 11 was the responsibility of the Department of Education? 12 A. Yes. 13 100 Q. But other than that fact it was the Department of 14 Justice's responsibility to run the juvenile justice 15 system? 11:28 16 A. The responsibility of the Department of Justice didn't 17 extend to the detention of people under 16, that we 18 were responsible -- we had overall responsibility for 19 providing Gardaí, providing for the courts, providing 20 the criminal law generally, but as for the disposal by 11:28 21 the courts for people under 16 that was, in the eyes of 22 the Department of Justice, a matter for the Department 23 of Education. 24 101 Q. Just one small point in that, you did have a statutory 25 responsibility in relation to the detention of people 11:28 26 under 16 on remand but as a matter of practice it was 27 shifted over to the Department of Education? 28 A. We had a responsibility to certify, there was a bit of 29 confusion, up to 1944 the Department of Justice wasn't 44 1 sure that it had that responsibility. Prior to that it 2 was regarded that the Gardaí had a responsibility to 3 locate places for remand. But in 1944 the advice of 4 the Attorney General was no, that that was appropriate 5 for the Department of Justice. So from 1944 on it had 11:29 6 the role of certifying places for remand and places of 7 detention that a court could sentence a juvenile for no 8 more than one month. 9 102 Q. When you say that you had full responsibility for the 10 detention of offenders of 16 and over, obviously a lot 11:29 11 of the pupils in Daingean were over 16? 12 A. Well, yes. When I say over 16 that's not 100% correct. 13 The attitude of the Department was when somebody came 14 before the courts and they were going to be sentenced 15 for a crime that and they were 16 and over that we 11:29 16 would accept full responsibility. There was obviously 17 people in the reformatory and the schools who could 18 have been sentenced before they were 16 and there was a 19 period where, between 1941 to date, where the courts 20 had the option of sending a 16 year old either to a 11:29 21 reformatory school or into St. Patrick's institution, 22 Borstal. 23 103 Q. It is a fact that the two years was a very typical 24 period of detention in a reformatory. So there were 25 quite a lot of offenders there who were 17 and 18? 11:30 26 A. I don't have any facts on that but I have no reason to 27 disagree with you. 28 104 Q. If it is of some assistance to you, Chairman, and to 29 the Commission, if you look at Fr. Hughes's statement 45 1 at paragraph 8.6 he refers to a sample year in the 2 1960's showing the age spread for Daingean. I think 3 that's taken from the Kennedy Report as well, it is 4 page 103, I think of the Kennedy Report so he's just 5 got an extract of it there. 11:30 6 7 From that, going through the age spread I will just 8 give...(INTERJECTION)? 9 105 Q. THE CHAIRPERSON: Can I just clarify one 10 thing, MR. O'hOisin. 11:31 11 Mr. Martin, you are saying when it comes to the 12 division of the responsibility, if I understand 13 correctly, when somebody, a boy or a girl, came before 14 the courts, say a boy came before the courts and he was 15 16 or upwards and it was on a criminal charge, he was 11:31 16 fully the responsibility of the Department of Justice? 17 A. Yes. The Children Act of 1908 had the line at 16. 18 106 Q. THE CHAIRPERSON: Yes. 19 A. So I think the thinking back in 1908 was you weren't a 20 chide, when you reached 16 you were effectively an 11:31 21 adult. So the Department of Justice always accepted 22 responsibility for people 16 and over. And there was 23 the Borstal system until the 1960's with St. Patrick's 24 institute. And then St. Patrick's institution would 25 take people from 16 to 21. In very exceptional cases, 11:32 26 if there was a particularly -- if a child was certified 27 as unruly, even though they were under 16 they could be 28 went sent to prison and then they would come into our 29 care. 46 1 THE CHAIRPERSON: Thank you. Sorry, 2 MR. O'hOisin. 3 MR. O'hOISIN: Just for completeness sake, 4 in that extract the age 5 spread indicates that 6%, in a sample year in the 11:32 6 1960's, of the pupils in Daingean were 13; 11% were 14; 7 31% were 15; 35% were 16; 15% were 17; and 2% were 18. 8 THE CHAIRPERSON: Thank you. 9 107 Q. MR. O'hOISIN: That was 52% of the pupils 10 in that particular year 11:32 11 would have been 16 or over. 12 13 As you said, it is not possible to -- I think it is 14 fair from what you have said to draw the conclusion it 15 is not possible to make a very definite break between 11:33 16 the Department of Justice's responsibility in relation 17 to these matters and the Department of Education 18 insofar as if somebody was certified as unruly, even 19 though they were under 16 they could be sent to 20 St. Patrick's institution, which was under the 11:33 21 Department of Justice? 22 A. They could actually be sent to a full adult prison, 23 yes. 24 108 Q. Or to St. Patrick's? 25 A. I am not sure, technically thinking I think they were 11:33 26 actually sent to prison and then they were transferred 27 to St. Patrick's. 28 109 Q. And there were situations where persons who were in 29 Daingean occasionally, in some of the notes it 47 1 indicates, that it is very much a last resort, were 2 sent back essentially and were sent to St. Patrick's 3 from Daingean? 4 A. Well, I am not sure if that would happen without a 5 court order. 11:34 6 110 Q. Well I think it would have involved a court order? 7 A. Yes. 8 111 Q. The position in relation to the Department of Justice 9 then would have been that you had responsibility for a 10 juvenile offender all the way up to the time when they 11:34 11 were actually committed to an institution, to Daingean? 12 A. Not necessarily, in a broader sense, yes. But like, 13 for example, in Dublin they probably would have been 14 sent on remand to Marlborough House, which was run by 15 the Department of Education so we wouldn't have direct 11:34 16 responsibility but they were in our system but they 17 wouldn't necessary be in our care. So I think most 18 people before they went to Daingean, if they were in 19 Dublin, probably would have been remanded to 20 Marlborough House. 11:35 21 112 Q. There is a distinction between a responsibility for the 22 juvenile justice system and the particular institutions 23 into which these juveniles were placed? 24 A. Yes. 25 113 Q. But the Department of Justice, you would accept, had a 11:35 26 responsibility in the system as to what was to happen 27 to these juvenile offenders? 28 A. You had a responsibility for the criminal justice 29 system and had a responsibility to get them to court. 48 1 Now the view in the Department would be that 2 Education -- if they were under 16, it was really a 3 matter for Education to deal with how they were 4 disposed of. If they were 16 and over it was a matter 5 for Justice to look after them. 11:35 6 114 Q. Education's responsibility was really running the 7 institution, I am only concerned with Daingean here, 8 not Marlborough House, was running Daingean but it had 9 no responsibility in relation to the courts and to what 10 happened to these juvenile offenders in the court; is 11:35 11 that correct? 12 A. That's correct. 13 115 Q. So that somebody else must have had responsibility and 14 it was the Department of Justice, is that correct, for 15 what was happening to the juvenile offenders in court? 11:36 16 A. I am not sure there is a simple answer to that 17 question. The courts -- we would be responsible for 18 legislation to some degree, so we would be responsible 19 for legislation of what happened to 16 year olds. The 20 Department of Education is responsible for the 11:36 21 education of what happened to under 16 year olds. The 22 courts would then have a range of options open to them, 23 depending on the legislation. 24 THE CHAIRPERSON: MR. O'hOisin, let's assume 25 the answer is question for 11:36 26 the moment, let's assume that and we will see where it 27 is going and then we will see whether Mr. Martin needs 28 to be -- at least, I think I am understanding the 29 distinctions because strictly speaking you could say 49 1 look, we are responsible for paying the district 2 justice. Are we responsible for him, I'm not sure. We 3 are responsible for the guards but operation. So he 4 could be -- let's assume the answer is yes, the 5 Department is responsible, see where it takes us and 11:36 6 then maybe make some qualifications. 7 116 Q. MR. O'hOISIN: Yes. I want to suggest to 8 you that the Department of 9 Justice really had a responsibility in relation to the 10 fact that there wasn't a proper system of assessment of 11:37 11 juveniles when they were convicted of offences and 12 before they were committed. So there was no assessment 13 being done to say this juvenile has been convicted of 14 this variety of offences, what's the appropriate place 15 to which they should be sent. I want to suggest to you 11:37 16 that this was a Department of Justice responsibility 17 and something which they fell down...(INTERJECTION)? 18 117 Q. THE CHAIRPERSON: Just stop there for a 19 second. What do you say to 20 that, Mr. Martin? 11:37 21 A. Well the answer is question yes and no. The Department 22 obviously was responsible for supporting the courts so 23 the support provided to the courts so far as the 24 assessment of any individual, including a juvenile, was 25 after 1960 with the probation report, an assessment 11:38 26 submitted by a probation officer, and the court had the 27 facility to refer them to a medical doctor and at most 28 stages those medical doctors could include somebody 29 with psychiatric ability. Now the question of 50 1 assessment of a more kind of child orientated 2 assessment did come up in -- two areas it came up in 3 the context of the interdepartmental committee where 4 the Department of Education emphasised that the new 5 centre in Finglas that was going to replace Marlborough 11:38 6 would be a purpose built assessment centre with 7 facilities provided there to the Department of 8 Education. I believe the Kennedy Report in its report 9 also dealt with the question of assessment and it 10 recommended that the Health Boards would have child 11:38 11 assessment centres that could support the courts. 12 118 Q. THE CHAIRPERSON: Mr. Martin, if I am 13 understanding and maybe 14 just a slightly different point, if I am understanding 15 Mr. O'hOisin's line of questioning, it is something 11:39 16 like this: Children found themselves appearing in 17 court, some of them were there because they were 18 accused of crimes, some of them weren't. Some were 19 under 16, some were older 16. Let's forget the over 20 16s and take the under 16s, the vast majority of them 11:39 21 were there not because they committed -- but that's not 22 important, some were there are for crime and some 23 weren't. He's saying "right, there was no system of 24 assessing children as to their suitability for where 25 they might be sent", whatever the reason for that? 11:39 26 A. Yes. 27 119 Q. THE CHAIRPERSON: If one were to point the 28 finger which Government 29 Department is responsible for that situation? 51 1 A. Well I think it would be both the Department of 2 Education and the Department of Justice. We both had a 3 role. 4 120 Q. THE CHAIRPERSON: If I'm understanding what 5 you are saying, what you 11:40 6 have said earlier, that may be part of the problem, 7 that we are assessing? 8 A. Yes. 9 THE CHAIRPERSON: Does that get to something 10 that you are asking? 11:40 11 MR. O'hOISIN: I think there is a sense to 12 some degree that this is 13 falling between two stools. 14 THE CHAIRPERSON: Or three. 15 MR. O'hOISIN: Well if Health is brought 11:40 16 in as well, but I think 17 that's more laterally. 18 THE CHAIRPERSON: Yes. 19 121 Q. MR. O'hOISIN: Mr. Martin, the need for 20 and the desirability for 11:40 21 having assessment before somebody was committed to a 22 particular institution is something that was not new in 23 the Kennedy Report, it is something that's mentioned as 24 far back as the Cussen Report in 1936, did you know 25 that? 11:40 26 A. Well, the Department of Justice didn't have much 27 dealings with the Cussen Report, that was an 28 educational report and Education pursued that. I 29 think, we couldn't find any material on our files about 52 1 the Cussen Report, that doesn't mean it didn't exist 2 because some of the very old files were missing but 3 from all out of our investigation of the Cussen Report 4 it was reporting to Education and its recommendations 5 were implemented by Education in the 1941 Children Act. 11:41 6 122 Q. I just find it a bit hard to understand why the 7 Department of Justice wouldn't have some interest in 8 it, insofar as it was a commission of inquiry into the 9 reformatory and industrial schools? 10 A. Yes, but it was always accepted the Department of 11:41 11 Education was responsible for reformatory schools and 12 industrial schools, the Department of Justice had no 13 responsibility for reformatory schools or industrial 14 schools. 15 123 Q. I just want to quote to you a section from the Cussen 11:41 16 Report, which at paragraph 53 had stated: 17 "At present no medical report is required before a child is sent to an 18 industrial school or a reformatory. We are of the opinion that each child 19 should, prior to any order being made by a justice, be examined by a doctor 20 duly appointed for that purpose, a 11:42 doctor's report which should be in the 21 form of a special certificate on the line of a life insurance certificate on 22 the child's physical and mental condition should be in the hands of the 23 justice before he considers ordering the detention of the child. 24 If it is found in the report of the 25 examining doctor the child is 11:42 physically or mentally abnormal or if 26 the doctor is unable to form a definite opinion the justice should, if the case 27 is one calling for detention in the school or that the child be sent to an 28 institution, specially certified for such cases, which we recommend in our 29 report." 53 1 2 3 So there was a very clear statement in that report 4 about the high desirability of this type of assessment 5 for before a committal took place; isn't that right? 11:42 6 A. Yes. 7 124 Q. And again it is something that's referred to in the 8 interim period between that and the Kennedy Report, 9 which is nearly more than 30 years later. We have some 10 articles that we included in a book of documents, I 11:43 11 think by Professor Fahey in Trinity College in 1940's 12 where he talks about the juvenile system and this is 13 part of what's there, I think you are familiar with 14 those? 15 A. Yes, I have seen them since Friday. 11:43 16 125 Q. The difficulty, I have to say, is that -- would you 17 accept that in retrospect, looking back on it now, that 18 the Department of Justice should have taken a more 19 proactive role in ensuring that the juvenile justice 20 system was operated in such a way that juvenile 11:43 21 offenders were sent to institutions which were suitable 22 to them, having regard to their medical and mental 23 abilities or capacities? 24 A. Well, that's a difficult question, in the sense that 25 the Department of -- like I said, the view taken by the 11:44 26 Department of Justice if they were dealing with 27 juveniles under 16 it was a matter for Education. All 28 aspects, what kind of centre would be deemed there and 29 how they would be dealt with. It is ironic that in 54 1 some cases that perhaps if the Department of Justice 2 had taken a more active role and actually ran some of 3 the institutions that there might have been less danger 4 of abuse, but certainly there would be less danger that 5 they would be properly educated because the Department 11:44 6 of Justice didn't have any skills to deal with 7 children. It had skills to protect people's right and 8 keep them in safe and secure custody, but as an 9 institute it didn't have any particular expertise to 10 deal with children. 11:44 11 126 Q. I am not sure that I am getting the point across to 12 you. There seems to be a cut-off point at the time 13 that the committal takes place, when the juvenile goes 14 into the custody of the Department of Education through 15 the institution that is they were ultimately 11:45 16 responsible for, that's one side of the line. But on 17 the other side of the line, up until that particular 18 point the Department of Justice doesn't appear to have 19 any responsibility and it appears to be the Department 20 of Justice that has the responsibility? 11:45 21 A. Yes, it is a kind of a difficult issue, because 22 obviously if you are going to assess people you have to 23 assess them in relation to where they are going to be 24 sent, what the institutions are there. So there 25 wouldn't be much point in the Department of Justice 11:45 26 having an assessments team and having no involvement 27 with the centres because obviously you have to 28 recommend what centres are appropriate. So if you 29 going to deal with children the assessment would have 55 1 to be by a child expert and would have to have the 2 follow-on, you would have to have an entire system. So 3 you would have to say, we have three different types of 4 institutions for children, I can recommended A, B or C. 5 I don't think you can separate the assessment things. 11:46 6 7 Obviously, the Department had a role in providing some 8 facilities to courts but that's where, in a sense, it 9 broke down, that there wasn't a unified structure that 10 dealt with it. We have a range of institutions for 11:46 11 children and we have a range of assessments to help the 12 court to decide which would most suit. That is quite 13 clear that that system did not exist and it would have 14 been much better if it did exist. 15 127 Q. I mean, I will say this now, I don't get from -- unlike 11:46 16 the Department of Education statements that were put 17 in, there is no sense of regret or any sense of apology 18 on the part of the Department of Justice for its 19 failure to be more proactive in relation to the 20 juvenile justice system at the time. I mean, is that 11:46 21 sense there or are you not saying anything about that? 22 A. Well, it is there, it is just that what we would have 23 done if we were more proactive we would have taken 24 something from the Department of Education into another 25 arm of Government and I can't guarantee that we would 11:47 26 have necessarily done it better than Education would 27 have done it. We are two arms of the same Government. 28 128 Q. But we are not really talking about something that the 29 Department of Education were doing here now, we are 56 1 talking about something that it appears nobody was 2 doing, which was to be doing a proper assessment of 3 offenders before they were sent to institutions and 4 having in place different alternatives. Because it 5 appears that the only place that the juvenile offender 11:47 6 could have been sent to at the time was to Daingean? 7 A. Yes, well I would accept that. It is quite clear up to 8 the 1960's there was no consideration given to the 9 assessment of any person who was before the courts, 10 whether they were juvenile or not. It was only with 11:47 11 the establishment of the probation service that any 12 kind of systematic approach was given to assist the 13 courts in assessing offenders, whether they were 14 juvenile or adults, that's quite clear. Obviously it 15 would have been much more desirable if the Department 11:48 16 had taken a much more proactive approach in that area. 17 129 Q. And that's something that the Department of Justice 18 regrets? 19 A. Yes. 20 130 Q. The fact of the matter is that a very wide spectrum of 11:48 21 individuals who had been convicted of offences were 22 sent to Daingean in the period 1940 to 1973; isn't that 23 right? 24 A. Well I presume anybody in the age group concerned, 25 regardless to crime, the only option was effectively, 11:48 26 unless they were certified as unruly, to send them to 27 Daingean or not send them to any detention centre. 28 131 Q. Whilst the Children's Act clearly gave the Resident 29 Manager a right to refuse entry to somebody who had 57 1 been brought to the doorstep by An Garda Síochána, the 2 practice was, certainly in relation to the dealings 3 with An Garda Síochána in Dublin in Daingean, that they 4 didn't refuse up until about 1970, when they changed 5 the policy; did you know that? 11:49 6 A. No, I wasn't aware of that. 7 132 Q. Are you familiar at all with the correspondence from 8 Fr. McGonigle to a number of the authorities, including 9 the Gardaí, making complaint about the fact that 10 everybody is landing -- people are being -- the An 11:49 11 Garda Síochána are coming at all hours of the day and 12 night with juvenile offenders who are then simply left 13 in Daingean with no information about their history, no 14 information about any particular mental or physical 15 problems that they might have, and that Daingean was 11:50 16 being left to deal with those as best they could in 17 those circumstances? 18 A. No, the first time I saw that was on Friday evening. 19 133 Q. Yes. And there is again in the documents that you were 20 furnished with, I think, and I don't need to go into 11:50 21 them all and certainly I wouldn't, in many cases there 22 are individuals named in that so certainly I wouldn't 23 be doing that here. In amongst the pupil files, from 24 some of the pupil files, I think it is at tab 8 of the 25 booklet that we gave on Friday last, there is a whole 11:50 26 host of situations there where individual pupils who 27 were clearly unsuitable for Daingean are referred to 28 it. Correspondence from the school, some cases to the 29 probation officers and in some cases to An Garda 58 1 Síochána, indicating that these are pupils who the 2 school should not be taking because of the particular 3 special requirements that these offenders have, and 4 that it is unhelpful both to those offenders themselves 5 but also to the school itself, not just to the staff 11:51 6 but obviously to the other pupils in the school that 7 these people who are very unsuitable for Daingean are 8 arriving there. Did you get an opportunity to look 9 through that document? 10 A. I looked through the document, yes. 11:51 11 134 Q. Isn't that what emerges from that? 12 A. Well that seems to be it, yes. 13 135 Q. Isn't it also clear there is one particular document 14 which makes a slightly different point, that as one was 15 going through the 1960's it appears that Fr. McGonigle 11:51 16 was getting more and more definite in his view that the 17 school would not tolerate what the situation that they 18 had been put under before and he says, for instance, in 19 a document which is about seven pages in, I'm afraid 20 they are not numbered -- but it is eight pages in, it 11:52 21 is a letter of 14th May 1969 and it is to Mr. Lannigan, 22 who I think is a probation officer? 23 A. Yes. 24 136 Q. I won't go into the discussion on the individual that's 25 there in the first paragraph of that letter, but in the 11:52 26 second paragraph of the letter Fr. McGonigle states: 27 "Our numbers have been creeping up again in recent weeks and there seems 28 to be prospects that we will reach our usual average of 120 in the near 29 future. In spite of the terrible financial difficulties we have been 59 1 experiencing over the past year on account of falling numbers, I would 2 hate to see our numbers go up, especially if that should come about 3 rather quickly." 4 5 11:53 6 So, on top of the issue over the lack of control over 7 what offenders that they were getting into the school, 8 there is a concern that he's expressing there in 9 relation to the numbers being above a manageable level, 10 above a level where they could do the job in the way 11:53 11 that they saw was necessary? 12 A. Well, yes, that's it as the letter there. 13 137 Q. If one goes to tab 1 of the documents that we 14 furnished. What we have here is a memorandum which 15 indicates, and I appreciate it is not something that 11:54 16 would have been sent to the Department of Justice but I 17 simply want to put it to you and ask you to agree or 18 not this criticism is justified. It is a document 19 prepared by Fr. McGonigle for the Provincial on 20 Daingean and prepared in the late 1960's, in it, on the 11:54 21 7th page, there is some handwritten pages on the top 22 right hand side, the 7th page there, under the 23 heading "case history". 24 25 He refers by comparison to the system in UK in relation 11:54 26 to reception of pupils for the school: 27 "In England the practice is that a number of different case histories are 28 submitted to the superintendent of the school, he then picks out the boys that 29 are most suitable for his school, i.e. as regards the type of boy already in 60 1 residence, the kinds of training that his school specialises in, proximity or 2 distance from boys home etc. Insofar as it is humanly possible to judge from 3 papers records, the superintendent can build up an ideal community in the 4 school. Of course not all cases work out the way one would anticipate or 5 like. 11:55 6 The practice here in Ireland is quite different. When boys are committed by 7 Dublin courts the first intimation we get of this is the arrival of the boy 8 and his escort at the school. Rarely does the particular Garda officer 9 accompanying the boy even know the boy before he picked him up at Marlborough 10 House that morning. 11:55 11 Past history, the guard just has not a clue. It would be some help if he 12 could talk to the Garda who had been dealing with the boy and had brought 13 him to court. It seems that in some dim and distant age in the 14 unenlightened past, a blanket agreement was between the school authorities and 15 the Gardaí in courts whereby any boy 11:56 who was sent down would be accepted. 16 Now we are paying for all this monstrous arrangement which spares the 17 Gardaí and the court the trouble of compiling a file on each case dealt 18 with. This must stop. No constructive rehabilitation can be insinuated 19 without background history, family conditions, social, education, 20 environmental and medical records. 11:56 21 The system which initiated this and allowed such conditions to continue 22 cannot be called anything but iniquitous." 23 24 25 That criticism enshrined in -- which Fr. McGonigle had 11:56 26 in his report to the Provincial, that was a justified 27 criticism, wasn't it, is it something that you would 28 agree with? 29 A. I don't know the full facts, but to the best of my 61 1 knowledge all you would get is an order of committal 2 from the courts. So there wasn't any arrangements in 3 those days to have any kind of case history, to my 4 knowledge, but I don't know the facts. 5 138 Q. But it was an iniquitous system, wasn't it, to have a 11:57 6 situation where people were arriving down to the school 7 in those circumstances with no information at all and 8 knowing that no assessment had taken place even before 9 they were sent there, that was iniquitous? 10 A. Sorry? 11:57 11 139 Q. Wasn't the criticism that describes that system 12 iniquitous? 13 A. Well it certainly wasn't a desirable situation. 14 Obviously if your intent is to try and reform people 15 the more information you have the better. 11:57 16 140 Q. Yes. Now, if you go on then to tab three, which is an 17 indication of the new policy which Fr. McGonigle 18 insisted upon, albeit quite late in the day from the 19 point of view of St. Conleth's or Daingean, which was 20 to close in 1973, he said here in a letter to the 11:58 21 Commissioner of An Garda Síochána -- did you have an 22 opportunity to read this letter, I should say, 23 Mr. Martin? 24 A. I did, yes. 25 141 Q. He said in that letter, which is dated 13th September 11:58 26 1971: 27 "I would be obliged if you could convey the following information to the 28 members of your force through your information circular, the Children Act 29 1908 states that the managers of certified school may decline to receive 62 1 any youthful offender or child proposed to be sent to them. 2 For this reason, the procedure in the 3 courts has been that the judge before passing sentence on a boy asks the 4 Gardaí if the managers in St. Conleth's was willing to accept the boy. Very 5 often a particular Garda officer 11:58 dealing with the case contacted the 6 manager on the day of the court or the evening before by phone asking him to 7 accept the boy if he was sentenced." 8 9 THE CHAIRPERSON: Just slow down a bit Mr. 10 MR. O'hOISIN: I am sorry, yes. I will 11:58 11 read that sentence again: 12 "For this reason the procedure in the courts has been that the judge before 13 passing sentence on a boy, asks the Gardaí if the manager at St. Conleth's 14 was willing to accept the boy, very often the particular Garda officer 15 dealing with the case contacted the 11:59 manager on the day of the court or the 16 evening before by phone asking him to accept the boy if he was sentenced. 17 We have found this procedure to be very 18 unsatisfactory. As of this date, we will not accept any boy if we do not 19 have a full written report from the Gardaí and the probation officer at 20 least one week before the day of the 11:59 court. This gives us an opportunity to 21 assess the boy and see if he's suitable for the open type system that we have 22 in operation at the school." 23 24 Then it indicates that the office is to be open from 25 9:30 to 5:30. 11:59 26 "In the past we have been waiting all 27 hours oft he night by Gardaí escorting boys from the court, our staff are not 28 prepared to work such long hours any longer". 29 63 1 THE CHAIRPERSON: The only problem with that, 2 MR. O'hOisin is that the 3 Garda has write off a week beforehand, "here are the 4 full details of a boy I am bringing before the court." 5 He doesn't know the boy is going to be sentenced to 12:00 6 jail. 7 MR. O'hOISIN: I appreciate it is not 8 idea, but it appears 9 that...(INTERJECTION). 10 THE CHAIRPERSON: He's clearly saying "look, 12:00 11 we need information." I am 12 not sure that the particular solution as suggested 13 is -- 14 MR. O'hOISIN: Is feasible. 15 THE CHAIRPERSON: -- is terribly feasible. 12:00 16 but the point about the 17 need for assessment. 18 MR. O'hOISIN: It seems that as if it is 19 almost to try and take the 20 place of the absence of an assessment that this is 12:00 21 here, but again it doesn't appear to be a very feasible 22 alternative. 23 142 Q. THE CHAIRPERSON: You see, Mr. Martin makes 24 the point, if I understand, 25 he says "look, you have to bear in mind the division 12:00 26 between the two Departments, a fundamental issue", be 27 it right or wrong and he acknowledges that it causes 28 problems. The second thing that you have to bear in 29 mind is that assessments would really address the needs 64 1 of the child with reference to the suitability of an 2 institution, where you have a range of institutions, if 3 you don't have a range of institutions admittedly it 4 would help Fr. McGonigle more, from the point of view 5 if he is going to be detained, that's where he's going 12:01 6 to be detained. That's one of the rationals for an 7 assessment out of the way. 8 9 It strikes me in light of that, and I mean obviously 10 one has to have sympathy for the manager of an 12:01 11 institution, that maybe what he is really saying is 12 that somebody should have been saying, whether it be in 13 one Department or another, what am I trying to do here? 14 I mean, that's one of the things you get. What are we 15 actually trying to do with this child? Maybe the 12:01 16 courts should have been asking that as well, somebody 17 should have been asking whether it was that question of 18 the child accused of a crime or a child not accused of 19 a crime, for whatever reason, what are we trying to 20 achieve. It may seem simplistic. 12:02 21 22 What do you say to that, Mr. Martin? 23 A. I would agree completely because obviously if you are 24 going to assess the child you are trying to find out 25 the best way of disposing of that child. 12:02 26 UNKNOWN SPEAKER: Disposing. 27 A. Sorry, disposing in the sense of a 28 court...(INTERJECTION). 29 143 Q. THE CHAIRPERSON: How to deal with the child? 65 1 A. How the court would -- what type of solution and at 2 that stage, as you said, the only option open to court 3 if the child was 15 and was convicted of a crime, if 4 they were going to detention there was only one place 5 of detention, the other alternatives were probation or 12:02 6 a fine and there was no real alternatives. 7 144 Q. THE CHAIRPERSON: I mean, it would clearly 8 have helped, it ought to 9 have helped the institution to know more about the 10 child who is coming in, assuming the institution was 12:02 11 saying "what's the best we can do for this child? 12 Well, if it is a child with this problem we should...". 13 I mean the same sort of issue arises in the institution 14 as it does outside the institution? 15 A. Yes. I would have thought at that stage, well maybe 12:03 16 not in the 1970's but certainly in the 1950's and 17 1960's, the only information you would have basically 18 is a Garda report that would say if they knew details 19 of the family and what the crime was and where the 20 child lived but there wouldn't be much more than that. 12:03 21 If the probation service by 1971 you might have a 22 probation report which would have more detail because 23 they would have interviewed the child. 24 145 Q. MR. O'hOISIN: Can I suggest to you 25 that -- I appreciate the 12:03 26 point that if you have only one place to send them to 27 some extent other than helping the school in knowing 28 who they are getting, the usefulness of an assessments 29 may be open to question. But can I suggest an 66 1 alternative use that would have been a very important 2 one. If assessments had been done and it emerged from 3 those assessments that the particular offender was not 4 suitable for the type of environment in Daingean you 5 then would have had to face up to the fact that there 12:04 6 was not proper facilities in place and the Department 7 of Justice would have had to take that on board, if 8 judges were...(INTERJECTION)? 9 THE CHAIRPERSON: Stop. I mean, that's a 10 good point. 12:04 11 A. It did arise. 12 146 Q. THE CHAIRPERSON: I mean, that would have 13 emerged? 14 A. And it did emerge in the 1970's because the Department 15 of Education, when Marlborough House was replaced by 12:04 16 Finglas, they said they would not longer be responsible 17 for certified detention of certified youths, there was 18 a long journey before we got to the stage now where the 19 Department of Justice said "we will now take over the 20 full responsibility for all aspects of juvenile" -- at 12:04 21 that stage in 1971 the Department of Justice's response 22 would have been, "it is a matter for the Department of 23 Education to provide a range of facilities suitable for 24 these children, not the Department of Justice. 25 THE CHAIRPERSON: Yes. 12:05 26 147 Q. MR. O'hOISIN: Can I just move on then to 27 -- and I don't have too 28 many more questions to ask. To just another document 29 which was sent to the Department of Education and again 67 1 in relation to the reception policy, it is at tab 5, 2 which is a document headed "St. Conleth's School, 3 Daingean, Co. Offaly, Outline of Reception Policy". 4 5 This is a document dated 1st March 1972. I think on 12:05 6 the index page it may be wrongly dated 1978, but 1st 7 March 1972 and date stamped from the Department of 8 Education, 20th March 1972. Again just a comment, 9 obviously it is quite late in the day from Daingean's 10 point of view, given that it was to close very shortly 12:05 11 thereafter, but the policy at this stage was to accept 12 only those boys who would benefit from our treatment 13 programme, is what the school was saying. That's a 14 policy, I take it that you would agree with, that any 15 people who were involved in running an institution 12:06 16 should be concerned that they should only be receiving 17 pupils in who would benefit in some way? 18 A. Well obviously -- you have to forgive the Department of 19 Justice's attitude coming in here, but obviously in 20 some cases in the public interest is that the child is 12:06 21 detained. 22 148 Q. Yes, I take the point. 23 A. Yes. Overall, yes, it would be much better if they 24 were going to an institution where they would benefit 25 from it. 12:06 26 149 Q. The philosophy behind the whole Children's Act and 27 reformatory schools was more in terms of rehabilitation 28 rather than the...(INTERJECTION)? 29 A. Yes, exactly. 68 1 THE CHAIRPERSON: That's 1972; is that right? 2 MR. O'hOISIN: Yes. 3 THE CHAIRPERSON: You said it seems 1978. 4 MR. O'hOISIN: The index, I think, that we 5 had up on it, had wrongly 12:06 6 indicated at the beginning of that book indicated 1978, 7 but it is 1972. 8 THE CHAIRPERSON: It is 1st March 1972. 9 MR. O'hOISIN: Yes. 10 THE CHAIRPERSON: Thank you very much. 12:07 11 150 Q. MR. O'hOISIN: If you then go down the 12 page slightly: 13 "Why we adopted this policy? Up to 14 November 1972, accept anyone and everyone was the rule, to decline to 15 accept was very much the exception. 12:07 Because of that policy of general 16 acceptance we found that an alarmingly high proportion of very unsuitable boys 17 were finding their ways here. This rendered our staff's function purely 18 custodial and any treatment programme was absolutely irrelevant. 19 In this frustrating situation Brother 20 were merely warders without the 12:07 physical supports of a prison which led 21 to a conflict of roles in the Brother and the result of confusion in the mind 22 of the boys. Is he a Brother or is he a screw? 23 The large numbers of such a custodial 24 situation with declining staff members not only rendered meaningful 25 relationships between staff and boys 12:08 unattainable, but repressive measures 26 for the purpose of containment were the order of the day." 27 28 29 69 1 That's a fairly frank assessment at the time from the 2 school of the difficulties that they had been under in 3 circumstances where they have had to accept all comers 4 to the school, people who were suitable and in lots of 5 cases, people who were unsuitable; isn't it? 12:08 6 A. Well I'm not in a position to judge but I wouldn't 7 disagree. Obviously up to then they had decided to 8 take everybody and obviously in those cases it was 9 effectively the emphasises was more on custodial rather 10 than educational. The whole purpose of the 1908 Act 12:08 11 was to separate educational from custodial, put the 12 emphasis on the educational side. 13 151 Q. Just on the next page again, rather than prolong it, 14 but in the fourth last paragraph on the next page: 15 "Up until 16 months ago all of these, 12:08 the violent, the emotionally disturbed, 16 the psychopathic were accepted without question. In the selection proves the 17 majority of them were rejected as being unsuitable for an open treatment type 18 school of rehabilitation. Some went to Marlborough House, while others were 19 left to roam the streets free. 20 Nobody, least of all the Department of 12:09 Education, gave a second thought to the 21 problem as long as we took in everyone. Now the general public is worried and 22 becoming vocal. Not quite as bad as it was in the condemnation of those 23 managing the institutions after the publication of the Kennedy Report. The 24 Minister is embarrassed and would like us to take him out of his difficulty. 25 In other words, take everyone again, 12:09 but this would be impossible for we 26 would be returning to the old iniquitous system of breaking boys and 27 breaking staff". 28 29 Do you see the point that he is making there? 70 1 A. Well I can see his point of view, yes. 2 152 Q. And there is merit in it, that whilst the school would 3 take everybody who was sent there that a problem in 4 some respects was brushed under the carpet? 5 A. Well, obviously the issue of -- when there was only one 12:10 6 institution dealing with that particular age there was 7 a problem because you didn't have a range of facilities 8 dealing with those people. 9 THE CHAIRPERSON: That's Fr. McGonigle's 10 document, is it? 12:10 11 MR. O'hOISIN: Yes. 12 THE CHAIRPERSON: Thank you very much. 13 153 Q. MR. O'hOISIN: I appreciate that we are in 14 a sort of grey area here 15 between the Department of Education and the Department 12:10 16 of Justice, the Department of Education have indicated 17 an apology essentially for their shortcomings in 18 relation to the matter, is that also the case with the 19 Department of Justice? 20 A. In the context of the running of Daingean? 12:10 21 154 Q. Yes. Sorry, in the context of the general policy 22 issues that we have been dealing with here and the 23 failure of the Department of Justice to be more 24 proactive? 25 A. There was a clear failure on the Government to come up 12:10 26 with a system that suited -- that dealt with all the 27 problems and we were part of that and we apologised for 28 that. 29 155 Q. I should say, the comment no doubt will be made, but it 71 1 is important for me to say obviously the Oblates have 2 also accepted a responsibility in relation to the 3 matter and have indicated through their apology in 4 relation to it, so it is something that a number of 5 parties have something that they have to regret; isn't 12:11 6 that correct? 7 A. Yes. 8 MR. O'HOISIN: Thank you. 9 10 END OF EXAMINATION OF MR. MARTIN BY MR. O'hOISIN 12:11 11 12 THE CHAIRPERSON: Thank you very much, 13 MR. O'hOisin. Are you all 14 right so far, Mr. Martin? 15 A. Yes. 12:11 16 THE CHAIRPERSON: You don't need a break? If 17 you need a break let us 18 know. 19 A. I'm fine, Chairman. Thank you. 20 THE CHAIRPERSON: All right, Mr. McGrath. 12:11 21 22 MR. JAMES MARTIN WAS THEN EXAMINED, AS FOLLOWS, BY 23 MR. McGRATH: 24 25 156 Q. MR. McGRATH: Mr. Martin, I appear -- 12:11 26 David McGrath, senior 27 counsel with Marcus Dowling on behalf of the Committee 28 as an amicus curiae. I represented a number of people 29 who had allegation to make about institutions during 72 1 the various hearings that the Committee and amicus 2 curiae in a number of these public sessions. 3 4 What I am particularly interested in dealing with is 5 the situation, vis-a-vis the position with regard to 12:12 6 the Department of Justice and the relationship it would 7 have had with the Department of Defence, and the so -- 8 sorry, the Department of Education and how they 9 interacted with one another over a significant period 10 of time. 12:12 11 12 Now, you have set out very clearly in your statement 13 this morning that as far as the Department of Justice 14 was concerned they, first of all, had responsibility 15 for the detention of offenders 16 and over and that 12:12 16 they had responsibility for certifying and maintaining 17 a register of places for the detention of children, 18 essentially that was their situation. You have set out 19 fairly clearly that until recent times the Department 20 of Justice had certain views in relation to what 12:13 21 responsibility they should have for people under the 22 age of 16 who were in detention. 23 24 I am just wondering, you have set out various reasons 25 for that, was there a situation where there were kind 12:13 26 of budgetary considerations there or were there 27 considerations of principle or was it a case it was 28 preferable if another workload wasn't brought on the 29 Department? 73 1 A. I think there was two. There was a budgetary -- 2 certainly looking at the files, one of the aspects was 3 budgetary in the sense that the Department didn't see 4 that there would be any overall savings to the State if 5 they transferred the function from the Department of 12:13 6 Education to the Department of Justice. If it worked 7 out that we could do it more cheaply because of the 8 prison service then that would be an argument that you 9 would make at Government in favour. But that was one 10 aspect. There would have been a feeling that if the 12:13 11 Department -- and I haven't seen this in the file so it 12 is kind of folk memory, there would be a feeling in the 13 Department of Justice that if we were going take over 14 the issue we would have to have the resources to make a 15 good job of it and there wasn't any guarantee until 12:14 16 quite recently that you would get the resources. 17 18 There was also the question of principle, the view was 19 we were responsible for adult offenders and we 20 shouldn't treat children the same way we treat adult 12:14 21 criminals and therefore it is better to separate the 22 dealing of children from dealing with adult offenders 23 because I suppose the mindset of justice would be 24 dealing with adult criminal offenders. 25 12:14 26 Just to elaborate slightly on that, the mindset of the 27 Department changed in the sense that the Department of 28 justice became the Department of Justice, Equality and 29 Law Reform and it brought in a lot of other areas that 74 1 were perhaps less to do with the criminal justice 2 system, more to do with rights, and including things 3 like childcare. So the Department as a Department got 4 a much broader brief than it had until quite recently. 5 157 Q. In terms of your input into the industrial schools or 12:15 6 the reformatories, it does appear that around the time 7 that Mr. Haughey was the Minister for Justice that the 8 Department became somewhat involved in various aspects 9 of what was happening in the system at that particular 10 time? 12:15 11 A. Yes. The committee set up by Mr. Haughey was 12 addressing one of the issues, one of the issues that it 13 was addressing was juvenile delinquency and quite 14 clearly moved outside of its ambit. 15 158 Q. Within that you had Mr. Barry who was the secretary of 12:15 16 the Department was the Chairman of that committee, you 17 had Mr. McCarthy who was from Justice as well, you had 18 Mr. Dáibhid, who was from Education and you had 19 Mr. Tobin from industry and commerce? 20 A. Yes. 12:15 21 159 Q. You actually had three different Departments coming 22 together to have a look at a particular system. It 23 would appear that during the deliberations of this 24 committee that they, in fact, ended up making inquiries 25 into Artane, which really wouldn't have been part of 12:16 26 Justice's? 27 A. Yes. 28 160 Q. Marlborough House, which you had some vague connections 29 with, then the industrial schools in Letterfrack and 75 1 Clonmel, which all -- then there is also mention in one 2 of the interdepartmental committee occasions when they 3 met, of Lakelands girls industrial school as well. So 4 they would seem to have had the consideration of a lot 5 of areas which might not necessarily have readily on 12:16 6 the basis of Justice excluding things have fallen 7 within their remit? 8 A. Yes, and I presume that's why it was set up as an 9 interdepartmental committee because while dealing with 10 issues that fell directly within its remit, it was 12:17 11 extended beyond that, as I said, to areas that wouldn't 12 normally fall within its...(INTERJECTION). 13 161 Q. Am I correct in this assessment, that the inquiries 14 that they were making were because very serious 15 concerns arose at this particular time? 12:17 16 A. It is hard to tell from the files. Artane seemed to 17 come on the agenda because Fr. Moore, the chaplain, 18 approached the Department and raised something 19 specifically. So it varied depending -- in some cases 20 they would have looked at particular areas, in other 12:17 21 cases it seems that outside people made a complaint or 22 something like that. 23 162 Q. But it came within their remit and it did express 24 various concerns that arose? 25 A. Yes. 12:17 26 163 Q. As time went on they were making certain 27 recommendations as they thought to how the way that 28 things should proceed? 29 A. That's correct. 76 1 164 Q. To correct deficiencies that they could see in the 2 system? 3 A. Yes. 4 165 Q. It would appear also from the papers at that time that 5 Mr. Haughey as Minister was quite proactive almost or 12:17 6 gung-ho on the idea of getting these particular reforms 7 through? 8 A. He would have had a reputation as a very proactive 9 Minister in reforming lots of areas. 10 166 Q. In that regard we have seen, I think, in your 12:18 11 discovery, these are contained in Phase III witness 12 examination, these were documents that were supplied to 13 us last Friday, Chairman, and I assume it is the 14 discovery from the Department, this booklet, which I 15 assume you have a copy of? 12:18 16 THE CHAIRPERSON: It doesn't look like ours, 17 ours comes in... 18 MR. McGRATH: Well this is the way we 19 received it on Friday. 20 THE CHAIRPERSON: Very good. 12:18 21 MR. McGRATH: I assume it is exactly the 22 same as divided up. 23 THE CHAIRPERSON: Ms. Fergus and Mr. Ward and 24 Ms. McHugh will be in a 25 position to... 12:18 26 MR. FERRITER: I might be assistance, 27 Chairman, I act for the 28 Department here. Mr. Martin has footnoted each 29 document to which he refers to, he has a folder which 77 1 is organised in sequence with accordance to those 2 footnotes. If it wasn't too inconvenient for Mr. 3 McGrath to refer to the footnotes when he says things 4 he would be able to locate the document very quickly. 5 I don't know if that is of any assistance. 12:19 6 MR. McGRATH: A lot of the documents here 7 are in here as well, I may 8 have marked them the wrong way. 9 THE CHAIRPERSON: I understand. The only 10 thing is if you are using 12:19 11 the one we sent you, I don't think you would have any 12 problem, because it would be will be in the same order. 13 Well it will be in the Department's order. But if you 14 are using one of your own. 15 MR. McGRATH: No. No. This is as it 12:19 16 came to me, I have not 17 dismantled it. 18 MS. FERGUS: It is not in the same 19 order. 20 THE CHAIRPERSON: I thought I could help you, 12:19 21 Mr. McGrath. Carry on, 22 refer to the documents and we will try to follow them 23 as best we can. 24 MR. McGRATH: If you just give me a 25 moment I will try and find 12:20 26 the document that I have here in this. 27 THE CHAIRPERSON: Or just refer to it and 28 leave it to chance, 29 Mr. Martin and the rest of us to find where it is, 78 1 Mr. McGrath. 2 MR. McGRATH: I have it in both books 3 now. So if we are 4 referring to the footnote...(INTERJECTION). 5 THE CHAIRPERSON: You now have to be asking 12:20 6 your questions without 7 having to find it. 8 167 Q. MR. McGRATH: A number of these are 9 together in this book and 10 together in this one, so I can deal with it in on that 12:20 11 basis. 12 13 (To the witness) The first one that I was going refer 14 to is a letter written by Mr. Haughey which appears to 15 be a draft and your number on the page is 93/182-16 and 12:20 16 you also have F19 on the right-hand corner and five in 17 this book of footnotes. 18 MR. FERRITER: Footnote 19. 19 THE CHAIRPERSON: What date is it? 20 MR. McGRATH: It is October 1963. 12:20 21 THE CHAIRPERSON: Yes. 22 168 Q. MR. McGRATH: It is a letter from Charles 23 J Haughey, who was then the 24 Minister for Justice, to Dr. Patrick J. Hillary, 25 Minister for Education. The letter itself reads: 12:21 26 "Dear Paddy, on 31st July last my Department communicated officially to 27 your Department a copy of the minutes of the fourth meeting of the 28 interdepartmental committee on the prevention of crime and treatment of 29 offenders stating that the Minister for Justice had approved in full of the 79 1 committee's recommendation. A summary giving the recommendations was also 2 attached. 3 Insofar as the recommendations related to the Department of Education the 4 official minute asked what action it was proposed to take to implement the 5 committee's findings. Up to now there 12:21 has been no reply and unofficial 6 inquiries have failed to discover what, if anything, is being done. 7 I hope that the interdepartmental 8 committee's recommendations in relation to Marlborough House, the industrial 9 school system will find ready acceptance, more so as the 10 recommendations are subscribed to by 12:22 the expert from Education on the 11 committee. 12 In particular, I should like to say so action taken to establish visiting 13 committees and aftercare committees for the industrial schools. 14 Contrary to views held earlier, in your 15 Department it has now become apparent 12:22 that the managers of schools such as 16 Artane are not opposed to such a development. I should be glad if you 17 would look into the matter at your early convenience. Yours sincerely." 18 19 That particular letter isn't signed but his name is at 20 the bottom of it. Then there is a written note at the 12:22 21 top of it which assumes is from somebody senior in the 22 Department: 23 "Minister, unless somebody prods the Department of Education the committee's 24 work will go for naught to a large extent". 25 12:22 26 One assumes this letter was drafted 27 for...(INTERJECTION). 28 A. Yes. 29 169 Q. That's the note from, I assume, Mr. Barry is writing? 80 1 A. It is probably Mr. Barry or the relevant assistant 2 secretary at the time. 3 170 Q. At that particular stage it would appear that Mr. Barry 4 is as anxious as Mr. Haughey is to get something done 5 about what the committee had concluded and what it 12:23 6 wants done. Then the following page, we have at F20, 7 footnote 20, I think we have the same letter which is 8 on headed notepaper but at this stage there is a line 9 drawn through it and at the bottom is written: 10 "Letter need not issue. I have spoken 12:23 to Dr. Hillary". 11 12 One assumes that Mr. Haughey has decided that the 13 quickest way to get this dealt with is to speak 14 personally to the Minister in the Department of 15 Education? 12:23 16 A. Just on a point of speculation, it would not be in 17 accordance with normal protocol for one Department to 18 be criticising another Department in writing and 19 certainly for one minister to write to another minister 20 it could lead to kind of conflicts, so I presume that 12:23 21 Mr. Haughey felt it wasn't appropriate to issue a 22 written letter and he discussed in some way. 23 171 Q. But the import seems to be that that they were anxious 24 to make sure that this moved along? 25 A. Yes. 12:24 26 172 Q. Mr. Haughey moves ministry and i think Mr. Lennihan 27 becomes the Minister. The following page then, F21, is 28 a letter of 24th August 1966, again it seems to be -- 29 I'm not sure whether it is the draft letter or whether 81 1 it is a change in a letter, because again there are two 2 copies of this, there is one on that page dated 24th 3 August 1966 and there is another one which seems to be 4 on headed notepaper, August 1966, and that also has 5 some notes at the bottom of it. Again, this letter 12:24 6 seems to be an effort to move things along. It is a 7 letter to Donagh O'Malley, Esquire, TD, who is now the 8 Minister for Education, again Mr. Lennihan in the 9 second last paragraph of that letter on the second page 10 says: 12:25 11 "If the Department of Education were willing to assign one energetic officer 12 to the organisational work involved, I believe that the beneficial result 13 would justify the effort 100 fold." 14 15 That's a situation where he's hoping to move along the 12:25 16 situation in regard to industrial schools and the lack 17 of proper aftercare. However, there seems again to be 18 a note on the second copy of that letter on the 19 Minister for Justice headed note paper, where that 20 particular sentence is: 12:25 21 "If the Department of Education were willing to assign one energetic officer 22 to the organisational work involved, I believe the beneficial result justify 23 the effort 100 fold." 24 25 Is crossed out and written underneath it is: 12:25 26 "I would suggest a small interdepartmental committed of three, 27 Perhaps two from Education and one from justice. If the Department of Education 28 were willing to assign one energetic officer of thereto to organisational 29 work involved I believe that the beneficial result would justify the 82 1 effort 100 fold." 2 3 Is written in there. The next page on, F23, would 4 again appear to be a note to the Minister in relation 5 to those two letters or those drafts. This time it 12:26 6 says: 7 "Minister, I think that it would be contrary to all departmental protocol 8 for the Department of Justice to seek to sit in with Education in deciding 9 what Education should do in the industrial school system. That is 10 their job. The interdepartmental 12:26 committee, of which I am Chairman, is 11 still functioning. This committee have already given their views in a general 12 way to Education as to what might be done but it is for the Department 13 concerned, Education, to work out its own solution. 14 In reverse, if Education were to say to 15 us that they would sit in with us to 12:27 reform the prison system we would 16 strongly resent their intrusion and interdepartmental relations would 17 suffer. I have consulted the senior officers here concerned and none of 18 them would wish to sit in on such a committee." 19 20 12:27 21 Then it is signed and dated 7/8/66 and then written at 22 the side in different writing, we will assume it is the 23 Minister: 24 "Okay, revise letter as originally drafted". 25 12:27 26 Now, that would seem to suggest that contrary to the 27 original letter at the time of Mr. Haughey, when the 28 Department of Justice were gung-ho at getting the 29 reforms through, that there had been a change of heart 83 1 in terms of having an input into it. Was there, or is 2 there, such sensitivity between Departments that one 3 Department would take great umbrage, or would have at 4 that time have taken great umbrage by interference of 5 another Department? 12:28 6 A. I am just putting my own personal perspective, I don't 7 think that represents a change of heart. Mr. Barry has 8 a very clear mind in his head, the Department would 9 like the Department of Education to do certain things 10 and they encouraged -- they got Mr. Haughey to talk to 12:28 11 Dr. (Inaudible) and they got Minister Lenihan to send a 12 letter encouraging the Department. But the line was it 13 is up to the Department of Education to do it and we 14 can't interfere, we can make recommendations and 15 encourage them to do it, but there is a line there that 12:28 16 we don't go over. That's how I would interpret the 17 letters. 18 173 Q. Does it appear that in a situation where you have a 19 particular problem, let's call it a problem, that falls 20 partially within the remit of different Departments, 12:28 21 that this correspondence here would seem to suggest 22 that there was something missing in regard to the way 23 that some problem like that was dealt with on the basis 24 that everyone had to be careful not to tread on 25 somebody else, there should have been some mechanism to 12:29 26 deal with a problem that spanned more than one 27 Department? 28 A. The fact is interdepartmental things are always 29 sensitive and there isn't a proper mechanism, the only 84 1 mechanism for resolving those issues are at the actual 2 Government. So unless you went to Government. If one 3 Department wants another Department to do something and 4 the other Department doesn't want to do that the only 5 resolution mechanism is the Government itself. But as 12:29 6 I said, there is clearly the Department of Justice 7 wasn't happy with the response they were getting from 8 the Department of Education but they would only press 9 it so far and that was sending letters of 10 encouragement, so to speak, but they weren't actually 12:29 11 going actually say, "it is our job to supervise what 12 they do in the Department of Education", because I 13 think that would have gone over the line that was being 14 drawn by Mr. Barry. 15 174 Q. Would you not see that there might be an element of 12:30 16 frustration for the people who were involved in an 17 interdepartmental committee that they can spend a long 18 time coming to certain conclusions, making certain 19 suggestions and then nothing happens at all? 20 A. Unfortunately in my experience as a civil servant that 12:30 21 frequently happens. I just make the point, just so you 22 fully understand the way the letters went, I think 23 these are in reverse order. I think the letter that 24 has the handwritten attachment, that was drafted by 25 somebody junior to Mr. Barry, that it was changed. The 12:30 26 first letter you referred to was the letter that was 27 actually issued. So obviously somebody within the 28 Department felt one thing and the Secretary General 29 felt "no, we are going too far, we are not going that 85 1 far." 2 175 Q. THE CHAIRPERSON: The interdepartmental 3 committee, if it is dealing 4 with juvenile delinquency is obviously a matter for 5 both Departments, one would think? 12:31 6 A. Yes. And just to clarify, the interdepartmental 7 committed wasn't established by the Government it was 8 established by the Minister for Justice. 9 176 Q. THE CHAIRPERSON: Yes. Presumably with the 10 consent of Minister for 12:31 11 Education? 12 A. Yes, obviously because the Minister for Education 13 supplied things. You could say the recommendations of 14 the interdepartmental committee were more binding on 15 Justice than they would be on Education. Because it 12:31 16 wasn't an Education sponsored idea. Subtly, I would 17 say that. 18 177 Q. THE CHAIRPERSON: No, I think that's clear. 19 But it makes sense, it 20 makes obvious sense that you are going to have people 12:31 21 from each Department if it is to do with that? 22 A. Yes. 23 178 Q. THE CHAIRPERSON: But if the Department of 24 Justice takes up a 25 complaint relating to an institution, right, Fr. Moore 12:31 26 makes himself known, rightly or wrongly, if the 27 Department of Justice sort of takes up that, I mean one 28 answer would be, "look, it is none of your business, it 29 is not in your remit and it doesn't come within the 86 1 juvenile delinquency", except by the most tenuous kind 2 of reasoning, but it does imply that they sort of want 3 to pursue it and they are not going to let it go and 4 they are not simply happy to say "over to you and look 5 into this for us and let us know when you have -- if 12:32 6 ever you come to a conclusion", they are not doing 7 that? 8 A. Yes, Chairman, I think certainly in the civil service 9 context, the Department of Justice took up an issue and 10 pursued it, even though it wasn't strictly within its 12:32 11 remit for several years afterwards so it was going 12 beyond what would be normal. 13 179 Q. THE CHAIRPERSON: I think that's what 14 Mr. McGrath is at, it is an 15 unusual situation? 12:32 16 A. Yes, it is unusual to go that far. 17 180 Q. THE CHAIRPERSON: Having regard to the -- I 18 mean Mr. Barry is clearly 19 right if it is him, in saying we can't start running 20 another Department, but it is unusual? 12:33 21 A. It is, yes. 22 181 Q. MR. McGRATH: It is unusual, but it 23 creates an impression that 24 when a specific problem arises that is dealt with by an 25 interdepartmental committee, that when solutions are 12:33 26 arrived at by that committee that the thing can just, 27 within the civil service, be allowed die. Partially 28 because of sensibilities and I can understand secondly 29 because it is not necessarily that Department's remit. 87 1 But I am worried about, and what concerns me about 2 these letters, is that they give the impression that 3 the sensibilities of one Department for another are 4 more important than find the solution or dealing with 5 the solution to the problem? 12:33 6 UNKNOWN SPEAKER: Here. Here. 7 A. I am not sure I would agree with that fully. The 8 Department of Justice had very strong views and pursued 9 them with the Department of Education. I don't know 10 what reasons the Department had -- the Department of 12:34 11 Education had for not pursuing it. Obviously the 12 Department of Justice felt it wasn't being pursued 13 vigorously enough by the Department of Education. I am 14 just not in a position to respond as to why the 15 Department of Education didn't do that. 12:34 16 182 Q. MR. McGRATH: But if you read the note 17 sent to the Minister: 18 "The interdepartmental committee, of which I am Chairman, is still 19 functioning. This committee have already given the views in a general 20 way to Education as to what might be 12:34 done but it is for the Department 21 concerned, Education, to work out its own solution." 22 23 And then going on to make the reverse scenario. It does 24 give the impression that maintaining good relations 25 between the Departments and not upsetting the people in 12:34 26 Education is more important than actually having the 27 solution acted upon? 28 A. Well I wouldn't agree in the sense that Mr. Barry 29 wasn't noted for his worry about what other people 88 1 thought about him and when you read the reports of the 2 interdepartmental committee he was quite aggressive 3 with the people from the Department of Education so he 4 obviously wasn't concerned with what they thought. I 5 think it was an intellectual thing, his response went 12:35 6 so far and not further rather than a concern about his 7 relationship with the Department of Education. 8 183 Q. In relation to the situation, vis-a-vis the 9 Departments, this problem arises again, if I understand 10 it correctly from the papers, some time in the early 12:35 11 1970s, when Mr. Faughner is the Minister for Education 12 and Mr. Des O'Malley is the Minister for Justice. In 13 fact. We almost seem to have in these circumstances a 14 role reversal in terms of the position of the 15 Ministers, at this stage Mr. Faughner is asking for 12:35 16 assistance from Justice, he's asking them to come on 17 board in relation to a committee and Mr. O'Malley, 18 appears from the correspondence, to be running away 19 from it as quick as he can on the basis that he doesn't 20 want Justice to get itself immeshed in what he sees as 12:36 21 Education's problem. Is that a fair or unfair 22 assessment? 23 A. It would appear from the files that coming towards the 24 end of the life of Marlborough House there was serious 25 problems there, the Department of Justice did arrange 12:36 26 that there was -- there was a walk out of the staff by 27 Education from Marlborough and the Department just did 28 arrange for members of Garda Síochána and prison 29 wardens to go in to man the place, but there was a very 89 1 heated exchange between the Minister for Education and 2 the Minister for Justice. Basically, I think, Minister 3 O'Malley was saying "you got us into this mess and it 4 is your job to get yourself out and we are not going 5 accept responsibility." So there is a sense that there 12:36 6 was, in a sense, a very real concern by the Minister 7 for Justice that the Minister for Justice was going to 8 get sucked into the problem that he felt wasn't his 9 area. 10 184 Q. If I can deal with particular areas, I think they are 12:37 11 at F62 in your book. 12 A. I don't have the same notation unfortunately. 13 MR. FERRITER: These are tab 62, it is 14 footnote 62 on page 45. 15 MR. McGRATH: It is a memo. 12:38 16 A. Yes, I have it now. 17 185 Q. This appears to be a memo from your Department; is that 18 right? 19 A. Yes. 20 186 Q. It starts: 12:38 21 "Mr. Lane, Department of Education rang on 8/7/371 and inquired who would be 22 our representative or representatives on the working party as he said had 23 been arranged at that morning's conference. 24 I replied that I was not aware that 25 there had been any agreement on the 12:38 part of the Minister for Justice that 26 morning to join in a working party. 27 Mr. Lane in reply asserted that there had, in his view, been such an 28 agreement. I replied that I had been paying close attention and that I had 29 observed no such agreement. However, I would consult my authorities and ring 90 1 him back. 2 Mr. Lane added that the details of the understanding that had been reached by 3 District Justice Kennedy was that she would make no more remands to 4 Marlborough House until 13th July and that the last or the present remands 5 there is due to expire on 19th July. 12:39 As the working party is to furnish a 6 report they are anxious to commence operations immediately by visiting 7 Clonmel, Daingean, etc., with a view to securing agreement to have remandees 8 taken to these places until St. Lawrence's comes into operation in 9 September. 10 Further, they would like another joint 12:39 visit to St. Lawrence's on Friday 11 morning as they are having a meeting with Del La Salle representatives on 12 Friday afternoon. Having consulted the secretary, I rang Mr. Lane on the phone 13 to him that I felt absolutely correct in thinking that there was no agreement 14 about a working party, I added that Marlborough House is not a matter for 15 the Minister for Justice nor one in 12:39 which he can be involved. He had made 16 this clear at this morning's meeting and consequently I had no more to say 17 about a working party. 18 I added that I felt that I should make it plain to him that in this Department 19 it is believed that the Department of Education is endeavouring to involve 20 the Department in something which is 12:39 not its concern, that this Department 21 is by now aware of this and that at both sides now know situation there is 22 no use in coming to me further. 23 Mr. Lane replied that he would have to speak to Mr. O Floinn who might speak 24 to me. Later Mr. O Floinn rang and said that he had entirely the opposite 25 impression to mine regarding the 12:40 question of the working party, that in 26 fact his Minister had confirmed to him on coming away from the conference that 27 the Department of Justice were now agreeable to join. 28 I replied in the same terms as I had 29 expressed myself to Mr. Lane whereupon Mr. O Floinn said that in these 91 1 circumstances Marlborough House would be closed down on the 19th July and 2 that the Department of Justice would come in for criticism because of the 3 statutory liability which it has as already advised to them as being 4 advised to them by the Attorney General. He asked that this be 5 conveyed to my authorities and informed 12:40 the secretary briefly..." 6 7 In fact, a word is missing there. Now, very clearly 8 major fisticuffs between the two Departments? 9 A. Yes. 10 187 Q. Letter of 20th July 1971, written on the top: "Sent by 12:41 11 hand at 10 a.m.", there is a signature on it, I am not 12 quite sure who the signature is. 20/7/71: 13 "Dear Padraig, apart from what you said to me personally last week I am told by 14 Departments that subsequent to my discussion with you on Thursday, 8th 15 July about Marlborough House etc. they 12:41 were approached by your Department to 16 have St. Lawrence's and other centres visited jointly by representatives of 17 the two Departments on the basis that I had agreed to this. 18 When my Department on my instruction 19 replied that I had not agreed to become involved in this way, it was suggested 20 that as the existing Marlborough House 12:41 is closing there will be no alternative 21 place of detention and this will lead to criticism of me or my Department 22 because according to your people it is my responsibility. It is clear that 23 there has been much misunderstanding about this whole business and so the 24 position may be clarified for the future. I think it may be useful to 25 put some points in writing. Whatever 12:42 differences of view there may be as to 26 what ought to be done certain fact are not, I believe, open to dispute. 27 St. Lawrence's has been provided at a 28 very substantial expense to the State. It was provided explicitly to replace 29 Marlborough House both as a remand home and as a place to detention. This is 92 1 shown beyond all doubt in the records of the interdepartmental committee, 2 which sponsored the concept in the early 1960's. A committee which 3 included a representative of your Department. It was envisaged that the 4 law that provides for a month's detention would be amended to permit 5 detention for longer periods. 12:42 6 The building was not then proceeded with because of shortage of funds but 7 the project was revived a few years ago and the building is now complete. 8 Within the last year your Department 9 informed mine that the Del La Salle order would not be able to take boys on 10 remand because by taking remand cases 12:43 they would be upset the routine of the 11 place and the comings and goings would have a disturbing effect on detainees. 12 Because of this objection by the Order, 13 a most regrettable last minute one it seemed to me, your Department decided 14 that there should be separate accommodation for remand cases at a 15 site adjacent to St. Lawrence's. And I 12:43 raised no objection. 16 Now we are told that the Del La Salle 17 Order will not take the general run of offenders who in the past would have 18 been sent to Marlborough House for detention and the intention is to 19 restrict St. Lawrence's to specially selected offenders who would really be 20 on probation. The condition of 12:43 probation being that they would reside 21 there for up to 12 months. 22 As a result, my Department is now being asked to undertake joint responsibility 23 for the provision of other accommodation for ordinary detainees. 24 I could not agree that if we are to be left without a place for detention I 25 must accept the blame or some of it. 12:43 My Department cooperated with yours in 26 the difficulties that recently arose, and quite frankly one of the unanswered 27 questions about the events in question is whether the full facts ever reached 28 the senior officials of your Department, let alone reaching you. 29 Be that as it may, the State has 93 1 provided this institution as a general purpose place of detention, the 2 suggestion that such an institution should be provided at State expense 3 solely for selected cases has never, as far as I know, even been put forward 4 let agreed to up to now. 5 I do not think it would be reasonable 12:44 to blame me for matters on which my 6 Department was not even consulted. Yours sincerely, Des O'Malley, Minister 7 for Justice". 8 9 He, quite clearly, is in quite a state of high dudgeon 10 as far as this is concerned? 12:44 11 A. Yes. Obviously the relationship between the Department 12 of Education and Department of Justice is quite fraught 13 at this stage. 14 188 Q. Now, we are at a stage here where Marlborough House, 15 which was suggested needed to be closed in 1952, 20 12:44 16 years later is only closing down. A problem has arisen 17 and to the man in the street it appears that your 18 Department is not prepared to become involved in trying 19 to find a solution to the problem? 20 THE CHAIRPERSON: That doesn't seem fair, 12:45 21 Mr. McGrath. I mean it is 22 matter for interpretation. 23 MR. McGRATH: Yes it is. 24 THE CHAIRPERSON: One is saying, "look, it is 25 not our division, it is 12:45 26 your section. You agreed to this. No, I didn't, here 27 is what I agreed to." They are saying we have a brand 28 new place, it started up in September, that's what they 29 are saying. It is not really a question of somebody -- 94 1 surely, whatever. 2 MR. McGRATH: Sorry, Chairman, it would 3 appear...(INTERJECTION). 4 THE CHAIRPERSON: Attacking, that's one we 5 don't need to be debating. 12:45 6 MR. McGRATH: What would appear here is 7 that just as Marlborough 8 House is closing a problem has arisen, the Department 9 of Justice have been asked by the Department of 10 Education to come on board on a committee to try and 12:46 11 solve a problem that has arisen as a result of the 12 closure of Marlborough House, which is now closing 20 13 years after it was first recommended it should be 14 closed. And the manner in which the it seems to be 15 dealt with, in my respectful submission, it is 12:46 16 something somebody else can disagree 17 with...(INTERJECTION). 18 THE CHAIRPERSON: Maybe the Department and 19 the Minister were right and 20 maybe they were wrong. What difference does it make? 12:46 21 MR. McGRATH: The difference it makes is 22 this: The point I am 23 making, and it goes back to the earlier point, a 24 problem has arisen and the Department of Justice have 25 been asked for help. 12:46 26 THE CHAIRPERSON: I'm not understanding, it 27 is the Department's of 28 Education 's responsibility, it is perfectly clear. 29 MR. McGRATH: Yes. 95 1 THE CHAIRPERSON: Why don't they deal with 2 it? 3 MR. McGRATH: What I am saying simply is 4 this: Is that there would 5 appear to have been a request for help. 12:46 6 THE CHAIRPERSON: You are describing it as a 7 request for help, I 8 certainly think that's a "please help us." "No, go 9 away." I am not sure that's a legitimate 10 interpretation. But just suppose it is, so what? It 12:47 11 is your problem, you solve it. Suppose they said that? 12 MR. McGRATH: It comes back to the 13 question as to whether or 14 not there is any mechanism within the system to solve a 15 problem where there is a major row between two 12:47 16 Departments and as to whether or not that row means 17 that the problem doesn't get solved. That's the point. 18 THE CHAIRPERSON: Mr. Martin, in the 19 circumstances. 20 MR. McGRATH: It comes on from the point 12:47 21 I was making earlier. 22 189 Q. THE CHAIRPERSON: It is just a question of 23 keeping the focus on the 24 thing. Mr. Martin, given that there is a dispute 25 between two Departments, is there a mechanism for 12:47 26 sorting it out or does the problem simply get forgotten 27 in the war between the Departments? 28 A. The mechanism for solving it is a decision by the 29 Government to instruct one Department or the other to 96 1 do something. In this case, there was a period where 2 there wasn't -- in the early 1970's, my recollection is 3 there was a period where there wasn't always suitable 4 accommodation for problem children and that continued 5 for some time. Now it has been resolved subsequently. 12:48 6 And at this late stage the Department of Justice has 7 accepted full responsibility going into the future. It 8 wasn't an issue that went away because it attracted 9 lots of publicity in that period and I don't want to 10 defend the Department of Justice or blame the 12:48 11 Department of Education but it is quite clear from the 12 files that the view from the Department of Justice was 13 "this is the Department of Education's problem, they 14 are trying to drag us into it and we are going to stand 15 back from it". That seems to be the approach they were 12:49 16 taking. 17 190 Q. THE CHAIRPERSON: Maybe the were right, 18 maybe they were wrong. But 19 I think Mr. McGrath's point is, in this does the 20 problem become sacrificed, does the problem suffer, 12:49 21 does the solution of the problem get postponed? 22 A. Well obviously the solution of this particular thing 23 was delayed as a result of the fighting between the two 24 Departments, it was resolved eventually but it was 25 quite clear that the Department of Education was 12:49 26 drawing its line and the Department of Justice was 27 drawing its line and there was a bit in the middle that 28 wasn't being dealt with. 29 191 Q. THE CHAIRPERSON: What should have happened? 97 1 A. Well I don't want to take sides of one Department over 2 the other. 3 192 Q. THE CHAIRPERSON: No. But there was a 4 dispute and one was right 5 and one was wrong? 12:49 6 A. Then it is a matter for the Government. In one sense 7 the Government...(INTERJECTION). 8 193 Q. THE CHAIRPERSON: It should have been 9 referred to the Government? 10 A. And the Government should say "yes, you are still 12:49 11 responsible for this and you go ahead and do it." 12 194 Q. THE CHAIRPERSON: It is a Government 13 decision. What should have 14 happened was that the two Ministers at ministerial 15 level, presumably the two Ministers should have said, 12:50 16 "we have a problem with our Departments -- sorry, our 17 Departments have a problem, we don't have to be writing 18 angry letters about it, we have a disagreement. We 19 need our Government, our Cabinet colleagues to say 20 which of us deals with it, or do we both deal with it"? 12:50 21 A. Yes. 22 195 Q. THE CHAIRPERSON: And that didn't happen? 23 A. I'm not 100% certain, but yes, there certainly was 24 a...(INTERJECTION). 25 196 Q. THE CHAIRPERSON: There certainly was a 12:50 26 delay? 27 A. Before the problem was solved. 28 197 Q. THE CHAIRPERSON: An early recognition of 29 that, an identification of 98 1 that problem would have led to a solution? 2 A. A quicker solution. 3 198 Q. THE CHAIRPERSON: And Mr. McGrath -- so you 4 go along with Mr. McGrath 5 in saying "yes, the delay -- the problem was prolonged 12:50 6 because that issue wasn't faced up to", and, as I say, 7 it doesn't matter who is right and who is wrong, the 8 point is it has to be resolved? 9 A. Yes. 10 199 Q. MR. McGRATH: You see, part of my way of 12:51 11 looking at this and 12 thinking about this arises from -- if I look through a 13 list of the various examinations of the problems over 14 the years, I mean, we have the Cussen Report in 1936, 15 which made recommendations, okay there are some changes 12:51 16 made by the 1941 Act, we have an interdepartmental 17 committee in 1951, which seems to be concerned with 18 Marlborough House; we have the Turim address in 1959 by 19 James O'Connor, BL; we have the interdepartmental 20 committee sitting in the early 1960's, most of its 12:51 21 deliberations seem to have been done in 1963. We have 22 a Turim Report which made recommendations in 1966, you 23 have that resulting in the Minister setting up the 24 Kennedy Report in 1970; the Department of Education 25 sets up another interdepartmental committee in 1973, 12:51 26 after the change of Government. You have a committee 27 for law reform set up in 1973 as well, and it would 28 appear one of its remits was to deal with childcare. 29 In 1974 you have a task force on childcare services set 99 1 up by the Department of Health, which has now been 2 given the brief to sort out the childcare situation, 3 although childcare hadn't been transferred to the 4 Department at that time, as I understand it, but they 5 have a brief to sort out the problem with it. They 12:52 6 give an interim report in 1975, there is a final report 7 from that task force which appears in 1980, after it 8 has run into some difficulties and there are also 9 alternatives reports from people who were on that task 10 force who didn't agree with the final report. 12:52 11 12 There would appear to have been another 13 interdepartmental committee in 1980. We seem to have 14 got a Childcare Act in 1991. We seem to have another 15 Act of 2001 and some time around 2004 responsibility is 12:53 16 transferred to Justice Equality and Law Reform and you 17 have a project team set up in 2004 and it gives a 18 report in 2005 and there is more legislation now to 19 come, as I understand. 20 12:53 21 We had something in the region of 1, 2, 3, 4, 5, 6, 7, 22 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 or 18 reports 23 between 1936 and now. It seems to have taken 20 years 24 in some instances for anything to be done about 25 problems that are recognised. In fact, if you look at 12:53 26 the fact that there was an address in 1959 Turim, that 27 there was the interdepartmental committee in 1963, the 28 Turim Report in 1966, the Kennedy Report in 1970, it 29 takes until 1991 to actually get a change in the 1908 100 1 Act. It seems absolutely extraordinary that decisions 2 can take so long. I mean, what purpose have all these 3 various interdepartmental committees and all these 4 reports got? I mean, does anybody take any interest in 5 them whatsoever? 12:54 6 A. Well, I can't answer for all the other Departments, but 7 I don't think your summation is quite fair, because, 8 you know, there was the Cussen Report, there was an 9 amendment to the Children's Act in 1941. So at various 10 stages action was taken and certainly the issue of 12:54 11 child protection became a major issue in the 1970's and 12 1980's. I know there was several attempts by different 13 Department to try and resolve it and they weren't 14 successful. And that's not just in this area, there is 15 the whole question of sexual abuse of children in the 12:54 16 community, there is the whole question of what's the 17 best regime to deal with childcare which helped several 18 things but they ran into difficulty with the thing. It 19 is a complicated issue, I am not trying to defend it, 20 it should have happened faster. It is not as if nobody 12:55 21 was paying attention, there was a lot of work going 22 into it. 23 200 Q. But it appears that at certain times committees were 24 set up for a specific purpose, they reported on that 25 purpose. Is it a case that what they reported on got 12:55 26 lost because everyone said "well, there is something 27 more we have to do as well and not that we can do 28 everything together, we can't even do small pieces to 29 solve problems as they are arising." If you have a 101 1 committee reporting in 1963 and it has seen problems 2 and has recommended ways in which it should be solved, 3 why is it another 30 years before the 1991 Act comes 4 along? 5 A. I'm just not able to answer that question. I am sorry. 12:55 6 201 Q. Is it a problem within the civil service or is it a 7 problem within the manner in which the democratic 8 elected representatives deal with the problem? Why 9 delays of that magnitude? 10 A. I'm just not able to deal with such a sweeping 12:56 11 question. If there is specific 12 issues...(INTERJECTION). 13 THE CHAIRPERSON: What specifically in 1963 14 do you say wasn't 15 implemented, Mr. McGrath? 12:56 16 MR. McGRATH: Just give me a second, 17 Chairman. 18 THE CHAIRPERSON: I mean, we are aware of the 19 point you are making from 20 the early days but it is a bit much to say to 12:56 21 Mr. Martin, "listen here, between the Cussen Committee 22 and the interdepartmental and so on and so on that's a 23 scandalous state of affairs, isn't it?" But the point 24 you make by way of a comment is something for us to 25 take into account. But it is a bit hard, so he says, 12:56 26 "look, if there is something specific you are asking, 27 well and good, I can hope to deal with that by saying, 28 yes, it is dealt with here or here is what happened, as 29 a result of it." Do you know what I mean? 102 1 MR. McGRATH: Yes, I understand where you 2 are coming from, 3 Mr. Chairman. 4 THE CHAIRPERSON: I'm not holding you to a 5 specific thing in 1963 into 12:57 6 interdepartmental committee, but I am just illustrating 7 that if there is some specific thing that you are 8 saying it is a fairer way to say to Mr. Martin "why 9 didn't this get" -- let's forget about the grammar for 10 a minute, "why didn't this get done earlier when it was 12:57 11 recommended then?" 12 MR. McGRATH: Okay. Mr. Chairman, if you 13 just give me moment. 14 THE CHAIRPERSON: Yes, take your time. 15 MR. McGRATH: Sorry, Chairman, I haven't 12:58 16 anything specifically 17 marked in the report and I don't want to spend too much 18 time on it. 19 THE CHAIRPERSON: That's all right. You have 20 made the general point 12:58 21 which is, "look, it is frustrating." Broadly speaking, 22 I don't think Mr. Martin disagrees with that. 23 202 Q. MR. McGRATH: I suppose the obvious one 24 is the one that I mentioned 25 already which is taken from 1951 or 1952 to 1972 to 12:58 26 close down Marlborough House which, to some extent, it 27 was condemned as far back as 1952 and yet it seems to 28 take forever and that was something that your 29 Department had some significant input into? 103 1 A. Yes, the Department does and it seems to have been 2 agreed back as far as 1963 that there were plans to 3 draw Finglas now. Why there was delay, you would have 4 to ask the Department of Education, why there was delay 5 in actually building the new centre and that. But it 12:58 6 seems to have been taken as a fait accompli in 1963 7 that Finglas was going be built that and that there was 8 going to be an assessment centre but it didn't come 9 into fruition until the early 1970's. 10 203 Q. Now, you do have some point in one of your booklets, I 12:59 11 think, there is a copy of the Kennedy Report. 12 A. Yes. 13 204 Q. Appendix G is a matter that I want to bring up. It is 14 a matter that has been expressed as concern of some of 15 the people who are in care. I know that, to some 12:59 16 extent, the Department of Justice wouldn't have covered 17 the institutions that many of the clients I would have 18 had here or at the Redress Board, you haven't covered 19 them. But there are a certain aspects. If you go to 20 appendix G. 13:00 21 A. Yes. 22 205 Q. This covers the reasons why a child may be taken into 23 care under Section 58 of the Children's Act, 1908. 24 That provides: 25 13:00 "When a child is in need of care or 26 control if he's under the age of 15 years and he is (A) found begging or 27 receiving alms, whether or not there is any pretence for singing, playing, 28 performing, offering anything for sale or otherwise or being in any street 29 premise or place for the purposes of so begging or receiving alms". 104 1 2 It goes on: 3 "If found not having a home or settled place of abode, or visible means of 4 substance or is found having a parent or guardian who is not exercising 5 proper guardianship; or (C) is found 13:00 destitute, being an orphan or not being 6 an orphan and having both parents or a surviving parent or in the case of an 7 illegitimate child his mother undergoing penal servitude..." 8 9 Then it goes on in various other matters there. The 10 first couple of them there, A, B, C, would seem to be 13:00 11 very similar to some of the offences that would have 12 been committed under the Vagrancy Act which adults 13 could be convicted of and could end up being 14 incarcerated. 15 13:01 16 A lot of the people who were put into various homes 17 would have been taken before the courts on those 18 particular grounds. They would have been committed on 19 the basis that they were begging, in other words 20 receiving alms, or that they were found wandering or 13:01 21 had insufficient means, which are all matters that 22 would have been dealt with under the Vagrancy Act. In 23 that regard one of the matters that concerns the people 24 who were in the institutions is that they feel as a 25 result of those that they were criminalised and that 13:01 26 that meant that they weren't able to get a job in the 27 civil service because they had a criminal record, that 28 they weren't, as you say, able to become a teacher 29 because again they had a criminal record, they weren't 105 1 allowed to sit on jury service and that was something 2 that is of great concern to them. 3 4 Can you tell me, on behalf of the Department, are you 5 in a position to say that you will look into that 13:02 6 situation and see if those problems can be resolved for 7 them? 8 A. Certain. But my understanding that if you are taking 9 under Section 58 there is no question of any criminal 10 conviction or any criminal record, I may be wrong but I 13:02 11 am not aware. 12 206 Q. The question I am simply asking is this, I am going put 13 it in this way if I can. This is a concern that many 14 of them have, all right, that they are criminalised. 15 Now, what I'm asking you is on behalf of the Department 13:02 16 can we have an undertaking that you would look into 17 that issue and try and deal with it or and if necessary 18 deal with the situation and decriminalise them, if that 19 is the situation, that they believe and they are having 20 these particular problems? 13:03 21 A. Certainly I will undertake on the behalf of the 22 Department to look into it. There might be a problem 23 that it might be a question of public perception rather 24 than legality, but it is certainly something we 25 ...(INTERJECTION). 13:03 26 UNKNOWN SPEAKER: It is reality. 27 A. We will look into it. 28 207 Q. MR. McGRATH: Let us put it this way, as 29 far as the people are 106 1 concerned they can feel that as of here you are going 2 to go and you are going see if there is anything 3 necessary to be done, you are going to inquire into it 4 and if necessary that something will be done to deal 5 with it? 13:03 6 A. Yes. 7 208 Q. I think I have covered the main areas I want to but 8 there was one other matter that was brought to my 9 attention and it is something that I was only given a 10 copy of this morning. I'm afraid you won't have seen 13:03 11 this documentation, the man who was dealing with this, 12 his father was taken in ill at the weekend so he didn't 13 get the papers at an earlier stage. I am going to try 14 and hand a copy of this document to the Committee and 15 to the witness. (Same Handed to the Committee and to 13:04 16 the witness) 17 209 Q. THE CHAIRPERSON: Just before we leave the 18 last topic. When 19 Mr. Martin has looked into the matter of the question 20 of people who do believe that they were criminalised 13:04 21 and there is a variety of reasons for that, when you 22 have looked into that and decided to do whatever you 23 are going to do about it, would you please let us know 24 the result of your investigation, whether you decide to 25 do something or don't decide or whatever you decide to 13:04 26 do? 27 A. Certainly, Chairman. 28 UNKNOWN SPEAKER: Where will we find out? 29 A. Well, it will be made public. 107 1 THE CHAIRPERSON: My understanding is that 2 two things are going to 3 happen, Mr. Martin is going to look into the thing and 4 when he comes to the conclusion as to what their view 5 is of the issue he will decide and the Department, 13:05 6 presumably there are other people in the Department 7 besides Mr. Martin who may say "no, you are wrong." 8 But as far as he's concerned he will do that and they 9 will decide what they will decide and presumably 10 announce what they have decided. 13:05 11 12 In the meantime they will send to us whatever 13 information they have gleaned as a result of that. We 14 already have some information, a good deal of 15 information in relation to that and we will be taking 13:05 16 our course on that, which will not be dependent on what 17 Mr. Martin does and neither will his decision be 18 dependent on anything we do. All right. That is an 19 important issue, I don't want to be -- I mean, it is 20 right to clear it up. Now you have one other area, 13:05 21 Mr. McGrath. 22 MR. McGRATH: There is a the booklet has 23 been handed in to you. If 24 you go to the very end of that book, to the last three 25 to four pages. 13:06 26 THE CHAIRPERSON: Thank you very much. 27 210 Q. MR. McGRATH: I think the page is marked 28 140, it is an extract from 29 the book by John Cooney on John Charles McQuade. Now, 108 1 at page 152 of the book, in the third paragraph on the 2 page, the paragraph reads as follows: 3 "The centenary celebrations took place as two senior Gardaí at Dublin's 4 Fitsgibbons Street station were prevented from pursuing allegations of 5 abuse by two Christian Brothers of boys 13:06 at Artane Industrial School. The 6 superior, or the Reverend Brother, TM Lenane, and the school chaplain 7 Fr. William Kenny succeeded in hushing up a potential scandal with the 8 assistance of McQuade and Justice Minister Gerald Boland. In a climate 9 of opinion hostile to prosecution the two Gardaí were told not proceed with 10 the case". 13:06 11 12 Now, that's that a serious allegation in relation to 13 workings of the Department and a very serious 14 allegation in relation to two Gardaí being prevented 15 from exercising their duty. Have you been able to find 13:07 16 anything in the records, because certainly there is 17 nothing in the discovery that I have seen that would 18 suggest that there is anything documented in your 19 Department in relation to that? 20 A. No, there are no records that we can find that relates 13:07 21 to this, nor would I expect to find any records. Just 22 to clarify, it wouldn't be the Department, they refer 23 specifically to a minister. Like, the Department 24 normally does not have any role in the question of a 25 prosecution, it would normally not get involved in a 13:07 26 prosecution or not to prosecute somebody. 27 211 Q. As far as this allegation is concerned, there is an 28 allegation that two members of the guards were somehow 29 or other persuaded not to exercise their duty, was 109 1 there any sort of -- after this came out, was there any 2 sort of inquiry being made in the Department to follow 3 this allegation up? 4 A. No, to the best of my knowledge, no, but then there is 5 not enough material -- like there is the guards who 13:08 6 were apparently told they weren't allowed to -- the 7 person making the allegation, the person who were 8 supposed to be the victim of it, there isn't really 9 enough material there to carry out an investigation, it 10 is a bit vague about the role of McQuade and the 13:08 11 Justice Minister. 12 212 Q. Has the Department even been able to identify the two 13 Gardaí who were supposed to have...(INTERJECTION)? 14 A. As I say, we didn't conduct an investigation, but I 15 don't think there is any way -- unless one of the 13:08 16 Gardaí involved came forward or the person who made the 17 allegation was able to identify them, there would be no 18 way the Department would be able to 19 identify...(INTERJECTION). 20 213 Q. But surely the Department of Justice, with its links 13:08 21 with the Garda Commissioner, can find out what guards 22 were investigating an allegation of a sexual crime in 23 the past? 24 A. Well it would be possible to write to the Commissioner. 25 But like this suggests that they weren't even allowed 13:09 26 investigate it, so there may not even be a file. I 27 don't see how we could pursue it without some 28 information as to who is making the allegation or the 29 dates. But if somebody has more detailed information 110 1 we would be happy to pursue it. 2 214 Q. Now there is another allegation that I am aware of, I 3 don't have a copy of the book unfortunately. As I 4 understand it in a book "Always in the Convent Shadow 5 By Margaret Mately", she was writing about her 13:09 6 experiences in the Good Shepherd Convent in Cork and 7 she alleges in her book that Judge McCarthy, I think, 8 who was the judge in the circuit court in Dublin, the 9 Children's Court, used to send children to a convent 10 down there and his sister was the head nun, did that 13:09 11 ever come to attention of the Department or anything 12 like that? 13 A. Not that I'm aware of. 14 215 Q. Would it be something that you think that the 15 Department should be concerned about, if it was 13:10 16 happening? 17 MR. FERRITER: Chairman, I have some 18 concern here, this question 19 is not based on any material that has been put before 20 the Department of Justice or the Commission either. I 13:10 21 think it is a little bit unfair to ask Mr. Martin to 22 speculate on a matter in the absence of any prior 23 notice of this issue at all, it is a very vague 24 question being put. 25 UNKNOWN SPEAKER: The book exists, page 21. 13:10 26 THE CHAIRPERSON: Yes. People make 27 allegations, I suppose 28 there is a limit to what the Department can track down. 29 I am not sure even if the facts were established it 111 1 might be a matter that we could comment on. But I'm 2 not sure it is a matter that Mr. Martin can go chasing 3 after and investigate. 4 5 (BY ORDER OF THE CHAIRPERSON OF THE INVESTIGATION 13:10 6 COMMITTEE THIS PORTION OF THE TRANSCRIPT HAS BEEN 7 DELETED). 8 9 THE CHAIRPERSON: Let's not go too far, 10 Mr. Lankford. I see the 13:11 11 difficulty that you are in, I have to say. I 12 sympathise with it. 13 (BY ORDER OF THE CHAIRPERSON OF THE INVESTIGATION 14 COMMITTEE THIS PORTION OF THE TRANSCRIPT HAS BEEN 15 DELETED) 13:11 16 THE CHAIRPERSON: Hold on, before you get too 17 worked up, Mr. Lankford. 18 UNKNOWN SPEAKER: How we were treated was 19 much more outrageous and 20 very sensitive. 13:11 21 THE CHAIRPERSON: I have to say it seems to 22 me unfortunate that 23 something that is impossible for this witness to 24 comment on, practically impossible for his Department 25 to have investigated should be put. However, 13:12 26 Mr. Lankford, as far as possible the line we have taken 27 is that we don't try to stifle debate or consideration, 28 people have to exercise their calm reflection. I don't 29 want to get into a big finger wagging exercise, 112 1 certainly from my point of view, I think that's 2 unfortunate that that reference was made, because it 3 does direct us to everything that anybody has ever 4 written in a book and any allegation and I don't think 5 it is fair to take them out and highlight them and I 13:12 6 hope it is not for sound bite purposes. I am not 7 prepared to believe that and I am not going to ask 8 Mr. McGrath to respond. Let me simply say I think it 9 is unfortunate that that was included. However, let's 10 leave it at that and probably the less said the better. 13:13 11 MR. McGRATH: I will leave it at that. 12 THE CHAIRPERSON: Thank you very much, 13 Mr. McGrath. 14 15 END OF EXAMINATION OF MR. MARTIN BY MR. McGRATH 13:13 16 17 THE CHAIRPERSON: Now, Mr. Ward. 18 MS. KIRBY: I have just one question. 19 Ms. Kirby for Marlborough 20 House. 13:13 21 THE CHAIRPERSON: Ms. Kirby, does Ms. Kirby 22 have anything to say, 23 MS. KIRBY: I have one question. 24 THE CHAIRPERSON: Certainly. 25 26 MR. JAMES MARTIN WAS THEN EXAMINED, AS FOLLOWS, BY 27 MS. KIRBY: 28 29 216 Q. MS. KIRBY: I represent the residents 113 1 who were -- a resident who 2 was in Marlborough House. You have outline the fact 3 that from 1963 onwards there was an interdepartmental 4 committee and that the Department of Justice maintained 5 the Department of Education responsible for Marlborough 13:13 6 House, but in 1963 there were definitely issues being 7 raised between the Departments. Now, in the statement 8 furnished there have been -- without going into any 9 details. There have been specific complaints of abuse 10 and there were specific complaints of abuse between 13:14 11 1968 and 1969. Now, that's referred to in a statement 12 and I think you say at the beginning of that statement 13 that the complaints of abuse were invariably referred 14 to the Department of Education as the Department had 15 responsibility for management of the institution. 13:14 16 17 But then there is an overview of documents held by the 18 Department of Justice in relation to specific abuse. 19 Specific instances of abuse which had been raised by, I 20 think, the complaints where children who were in 13:14 21 Marlborough House but they had been raised by in one 22 case a district justice and in another case a probation 23 welfare officer. Those are in the records of the 24 Department of Justice. Can you tell us were any steps 25 taken by the Department of Justice when they had 13:14 26 records of specific abuse made in relation to certain 27 children in response to those allegations of abuse? 28 A. Unfortunately not, no. What was done was when -- if 29 there are specific examples of a probation officer 114 1 reporting, the probation officer would have reported 2 back to the Department as its employer and we passed 3 them on to the Department of Education for action by 4 them. And we didn't pursue it. Obviously in this day 5 and age we probably would have reported them to the 13:15 6 Gardaí for criminal investigation. But in those days, 7 the line between corporal punishment and assault wasn't 8 as clear cut but all that was done by the Department 9 was the complaints were forwarded to the Department of 10 Education for action by them, because they were the 13:15 11 employer of the people against whom the allegations 12 were being made. 13 217 Q. Was there any follow-up following on from that? You 14 said they were forwarded to the Department of 15 Education, was there any follow-up on foot of that? 13:15 16 A. To the best of my knowledge there was no follow-up, the 17 complaints were passed on and the Department didn't 18 pursue it after that. 19 MS. KIRBY: Thank you. 20 13:16 21 END OF EXAMINATION OF MR. MARTIN BY MS. KIRBY 22 23 THE CHAIRPERSON: Now, Mr. Ferriter. 24 MR. FERRITER: I have no questions for 25 Mr. Martin. 13:16 26 MS. FERGUS: I have just one question. 27 THE CHAIRPERSON: I am sorry. Yes, 28 Ms. Fergus. 29 115 1 MR. JAMES MARTIN WAS QUESTIONED, AS FOLLOWS, BY THE 2 COMMISSION: 3 4 218 Q. MS. FERGUS: Mr. Martin, I am just 5 wondering, do you know what 13:16 6 system of inspection that the Department of Justice 7 operates today in relation to places like Finglas and 8 Oberstown? 9 A. We don't operate any, that's a matter for the 10 Department of Education, they are the Department of 13:16 11 Education institutions. 12 219 Q. And you don't have any responsibility for those centres 13 in terms of inspection? 14 A. No, 15 MS. FERGUS: That's great. Thank you 13:16 16 very much. 17 END OF QUESTIONING OF MR. MARTIN BY THE COMMISSION 18 19 THE CHAIRPERSON: You still have no 20 questions. 13:16 21 MR. FERRITER: I have no questions. 22 THE CHAIRPERSON: Ms. Shanley. 23 MS. SHANLEY: I have no questions. Thank 24 you. 25 THE CHAIRPERSON: Thank you very much 13:16 26 Mr. Martin and thank you 27 everybody for your cooperation. You are finished now, 28 Mr. Martin. Thank you very much. 29 116 1 THE HEARING THEN CONCLUDED AT 1:16 P.M. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 117