Christian Brothers v Child Abuse Inquiry and others 2004 Jan 27 High Court Eire

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This particular post has not been redacted

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[2004] 1 JIC 2703

THE HIGH COURT

HC 225/04

[Rec. No. 2003/1998P]

BETWEEN

MICHAEL MURRAY AND DAVID GIBSON

PLAINTIFFS

AND

THE COMMISSION TO INQUIRE INTO CHILD ABUSE,THE MINISTER FOR EDUCATION AND SCIENCE,IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

27/01/2004

Tribunals of Inquiry – Evidence – Fair procedures – Constitutional law – Child Abuse -Delay – Lapse of time – Group defamation – Absence of supporting documents – Whether evidence required corroboration – Whether powers and procedures of Commission unconstitutional – Commission to Inquire into Child Abuse Act, 2000.

Facts: The plaintiffs, acting on behalf of the congregation of Christian Brothers, brought proceedings challenging certain aspects of the procedures of the Commission established to inquire into child abuse and also sought to challenge the constitutionality of the Commission to Inquire into Child Abuse Act, 2000 (‘the 2000 Act’). The plaintiffs claimed that the Commission was empowered to make findings of sexual abuse against persons who were either dead, suffering from a disability or missing and therefore unable to rebut the relevant allegations. It was contended that many of the allegations related to incidents that had occurred many years ago and evidence to contest same was unavailable. Issue was also taken with the entitlement of the Commission to make findings against deceased persons and publish same in the public domain. The plaintiffs challenged rulings issued by the Commission relating to the interpretation of the 2000 Act and its statutory functions as being contrary to natural and constitutional justice. The defendants rejected the claims of the plaintiffs and submitted that the lapse of time that had occurred was not a reason for the Commission not to investigate matters before it. Furthermore it was contended that deceased persons were not entitled to the protection of personal rights relating to good name and character and there was no absolute barrier to investigating or publishing findings against dead persons. The plaintiffs’ claim was both hypothetical and premature and the 2000 Act enjoyed the presumption of constitutionality.

Held by Abbott J in making the following order. There was no constitutional right of deceased persons to a good name. However in cases where evidence was given against absent persons a standard of corroboration was required before the Commission made an adverse finding. There was a statutory mandate upon the Commission to inquire into all the available evidence which outweighed the difficulties presented by the lapse of time that had occurred. A declaration would be made in favour of the right of representative of the deceased and those incapacitated to cross-examine on their behalf in the interests of fair procedures and constitutional justice. A declaration would also issue that the Commission provide the parties to the inquiry with an interpretation of the terms of reference provided by the 2000 Act insofar as it related to corroboration and testing of evidence of witnesses including complainants and respondents.

Reporter: R.F.

JUDGMENT of Mr. Justice Henry Abbott delivered the 27th day of January, 2004.

INTRODUCTION

The plaintiffs are members of, and nominated to represent the interests of, the congregation of the Christian Brothers. The first named defendant is a body corporate established pursuant to the provisions of the Commission to Inquire Into Child Abuse Act, 2000 (hereafter “the Act”). The plaintiffs dispute a final ruling of the Investigation Committee of the first named defendant made on the 18th October, 2002.

In simple terms the issue in the proceedings is whether the Committee is empowered to make a finding of serious sexual abuse by one person in a particular institution of another, within that institution, within a period many years ago in circumstances where that first person is either dead, under a disability, unplaced or disadvantaged in the inquiry by reason of being hampered or hindered from rebutting the allegations, due to prejudice caused by the lapse of time since the alleged incidents took-place.

THE ACT

The long title of the Act is as follows:

AN ACT TO ESTABLISH A COMMISSION, TO BE KNOWN AS AN COIMISIÚN CHUN DROCHÚSÃID LEANAÃA FHIOSRÚ, OR, IN THE ENGLISH LANGUAGE, THE COMMISSION TO INQUIRE INTO CHILD ABUSE, TO INVESTIGATE CHILD ABUSE IN INSTITUTIONS IN THE STATE TO ENABLE PERSONS WHO HAVE SUFFERED SUCH ABUSE TO GIVE EVIDENCE TO COMMITTEES OF THE COMMISSION, TO PROVIDE FOR THE PREPARATION AND PUBLICATION OF A REPORT BY THE COMMISSION CONTAINING THE RESULTS OF ITS INVESTIGATION AND ANY RECOMMENDATIONS IT CONSIDERS APPROPRIATE FOR THE PREVENTION OF CHILD ABUSE, THE PROTECTION OF CHILDREN FROM IT AND THE ACTIONS TO BE TAKEN TO ADDRESS ANY CONTINUING EFFECTS OF CHILD ABUSE ON THOSE WHO HAVE SUFFERED IT AND TO PROVIDE FOR RELATED MATTERS.

Section 1, subsection 1, provides as follows:

1.

– (1) In this Act, unless the context otherwise requires

abuse”, in relation to a child, means

(a) the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child,

(b) the use of the child by a person for sexual arousal or sexual gratification of that person or another person,

(c) failure to care for the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare, or

(d) any other act or omission towards the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare,

and cognate words shall be construed accordingly;

Commission” means the Commission to Inquire into Child Abuse established by section 3;

Committee” means, as the context may require, the Confidential Committee or the Investigation Committee or both of them;

Confidential Committee” means the Committee of the Commission established by section 10(1)(a);

Institution” includes a school, an industrial school, a reformatory school, an orphanage, a hospital, a children’s home and any other place where children are cared for other than as members of their families;

Investigation Committee” means the Committee of the Commission established by section (1)(b);

Minister” means the Minister for Education and Science;

Relevant period” means the period from and including the year 1940 or such earlier year as the Commission may determine to and including the year 1999 and such later period (if any) as the Commission may determine.

(2) References in this Act to abuse of children in institutions or which occurred in institutions include references to any case in which abuse of a child took place, not in an institution, but while the child was residing or being cared for in, or attending, an institution and the abuse was committed or aided, abetted, counselled or procured by, or otherwise contributed to by an act or omission of, a person engaged in the management, administration, operation, supervision or regulation of the institution or a person otherwise employed in or associated with the institution.

(3) References in this Act to the management, administration, operation, supervision and regulation of institutions include references to such management, administration, operation, supervision or regulation effected, supervised, funded or regulated, in whole or in part, by a Department of State, a vocational education committee established by the Vocational Education Act, 1930, a health board, a local authority for the purposes of the Local Government Act, 1941, or any other public body.

Section (4)(1) provides for the functions of the Commission as follows;

4.-(1) The principal functions of the Commission are, subject to the provisions of this Act-

(a) to provide, for persons who have suffered abuse in childhood in institutions during the relevant period, an opportunity to recount the abuse, and make submissions, to a Committee,

(b) through a Committee-

(i) to inquire into the abuse of children in institutions during the relevant period,

(ii) where it is satisfied that such abuse has occurred, to determine the causes, nature, circumstances and extent of such abuse, and

(iii) without prejudice to the generality of any of the foregoing, to determine the extent to which-

(I) the institutions themselves in which such abuse occurred,

(II) the systems of management, administration, operation, supervision, inspection and regulation of such institutions, and

(III) the manner in which those functions were performed by the persons or bodies in whom they were vested, contributed to the occurrence or incidence of such abuse, and

(c) to prepare and publish reports pursuant to section 5.

(3) The Commission shall have all such powers as are necessary or expedient for the performance of its functions.

(5) The Commission may invite and receive oral or written submissions.

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

(a) so as to afford to persons who have suffered such abuse in institutions during the relevant period an opportunity to recount in full the abuse suffered by them in an atmosphere that is as sympathetic to, and as understanding of, them as is compatible with the rights of others and the requirements of justice, and

(b) as informally as is possible in the circumstances.

5.-(1) The Commission shall, having had regard to the reports under sections 13 and 16, prepare a report in writing in relation to the matters referred to in section 4(1)(b) (“the report”) and shall specify in it the determinations made by the Commission pursuant to that provision.

THE PARTIES

The two named plaintiffs are the provincial leaders of St. Helen’s Province and St. Mary’s Province of the Congregation of Christian Brothers. The reality in this case is that the proceedings are brought by the Congregation of Christian Brothers through these named plaintiffs.

The first named defendant, the Commission to Inquire into Child Abuse, is colloquially known as the Laffoy Commission. It shall be referred to throughout this judgment, as it was in the proceedings, as the Commission. It was initially set up on a non-statutory basis in May, 1999, but was placed on a statutory footing in April, 2000, under the Act. The second named defendant, the Minister for Education and Science, is joined in the proceedings as the Minister charged with responsibility for the Act.

However, it is acknowledged in the proceedings (although not specifically stated), that the Minister for Education also has an interest in the proceedings as a potential respondent, as a person or body in whom the functions being examined by the Commission were vested. The third named defendant is Ireland. The fourth named defendant is the legal person charged with upholding the provisions of Bunreacht na hÉireann, and counsel for the plaintiff stated from the outset that if it is held by this court that the Commission, or its Investigation Committee is correct in its ruling (sought to be impugned in these proceedings by the plaintiffs), then the legislation is unconstitutional. It was further explained that the constitutionality of the legislation thus only arises as a sort of final resort in the proceedings. It is for the purpose of pursuing this constitutional challenge to the Act (as it arises), that the Attorney General is joined.

EVENTS LEADING UP TO THE ACTION HEREIN

The events leading up to the action herein may be best described drawing on the final ruling of the Investigation Committee dated the 18th October, 2002.

The Investigation Committee had been set up by the Commission under the Act and proceeded to investigate the allegations of two complainants. The allegation of the first complainant was that as a child during the 1950s, she suffered abuse, within the meaning of that term in the Act, in a residential institution, which was managed by a congregation of religious sisters and was subject to statutory regulation by the Minister for Education.

The allegation of the second complainant was that during the late 1950s as a child, he suffered abuse within the meaning of the Act in a non-residential institution, which was managed by a congregation of religious brothers (now acknowledged to be the Congregation of Christian Brothers) and was subject to regulation by the Minister for Education.

Difficulties were posed by the religious sisters and the Christian Brothers in relation to their ability to meet the allegations and complaints in these cases.

In the case of the religious sisters it was stated that a member of the congregation of sisters, who was involved in the management of the institution during part of the relevant period and whom the complainant implicates in the allegations, is dead. Another member of the congregation who was involved in the management of the institution during the remainder of the relevant period is alive, but is elderly.

The difficulty posed by the Christian Brothers in relation to meeting the complaint in their case was that a member of the congregation, who was working in the institution, whom the complainant alleges perpetrated the abuse, is dead, as is the principal of the institution. The hearing of the allegations against the two different congregations commenced and proceeded for a number of days in each case. The issues raised in the case of the complaint against the congregation of sisters as to the power of the Committee to publish findings of abuse are:

1. identifying a person who is deceased or an institution based on an allegation that children were abused by that person in that institution; and

2. identifying a living person or an institution based on an allegation that children were abused by that person in that institution in circumstances which, by reason of lapse of time since the events complained of, the person is gravely hampered in his ability to defend himself against the allegation made.

In the case of the hearing of the complaint against the Christian Brothers their legal representative raised issues as to:

1. representation for and on behalf of the deceased person against whom the allegation was made;

2. prejudice arising by reason of lapse of time between the date of the alleged incident and the date of intended adjudication, including (inter alia) the death of that person, and

3. the entitlement of the Committee to make a finding of fact as against a deceased person and the right of the Commission to publish such finding and the right to name any such person in the public domain.

The Committee decided that as the issues raised in the allegations of the two complainants in each case were likely to recur in relation to many, perhaps even the majority, of the allegations being investigated by the Committee, it was decided that, in order to avoid repetition and in the interests of consistency, the Committee should attempt to formulate general principles in relation to issues of the type raised to be applied on a “case by case” basis. A procedural hearing was held in camera on the 3rd July, 2002, to hear submissions from the legal representatives of the parties involved in the proceedings on the allegations of the two complainants in each case, as to the process by which this might be achieved. The Committee decided that a procedural hearing would be held in public, commencing on the 26th July, 2002, to hear submissions on the issues set out in the issue paper (the Issue Paper) presented by the Committee’s legal team, the terms of which were agreed by legal representatives for all the parties. The public hearing was held from the 26th July to the 31st July, 2002. After submissions and oral submissions were made by the legal representatives for the following parties who had been granted representation in the following order, which was agreed between the parties and the Committee’s legal team, namely:

the Congregation of Sisters (the first management respondent)

the Christian Brothers (the second management respondent)

the first complainant against the first management respondent

the second complainant against the second management respondent

the Minister for Education and Science

the Attorney General representing the public interest

The Committee’s counsel also made submissions.

The summary of the submissions of the parties to this procedural hearing and the issues which emerged are set out in paras. 2.2 to 2.6 inclusive of the final ruling. The Committee decided that the Committee should issue a provisional ruling on the issues only, following the procedural hearing, because, apart from the parties who were represented at the procedure who have legitimate interests in relation to the issues, others might wish to make submissions on the issues before the finalisation of the ruling. A provisional ruling was published on the 9th September, 2002. In it an invitation was issued to any party on record with the Committee, who was not represented at the procedural hearing, to make submissions in writing on the provisional ruling, such submissions to arrive not later than 5 p.m. on Friday the 4th October, 2002. It was stated that such submissions would be considered before a final ruling would issue, and, if necessary, the parties who were represented at the procedural hearing would be invited to submit written comments on any submission which the Committee proposes to incorporate into its final ruling.

The submissions received following the publication of the provisional ruling were detailed and addressed in Section 10 of the final ruling. Following the publication of the final date for submission of statements from Complainants of 30th June, 2002, the Committee had received approximately, 1200 statements from Complainants by this deadline. Receipt of these statements enabled the Committee to get an overview of the work that lay ahead of it and, following an announcement in the provisional ruling (which incorporates much of the final ruling), the Committee set about revising its procedures and to that end published a framework document.

This framework document dealt with modularisation pre-hearing procedures such as preliminary investigations, procedural matters relating to discovery and other evidence, books of documents, preliminary hearings, evidential hearings, evidence of elderly complainants and respondents, a special public hearing in relation to memory, costs of legal representation and other matters. This framework document itself was published in November, 2002 and was to be subject to further revision depending on submissions which might be made in relation to it by the 5th December, 2002. These proceedings are not concerned with such further submissions but the framework document itself was sought to be made of relevance by the plaintiffs in their submissions and the defendants referred to it in various ways in their submissions also.

THE FINAL RULING

The final ruling (after reviewing the controversies which prompted the provisional ruling) proceeds to deal with the submissions of the two management respondents who were the prime movers in relation to the deliberations resulting in the provisional ruling and set out in detail in the relevant part of the Act relating to the final ruling. The final ruling sets out in paragraph 3.11 the understanding of the Commission in relation to the role of the Investigation Committee:

3.11 As the provisions of the Act dealing with the functions and powers of the Confidential Committee and, in particular, the words to which emphasis has to be added in paragraphs 3.4 and 3.5 above indicate, the intention of the legislature is that persons who avail of the opportunity to give evidence to the Confidential Committee do so in confidence and, by contrast with persons who choose to testify to this Committee, on the basis that their allegations are not inquired into. It follows that findings of a general nature only may be based on the evidence received by the Confidential Committee and those findings may only be reported on in general terms in such a way that neither a person making an allegation nor an institution against whom an allegation is made may be identified, directly or indirectly. By contrast, this Committee as the words to which emphasis has been added in paragraphs 3.7 and 3.8 above indicate, is required to inquire, to make determinations and, in particular, to make the determinations in relation to institutions, systems, and the performance of functions by persons and bodies. The reporting function comprehends the totality of the inquiring function: it is to report of the results on the inquiry, including the determinations made in the course of the inquiry. It is clear that the legislature intended that this Committee would conduct an inquiry of the type usually conducted by a Commission of Inquiry, or Tribunal of Inquiry set up to examine matters of grave public concern and that it equipped this Committee with the powers to carry out such inquiry. It is also clear that the legislature intended the report of this Committee to record what happened and, to adopt the terminology used in another jurisdiction (citing in the footnote Canada (Attorney Genera) v Canada (Commission of Inquiry on the Blood System) [1997] 3 SCRS.C.R.440 per Corry J. – Supreme Court of Canada), identify the “causes and players”. The legislature clearly envisaged that, as a general proposition, unlike the report of the Confidential Committee, the report of this Committee would not merely record findings of a general nature or determination framed in general terms.”

The final ruling proceeds in section 4 to deal with factual matters, mainly relating to the age profile and details of complaints of alleged abuse, made by the substantial number of complainants who had made complaints to the Commission before the deadline. The final ruling explains that these facts were set out because the Investigation Committee considered that it should approach the issues under consideration by it against the current factual reality of the inquiry it is conducting and the following two later paragraphs of the section give a particular flavour of the factual pattern which was emerging and which is particularly relevant to the plaintiffs’ case:

4.4 Counsel for the second Management Respondent disclosed that it is estimated that in excess of 30% of the complaints to which the Congregation she represents will have to respond (believed to be in excess of seven hundred) include an allegation of sexual abuse. She emphasised the difficulty inherent in making a determination where the allegation is of sexual abuse involving private acts between two persons, particularly where the person against whom the allegation is made is dead.

4.5 As has already been made public, the types of institution which predominate in the requests to testify to the Investigating Committee are industrial and reformatory schools. Most of those schools closed more than thirty years ago.

Section 5 of the final ruling deals with the principles governing interpretation and the implementation of the Act. It deals with the concerns of the management respondent and proceeds on the basis of the presumption of constitutionality of the Act. It sets out that the Committee must adhere to fair procedures but asserted that there is no rule of law which requires the Committee to apply rules of evidence applicable in a court of law. The Committee in making findings will;

i. Apply the standard of proof applicable in civil proceedings in a court, that is to say, proof on the balance of probabilities, and

ii. The findings will be based only on evidence which would be admissible in a court, so that, in making findings, this Committee shall not rely on hearsay.

Section 6 of the final ruling sets out the Committee’s view of the proper interpretation of the sections 12 and 13 of the Act dealing with the functions of the Investigation Committee and the report that be made consequent to the exercise of the functions. It is with much of the detail of the views of the Committee set out in this section that the plaintiffs take issue in these proceedings and the section following in this judgment dealing with pleadings addresses these concerns further.

Section 7 of the final ruling deals with fair procedures and audi alteram partem. The section recognises that in the context of an inquiry, such as the statutory inquiry which the Committee is mandated to conduct, which it is empowered to make and to publicise findings, a person involved in the process whose conduct is impugned as part of the investigation must be afforded a reasonable means of defending himself. Minimum protection to be afforded to such persons is outlined, and references made to the rules of procedure of the Committee published on the 20th July, 2000, is made. Such rules of procedure provide that the respondent is entitled to:

a. A statement of the allegations made against him.

b. Cross-examine persons giving evidence against him.

c. Testify himself, and

d. Make submissions.

It was confirmed that religious congregations which have management responsibility at the relevant time for an institution in which it is alleged that abuse occurred were given a right to be represented at the Committee, while the Committee at the same time expressed no view on the former occurrence structure or legal status of that congregation. It was recognised that the members or the congregations of religious which come within the remit of this Committee are perceived in the State as having a distinct charism and mission and a distinct reputation which adheres to the members of the congregation.

Several matters referred to in this section are in dispute in this case.

LAPSE OF TIME PREJUDICE

Section 8 acknowledges that the question of prejudice arising to the persons or bodies being investigated by reason of the lapse of time is likely to be a serious problem in the work of the Committee. The section recognises the jurisprudence of the courts in relation to such determinations as may be made to halt proceedings or an inquiry against a named individual. However, it is with the application of such jurisprudence to the practicalities of the investigation of the Committee that the plaintiffs take issue.

THE SUMMARY OF CONCLUSIONS ON ISSUES

Section 9 of the final ruling deals with the summary of conclusions on the issues raised and these conclusions are, in the main, disputed in the pleadings. Section 10 relates to submissions on the provision ruling (of which sections 1 – 9, inclusive, of the final ruling form part). The outcome of the consideration of the submissions was to leave the text of the provisional ruling intact and thus it has become part of the final ruling and the plaintiffs take issue with some comments in this section. Section 10 deals with review of procedures and it is here that the proposal to publish a framework document setting out the procedures (already referred to) to be published on the 31st October, 2002, for further submissions.

REQUEST FOR REFERRAL UNDER SECTION 25 OF THE ACT

On the 8th October, 2002, the Committee received a request from a religious congregation, not the plaintiffs, for an oral hearing to renew its application to consider referral of the issues of prejudice caused by lapse of time, loss of witnesses, dead respondents and related matters and/or the provisional ruling itself to the High Court pursuant to Section 25 of the Act. The text of the letter of request is set out in Appendix B of the final ruling. The final ruling refuses such request.

THE PLEADINGS

The Statement of Claim delivered on 21st February, 2003 sets out in paragraphs 1 to 6 inclusive the descriptions and capacities of the parties which has been sufficiently described in this judgment under the heading “the parties”. Paragraph 7 claims that the functions of the Commission are set forth in s. 4 of the Act which provides that through a committee the Commission will inquire into child abuse during the relevant period. The statement of claim continues as follows:

8. The definition of “abuse “for the purposes of the Act is extensive and is to be found at Section 1 of the Act. The more extreme acts deemed to constitute abuse include the use of a child for sexual gratification or the infliction of physical injury on a child. Of less severity, but also included in the definition of abuse, are acts or omissions such as may result in serious adverse effects on a child’s behaviour or welfare. Further, the abuse to be inquired into under the Act extends not only to abuse of children within institutions but also includes the abuse of a child which took place, not in the institution, but whilst the child was residing or being cared for in, or attending, an institution and the abuse was committed or aided, abetted, counselled or procured by, or otherwise contributed to by an act or omission of a person engaged in the management, administration, operation, supervision or regulation of the institution or a person otherwise employed in or associated with the institution.

9. There are two Committees established under the Act namely the Confidential Committee and the Investigation Committee.

10. The functions of the Confidential Committee are set forth of section 15 of the Act which provides that persons who have suffered abuse in childhood and who do not wish to have that abuse inquired into, may recount such abuse and make submissions in confidence to that

Committee. The Confidential Committee may make findings of a general nature and will prepare and furnish a report/reports to the Commission. Such report/reports shall not contain findings in relation to particular instances of abuse and shall not identify persons alleged to have suffered abuse or persons alleged to have committed abuse or indeed any institutions or any other persons.

11. Section 12 of the Act provides (inter alia) that the Investigation Committee will hear evidence from persons who allege they were abused in childhood. The Committee is also to inquire into the causes, nature and circumstances and extent of any such abuse and further, may determine the extent to which the Institutions themselves, the management of such Institutions or third parties and whom such functions may have been best if responsible or contributed to the occurrence of such abuse.

12. Section 13 of the Act sets out the reporting functions of the Investigation Committee. This section affords to the Investigation Committee a wide discretion regarding the content of its report/reports. Even where the Investigation Committee is satisfied that abuse of children took place, the Committee has a complete discretion as to the extent of the findings it decides to include in its report and has equivalent discretion as to whether or not it makes findings against persons such as Managers of the institutions concerned or whether it identifies those involved as perpetrators or those vested with responsibility for the management of the institution in which the abuse was found to have occurred. The Investigation Committee is specifically precluded from setting out in its report any findings in relation to particular instances of alleged abuse of children.

13. By reason of the extensive powers vested in the Investigation Committee in particular by virtue of Sections 12 and 13 of the Act, the Commission advised, at the time of its first public sitting on the 29th of June 2000, that the Investigation Committee was required to give every person who, and every institution or other body which might be the subject of a conclusion which would adversely reflect on him/her or it the opportunity to defend himself herself or itself

14. In its opening statement the Commissions reported that the Investigation Committee would conduct in its Inquiry in two phases. The first phase would involve the Investigation Committee investigating particular allegations of abuse. Such individual allegations of abuse were to be heard in private and the Investigation Committee, if satisfied that the abuse occurred, was to make a finding to that effect which would be recorded in an interim report from the Investigation Committee to the Commission, such finding being final and not open to challenge in the second phase.

15. The Commission further advised that the Investigation Committee would then move on to phase 2 and that this second phase would have two components. The first component would involve investigating, in relation to each institution, the context in which abuse occurred, why it had occurred and the attribution of responsibility for it, whether institutional or regulatory. This phase of the Investigation Committee’s work would be conducted though public hearings. In the other component, the Investigation Committee was to look at the broader picture – the legislative framework and the historical and social context in which the abuse occurred.

16. The final report of the Investigation Committee was to be based on the totality of the evidence available to it. An outline of the procedures which the Investigation Committee proposed to adopt in relation to the first phase and the public hearing component of the second phase of the Inquiry was contained in Appendix D to the opening statement.

17. Section of the Act provides that the Commission, having considered the reports (including interim reports) of both the Investigation Committee and the Confidential Committee, will prepare its own report and may, if satisfied that abuse of children occurred during a particular period, contain findings to that effect and may identify the institution and the persons who committed the abuse. Further, the report of the Commission itself may contain findings in relation to the management, administration, operation, supervision etc., of an institution and may identify the persons concerned. However, the report must not identify or contain information that could lead to the identification of a person the subject matter of abuse in childhood and neither is it to contain findings in relation to particular incidences of alleged abuse of children. It is also the case that the Commission can make general findings arising from the report of the Confidential Committee but must, if it does so, state in its report that any such findings are based on evidence that was not tested or challenged by any person and was not corroborated.

18. Since the Ruling of the Investigation Committee of the 18th of October 2002 which Ruling is the subject matter of these Proceedings, the Commission has produced a new framework document entirely altering the method whereby it intends to hear/investigate abuse in the relevant institutions. It is believed that the concerns which are hereinafter referred to and arise by reason of a lapse of time between the date of the alleged instances of abuse ad the potential determination as to whether or not such abuse took place are even greater having regard to the modular approach referred to in the new framework document. Whilst the Plaintiffs in these Proceedings are concerned principally with the Ruling of the Investigation Committee dated the 18th day of October 2002, the Plaintiffs contend that the Committee’s expressed intention to aggregate evidence transforms the legal principles applicable to the evaluation of evidence and stems from a misinterpretation of the Act as requiring that finding not be made in relation to each individual complaint but rather on a generalised basis.

19. There are now approximately some 700 allegations of abuse pending against present, former or deceased members of the Congregation. The Committee has granted collective representation in the Proceedings before the Committee to any Religious Congregation which had a management responsibility at the relevant time for an institution in which it is alleged any particular abuse occurred. The Committee has also recognised that the Congregation of the Christian Brothers is a Congregation which is perceived in the State as having a distinct charism and mission and that it has a distinct reputation which adheres to its members. Accordingly, where an institution is under investigation by the Investigation Committee, whether or not past or present members are also under investigation, the Committee, as recognised the process is potentially injurious to the reputation of the Congregation and the reputations of the current members of the Congregation. For this reason, the Committee has considered it appropriate that a Congregation of religious should be afforded protection analogous to the protection afforded to a living person against whom allegations are made which are likely to reflect on that person’s good name.

20. Of the approximate 700 allegations of abuse referred to above, many of the persons against whom allegations of abuse have been made are dead, untraceable, elderly, infirm or unable to give instructions. In relation to many other allegations of abuse, lapse of time has severely prejudiced those against whom allegations have been made and their ability to defend themselves against such allegations.

21. Against the backdrop of the aforementioned difficulties, the Investigation Committee found itself inquiring into an allegation made by a Complainant that, during the late 1950’s as a child, he suffered abuse within the meaning of the Act in a non-residential institution, namely the North Monastery Christian Brothers School. The member of the Congregation against whom the Complainant makes his complaint of abuse is dead as is the then Manager of the institution.

22. In consequences of the listing for Hearing of the complaint referred to in the last preceding paragraph, the legal representatives of the Member of the Congregation against whom the Complainant makes his Complaint are also the legal representatives of the First and Second Named Plaintiffs raised a number of issues with the Investigation Committee, namely:

(a) how the Committee was proposing to deal with the issue of representation for deceased persons against whom allegations of abuse had been made;

(b) how the Committee was proposing to deal with prejudice arising by reason of lapse of time between the date of the alleged abuse complained of and the date of the intended adjudication, including (inter alia) how the Committee would deal with matters such as the doctrine of audi alteram partem, the death of the person the subject matter of an allegation and/or the death of such person’s contemporaries including the Managers and/or principals of the school in which the abuse was alleged to have taken place;

(c) the entitlement of the Investigation Committee, in the circumstances, to make or report findings of fact against deceased persons and the right of the Commission to publish such finding in its report or otherwise bring such findings into the public domain.

23. In circumstances where the alleged issues were likely to arise in relation to many of the allegations being investigated by the Investigation Committee a request was made to the Investigation Committee that it would seek directions from the High Court pursuant to Section 25 of the Act regarding how it should deal with such issues both in the context of the holding of Inquiries by the Investigation Committee and the reporting function of both the Investigation Committee and the Commission proper. Notwithstanding the fact that a request in similar terms was made to the Investigation Committee by another Congregation of Religious members, the said request that the matter be referred to the High Court for directions was duly rejected. The Investigation Committee duly convened a Public hearing for the purposes of receiving submissions from those affected by the issues referred to at paragraph 23 above.

24. In circumstances where the alleged issues were likely to arise in relation to may of the allegations being investigated by the Investigation Committee a request was made to the Investigation Committee that it would seek directions from the High Court pursuant to Section 25 of the Act regarding how it should deal with such issues both in the context of the holding of Inquiries by the Investigation Committee and the reporting function of both the Investigation Committee and the Commission proper. Notwithstanding the fact that a request in similar terms was made to the Investigation Committee by another Congregation of Religious Members, the said request that the matter be referred to the High Court for directions was duly rejected.

The Investigation Committee duly convened a Public Hearing for the purposes of receiving submissions from those affected by the issues referred to at paragraph 23 above.

Paragraph 24 of the statement of claim of refers to the procedural hearing which was held between the 26th and the 31st July, 2002, as it was described in the description of events leading up to action above.

Paragraph 25 sets out the areas of broad agreement, that the work of the Committee was an adjudicative inquiry as described by the Supreme Court, that it was required to comply with the doctrine of audi alterem partem and that this overlapped to some extent with issues of prejudice arising from lapse of time, and that the case law and jurisprudence of the Superior Courts as to the effect and implications of lapse of time in civil and criminal proceedings was as stated in the written submissions made on behalf of the two Religious Congregations represented at the hearing.

Paragraphs 26 and 27 set out the progression from preliminary ruling issued on the 9th September, 2002 to final ruling delivered on the 28th October, 2002, and states that the said ruling (which is the final ruling) for ease of reference is annexed to the statement of claim. The importance of such annexation becomes clear further on in the statement of claim.

Paragraph 28 refers to the rejection of the request for a section 25 reference of the matters at issue in the provisional ruling. The statement of claim proceeds as follows:

29. The Plaintiff herein contends that the Investigation Committee in its final Ruling has incorrectly interpreted the provisions of the Act. Further, the Plaintiffs believe that the general principles set out in the said final Ruling offend the principles of natural and constitutional justice. Further, if the Ruling is fully implemented, the Plaintiffs herein contend that such implementation will amount to a breach of the requirement by the Investigation Committee that it implement procedures which are fair.

30. The Investigation Committee at Clause 2.9 of its final Ruling indicated that “the principles adopted in the final Ruling will guide the future Proceedings of this Committee but, where the interest of fairness so dictate, will not be applied to a particular decision or determination

31. In circumstances where the Investigation Committee has not concluded any Inquiry into any allegation of abuse made as against those represented by the Plaintiffs sought an assurance from the Investigation Committee that no point would be taken in these proceedings contending for their prematurity by reason of the aforementioned circumstances.

32. By letter dated the 25th day of November, 2002, (received 28th January, 2003) the Investigation Committee indicated its agreement in principle to take no point in respect of the prematurity of any proceedings arising from the said ruling.

33. The plaintiff contends that the Investigation Committee has by reason of the content of its ruling dated the 18th of October, 2002. manifested an intention to operate procedures which are unfair and contrary to the principles of natural and constitutional justice.

34. For the purposes of expediting the within proceedings, the ruling of the Investigation Committee is annexed to this Statement of Claim.

Further in ease of the defendants and which the sole purpose of seeking to avoid any delay in these proceedings arising by virtue of any notice seeking particulars, the plaintiffs herein have underlined in red those portions of the said ruling which they contend inter alia are wrong in law and/or are contrary to natural and/or constitutional justice and/or in breach of the Commission’s obligations to regulate its procedures and business in fair and proper manner.

35. If this honourable court should determine that the ruling of the Investigation Committee regarding its statutory functions and its interpretation of the applicability of the rules of natural and constitutional justice to its functions are correct it is the plaintiff contention that the said Act and in particular the provisions thereof which mandate the Commission to make and report findings of abuse against (a) deceased persons, (b) those respondents who are to infirm to be in a position to give instruction, (c) those named respondents who cannot be located or (d) persons otherwise prejudiced in their ability to defend themselves against allegations of abuse and those provisions which purport to allow the Investigation Committee to aggregate evidence and make general findings without making a finding in relation to each individual complaint, are unconstitutional. In particular, the said legislation offends Articles 40.1, 40.3.1 and 40.3.2 of Bunreacht na hÉireann.”

And the plaintiffs claim in the endorsement of claim of the plenary summons issued on 13th day of February, 2003, as follows:

(a) A declaration that the interpretation by the Investigation Committee of the Commission to Inquire into Child Abuse of its statutory functions, as provided for in the Commission to Inquire into Child Abuse Act, 2000, as set forth in its ruling of the 18th day of October, 2002, is wrong in law.

(b) A declaration that the ruling of the Investigation Committee of the Commission to Inquire into Child Abuse dated the 18th day of October, 2002 insofar as it sets out to the general principles to be applied by the Investigation Committee or the Commission itself in the exercise of its statutory obligations offends the principles of natural and constitutional justice.

(c) A declaration that the Ruling of the Investigation Committee of that Commission to Inquire into child abuse of the 18th of October, 2002, insofar as it refers to its statutory mandate or the general principles which it intends to apply in relation to allegations of abuse against persons who are dead, untraceable, under a disability, or unable to give instructions arises from an erroneous interpretation of its powers and obligations as provided for by the Commission to Inquire into Child Abuse Act, 2000.

(d) A Declaration that the Ruling of the Investigation committee of the Commission to Inquire into Child Abuse dated the 18th of October 2002, regarding the general principles which it intends to apply when dealing with the issue of prejudice arising by virtue of lapse of time, if implemented, would infringe the principles of natural and constitutional justice and further would infringe the right of any person against whom an allegation of abuse had been made and/or the rights of any manager, congregation or third party affected by the making of such a finding to procedures which are fair, just and constitutional.

(e) A declaration that in carrying out its inquiring functions and further when making determinations in accordance with its powers as provided for in Section 12 of the Commission to Inquire into Child Abuse Act, that the Investigation Committee is mandated to apply the jurisprudence of the Superior Courts in relation to prejudice arising by virtue of lapse of time notwithstanding the provisions of the Commission to Inquire into Child Abuse Act, 2000, that such inquiry is to be in respect of the period from 1940 to 1999, or earlier or later at the Commissions discretion.

(f) A declaration that in carrying out its reporting function pursuant to Section 13 of the Commission to Inquire into Child Abuse Act, 2000, that the Investigation Committee is mandated to apply the jurisprudence of the Superior Courts in relation to prejudice arising by virtue of lapse of time notwithstanding the provisions of the Commission to Inquire into Child Abuse Act, 2000 that such inquiry is to be in respect of the period from 1940 – 1999, or earlier or later at the Commission’s discretion.

(g) In the alternative, should the court declare that the Investigation Committee’s interpretation of the provisions of the Commission to Inquire into Child Abuse Act, 2000 is correct in law and that the general principles by which such Committee intends to be guided are in conformity with the said legislation and its provisions are unconstitutional and in particular are offensive to Articles 40.1, 40.3.1 and 40.3.2 thereof

(h) Such further or other Order as to this Honourable Court may seem fit including, If necessary, an Injunction restraining the Investigation Committee in proceedings with any oral hearings wherein a present or past member of the Congregation of the Christian Brothers is alleged to have been guilty of abuse. This claim has not been proceeded with and finally costs are claimed, in (i)).”

I do not propose to set out the underlined parts of the final ruling but they shall be referred to as necessary in dealing with the submissions and consideration of the case below.

THE DEFENCES

The defence of the first named defendant (the Commission) contains the appropriate denials and admissions of a factual matrix to set up the issues arising on a straight denial of the plaintiffs’ entitlement to the declarations sought and in paragraph 30 the first named defendant pleads:

Without prejudice to the foregoing, to the entitlement of this defendant to elaborate upon its legal submissions at the hearing hereof and to the right of the first named defendant to be provided with, and to respond to particulars of the allegations referred to at paragraphs 34 and 35 of the Statement of Claim, the first named defendant shall contend at the hearing hereof that the decision referred to therein was lawful, made within its jurisdiction, properly construed the provisions of the Act, respected the right of natural and constitutional justice of persons involved in its inquiries and was intra vires its powers.

THE STATE DEFENDANTS’ NOTICE FOR PARTICULARS

It is important to set out the notice for particulars delivered by the other defendants, dated 29th April, 2003, and the replies thereto insofar as they elaborate in substance and detail the claims made in the statement of claim. The reply sets out the short queries and reprise as follows:

Request for particulars:

1. Please provide full and detailed particulars of the specific provisions of the Commission to inquire into Child Abuse Act 2000, that are alleged to be unconstitutional and the alleged reason for same.

1. Replies to particulars:

1.1 The legal submissions filed on behalf of the plaintiffs dated the 10 April 2003 as directed by the President of the High Court already describe in outline the constitutional challenge to the final Ruling of the Investigation Committee dated 18 October 2002 (“Final Ruling”). This was issued following the procedural hearing held in public on the 26, 29, 30 and 31 July 2002. The Final Ruling does not recite any provision of the Commission to Inquire into Child Abuse Act 2000 (“the 2000 Act”) relied upon in making the Final Ruling.

1.2 The nature of the Final Ruling as a form of delegated procedural ruling under the 2000 Act is without precedent in the format of the delegated legislation made. It does mot state that it is a standing order made in exercise of statutory powers. Section 11(4) of the 2000 Act, subject to the provisions of the Act, states that the Commission to Inquire into Child Abuse (“the Commission”)…shall regulate, by standing orders or otherwise, the procedure and business of a Committee.”

1.3 In the absence of any specific statutory provision in the 2000 Act or otherwise recited in the Final Ruling as the provenance or source of authority thereof, the best efforts of the plaintiffs to furnish the particulars requested refer to provisions of the 2000 Act which, on their face, give certain discretions to the Investigation Committee to make those aspects of the Final Ruling challenged in these proceedings. Without prejudice to these replies, if necessary, the plaintiffs challenge the entire of the 2000 Act to the extent that certain unspecified statutory provisions arise relied upon by either of the defendants to uphold the validity of those parts of the Final Ruling objected to by the plaintiffs.

1.4 As a consequence of the decision adopted by the Commission in the making of the Final Ruling, those particulars of the said Ruling to which challenge is raised and are underlined in red in the relevant appendix to the statement of claim delivered herein deal with the legal issues that arise in the following factual matrixes:

(i) Applying retrospectively a penal statutory regime under the 2000 Act to deceased named members of the Congregation who are dead and beyond the reach of the criminal law.

(ii) Applying retrospectively a penal statutory regime under the 2000 Act to named members of the Congregation who are unable to give instructions as a consequence of advanced age, senility or other category of disability recognised in the law.

(iii) Applying retrospectively a penal statutory regime under the 2000 Act to named members of the Congregation who are prejudiced by the extreme delay of a nature otherwise recognised in the law.

(iv) Applying retrospectively a penal regime under the 2000 Act to named members of the Congregation who cannot be traced or located and are otherwise beyond the reach of the criminal law.

1.5 The plaintiffs also challenge the test adopted by the first named defendant in the Final Ruling concerning the matters complained of in these proceedings to the following effect:

Therefore, a test predicated on risk is not appropriate. It is the view of this Committee [the first named defendant] that the correct test is whether it is unsafe to make the determination.”

Final Ruling, paragraph 8.6; p.50.

The plaintiffs challenge the said test in the within proceedings and the above text should be taken as thus highlighted and underlined in red in the appendix annexed to the statement for claim. The test submitted by the plaintiffs is that adumbrated by the Supreme Court in Dunne v. Director of Public Prosecutions [2002] 2 ILRM 241, 255 that the correct test is whether or not there is a real risk that the applicant will not receive a fair trial and already referred to in the plaintiffs’ legal submissions dated 10 April, 2003, paragraph 99, p.53.

1.6 Subject to the aforesaid, the following statutory provisions are challenged:

(i) Commission to Inquire into Child Abuse Act 2000, s. 1(1) and s. 4(1)(a) and the definition of “relevant period” to mean the period from and including the year 1940 or such earlier year as the Commission may determine.

(ii) Commission to Inquire into Child Abuse Act 2000, s. 11(4) and the competence of the Commission to regulate by standing orders or otherwise the procedure and business of the Investigation Committee.

(This claim was subsequently abandoned after some argument at the hearing).

(iii) Commission to Inquire into Child Abuse Act 2000, s.12 dealing with the functions of the Investigation Committee and the manner challenged in these proceedings.

(iv) Commission to Inquire into Child Abuse Act 2000, ss. 13 to 14 dealing further with the report and powers of the Investigation Committee.

(v) Commission to Inquire into Child Abuse Act 2000, the entire Act, to the extent that other provisions are relied upon by either of the defendants to sustain and uphold those parts of the Final Ruling challenged in these proceedings.

(This claim was subsequently abandoned after some argument at the hearing).

1.7 Such further particulars as may be furnished when the legal submissions of the first named defendant and the legal submissions of the second, third and fourth named defendants are known and the statutory or other provisions relied upon particularised.

Request for particulars:

2.Please provide full and detailed particulars of the Articles of Bunreacht na hÉireann that have allegedly been infringed by the Commission to Inquire into Child Abuse Act 2000.

2.Replies to particulars:

2.1 Statement of Claim, paragraph 35, referring to Constitution of Ireland, Article 40.1, Article 40.3.10 and Article 40.3.20.

2.2 Constitution of Ireland, Article 6 and Article 15.5.

The principle of the separation of powers as further provided for in Article 6 of the Constitution is relied upon in the challenge made to the 2000 Act as amounting in substance to a Bill of Attainder/Bill of pains and penalties.

The constitutional prohibition of retroactive penal legislation in Article 15.5 including the general leaning of the courts against injurious retrospection.

The Commission to inquire into Child Abuse Act 2000, in respect of the matters complained of in these proceedings, offends against the prohibition of Bills of Attainder and Bills of pains and penalties. The 2000 Act applies in respect of the matters complained of herein as a Bill of pains and penalties.

2.3 Constitution of Ireland, Article 40.1.

The equal protection clause and the guarantee of equal laws is breached by the 2000 Act.

The legislation in issue also infringes the constitutional prohibition against a Bill of Attainder and a Bill of pains and penalties.

2.4 Constitution of Ireland, Article 40.3.10 and 20.

The 2000 Act breaches the constitutional right to basic fairness of procedures.

The plaintiffs are manifestly disadvantaged in the attempted investigation of the dead, the disabled, the unallocated and the disadvantaged. The right of cross-examination is further circumscribed apart altogether from the impossibility of taking instructions therefore.

2.5 The plaintiffs’ legal submissions dated the 10 April 2003 further particularise the complaints made in these proceedings.

2.6 Such further particulars as may be furnished when the legal submissions of the first named defendant and the legal submissions of the second, third and fourth named defendants are known and the statutory or other provisions relied upon particularised.”

DEFENCE OF THE STATE DEFENDANTS

The defence of the State defendants sets out in paragraph 1 that the plaintiffs are not entitled to the relief claimed. The defence goes on as follows:

1. The Second, Third and Fourth Named Defendants (hereinafter referred to as “the State Defendants’) deny that Plaintiffs are entitled to the relief claimed or any relief

2. The State Defendants admit paragraphs 1 – 11, 13 – 17, 24, 27 and 30 of the Statement of Claim.

3. The State Defendants are strangers to the matters pleaded at paragraphs 19, 21, 22, 23, 26, 28, 31, 32 and 33 of the Statement of Claim.

4. The State Defendants deny that where the Investigation Committee is satisfied that abuse of a child took place, the Committee has a complete discretion as to the extent of the findings it decides to include in its report. The State Defendants plead that the report and findings of the Investigation Committee is limited to the results of that committee’s inquiry as provided for in Section 12 of the Commission to Inquire into Child Abuse Act, 2000, (hereinafter referred to as “the Act”) and paragraph 12 of the Statement of Claim is denied insofar as it is inconsistent with the provisions of the Act.

5. The State Defendants admit that the powers of the Investigation Committee set out in section 13 of the Act are discretionary rather than mandatory and that the Commission and/or the Investigation Committee are therefore given wide scope as to the adoption of appropriate procedures to be applied in each individual case.

6. The State Defendants deny that since the ruling of the Investigation Committee of the 18th October 2002, the Commission has produced a new framework document entirely altering the method whereby it intends to hear/investigate abuse and the relevant institutions. The State Defendants are strangers to the belief of the Plaintiffs that the concerns raised in the Statement of Claim are even greater having regard to the modular approach referred to in the Commission’s new framework document. The State Defendants deny that the Investigation Committee’s alleged expressed intention to aggregate evidence transforms the legal principles applicable to the evaluation of evidence and stems from a misinterpretation of the Act as requiring that finding not be made in relation to each individual complaint but rather on a generalised basis.

7. The State Defendants are strangers to the plea contained at paragraph 20 of the Statement of Claim that many of the persons against whom allegations of abuse have been made are dead, untraceable, elderly, infirm or unable to give instructions. The State Defendants deny that in relation to the aforementioned persons and in relation to may other allegations of abuse, lapse of time has severely prejudiced those against whom allegations have been made and their ability to defend themselves against such allegations, either as alleged or at all.

8. The State Defendants plead that lapse of time in itself is not a reason for the Investigation Committee of the Commission not to investigate the matters before it. The State Defendants plead that lapse of time coupled with absence of key witnesses or other evidence is a matter for the Investigation Committee to measure and consider before deciding that it can make a proper conclusion concerning allegations of abuse on the part of individuals or institutions who may be identified under the Act.

9. The State Defendants plead that the absence of relevant witnesses or the age of witnesses to provide rebuttal evidence on behalf of any members of the Plaintiffs’ congregation does not in itself mean that the Inquiry ought not to receive the evidence from various complainants and go on to reach conclusions. In the premises, the Commission and/or the Investigation Committee is required to investigate the matters put before it including determining whether or not there has been abuse.

10. The State Defendants are strangers to the broad agreement as pleaded at paragraph 25 of the Statement of Claim that may have existed between the Investigation Committee and the Plaintiffs at the public hearing of the Investigation Committee.

11. The State Defendants deny that the Investigation Committee in its final ruling has incorrectly interpreted the provisions of the Act. Further, the State Defendants deny that the general principle set out in the final ruling of the Investigation Committee offends the principles of natural and constitutional justice. Further, the State Defendants deny that if the ruling is fully implemented that such implementation will amount to a breach of the requirement by the Investigation Committee that it implement procedures which are fair.

12. The State Defendants deny that those portions of the Investigation Committee’s ruling which are underlined in red are wrong in law and are contrary to natural and/or constitutional justice and/or in breach of the Commission’s obligations to regulate its procedures and business in a fair and proper manner is denied as if same were herein set out and traversed seriatim.

13. The State Defendants rely upon Section 13 of the Act which provides that the report of the Investigation Committee may also identify the Institution and person who committed abuse. In the premises, the State Defendants plead that pursuant to Section 12 of the Act there is no obligation on the Investigation Committee to name and identify any person. The State Defendants plead that the requirements of constitutional justice can be adequately met by the Investigation Committee in the carrying out of its functions under Section 13 of the Act and that this must be so presumed by this Honourable Court.

14. The State Defendants deny that the Act and in particular the provisions thereof which mandate the Commission to make and report findings of abuse against;

a. deceased persons,

b. those Respondents who are too infirm to be in a position to give instructions,

c. those named Respondents who cannot be located or

d. persons otherwise prejudiced in their ability to defend themselves against allegations of abuse and those provisions which purport to allow the Investigation Committee to aggregate evidence and make general findings without making a finding in relation to each individual complaint, are unconstitutional. Each and every particular of unconstitutionality of the Act and, in particular, breach of Articles 40.1, 40.3.1 and 40.3.2

15. The State Defendants plead that the reaching of a valid and fair conclusion that abuse took place does not necessitate cross examination and rebutting evidence by persons who may possibly be affected by such a conclusion.

16. The State Defendants accept that there may be cases where delay and absence of witnesses and material prevents a fair opportunity for rebuttal of allegations of abuse against a living individual, by the Commission and/or the publication of the identity of a person or persons against whom an allegation of abuse is made.

17. The State Defendants plead that the Act enjoys the presumption of constitutionality and should be interpreted so by this Honourable Court. The State Defendants plead that the Act was put in place by the Oireachtas in recognition of public disquiet arising from allegations of child abuse in institutions of childcare within the State over a period of years.

18. Further or in the alternative, the State Defendants plead that the Plaintiffs’ claim is both premature and hypothetical.

19. The State Defendants plead that the right to one’s good name has been vindicated by the discretionary nature of the reporting and fact finding powers vested in the Investigation Committee and/or the Commission and the duty to follow fair procedures.

20. The State Defendants plead that the Act is a proportionate, objective and rational response to matters of public concern, requiring the investigation of child abuse in institutions in the State.

21. The State Defendants plead that deceased members of the Plaintiffs’ congregation are not entitled to the protection of personal rights relating, inter alia, to good name and character, and that there is no absolute barrier to investigating and/or publishing findings against dead persons.

22. The decision challenged in these proceedings is lawful and valid and was made within jurisdiction and respects and vindicates constitutional rights.”

THE EVIDENCE

The second named plaintiff, Brother David Gibson, gave evidence on behalf of the plaintiffs. He is the province leader of St. Mary’s Province of the Christian Brothers of Ireland. This is the northern province set up in 1956 and the other province in the island of Ireland is St. Helen’s. The division was an imaginary line from Dublin to Galway and in Dublin and the rest of the island north of the Liffey and north of the line was St. Mary’s province. The witness joined the Christian brothers in 1965. The witness worked as a teacher for some while in Ireland before transferring to studying and teaching in Rome. He was superior in the Christian Brothers Community in Rome from 1985 until 1990, when he was asked to come back to take part in the leadership team of St. Mary’s Province, which he did for six years. Subsequently he was deputy province leader from 1996 to 2002 and then in 2002 he was asked to be permanent leader of St. Mary’s Province, and, accepted, and remains in this position. The leadership team of which he was a member prior to becoming involved as deputy and province leader, consisted of a province leader and four counsel members or team members. The role of this leadership team is to administer the welfare of the province, care for the various schools in the province and to take care also of the brothers and staff of the various institutions and schools. The witness was actively involved in the management and administration of the plaintiffs response and cooperation with the Commission with regard to St. Mary’s Province.

The plaintiffs have a number of institutions involved with the Commission. Three specifically important institutions under the remit of the Commission are St. Mary’s Province, St. Joseph Salthill, St. Joseph’s Letterfrack and Artane Dublin. The Christian Brothers were also involved in St. Vincent’s Glasnevin Orphanage, the O’Brien Institute, and also the Cabra School for the Deaf. These six institutions were the ones with which the witness was concerned when dealing with the Commission.

With regard to the aetiology of the allegations against these institutions the witness said that a lot of allegations go back anything up to 70 years. Just taking Artane as one of the principal institutions the witness thought that there were something like 339 allegations against brothers, and former brothers, living or deceased, and they go back from pupils who were alive in the 1920’s. The witness estimated that there were sixteen brothers against whom allegations were made about young boys who were in the institution in the 1920’s. The bulk of the allegations seem to converge around the 1940’s and 1950’s. The witnesses said that it was a huge job and requires and an enormous amount of time and resources to deal with this set of allegations.

Dealing with the handling of the interface between the Commission and St. Mary’s Province, the witness said that the plaintiffs receive a complaint from the Commission together with all the material relating thereto. The first thing he has to do is to examine the nature of the complaint. This takes quite a lot of time. They first of all examine the file on the brother who was accused. That involves looking up the biographical details of the brother to prove that he was there, because in some cases the plaintiffs can prove that he was not in the place as alleged. And the plaintiffs look at the archive of material which would be accumulated with regard to that brother and see are there any letters or any details that would indicate that there was concern 50, 60 or 70 years ago.

The examination of the complaint on the plaintiffs’ side continues by examination of admission files, the infirmary reports, the Department of Education reports on the school and on the pupil, and any other material that would be relevant. The witness gives an instance of a significant amount of material being in the visitation reports that are related to Artane for example. He explained in relation to such visitation reports that each year a brother from headquarters – over the 60 or 70 year period that the witness was talking about – would have visited Artane every year and would have drawn up a report. He explained that it would have been a highly critical report, often more critical then, say, the Department of Education report, but it would be very detailed and the plaintiffs would examine those.

Dealing with the management structure of Artane, as an example, the witness said that such an institution would have a resident manager who was normally the superior of the community there at the time. That was the main structure of management. Such superior had a sub-superior, and then in each community there is what is known as a council – a small group of people who used to meet on a regular basis, from the community of the school. The resident manager, the sub-superior and one or two finally professed brothers would be on that so-called council. So this effectively was the management group. It was more an informal thing than an official thing.

As regards the present position of those in such management or quasi management positions, the witness said that all the resident managers are dead.

There are three principals alive as far as the witness knew, still in their 70s, who had been principals in Artane. Two are brothers and one is a former brother. That would be the extent of the survivorship of management from that period.

Of those in a position equivalent to the witness in terms of management, none of the province leaders who were involved in those institutions are alive, and there is one member of a leadership team in his eighties now in bad health who, at the very end, when Artane was closing, was a junior member of the leadership team at that time. The congregation finds that they have brothers who perhaps spent two years or three in Artane, during which time there was never a complaint against them. They left Artane and taught for perhaps for 35 to 40 years in schools outside Artane, and during the 35 to 40 years outside Artane there was never a complaint against them. Now in the last year and a half the congregation are getting complaints of serious sexual abuse, against a large number of brothers who were in Artane for a short period of time and perhaps for a longer period. These serious allegations are limited to the time they were in Artane. No other complaints against them during the time they taught outside Artane have been made, and they are in a position now where they are saying “it didn’t happen”.

The witness said that the congregation has no documentary evidence on its files that expressed any concern about these brothers, many of whom became superiors, became province leaders, or whatever. Now at this stage of their lives they are being accused of the most serious sexual crimes, and they are saying there is no truth or foundation in them. The witness considered that this makes it very difficult for them and a lot of them are suffering a lot as a result.

The approach towards these complaints by the congregation now is that it examines every aspect of it and it looks to see is there any foundation from its point of view. If there is anything that would seem to point that there is any truth in the complaint there is a congregational response to that. At the moment the congregation is engaged in this process for a considerable number of people who are alive. These people themselves of course will have their own response independent of the congregation. The witness referred to what he considered was the extraordinarily damaging effect on the brothers personally. A lot of them have had to get counselling for depression and anxiety. For quite a number of them there is great reluctance to actually be involved now in any form of ministry where there are young people, even though up to the time of the complaint they would have been quite active and busy and concerned with the ministry of education although retired. As a result there is a severe burden on the congregation and the leadership teams to ensure the health and welfare of these brothers. The witness gave evidence of the details of the problems affecting complaints arising from Artane which he said closed in 1969, the main building whereof is now used as a secondary school, and much of the building and physical layout has been demolished or significantly altered. The result is that there would be no similarity between Artane as we know it today and the Artane as it was in the 40s, 50s and 60s.

He repeated his general comments in relation to trying to deal with complaints against brothers who it appeared had lived exemplary lives of dedication and generosity and described the problem statistically as follows: there would be 85 brothers who are deceased who taught in Artane. There are about 32 living brothers who are in Artane, who taught in Artane and are living now. There are about 75 former brothers, who were brothers teaching in Artane, who left the congregation. Some of the brothers who left the congregation are now dead and there are no details of others because they do not all maintain contact with members of the Congregation.

Apart from the brothers who are alive and traced, the witness described the following three categories which presented problems in relation to getting instructions

1. Those who are not traced

2. Those who are infirm. The brothers cannot deal with those for the purpose of responding to the Commission often because of their memory lapse, their age or they are too fragile to bring the complaints in great detail to them, and they generally can not respond because they often cannot remember very much about their whole experience.

3. Deceased brothers who obviously cannot instruct the congregation. In respect of these categories the evidence was that the congregation cannot really respond to the complaints except to say that from the point of view of the congregation they have no material on their files against them.

As regards the effect on the families of the brothers alive and dead the witness said that the congregation has experienced the naming of some deceased brothers in the media in relation to very serious allegations of abuse and that this has had a traumatic effect on the families of these deceased brothers who held them in high regard. Much as the witness would not want to link immediate results from this cause, he noted at the same time that there had been two suicides in two cases of families whose relations were mentioned in this context as brothers in the tabloid papers. This experience also had a terrible effect on the brothers in the communities of the congregation.

Under cross examination the witness clarified that as of 1978 or thereabouts the main school building would have been the same as it was during the pre-Artane closure period. The changes occurred in relation to many of the other structures fairly soon after 1969 and the brothers house was demolished about six or seven years ago.

There are 32 brothers living from the Artane period not all of whom have allegations made against them. Of the 32 about 3 or 4 present difficulties in getting proper instructions from them because of their age or other infirmity. So far, the working of the Commission has turned up a number of complaints of which those from the 1940s and 1950s would be the main ones. Most of the accusations made in respect of Artane would be in excess of 50 years old. The vast majority of brothers who were in Artane would have some form of complaint against them and these complaints range from the extremely serious, in the nature of accusations of serious sexual abuse, through accusations of very serious physical abuse, to perhaps nonetheless serious, but not as serious complaints about other forms of neglect and the like. The witness could not give a break down in exact terms but was inclined to think from his experience that more than 50 per cent of complaints in regard to Artane were sexual abuse claims. He stated that there were other complaints, of course, in relation to lack of proper care and so on. Asked if these latter complaints in relation to proper care etc. were in the nature of complaints that the system as a whole did not properly care for the persons who were there the witness responded with a view there was a very mistaken image of Artane, which would purport to say that the children were starved, that the education was very poor, when in fact the contrary was true and that the congregation would have very clear evidence of that. He agreed that Artane represents a significant proportion of the total complaints made against the congregation not only in the province but in the island of Ireland as a whole. He said that in general terms the residential institutions of the congregation are the principal focus of the complaints which have been received by the Commission while at the same time there are some isolated complaints dealing with ordinary schools and other matters. Of the 700 or so complaints, about 50 relate to non residential schools and other places and these tend to be in ones and twos in respect of each individual school and neither is there any great pattern to them.

Thus the main thrust of the accusation against the congregation is directed towards abuse that is alleged to have occurred in residential institutions. By and large most of these residential institutions closed around the same time as Artane in the late 60s and early 70s. So that the majority of the complaints in relation to these institutions centre around 50 years ago and certainly no less than 35. While there are some accusations relating to more recent times in relation to individual schools, they are not a huge number in the overall scheme of complaints facing the congregation.

JUDICIAL NOTICE RE: LOSS OF MEMORY

By agreement of the parties the Court took judicial notice of the general proposition that memory of events diminishes with the passage of time and the ageing process.

THE PLAINTIFFS’ SUBMISSIONS

The starting point of the plaintiffs’ submission was directed from the dictum of Geoghegan J. in Maguire v. Ardagh [2002] 1 I.R. 385, at 740:

It is well established by the cited cases that in respect of any kind of Tribunal or Inquiry body, as to what is or is not fair procedures may vary depending on the nature of the matters being investigated “.

The procedure of the Investigation Committee will ultimately lead to a name and shame process, the findings in certain instances will be the type of findings of criminal wrongdoing that are normally made only by a jury in a criminal case or a judge in a civil case. This process, the plaintiff submitted, will take place against a

background where the findings of fact will be published, that the alleged wrongdoer will not be in a position to take the most basic preliminary steps in any adjudication in certain instances and where the Committee has wide powers of compulsion and the respondent has no right either to silence or to invoke the privilege against self incrimination, where the Committee’s finding as a fact enjoy absolute privilege and cannot be challenged in any legal forum, in certain circumstances where information provided to the Investigation Committee must be disclosed to the Gardaí, and where no clear right to cross-examine exists.

The plaintiff submitted that the scale of the problem is apparent from paragraph 4.2 of the Final Ruling of the where it stated:

This Committee is aware…that many of the persons against whom complainants have made allegations are dead, as are persons who, at the relevant time, were involved in the management of or were working in institutions in respect of which allegations are made. Moreover this Committee is aware that certain persons against whom allegations are made, while still alive, are, as this Committee has accepted, incapable of giving instructions to respond to an allegation or of testifying.”

ISSUE OF PREMATURITY OF PROCEEDINGS

The plaintiff relied on the judgments of Keane C.J., Geoghegan J. and McGuinness J. in Maguire v. Ardagh [2002] 1 I.R. 385 and in the judgment of Ó Caoimh J. in Borges v. The Fitness to Practice Committee of the Medical Council(Unreported High Court 5th March, 2003), as authority for the proposition that the plaintiffs are now entitled to challenge the ruling of the Investigation Committee in these proceedings contrary to what is claimed by paragraph 18 of the defence of the second, third and fourth named defendants.

In relation to the plaintiffs’ submission regarding the general nature of the proceedings before the Investigation Committee the plaintiffs submitted that the case Canada (Attorney General v. Canada (Commission of Inquiry on the Blood System) [1997] 3 S.C.R. 440 sets out limits to the role of an inquiry. The following specific passages of the judgment of Cory J. were relied on as follows at pp. 458 to 459:

The inquiry’s roles of investigation and of education of the public are of great importance. Yet those rules should not be fulfilled at the expense of the denial of the rights of those being investigated. The need for careful balancing was recognised by Dècary J.A. when he stated at paragraph 32

The search for the truth does not excuse the violation of the rights of the individuals being investigated.”

This means that no matter how important the work of an inquiry may be, it cannot be achieved at the expense of the fundamental right of each citizen to be treated fairly.”

And at p. 470 when Cory J. stated that:

Findings of misconduct should not be the principal focus of this kind of public inquiry. Rather, they should be made only in those circumstances where they are required to carry out the mandate of the inquiry. A public inquiry was never intended to be used as a means of finding criminal or civil liability. No matter how carefully the hearings are conducted they cannot provide the evidentiary or procedural safeguards which prevail at the trial.”

And further in the judgment at page 471 when Cory J. also observed:

…procedural fairness is essential for the findings of commissions may damage the reputation of a witness. For most, a good reputation is their most highly prized attribute. It follows that it is essential that procedural fairness must be demonstrated in the hearings of the commission.”

It was accepted by the plaintiff that during the course of ordinary litigation in the courts a deceased person may have their reputation damaged by something that is said in evidence. However it was submitted that what is proposed by the Investigation Committee here is something very different. It is a statutory investigation which will, as one of its primary purposes, make specific findings a fact into a large number of persons who are deceased, disabled or disadvantaged. Relying on the judgment in Maguire v. Ardagh and the fact that the findings of the Commission and statements in the report thereof were privileged meant that the findings of the investigation far from being legally sterile could ruin a person simply by exposure and condemnation as much as by conviction.

THE INTERPRETATION OF SECTIONS 12 AND 13 OF THE ACT

It is accepted on behalf of the plaintiff that the Act, being a post 1937 piece of legislation, enjoys a presumption of constitutionality. It was submitted however that this should not act as a licence for the Committee to do whatever it pleases but as a restraint. In developing this proposition the plaintiffs relied on the following case law: Loftus v. Attorney General [1979] I.R. 221, Goodman International v. Hamilton [1992] 2 I.R. 542, Haughey v. Moriarty [1999] 3 I.R. 1 and McMahon v. Leahy [1984] I.R. 525. Applying the cases cited above it was submitted on behalf of the plaintiffs that they were “made” in relation to the power of the Investigation Committee to identify the Institution and the person who committed the abuse should be interpreted as only permitting identification in circumstances were such identification is not inconsistent with the constitutional rights of the individual or institution in question.

It was accepted that the alleged victims of abuse have legitimate interests, but this cannot be allowed to “trump” the fundamental constitutional rights of others. In all cases where a criminal prosecution is stayed, the victim could be said to be deprived of an opportunity to have his or her allegation tried in court. So too, in the case of applying the Statute of Limitations and/or laches to a civil case, in complying with what the plaintiffs submitted is a constitutional interpretation of the section, the discretion to identify the dead, disabled, unlocated or disadvantaged should not be exercised, and such failure to exercise the discretion is not the same as saying that one does not believe the complainant. The plaintiffs submitted that it was simply recognition that there can be no reality to making a pretence of an adjudication, or purporting to make a final finding of fact.

It was submitted that to reconstruct every aspect of life in a particular institution over a period of many years is of necessity, a very complex task particularly when one takes into account the diverse number of factors that can effect human memory, such as the age of the complainant when the abuse occurred, their age when it is recounted and the lapse of time, these very real difficulties mean that extreme caution should be exercised when undertaking the task of reconstructing life in an institution some 50 years ago. It was submitted that the existence of a respondent who was dead, disabled, unlocated or disadvantaged means that this caution should transform into a refusal to make a finding of fact. It was submitted that the work of the Committee and the Commission could proceed even if these categories of persons living and deceased were not individually identified, and the reports of the Inquiry into matters relating to the visit of the President of China to New Zealand in 1999 and the Victoria Colombie Inquiry in England in 2002 were cited as examples where inquiries proceeded in such circumstances.

THE RELEVANCE OF THE NON-STATUTORY COMMISSION

The plaintiff submitted that as the Commission had in its prior non-statutory form advised the Government on, and had a role in drafting of the Act they had on the basis of McConnell v. United Kingdom (2000) 30 E.H.RR 289 and Procola v. Luxembourg (1995) 22 E.H.R.R. 193 prejudiced their impartiality.

In submitting that a high standard of fair procedures is required even in the context of a body exercising inquisitorial functions, the plaintiffs relied on Borges v. The Fitness to Practice Committee of the Medical Counsel and Commission to Inquire into Child Abuse v. Notice Party A. (Unreported, High Court, 9th October, 2002) citing p. 26 of the judgment of Kelly J. as follows:

The interest of justice and a patently fair hearing to both complainant and respondent is of the essence of the work of the applicant. There can be no question of sacrificing the requirement of a patently fair hearing in favour of sympathy for a complainant or for the creation of an atmosphere. To do so would not be justified…”

FAIR PROCEDURES. DECEASED PERSONS

The plaintiffs introduce their submissions by referring to paragraph 7.10 of the ruling of the Investigation Committee where it stated:

It is not accepted that the making and publication of finding against a deceased person should in principle be the exception rather than the norm.”

The plaintiffs submit that it is clear from this that the Investigation Committee intends to make the findings of fact of abuse in respect of scores if not hundreds of persons who are deceased.

It was further submitted that the naming and shaming should only follow in circumstances where there has been an adjudication based on a testing of evidence. If, due to the death of the proposed respondent, the evidence cannot be tested in an adjudicative manner, a conclusion cannot be formed. To hear only one side of the case quite simply does not comply with fair procedures. There must be a real forensic analysis of the evidence. This cannot occur where the respondent is not in a position to give the most basic piece of information at all namely his admission or denial in respect of the charges. To proceed to a final adjudication of fact in respect of, for example, a sexual assault alleged against a person in circumstances where that person cannot even enter a denial of responsibility is utterly unfair.

It was further submitted that where a respondent is dead there is, of course, no possibility whatsoever of that person’s case being presented in the manner consistent with the requirements described In Re: Haughey [1971] I.R. 217. The accuser cannot be meaningfully cross-examined in the absence of information and instructions from the dead person. Rebutting evidence cannot be given because the person is no longer available to authorise the giving or give the rebutting evidence. Permitting a legal representative to address the Committee becomes meaningless in the absence of a person from whom to obtain information and take instructions. The inquiry becomes a one sided procedure in which the voice of the accuser is heard but the voice of the accused is not. It was submitted that the concept of adjudication becomes completely meaningless in such a situation.

It was submitted that in cases where the respondent is dead, the Committee will essentially be making an assessment as to whether or not it believes the complainant. It may be the case that a finding can be made based on belief alone in the course of a person’s job e.g. as a psychologist. In fact, in order to do some jobs, it is perhaps, necessary to believe what you are being told. But the question that arises is whether a statutory body can purport to make a final adjudication of fact based merely on its belief that the complainant is telling the truth in circumstances where such evidence has not been tested by also hearing the evidence of the respondent, it is submitted that the answer must be no.

In this context it was submitted that it should be recalled that the Committee has wide powers of compulsion (see s. 14) and it is a criminal offence to refuse to comply with the direction of the Committee (s. 14(4). In addition a respondent has no right to silence or to invoke the privilege against self incrimination (s. 21). It was submitted that it can be deduced that the purpose of such provisions was to make sure that the Committee would not find itself in a position where it was only hearing one side of the story. The plaintiff cited Mahon v. Air New Zealand [1984] 3 All E.R. 201 in which it was held that the Tribunal making a finding in the exercise of an investigative jurisdiction is required to base its decision on evidence that has some probative value, in the sense that there has been some material that tended logically to show the existence of facts consistent with the finding and that that the reasoning supporting the finding, if disclosed, is not logically self contradictory.

The view of the former Chief Justice Finlay, in the Report of the Tribunal of Inquiry into The Blood Transfusion Service Board published in 1997, was that it was not appropriate to make adverse findings against a dead man. He stated:

Quite obviously Dr. Wilkinson as the Deputy National Director [of the BTSB], must also be considered to have responsibility but it is particularly difficult to quantify that or to compare it with the responsibility of others having regard to his death, and because of the potential injustice that would arise from blaming a person who had never had an opportunity of defending himself”

THE CONSTITUTIONAL RIGHTS OF THE DECEASED

In making their submissions in relation to the claimed constitutional rights of the deceased the plaintiffs contrasted the status of a finding of guilt of rape against a person who lived just long enough to defend the allegation before the Committee, and a finding against another member of the same institution who is accused of rape but who has died two decades before the allegation was heard against him. In both cases this will lead to a finding also being made against the institution but the plaintiffs submit that in reality each finding of fact has a totally different quality. The first was made after the person who was accused had an opportunity to present his case. The second was made without the person who was accused being able to present their case. Yet both findings will appear side by side in the report of the Investigation Committee and will be viewed by the public as though they had equal weight. The submission proceeded – “This is what is so invidious about what is proposed.”

Accepting that there was not an exclusive domestic authority on whether deceased person possess any constitutional rights the plaintiffs referred the court to the following cases which at least left open or supported their views

Hilliard v. Penfield Enterprises Limited [1990] 1 I.R. 138, McDonald v. Brady (Supreme Court) [2001] 3 I.R. 588 and two cases decided by the European Court of Human Rights, Kelly and Ors. v. United Kingdom, Unreported E.C.H.R. 4th May, 2001, and Osman v. United Kingdom [1999] 29 E.H.R.R. 245 and in a decision of the English High Court in R (on the application of Wright) v. Secretary State for the Home Department [2001] 62 B.M.L.R. 16.

The plaintiffs accepted that it was well known that the estate of a dead person cannot sue for libel but asserted that there were good public policy reasons for such a rule but asserted that this limitation should not relate to the question as to whether a dead person whose dead name is attacked by the State can raise constitutional arguments in their defence. It is argued that whereas defamation generally relates to statements made by private persons or bodies, the findings of a public investigative body will be regarded in a different light by the public. Because of the way in which the Commission has been set up, its findings will be taken as being the truth. Thus it was argued that there is simply no comparison to be made between the law of defamation and the rights that are sought to be protected in the present case.

It was finally submitted that the Committee is under a continuing duty to act fairly and in accordance with the Constitution even in circumstances where a respondent is deceased. In any event the rights of all the surviving members of the congregation continue in force even after the death of one of its members. Submissions went on to discuss in more detail the rights of the surviving members.

THE RIGHTS OF THE SURVIVING MEMBERS

It was submitted that the untested and untestable allegation of abuse would become a slur on each of the living members of the congregation if a finding is made against a deceased member and published as a final and solemn finding of fact. As set out in paragraph 19 of the statement of claim the Committee has recognised that the congregation of the Christian Brothers is a congregation which is perceived in the State as having a distinct charism and tradition and has a distinct reputation which adheres to its members. The recognition of these features of the congregations is to be found at paragraph 7.4 of the final ruling of the Investigation Committee. The authorities relied upon by the plaintiff for asserting the rights of surviving members to constitutional protection in respect of findings made against deceased members are as follows:

1. Hilliard v. Penfield Enterprises Limited [1990] 1 I.R. 138

2. X County Council v. A [1985] 1AllE.R.53

3. The Commission to Inquire into Child Abuse v. Notice Party A. (Unreported, High Court, Kelly J., 9th October, 2002).

FAIR PROCEDURES INCAPACITATED OR UNTRACED PERSONS

The plaintiffs made submissions in relation to the fundamental disadvantages which would be suffered by the incapacitated or untraced persons and repeated that in respect of this and in respect of the deceased members it is of little assistance to them to permit their interests to be represented by the congregations’ own representative or by some other representation as referred to in paragraph 7.5 of the ruling of the Investigation Committee.

LAPSE OF TIME PREJUDICE

The plaintiffs relied on the extensive jurisprudence on the Irish Courts on delay in criminal and civil cases and set out their understanding of this jurisprudence. They specifically set out the attitude of the Investigation Committee as set out in paragraph 8.5. of the final ruling as follows:

The Committee rejects the submission that its procedures should provide for consideration of the issue of prejudice after taking a complainant’s evidence. The procedure consequence of this successful invitation of the “lapse of time” jurisprudence by part, usually the defendant, in a civil action, or the accused facing a criminal trial, is the making of an order to dismiss the civil action or prohibits the further prosecution of the criminal charges. While such a consequence is appropriate in an adversarial process, which is, in effect, a contest between two adversaries in which the substantive law determines the rules of engagement, for example, where the burden of proof lies, it is wholly incompatible with the nature of an inquisitorial process which is established by statute to investigate facts.”

They asserted that the standard to be used was that which was set down by the Supreme Court in Dunne v. DPP [2002] 2 I.R. 305, “that there is a real risk that the applicant would not receive a fair trial”. They argued that the law is that the applicant does not have to prove that the dead witness would definitely have provided a defence for her. The mere possibility the dead witness might provide a defence might be enough to persuade a court that the trial should be stopped as happened in

the People (DPP) v. Quilligan and O’Reilly (No. 3) [1993] 2 I.R. 305. The plaintiffs written submission continues as follows:

…It is in this context that paragraph 7.10 of the ruling of the Investigation Committee falls to be considered. It is stated that

The evaluation or assessment process which precedes a determination or finding is not dependent on there being accounts of the incident or state of affairs on which the allegation is based from two or more components to weigh in the balance.”

What the Committee seems to be saying in is where A is alleged to have raped B over a period of time, a determination that A is guilty of rape may be made despite the fact that A is dead, simply by testing the evidence of B against such other evidence as is available. It is submitted that this is not the case. The non availability of witnesses or documentation or buildings or structures due to the lapse of time will mean that in many cases the Committee will be making a final determination as to whether abuse occurred based upon little more than a “swearing match” between a complainant and a respondent. In such circumstances it would be unfair to proceed to make such an adjudication. The plaintiffs’ complaint that while initially the Investigation Committee intended to investigate complaints on an individual basis they moved in the framework document to indicate that the complaints would be investigated on an modular basis. Therefore it would only be at the end of the investigation of a large number of cases in respect of an institution that the issue of prejudice arising from delay is to be considered if at all.

The plaintiffs refer to the case law on delay in criminal cases and how that delay might lead to proceedings being halted by way of prohibition or injunction as a

result of that delay –

B.v. D.P.P.

[1997] 3 I.R. 140,

J.O’C v. D.P.P.

[2000] 3 I.R. 478,

P.O’C. v. D.P.P.

[2000] 3 I.R. 87,

J.L.v. D.P.P.

[2000] 3 I.R. 122.

The plaintiffs’ also refer to the House of Commons Home Affairs Committee Report on the conduct of investigations into past cases of abuse in children’s homes paragraph 592 and 141. The plaintiffs set out what they regarded as the principle case law on delay on the civil side as follows:

O’Domhnaill v. Merrick [1984] 1 I.R. 151, Toal v. Duignan (1) [1991] I.L.R.M. 135, Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, Ó Caoimh v. Commissioner of Public Works, Unreported, Supreme Court, 24th March, 1980.”

They referred to the standard to be met to insure the dismissal of proceedings for delay on the civil side is that there has been “a real and serious risk of an unfair trial.”

THE RELEVANCE TO THE CONFIDENTIAL COMMITTEE OF DELAY

The plaintiffs’ submissions drew the attention of the court to the provisions of the Act relating to the confidential committee which provides, in particular, in section 54 subsection 4 as follows:

If the report contains findings that are based on findings in a report of the Confidential Committee, the report shall include a statement to the effect that the first mentioned findings are based, solely or partly, as the case may be, on the latter findings and that the evidence on which the latter findings are based could not be tested or challenged by a person and (if it to be the case) was not corroborated.”

The aforementioned restrictions (which appeared to be equally applicable to live and dead respondents) clearly acknowledge that for any finding to be reliable it must be subjected to scrutiny and challenge. Further the restriction on the publication of the names of any of the alleged perpetrators are indeed in the institutions allegedly implicated in the report of the Confidential Committee as strong support for the proposition that the Investigation Committee must recognise the risks of making findings where there is no respondent to challenge allegations made, where there is a lack of corroborative evidence and/or other prejudice has occurred by reason of the passage of time. The plaintiffs emphasise in their oral submissions to the court that whereas it appeared to them that the Commission correctly set out the jurisprudence in relation to delay arising form the civil and criminal cases, the Commission did not apply this jurisprudence properly by committing to halt the investigation at such time as it could be ascertained that there was a real and serious risk of an unfair determination of the guilt of the respondents.

AGGREGATION OF EVIDENCE

The oral submissions placed great emphasis on the arguments against the statement of the Commission that the determinations in relation to the findings as to whether a respondent was guilty of abuse or not would be made having heard all the evidence in each module as set out in the framework document and the final ruling. This objection was based on the argument that aggregation of evidence was a concept unknown to Irish law and that both in criminal and civil law guilt found against a person in one set of circumstances does not imply guilt in other circumstances and the Court was referred to the manner in which applications for separate trials were made and the consideration of the courts in Ireland of system evidence in the overall context of similar facts. The plaintiffs argued that the so called aggregation could not provide corroboration where there was no corroboration in law.

CROSS-EXAMINATION BY RESPONDENTS

The plaintiffs referred to the rules of procedure the Final Ruling and framework document which they said appeared to provide that a precondition to the right of the respondent to cross-examine was the furnishing of a narrative statement by the respondent in relation to the allegations of the complainant in each case. They argued that such compliance by the respondents who were dead or were under the various kinds of disabilities referred to would be plainly impossible and thus were denied by the procedures proposed by the Commission a right to cross-examination as described in Re: Haughey and in Maguire v. Ardagh.

FIRST NAMED DEFENDANT’S SUBMISSIONS

From the outset, counsel for the first named defendant outlined the points of agreement between the first named defendant and the plaintiff as follows and it is helpful to set them out here:

(i) It is accepted that the complaints made by persons alleging abuse as defined in the Act are of a serious nature, which could, if the subject of determination by a criminal court, amount to criminal offences.

(ii) Further, it is accepted, insofar as living persons are concerned, be it the persons alleged to be responsible for any abuse determined, the manager of the institution or religious congregations concerned with its affairs the findings of the Commission are liable to adversely effect their reputations.

(iii) While determinations of the Commission or its Committees do not have any legal effect, it is accepted that this fact does not detract from the necessity to afford those involved in the process, the protections of constitutional and natural justice, and it is accepted that in this regard the process of the Investigation Committee is adjudicative in the sense in which that term is used in Maguire v. Ardagh.

(iv) Accordingly, it is accepted that persons liable to be the subject of adverse findings by the Commission (including congregations of those responsible for the institutions effected) have the right to the protection afforded by the principles of natural and constitutional justice in connection with the work of the Commission and the Investigation Committee.

(v) It is accepted that the content of those rights are defined by the decision of the Supreme Court in Re: Haughey.

It was submitted that in Maguire v. Ardagh the critical determination of the Supreme Court had two components. The first derived from the fact that the Court held that the joint Oireachtas sub-Committee in issue there did not have any power to conduct an inquiry of the nature undertaken by it. It was accepted by all the parties to the proceedings that it did not enjoy statutory power to conduct such an inquiry and it was accepted that it did not enjoy express constitutional power so to do. The sole question was whether it implied a constitutional authority derived from the powers of parliament so to hold an inquiry of the nature in question. The Supreme Court determined that it did not. What the court in Maguire v. Ardagh most definitely did not purport to do was to suggest that the gravity of findings liable to be made by an inquiry or the prospect of determinations being arrived at which might adjudicate facts which, if found in a criminal trial, would amount to a determination of criminal guilt, negated the entitlement to conduct such an inquiry, if otherwise authorised in law. It was submitted that the established jurisprudence of the court would have made any suggestion impossible and referred to Goodman v. Hamilton [1992] 2 I.R. 542.

It was submitted that none of the considerations moving the Supreme Court in Maguire v. Ardagh apply to the case of an inquiry conducted by the Commission or one of its committees which is plainly authorised by statute in a manner which in fact is more detailed and specific than the legislative authorisation for Tribunals of Inquiry.

1. It was claimed that a number of consequences follow the fact of specific statutory authorisation of the Commission, namely that while the courts no doubt could intervene in the case of excess by an inquiry of its statutory terms of reference the courts do not have a role in second guessing the decision of the Oireachtas to determine that a matter is the fit, proper or necessary subject of an inquiry, and that it is self evident that the Oireachtas could decide that issues of sexual abuse of children in institutions were proper matters for inquiry not least of all where the persons who suffer such abuse are alive, and still suffering the consequences of it.

2. The identification of parties guilty of abuse or the so called naming and shaming process is not the purpose of the process but it may be a necessary consequence of it.

3. The effect of s. 12 of the Act of 2000 is that the Oireachtas has specifically directed the Investigation Committee to address the questions of whether the abuse occurred in institutions between 1940 and 1999 and, if so, when it occurred, of what type, to what extent, why did it happen, where responsibility lies for the occurrence of such abuse, whether it lies with the institution and, if so, why. This is what the Commission is required by statute to do. This is not an objective which can be realised or achieved by the making of general findings of the nature suggested by the plaintiffs’ submissions. These are functions which define the mandatory obligation imposed by s. 13(1) of the Act of 2000 to make a report in writing of the results of the inquiry referred to in s. 12 specifying in the determinations made by it pursuant to that section. The first named defendant relied on paragraph 6.3 of the final ruling to support this argument.

4. There is no constitutional infirmity to an inquiry being called upon to consider allegations which, if established in a court of law, would amount to criminal conduct. And the dictum of Costello J. (as he then was) in Goodman v. Hamilton [1992] 2 I.R. 542, at p. 557 was referred to – “The decision to established a Tribunal of Inquiry into allegations of criminal misconduct does not constitute an interference with the exercise of judicial function in the criminal field.”

It was not agreed that the constraints being placed upon persons liable to be subject of adverse findings by the committee to cross-examine their accusers, such as were found in the Maguire v. Ardagh case, were present in the procedures of the Commission.

FINDINGS AGAINST DECEASED OR DISADVANTAGED PERSONS

It was not accepted that there was any principle prohibiting the inquiry being made into the activities of deceased persons or persons who are disadvantaged or otherwise unable to defend themselves against allegations. It was noted that one of the main protagonists in the inquiry carried out by the inspectors appointed to inquire into the affairs of Ansbacher (Cayman) Limited under the Companies Act, 1990 was deceased, and that the events being investigated commenced over 30 years ago and there were conclusions adverse to the deceased in that case. The ability of persons alleged to have done business with the company under investigation was evidently impaired by the exclusive knowledge of the deceased of their affairs, and the absence of records. His employers and entities associated with him were obviously adversely effected by the outcome of the investigation. Similar considerations apply to those aspects of the Tribunal of Inquiry (Payment to Politicians) which intersect with the matters inquired into with the inspectors. The defendant identified two arguments by the plaintiff insofar as death itself leading to the inability of the dead person to defend himself and delay reducing the inability of a person, dead or alive, to defend himself. Again public inquiries will take place because persons are dead and the reputation of such persons may be liable to come under scrutiny and adverse comment.

It was accepted that these practical considerations do not determine whether a given course of action and inquiry is unconstitutional. The duty to make the decision and finding must be faced up to but equally the Commission should consider if the decision in issue was unlawful or the provisions in the final ruling pursuant to which it was made contrary to the Constitution. The position of the first named defendant was set out as follows:

If it is because of the passage of time, resulting dimming of recollections and under consequences of the period stipulated by the Oireachtas in relation to which the Commission was to inquire, then the arguments in relation to the right of deceased persons, the impact upon the congregations of the fact that their members were of subject of the deceased and thus not in a position to defend themselves are simply irrelevant. All that is in issue is whether the passage of time has caused a prejudice which precludes in any given case, the Commission from proceeding. This necessarily requires a case by case for consideration of the issue, and it is the case by case consideration which, necessarily, must proceed on the basis that instances in which an aspect of the inquiry will be precluded from proceeding will be the exception, rather than the rule.”

The analogy with court proceedings was used by the defendant to show that court proceedings may involve not merely something that is said in evidence at first to a deceased, but binding determinations of a court of law which are adverse to the deceased, with financial consequences for the survivors of the deceased. This, the first named defendant said, was the necessary and inevitable consequence of the fact that the law permits actions to be proceeded with against the estate of a deceased in respect of his or her legal wrongs, citing s. 8 of the Civil Liability Act 1961. In many, if not all such cases, those defending the proceedings are liable to be deprived of evidence, are liable to have a plaintiff pitched against them with a real practical advantage, and of course are in a situation which there is a prospect of the court arriving at a decision with significant adverse reputational consequences for the deceased. While the courts have never adjudicated upon the argument as advanced by the plaintiffs here, it is significant to note that even in considering their jurisdiction to dismiss for want of prosecution the courts have permitted actions to proceed after the passage of a lengthy period of time in circumstances where witness were dead or in which claims against third parties were claimed upon the actions of a person deceased, with consequentional implications for the reputation of that deceased person (citing the criminal case of

J.O’C v. D.P.P.

[2000] 3 I.R. 478 and McCarthy v. South Infirmary (Unreported, High Court, Abbott J., 7th March, 2003).

THE DELAYED CASES

The rules applicable to the dismissal of court proceedings (civil and criminal) following a passage of time are simply inappropriate to the questions which were before the Commission in the decision under review. The principles applied in such cases in the courts have been developed in a context in which there is in train an adversarial process between two or more contesting parties. The function and obligation of the court charged with the hearing of such a case is to render a decision on the merits, based upon the evidence adduced by both parties. The principles governing the dismissal of actions consequent on delay are moulded by the nature of that process; they require the striking of a balance between the rights of the plaintiff or complainant to have his or her claim litigated, or prosecution pursued, and the right of a defendant to a fair and proper determination. The process of inquiry in which the Commission is engaged is different from the court proceedings and the operation from the legal principles arising where there has been delay must reflect this fact. The Commission’s inquiry occurs in a statutory framework which as mandated an inquiry.

It has done so in a manner which leaves no room for doubt but that aspects, and proportionately significant aspects, of that process relate to matters which occurred many years ago. It is equipped to the Commission to discharge that task in a manner which renders it less dependant upon the evidence adduced by the parties, than would a court of law in an adversarial process. It is free to examine and probe the evidence of the complainants itself. It enables itself to gather, consider and rely upon evidence from external sources. It has, by reason of its composition, expertise in relation to the task entrusted to it. It is made clear its intention to ensure that the rights of persons who come before it will be adequately protected and considered the hearings as far as individuals are concerned take place in private. Finally, while it in no sense seeks to undermine the significance of the reputational interests which might be impaired by its determinations, those interests are necessarily different from the factors which a court must consider in the exercise of calculation which the determination of an application to dismiss consequent upon delay entails. In the circumstances they suggested an analogy of the Commission and of the position of a party to court proceedings is misplaced. The critical distinctions between the position of a party involved in legal proceedings in a court of law and a person subject of allegations within a Tribunal of Inquiry was recognised by Denham J. in Lawlor v. Flood [1999] 3 I.R. 107. The determination of the Commission does not result in criminal guilt or give rise to a civil liability, the deceased have no constitutional reputational rights and insofar as members of the congregation might be effected by a decision adverse to a deceased member or employee any reputational interests those persons have is by definition vicarious, and of necessity more remote than the interests of a person in their own reputation.

It is clearly stated on behalf of the Commission that the Commission is mandated to conduct the inquiry by the Act. It has no discretion but to conduct that inquiry and similarly has no discretion but to arrive at conclusions of the nature referred to in the Commission submissions. While the Commission is obliged to observe the principles of natural and constitutional justice, this does not mandate a general principle that allegations against persons who are deceased should not be proceeded deceased persons or might impact on the reputations of third parties. There is no such general principle identifiable in the jurisprudence of the courts dealing with delay. The jurisprudence of the courts developed by addressing the circumstances in which criminal and civil cases should be dismissed consequent upon the passage of time and cannot be applied directly to the proceedings of the Commission. Even the jurisdiction of the courts is reserved for exceptional cases and what is exceptional for the purposes of the Commission must be viewed in the light of the Commission’s inquisitorial role, the brief it has been given by the legislature and the particular facts of any case, and hence the Commission’s ruling, it was submitted cannot be said to be wrong in law.

THE RIGHTS OF DECEASED PERSONS

The contention that deceased persons enjoy constitutional rights is very difficult to sustain based upon the text of the Constitution insofar as such a right could be construed from Article 40.3.2 which is directed in making provision for the good name of persons to citizens, which dead persons are not. The decision of the European Court of Human Rights in McCarr v. UK. relied upon by the plaintiffs derived from the requirement under article 1 of the Convention that the State secures to everyone the rights and freedoms derived in the Convention. That latter

requirement in turn has prompted the European Court of Human Rights to conclude that there should be a form of official investigation where a person has been killed as a result of the use of force. The plaintiffs’ have not shown that this right as exists is capable of any precise definition. The plaintiff’s own submissions recognise the validity of there being a legislative prohibition against the estates of deceased persons maintaining actions for defamation in respect of publication regarding the deceased. This is justified by reference to good policy reasons, presumably relating to the difficulties which will be caused to the writing and recording of a recent history. This policy was less significant than the ascertainment of facts surrounding matters of legitimate public concern as are in issue before the Commission. The case of Hilliard v. Penfield Enterprises Ltd. supports the view that because the deceased are neither alive nor citizens they have no personal rights.

The fact that the Commission has decided to allow the congregation to be represented to defend allegations and findings which may be adverse to the congregation is part of the process which the Commission has determined to observe and it does not translate into a recognition that there is any constitutional entitlement as suggested by the plaintiffs’ argument.

UNTRACED PERSONS

The Commission has made it clear that it will take all reasonable steps to establish the whereabouts of persons against whom allegations are made. It was also stated that regard will be had to difficulties in tracing persons and making any decisions relating to them. It is difficult to see how the Commission could be required to do any more than this and is impossible to see how the fact that the person is untraceable establishes in itself a legal barrier to the making of determinations against their interests.

IN RELATION TO SO-CALLED AGGREGATION OF EVIDENCE

In his oral submissions Mr. Clarke on behalf of the Commission clarified that the Commission would only “aggregate” evidence in hard edge cases where such evidence could constitute corroboration in a criminal or civil case. By hard edge cases he meant cases involving allegations by a complainant which if proven would amount to a crime. He stated that by reason of the wide nature of the investigation being carried out by the Commission, aggregation of evidence in a less restricted sense might be halted if necessary, as in the case of an allegation of inferior educational standards or bad food safety standards or the like. He rejected the plaintiffs’ submissions that postponing the decision in a module until after all the evidence was heard was prejudicial to the respondents. He stated that while the trial of several charges before a jury might be halted because of the prejudicial nature of the joinder, this danger could be prevented by the Commission alerting respondents as to the cases which might be considered to offer cross- corroboration. Thus a respondent would be alert to the possibilities. The postponement of a determination to the end of the evidence taken in the module is also in ease of the respondents insofar as they would have the benefit of the deficiencies or frailties in a complainant’s case in other situations.

LIMITATION ON CROSS-EXAMINATION

The first defendant rejected that the arrangements for cross-examination on behalf of respondents were either ultra vires or unconstitutional. It was not for the court to say that there was a better way to arrange for cross-examination or that it ought to happen in the same fashion and in the sequence it happens in court. The requirement that respondents would furnish a statement was no more than that required by any tribunal for the purpose of enabling it to decide the right or the extent of the right of the witness to cross-examine other witnesses as cited at the tribunal.

SUBMISSIONS OF THE THIRD AND FOURTH NAMED DEFENDANTS.

Counsel for these defendants (Ireland and the Attorney General) concentrated their submissions mainly in relation to the claim of unconstitutionality of the Act of 2002 made by the plaintiffs’ and also dealt with the defence of both the third and fourth named defendants and the second named defendant in relation to the prematurity of the plaintiffs’ claim. They said that until a stage is reached that the rights of any of the brothers are likely to be infringed by them actually being (using the expression of counsel for the plaintiff), “named and shamed”, there is no need for review by way of declaratory relief or judicial review of any other kind. At that stage if the Commission get it right that is the end of the matter. If they get it wrong they may be subject to remedy by judicial review in relation to those individual findings. The authorities relied on to support this view is Scariff v. Taylor [1996] 1 I.R. 242. He instanced the example of so-called aggregation of evidence to show that if the Commission or its Committee purported to use so-called aggregative evidence in a manner which was contrary to the jurisprudence relating to the probative effect of the system evidence, or similar fact evidence, then it would be open to the plaintiffs or any individual brother to seek judicial review in relation to such error.

Maguire v. Ardagh could be distinguished from the case under review and this was set out in a detailed table.

SUBMISSIONS ON BEHALF OF THE SECOND NAMED DEFENDANT.

Counsel for the second named defendant said that although the second named defendant as minister had a responsibility for the drafting of the legislation and funding the Commission he was before the court as a body and an institution to be examined by the Commission in the same way as any other. The minister agreed with the proposals of the final ruling. He stated that in the case of Murphy v. Flood the former Chief Justice Hamilton stated the basis upon which the rulings of a tribunal can be interfered with on p. 303. One basis for such a ruling is such a review is that the ruling of the tribunal is either unreasonable or irrational or flew in the face of fundamental reasoning and common sense and the other reason is if the decision is made in breach of the applicant’s constitutional rights, not the constitutional rights of anybody else. He took issue with the plaintiffs submissions that the court should have concern not only for the constitutional rights, of the plaintiff but also the constitutional rights of others, meaning the deceased. He said that the only constitutional right that can be asserted as a constitutional right vested in the congregation and that was absolutely plain in the judgment in Murphy v. Flood. He stated that when the court came to decide the issue the question should be asked “what is the right that the congregation has come here to assert.” The question had to be asked, (even assuming that the congregation seek to assert that they have a right to a good name), how is the finding in phase I that an individual whom they do not represent is guilty of abuse going to affect that good name? Counsel for the plaintiffs had made it clear that they do not represent the deceased. They are not part of the persons whose constitutional rights (contentious as that issue may be) are being ventilated before the court.

After a number of years of revelations and the claims of sexual abuse coming to the fore the shock has diminished and the public would be in a position to distinguish between a finding against an individual and the congregation to whom that individual belonged.

The evidence of Brother Gibson revealed a striking amount of documentary evidence available to the congregation in relation to these matters. The complainants, under the rules of the committee, comes forward and sets out their stall first. They say “I was abused in 1963 in Artane” or wherever. They do not see the documents of the congregation as available to them. They are quite liable if there is an untruthful statement, to be tripped up by the documents that the brothers have. Nowhere in the proceedings have the plaintiffs said that they were hampered from defending themselves in phase II. In phase II it is open to the plaintiffs at every stage to question their responsibility for the acts of individual members. It is a matter that is likely to effect the second named defendant department and the congregation on one view of things, if there is a finding or findings of abuse against an individual in an institution, because a finding of abuse against a member of the congregation then triggers the involvement of the department to be brought to a court, so to speak, in terms of how it dealt with the institution concerned.

THE FACTS

Insofar as the facts set out in the evidence of Brother Gibson, noted above, which were not contested by the defendants, and the facts set out in the documentation of the Committee, including the final ruling together with the matters in respect of judicial notice, has been taken, by agreement in relation to memory, to set out the facts of the case, there is no need to summarise them here.

FINDING OF FACT

The following facts are the facts agreed are as found:

1. The first named defendant in its preliminary ruling and framework document has embarked upon a process of setting out the terms of reference of the first named defendant under the Act.

2. The congregation of the Christian Brothers had been recognised, de facto at least by the first named defendant, has having an interest in being heard in relation to the determination of such terms of reference into having representation in relation to the congregation and its individual members.

3. The first and second named plaintiffs are agreed to be the representatives of the congregation of the Christian Brothers.

4. Differences arose between the congregation of Christian Brothers and the first named defendant in relation to the continuation of the inquiries of the first named defendant under the act against deceased and certain disabled members of the congregation.

5. The congregation was dissatisfied with the manner in which the first named defendant by its committee ruled in respect of disputes in relation to such matters. The congregation of the Christian Brothers in the first instance requested that the first named defendant would in the first instance state a case to the High Court pursuant to s.25 of the Act of 2000 for the purpose of the resolution of such difficulties and the first named defendant decided and informed the congregation that it would not state such a case.

6. The plaintiffs’ have initiated these proceedings for the purpose of reservation of such differences on the basis of the six institutions described in evidence. Allegations of abuse go back to anything up to seventy years.

7. Taking Artane as one of the principal institutions there are over three hundred allegations against brothers, former brothers, living or deceased. Approximately 16 of these allegations relate to young boys who were in the Artane institution in the 1920s.

8. There was a convergence of allegations around the 1940s and 1950s.

9. In relation to a typical complaint, the congregation’s managers received a complaint from the Commission together with the material thereto. The congregation then examined the nature of the complaint by examining the file on the brother who was accused. That involves looking up the biographical details of the brother to prove that he was in the institution because in some cases the congregation can seek to prove that he was in a place as alleged. The congregation looked at the archive of material which would be accumulated with regard to the brother against whom the complaint is made and a particular search is made to see if there are any letters or any details that would indicate that there was concern 50, 60 or 70 years ago about any matter relating to the complaint.

10. As the evidence offered in relation to the examination of documentations relating to a brother against whom a complaint has been was given as an example, I find that throughout the institutions under the care of the congregation of the Christian Brothers there are available for examination admission files, infirmary reports, Department of Education reports on the school or institution and on the pupil, and possibly other material which would be relevant. There would also be visitation reports from the authorities within the congregation of the Christian Brothers and as in the case of Artane, there are available periodic visitation reports in relation to visitations, as frequently as yearly, available over a period of 60 or 70 years. Where these reports are available they may in certain instances be highly critical in their examination of the institution visited and may in fact be more critical than Department of Education reports and they would be very detailed. Thus I find that there exists a significant amount of well preserved and detailed documentary material against which complaints or collateral facts surrounding complaints may be checked. I find that the managers heading up a small hierarchical management council or structure relating to Artane (which closed in the 1970s) are all dead. There are three school principals alive, known to the plaintiffs still in their 70’s who had been Principals in Artane, two are brothers and one is a former brother. Apart from that extent of survivorship of management there is none other and in the absence of challenge by the defendants, I accept that that is typical of the survivorship of management for the various institutions under the care of the congregation of the Christian Brothers during the relevant period of the Act.

11. There is no surviving province leader who had an overall concern and responsibility for all of the institutions with either of the two provinces of the congregation of the Christian Brothers in Ireland and only one surviving member of the leadership team as an involvement as a junior membership of the leadership team when Artane was closing in the 1970s.

A feature of complaints made in Artane is that a brother may have taught in Artane for a period of one or two years and then left and taught for a period of up to 35 to 40 years in schools outside Artane and during the 30 to 40 years outside Artane there was no complaint made against them but find now that in the last year and a half the congregation are getting complaints of serious sexual abuse against a large number of brothers who were in Artane for such shorter periods or perhaps in some cases for a longer period. These allegations are limited to the time they were in Artane. Very often brothers against whom such complaints are made, where they spent only a short time in Artane, have gone on to occupy senior positions in the congregation and there, being no documentation of any complaints for many years against them, it is now very difficult for them to find themselves and deal with the suffering which in some instances requires counselling and gives rise to depression and anxiety. The stress and difficulty presented by allegations which many brothers consider are difficult to defend or contradict, by reason of the passage of time and other difficulties set out in this case, has caused quite a number of them to be reluctant to get involved in any form or ministry where there are young people.

Since 1969 the main building of Artane is now used as a secondary school and much of the building and physical layout has been demolished or significantly altered. And there is no similarity between Artane as it is known today and the Artane as it was in the 1940s, 50’s and 60s.

Apart from brothers who are alive and traced, three categories present problems in relation to getting instructions.

(a) Those who are not traced and cannot give instructions.

(b) Those who are infirm because of their memory lapse, their age or because they are too fragile to bring the complaints in great detail to them.

(c) Deceased brothers who cannot give instructions to the congregation.

12. I do not accept that the congregation cannot respond at least in some way in relation to the complaints insofar as the evidence was that there was a great deal of documentary information on the file which, while not wholly contradictory or a full defence to the complaints, nevertheless provide some background against which the evidence of the complainants, and any corroborative evidence relating thereto, can be tested.

I do accept that of the 32 brothers living who were in Artane at the relevant period, three or four present difficulties in getting proper instructions from them because of their age or other infirmity and not all of the 32 brothers from this period have had complaints made against them but, of those against whom complaints were made, up to 50% are complaints of serious sexual abuse.

13. In relation to sexual abuse and serious physical abuse, these were acts of a criminal nature at the time and, if detected, could have been prosecuted at that time.

Whereas the congregation of Christian Brothers have many non-residential schools, the proportion of complaints in non-residential schools to complaints in residential institutions is approximately in the ratio of 50 to 650 and where complaints are made in respect of non residential schools they are of a less intense pattern and tend to be in ones and twos in respect of each individual school. Nor is there any pattern to them, similar to patterns that may emerge in relation to the residential school.

13. The preliminary ruling and framework document of the Committee accept the applicability of the jurisprudence evolved in the courts in relation to staying or dismissing proceedings where a person in respect of whom a complaint has been made in similar criminal proceedings is prejudiced by reason of delay but says that the staying of the inquiry in relation to an individual complaint made under the Act, on the grounds of the application of such jurisprudence, would be the exception rather than the norm by reason of the distinction between the proceedings of the inquiry under the Act being inquisitorial in nature as opposed to the adversarial nature of the courts.

14. The Committee’s preliminary ruling and framework document have ruled that there is no reason in principle why death or delay alone would be grounds to stay the proceedings and has stated that in most cases by the reason of the inquisitorial mandate conferred on the first named defendant by the Act, the time for determination of prejudice in relation to questions of stopping the inquiry against any individual brother is when the investigation is drawing to a close and all statements and information is available.

15. While the preliminary ruling and framework document mentions in a number of places the availability and importance of corroboration and the testing of evidence of witnesses, including complainants and respondents, neither the preliminary ruling nor the framework document analysing the requirements of the Act in relation to corroboration, or the acceptance of the first named defendant of the need to test the evidence of witnesses so as to fully set out the legal and constitutional rights of the brothers to hearing consistent with principles of natural and constitutional justice.

16. The preliminary ruling and framework document by providing for the furnishing by a respondent brother of the statement of evidence as a pre-condition to his right to cross-examine a complainant prevents the representatives of the deceased and the congregation and the incapacited from cross-examining witnesses.

The preliminary ruling and framework document referred to aggregation of evidence in circumstances where either the context or any expressed interpretation of the term aggregation rules out the possibility of the inappropriate and illegal use of system and/or similar fact evidence in relation to complaints of other occurrences against the same brother.

THE ISSUES

(1)PREMATURITY OF PLAINTIFF’S CLAIM

Haughey v. Moriarty [1999] 3 I.R. (p. 1 and p. 75) recognised the right of persons who may be adversely affected by the findings of a Tribunal set up by resolution passed by both houses of the Oireachtas to have the terms of reference explained in the early course. At p. 77 of his judgment Hamilton C.J. stated:

The Court has already in the course of its judgment referred to paragraph 79 of the Salmon Report and adopted it as a correct statement of the law and practice applicable to such tribunals in this jurisdiction.

The Tribunal has not taken an early or any opportunity of explaining in public its interpretation of its terms of reference.

Having regard to the terms of the resolution passed by both Houses of the Oireachtas and the fact that he is named therein and is likely to be effected, one way or the other, by the findings of the Tribunal, the first plaintiff is entitled to an explanation by the Tribunal of its terms of reference, certainly so far as they relate to him.”

In Maguire v. Ardagh [2002] 1 I.R. 385 at p. 385 Geoghegan J. stated:

Turning now to the complaints made against the procedures intended to be adopted by the subcommittee, I would first make a general comment. As the subcommittee hearings had not got under way I do not consider that certiorari would be appropriate if a statement of intended objectionable procedures was the only ground. That remedy would be premature. But that does not mean that the judicial review proceeding itself would be premature. Once there was such a clear declaration of intention as to the nature of the procedures, it was legitimate to bring judicial review proceedings but insofar as the court would uphold the objections of the applicants it should be reflected in the form of declaratory relief rather than in the form of certiorari.”

The following were the two procedural directions made by the subcommittee which are considered the most objectionable and subject to judicial review:

1. A ruling that the evidence in chief of each witness would be taken first and that such cross-examination as might be permitted by the sub-committee would take place.

2. That in an elaborate schedule of timings prepared by the sub-committee all cross-examination together with the closing addresses were intended to be done on one day at the end.”

CONCLUSION

The Commission and its Committee, in the final ruling and related documents, have set out extensive procedural arrangements and clarified in detail how the rights of parties are to be determined, and the standard of proof, together with procedures for determining whether the inquiry mandated by the Commission and its Committee ought to be halted in respect of a particular complaint and other important issues. All of these issues vitally affect the interest of the plaintiffs’ congregation and its members. In relation to deciding an issue of prematurity which is in the nature of a preliminary issue the court takes the claim of interest of the plaintiff at its highest point. I am persuaded by the authorities set out in Haughey v. Moriarty

and

Maguire v. Ardagh on the basis that while these authorities related to Tribunals set up by resolution of the Oireachtas or sub-committee of the Dáil, a purposeful interpretation of the Act of 2002 justifies the examination of the functions of the Commission and its Committee with reference not only to the Act of 2002 but also the case law in this jurisdiction which has developed in relation to Tribunals established by resolution. I shall deal with the authority and reasons for such purposeful interpretation later in this judgment.

(2)THE TEST FOR ENTITLEMENT OF PLAINTIFFS TO DECLARATORY RELIEF.

In Murphy v. Flood [2000] 2 I.R. 298 it was held that it was purely a matter for the Tribunal to decide whether it would be in the public interest expedient to refuse to allow the public or any portion of the public to be present at any of the proceedings of the Tribunal and where there was no evidence that the decision of the respondent not to exclude the public from the hearing of the evidence, with regard to the contents of an affidavit the admissibility whereof was disputed in that case, was in any way unreasonable or irrational, the court was not entitled to interfere with the ruling made by the respondent. But in that case in his judgment Hamilton C.J. did point out that the refusal to interfere with the ruling was because there was “no breach of the applicant’s constitutional rights in regard thereto.” In O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 Finlay C.J. at p. 70 of the judgment said:

The question arising on this issue falls to be decided in accordance with the principles laid down by this court in The State (Keegan) v. Stardust Compensation

Tribunal [1986] I.R. 642 which are set out in the judgment of Henchy J. in that case, with which in respect of the legal principles applicable, all the other members of the Court specifically agreed.

In dealing with the circumstances under which the court could intervene to quash the decision of an administrative officer or tribunal on grounds of unreasonableness or irrationality, Henchy J. in that judgment set out a number of such circumstances in different terms. They are:

1. It is fundamentally at variance with reason and common sense.

2. It is indefensible for being in the teeth of plain reason and common sense.

3. Because the court is satisfied that the decision-maker has breached his obligation whereby he: “must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision”

I am satisfied that these three different methods of expressing the circumstances under which a court can intervene are not in any way inconsistent one with the other, but rather complement each other and constitute not only a correct but a comprehensive description of the circumstances under which a court may, according to our law, intervene in such a decision on the basis of unreasonableness or irrationality. In setting out these principles, Henchy J., in the course of that judgment, quoted with approval the statement of Lord Greene MR. in Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB. 223 where, at p. 230, he stated:

‘It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it,

than the courts can interfere …; but to prove a case of that kind would require something overwhelming’.”

Griffin J. in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, in agreeing with the principles laid down by Henchy J., quoted with approval the speech of Lord Brightman in R v. The Chief Constable of North Wales Police ex p. Evans [1982] 1 LLR. 1155 where he stated as follows at 1173 – 1174:

Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power … Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”

In University of Limerick v. Ryan (Unreported, High Court, Barron J., February 21st, 1991) Barron J. stated at p.p. 28/30 in relation to the obligation of a housing authority to provide housing for a traveller family under the Housing Act, 1966 as amended:

The position of a traveller family which becomes entitled to be provided with a dwelling must be considered. ft is uncontested that such family must be offered a dwelling. If this is refused because the family belongs to the class of persons who traditionally pursue or have pursed an nomadic way of life, does this mean that the Council now has a discretion whether or not to provide that family with a caravan site? The question to the answer is no. It would not be a proper construction to be placed upon the relevant provisions of the Act.

Section 13 must be taken to intend that the obligation of the Council to provide for housing needs extends to the case of those whose section 13 applies to the provisions not of dwellings but of caravan sites.”

This judgment has been accepted in other cases involving claims by members of the travelling community to be housed in dwellings or halting sites for the proposition that a council with administrative discretion to provide appropriate housing for travellers does not exercise that power by refusing to exercise its discretion at all by not providing such housing accommodation. In Maguire v. Ardagh the essential grounds for declaratory relief granted were that the Oireachtas Committee was acting ultra vires.

From the foregoing authorities and other authorities considered by me it would seem that the standard for seeking declaratory relief are is follows:

1. Where the final ruling and related documents disclose a ruling which is contrary to the constitutional rights of the plaintiff congregation.

2. Where the final ruling and relating documents propose in clear terms that the Commission and its Committee intend to adopt a procedure which is ultra vires the Act of 2002.

3. Where the Commission and its Committee in the Final Ruling have failed to exercise its discretion to provide a full and adequate ruling in an area where the rights of the plaintiffs’ congregation may be adversely affected.

RIGHTS OF DECEASED TO PROTECTION AGAINST ADVERSE FINDING.

I find none of the cases cited by the plaintiffs to justify the existence of a constitutional right of the deceased to their good name or reputation. Quite the contrary. Such right was doubted by Gannon J. in Hilliard v. Penfield Enterprise Limited. The European Court of Human Rights in the case of Kelly and Ors v. United Kingdom at p. 26 stated the general principles relating to the court’s assessment of that case regarding a claim by the applicants that their relatives had been unjustifiably killed and that there had been no effective investigation into circumstances of their death. They invoked Article 2 of the Convention which provides:

Everyone’s right to 4fe shall be protected by law. No-one should be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

At p. 26 the judgment states as follows:

91. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, and which in peacetime no derogation is permitted under Article 15. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which the depravation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective. (See McCann v. United Kingdomjudgment of 27th September 1995 series A no. 324 pages 45 to 46..146 to 147).

92. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as for example in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occur. Indeed the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation …”

It is clear that that case and the other cases cited by the plaintiffs in relation to inquiries into deaths relate primarily to the right to life, rather than any rights being asserted on behalf of the deceased. It is clear from the judgment of the Chief Justice in McDonnell v. Brady that no final decision was being made at the then interlocutory stage of the hearing in relation to the right of the plaintiff to defend her late husband’s reputation against unjust attack. At p. 599 of the judgment he stated:

It is, in any event, beyond doubt that the applicant has been afforded important safe guards which will be of important assistance to her in defending her late husband’s reputation against unjust attack. The subcommittee allowed her to be legally represented, although she is clearly in a significantly different position from those persons still alive who have an admitted and indisputable constitutional right to the vindication of their good name. Her legal representatives are entitled to cross examine any witnesses whose testimony may be in any way damaging to the interests she seeks to protect and, while it is doubtless always preferable to be able to mount an immediate challenge by way of cross examination to such evidence, it is, at least arguably a matter for the subcommittee to determine the time at which such cross-examination should be conducted. That is an issue which will have to be resolved in the High Court during the course of the present proceedings, but it certainly does not, of itself constitute a denial of constitutional and natural justice such as to demand the intervention by the High Court in the form of so drastic a weapon as an indefinite stay of the sub-committee’s proceedings.”

On p. 600 of the judgment the Chief Justice goes on to state (in relation to the refusal of the Oireachtas sub-committee to pay the costs of the legal representation of the applicant):

it is not for this court, at this stage of the proceedings, to adjudicate on the correctness of that view in law, any more than it was for the High Court. It is sufficient to say that, if the applicant is found to be entitled, either as a matter of constitutional right or by virtue of the provisions of the Act of 1997, to be paid the cost of legal representation in these proceedings, she will be entitled to an appropriate declaration to that effect which will no doubt be acted upon by the Minister for Finance. It is clearly not, however, a ground on which, at this stage, the entire proceedings of the sub-committee should be stayed.”

Apart from the cases mentioned I can find no authority in the history of the common law asserting a right of the deceased to a good name or to any property rights. Indeed in the area of property rights the common law from ancient times is noteworthy for the extremes to which the courts went to free up land from the rule of the grave as in the cases of the evolution of the fiction laden fines and recoveries procedures which evolved for the purpose of barring the entail, and the development of the rule against perpetuities. A similar approach was adopted with the onset of legislative intervention as shown by the Mortmain Acts and indeed the Fines and Recoveries Act, 1883.

In the light of the foregoing I find much force in the arguments of the first named defendant that the provisions of the Constitution providing for rights of citizens should be interpreted literally. While a literal interpretation of the Constitution does not always find favour with the courts I find that when such interpretation is tested schematically by testing it against other rights in the Constitution such as the right to equality before the law, the right to bodily integrity, the right to inviolability of the dwelling and other rights of the living, I find that there is no place in the Constitution from where the rights of the deceased may be rationally inferred. I consider that it is necessary for the purpose of disposal of the issues in this case to decide on the issue notwithstanding that the plaintiffs do not directly represent the deceased. I do not accept the validity of the claims of the plaintiffs in relation to the issue.

A RIGHT OF CONGREGATION TO GOOD NAME AND PROTECTION AGAINST ADVERSE FINDING OF THE COMMITTEE.

The Committee in its Final Ruling admitted the de facto right of the congregation to protection against an adverse finding. It states at paragraph 7.4, page 38:

By reason of that association of where an institution is under investigation by this Committee, whether or not past or present members are also under investigation, the process is potentially injurious to the reputation of the congregation, which, in effect, means that it is potentially injurious to the reputation of the current members of the congregation.” Earlier in the paragraph the Committee states that the congregations are given a right of representation not as of right and does not concede any constitutional right of the congregation to its members to such representation in the event of an adverse finding being made against any of its existing or past members. ft is stated that it is anticipated that the adoption of this report approach will assist in enlisting the true facts.”

While the Court acknowledges the right of the Committee to give any person, alive or deceased, the facility of representation for the purpose of assisting the Committee and eliciting the true facts, it is appropriate that the court would examine whether in the particular circumstances of an adverse finding being possible against the members of the congregation, either past or present, the congregation as representing its existing members has a right in law and under the Constitution to such representation and the right to protection against a finding adverse to them and a right to their good name.

I consider that the appropriate point of departure for an examination of the legal and constitutional rights of the members of the congregation qua congregation is an examination of the law in this jurisdiction relating to group defamation. The law of defamation is the branch of the law of tort which enables citizens to assert and protect their constitutional right to their good name and, if the tort of defamation did not exist, it is fair to say that citizens would probably seek the same type of remedies under the heading or tort of breach of constitutional right to their good name.

The Law Reform Commission consultation paper on the Civil Law of Defamation published in March 1991 discusses the law on Group Defamation in Ireland on pp. 25 to 28. From the outset the paper seeks to set out the rule relating thereto as:

No member of a group or class can bring an action in respect of defamatory statements made about the group unless he can establish that he was specifically referred to. The circumstances or words of the statement may indicate a reference to the plaintiff. Furthermore, where the reference is made to a limited group, the plaintiff may be able to maintain an action. It is a matter of law for the Judge as to whether the words are capable of referring to the plaintiff who must then satisfy the jury that he was identified as a matter of fact.”

The discussion concludes with a reference to the following statement put forward by Duncan & Neill, Defamation 1978 at para. 6.13, p. 30:

It is submitted, though there is no satisfactory modern English authority on the matter, that the right approach is that even a general derogatory reference to a group may affect the reputation of every member, and that the court would adopt as its test the intensity of suspicion cast upon the plaintiff. Where therefore allegations are made against members of a class the question or consideration is whether, having regard at the size of the class, the gravity of the imputation, the number of members of the class against whom the allegation is made and any other relevant circumstance, reasonable persons would understand that the plaintiff himself had actually done the act alleged or (as the case may be) was reasonably suspected of having done it. Furthermore, there may be cases where the allegation in the words complained of implicates directly only some of the members of a class but the words may nevertheless bear a further inferential meaning (which would involve all the members of the class) that the remainder were, for example, associates of criminals, or were persons who had not made sufficient inquiry as to the character of their business associates. Indeed the problems presented by class libels underline the importance in every case of deciding what the words in their context would be reasonably understood to mean.”

If these are the tests applicable to the law of defamation it would be by no means certain that it could be said that an allegation of abuse which, if made against one or a group of members or deceased members of the congregation, could be held to be defamatory of the group and thus it is unlikely that the constitutional rights of the other members of the group to their good names would be violated.

However, consideration of the issue does not end with that conclusion. In the issue in this case must be examined in the light of the mandate of the Committee to investigate the management responsibility of the institutions involved. While the final ruling accepts that the congregations might not have been, in a formal sense, the management of the particular institutions, it recognises that in the case of the order or congregation the so called charism of the congregation may be sufficient to bring them within the target of examination of the Committee under the statute. It is interesting to note that this type of approach underlay the policy of the Trustees (Appointment of New Trustees) Act, 1850 in relation to the appointment of New Trustees of a School etc. of a “Congregation or Society “.

Having regard to the evidence of the witnesses in relation to the fact that the management of Artane, for instance, consisted of a superior and an informal council, most of whose members are now deceased or incapacitated, and whose records are within the custody and control of the congregation, and who were under the regular inspection and control of the order or congregation, it can only be concluded that the congregation not only had a management responsibility at the time involving complaints back to 1940, but that they are now effectively the only available representatives of management. Added to this consideration is the fact that the evidence indicated that the members of the congregation through their association with its founder and his examples and ideals and their antecedent within the congregation held themselves out as leading selfless and exemplary lives. These factors lead me to the conclusion that the application of the scheme of the Act of 2002 to the facts of the association of the members of the congregation with the persons and management members against whom complaints are made, have a right under the Constitution to protect their good name, which arises by reason of their positive association with these people in the context of setting out the aims and ideals of the congregation and to the constitutional right of protection by way of representation against an adverse finding. As it is clear that an adverse finding by way of identification of a past or existing member of the congregation, whether living or dead, is a trigger mechanism for the second phase of inquiry in relation to management failures, the congregation have a vital interest in representation at the first phase of the inquiry relating to the decision as to whether a finding being made against such member or members that they have committed an abuse within the meaning of the Act of 2002. This right of representation and constitutional rights will be general and certainly not greater than the rights of living present or past members.

I shall refer from now on to such right of the congregation as a derivative right being derived from their members, past or present, living or dead.

DERIVATIVE RIGHT OF THE CONGREGATION TO HAVE INQUIRIES BY THE COMMITTEE PROHIBITED OR STOPPED IN LIMINE BY REASON OF DEATH, INCAPACITY, UNTRACEABILITY OR OTHER DISADVANTAGE OF THE RESPONDENT AFTER THE COMPLAINANT HAS GIVEN EVIDENCE

The argument of the plaintiff in relation to the rights of the members or the congregation in derivative fashion to seek to stop the inquiry of the Commission in limine once the complainant had given evidence, and the fact of delay, death or any of the other incapacities or disadvantages outlined as effecting the categories of persons, had two layers to it. The first layer involved what was identified by counsel for the Commission as the normative argument. As I understand it, the normative argument is that if a respondent is dead such respondent cannot give instructions and hence the right of cross-examination, confirmed In Re: Haughey and as elaborated and emphasised by the majority judgment in Maguire v. Ardagh, cannot be exercised regardless of when the death occurred. The normative argument then would seem to be independent of the issue of delay. The second layer of the argument was paraphrased by counsel for the plaintiffs in the oral hearing by asserting that, while the Final Ruling accepted the jurisprudence of the courts in relation to prohibition of trials in civil and criminal cases on the basis of “a risk of an unfair hearing” the committee erred in not applying that jurisprudence to the application of the same standard for prohibition of an inquiry against the members suffering from memory loss or other disadvantages of delay. The two layers of the argument were tempered by the concessions on the part of the plaintiffs that instances, where there had been a confession or conviction for abuse in respect of complaint, that the arguments would not apply. Relating to the two layers of argument regarding prohibition in limine were arguments that actual findings against deceased persons or incapacitated persons would be fundamentally unfair by reasons of the capacity to avail of taking instructions to be in a position to cross-examine at anything near the standard posited in Maguire v. Armagh.

These are the core issues in this action and I consider that in order to examine them properly I should deal with and set out the following aspects which have guided my consideration of them and in analysing the extensive submissions of the parties as follows:

1. The method of construction of the Act of 2002,

2. The provisions of the Act of 2002, the construction of which is necessary to assist in resolution of the issue,

3. The manner in which the courts have dealt with claims against the deceased and the incapacitated and the evidential rules and practises which have arisen,

4. Interpretation of the relevant provisions of the Act of 2002 in accordance with the method of construction above,

5. The relationship between the jurisprudence of the civil and criminal courts and the approach of the Committee in allowing cases against the deceased and persons suffering from incapacities and delay to proceed,

6. The relevance of the statutory mandate given to the Committee to inquire, as far as possible, into the matters directed by statute,

7. The relevance (if any) of a quantum approach to findings to facilitate inquiry under the statute.

As is clear from the short and long titles of the Act of 2002 the purpose of the Commission and the committees is to inquire into sexual abuse and related matters. I find that the function of the Commission and its committees is the same as that of the Tribunal of Inquiry set up by resolution of the Houses of the Oireachtas and appointment thereunder by a Minister in accordance with the Tribunals of Inquiry (Evidence) Act, 1921 and Tribunals of Inquiry (Evidence) (Amendment) Act, 1979. In the judgment of the Supreme Court in Lawlor v. Flood [1999] 3 I.R. 107 Hamilton C.J. at p. 121 stated as follows:

The provisions of s. 4 of the Act of 1979 cannot be construed in isolation. As stated by Henchy J. in the State (Lynch) v. Cooney [1982] IR. 337 at p. 380:

‘It is to be presumed that, when it conferred the power, Parliament intended the power to be exercised only in a manner that would be in conformity with the Constitution and within the limitations of the power as they were to be gathered from the statutory scheme or design’

Consequently it is necessary to consider the statutory scheme or design in relation to Tribunals of Inquiry of which section 4 is part and the background against which such scheme was introduced by the legislature.”

Section 15 provides that the Confidential Committee shall have what the parties summarised as a “listening role” in relation to the complaints of persons who are prepared to subject their complaints to the testing and cross-examination of the Investigation Committee. Section 5 of the Act of 2000 provides that the Commission shall prepare a report in writing having regard to the reports of the Investigation Committee and the Confidential Committee. Section 5 subsection 4 provides as follows

If the report contains findings that are based on findings in a report of the Confidential Committee, the report shall include a statement to the effect that the first-mentioned findings are based, solely or partially, as the case may be, on the latter findings and that the evidence on which the latter findings are based could not be tested or challenged by any person and (if it be the case) was not corroborated.”

Apart from references to findings being made on evidence and a definition of evidence contained in the Act of 2000, there is no further reference to an evidential standard to be used in the proceedings of either Committee.

The Final Ruling states in relation to findings against a deceased person:

7.10 It is acknowledged that the statutory function that determine issues of fact and to publish findings conferred by the Act on this Committee is in substance what the Supreme Court described as an adjudicative function and that the Inquiry being conducted is what the Supreme Court characterised as an adjudicative Inquiry. However, it is not accepted that it follows that this Committee is always precluded from making the determination of abuse whereas the person against whom the abuse is alleged is dead or, alternatively, it is so precluded unless there are exceptional circumstances, for example, that it can be proved that, during his lifetime, the person was convicted of a criminal offence or made an admission in a disciplinary or like inquiry in relation to the conduct complained of Moreover it is not accepted that the making and publication of findings against the deceased person should, in principle, be the exception rather than the norm. In civil litigation, a court is not precluded from making a finding which attributes blame to a deceased person.

The evaluation or assessment process which precedes a determination or finding is not dependent on there being accounts of the incident or state of affairs on which the allegation is based from two or more proponents to weigh in the balance. There are many ways in which the credibility of a witness and the reliability of his account may be tested. Irrespective of the stance adopted by any party who is represented in the process, this Committee considers that there is an onus on it to test the recollection and veracity of a witness. This flows from the obligation to act fairly.

7.11 It is the Committee’s understanding that, as a matter of law, it is not precluded for making a determination and publishing a finding that a person who is now deceased during his life or her lifetime perpetrated abuse within the meaning of the Act on a child in an institution, merely because the deceased person cannot be afforded the opportunity to give his account, possibly supported by corroboration or objective evidence, and to have the person making the allegations cross-examined by reference to his account and any such supporting evidence. A fortiori, it is not precluded from making a determination in such circumstances which identifies the institution. Similarly, the absence of a person from the process because of inability to trace his whereabouts does not preclude the making of a determination and the publication of a finding of abuse by that person. However it is recognised that a high degree of caution must be exercised in evaluating evidence and in making a determination in relation to the conduct of a deceased person, who did not have an opportunity in life to answer the allegation of misconduct, or in relation to the conduct of a person who may be alive but is untraceable and unable to invoke his constitutionally guaranteed right to protect his good name.”

There is no further analysis setting out the Committee’s understanding as to how the evidence against the deceased person can be tested or in the “many ways in which the credibility of a witness and the reliability of his account may be tested”.

It is appropriate, therefore, to examine in more detail how the courts have tested the evidence in cases which have been allowed by the courts to proceed against deceased persons. In Babingtons County Court Practice 2nd in relation to the proofs necessary to obtain a primary degree for the administration of an estate on the application of a creditor he has stated at page 41:

A claim against the state of a deceased person is not to be allowed on the uncorroborated evidence of the claimant: Clegg v Clegg 22 I.L.T.R. 42; Re Harnett 17 L.R. Ir. 543, in which case, Chaterton V.C. said that the rule was of universal application, and did not depend on the character or position of the claimant. Where a deceased person, whose estate was being administered, had accepted a bill, in which the drawer’s name had not been filled in, the personal representative of the deceased holder who had filled in the drawer’s name was allowed to prove for the amount of the bill without further proof of the debt beyond evidence that the accepter was to some extent indebted to the drawer Re Duffy, deceased, 5 L.R. Ir. 92. Shop-books in the handwriting of the plaintiff are corroboration of the plaintiff’s claim; Ward v. Harold 27 LL.T.R. 115”.

Later when dealing with adjudication of deaths and claims against an estate on the taking of accounts under the County Courts (Ireland) Orders, 1890 it is stated at page 357 “The evidence of the claimant must be corroborated”. In Carltons, The Jurisdiction and Procedure of the County Courts in Ireland, at p. 1179 it is stated:

In proving a claim against the assets of a deceased person, the rule of equity, that the evidence of the claimant must be corroborated, now applies at law as well as an equity – Ferris v Hannah (Circuit Court) 13 I.L.T.R. 127; Re Duffy 5 L.R.I 92; Boak v Moore 7 L.R.I. 322; Re Harnett 17 L.R.I. 543.”

In Practice and Procedure in Administration Mortgages Suits in Ireland by John W Scanlan (1963) it is stated at p. 53 in relation to proof of debts against the estate of a deceased:

Corroboration is not required but it is desirable. There is no rule of law requiring it although there is only the evidence of a living claimant against deceased debtor such evidence, if it is convincing need not be corroborated” (and cites as authorities Re: Harnett (1886) 17 L.R.I. 543, Healey v. Bright [1936] 70 I.L.T.R. 224, Somers v. Erskine [1944] I.R. 368 (Supreme Court), Coughlan v. Corcoran (1950) 84 I.L.T.S.J. 84).

In giving the judgment of the Supreme Court in Somers v. Erskine (No. 2) [1944] I.R. 368 O’Byrne J. at p. 385 of the judgment said:

It was also contended by Mr. Walker that this is a claim against the estate of a deceased person, and he relied upon the rule, which he alleges, is recognised in Courts of Equity, that such claims ought not to be allowed without corroborative evidence. He referred us to the statement of this rule by Chaterton V C. in Re: Hartnett 70 L.R.I.R. 543 at page 547 ‘The invariable practice of this Court has been for years that claims against the estates of deceased persons cannot be sustained without corroborative evidence’. When, however he was pressed at the conclusion of the case, Counsel did not contend that this was essential as matter of law as distinguished from a rule of prudence. Some parts of the plaintiff’s case at the trial were not supported by corroborative evidence but, nevertheless, we are of opinion that the trial judge was, in law, entitled to accept these matters on the uncorroborated testimony of the plaintiff and we see no reason for differing from him on that matter “.

The so called rule of prudence might be explained by the following reference in Williams on Executors and Administrators 9th ed. 1893 Part IV Book II p. 1658:

It has been said that in the case of a conflict of evidence between living and dead persons there must be corroboration to establish a claim advanced by a living person against the estate of a dead person, but there is no rule of English law laying down such a proposition. The statement of a living man is not to be disbelieved because there is no corroboration, although in the necessary absence through death of one of the parties to the transaction, it is natural that in considering the statement of the survivor, we should look for corroboration in support of it; but if the evidence given by the living man brings conviction to the Tribunal which has to try the question, then there is no rule of law which prevents that conviction being acted upon. The rule, such as it is, is a rule of prudence rather than of law, and applies to cases of alleged debt as well as to cases of alleged gift, and in an action tried by a jury it is the duty of the Judge to recommend the jury to disregard the unsupported evidence of the claimant; but if they should decline to do so, and should find for the claimant, quaere if their verdict could be interfered with. In the case of Hill v. Wilson L.R. 8 CH 888 which, however, was a case where parol evidence was tendered for the purpose of altering the terms of a written contract made with the deceased, Lord Justice James said: ‘The evidence given is the parol evidence of the maker of a promissory note as to a conversation alleged to have taken place between himself and the person to whom the note was given, that person being dead. Even if such evidence be legally admissible for any purpose, the interests of mankind, in my opinion, imperatively require that, unless corroborated, it should be wholly disregarded. Nobody would be safe in respect of its pecuniary transactions if legal documents found in his possession at the time of his death, and endeavoured to be enforced by his executors could be set aside, or varied, or altered by the parol evidence of the person who had bound himself ft would be very easy of course for anybody who owed a testator a debt to say, “I met the testator, and he promised he would not sue,” “I met the testator and I gave him the money” “I met the testator, and in the consideration of something he agreed to relieve me”. The interests of justice and the interests of mankind require that such evidence should be wholly disregarded”.

In McCarnon v. McCarnon (Unreported, Supreme Court, 13th February, 1997) Murphy J. noted that the claim of the plaintiff against the estate of the deceased was viewed by the trial judge (Carroll J.) “with a critical eye” and Murphy J. went on to state:

As the learned trial judge recognised, judicial decisions have always proceeded on the evidence in relation to claims against the estate of a deceased person should be carefully investigated”.

In Carter v. Ross (Unreported, High Court, Murphy J., 8th December, 2000) the frequency of claims against farmers or the estates of farmers in respect of promises to pay for work done either by cash or land was highlighted as follows by Murphy J.:

In this jurisdiction there is a long history of this kind of situation, because of the age, structure, emigration etc. An example is the situation of the elderly farmer living alone in a small holding and helped by neighbours in the days before social welfare. What often gave rise to great difficulty was that the farmer would then bequeath to the farm to some unknown person or relative living overseas. The courts have always recognised that one cannot convert charity into the right to receive property. But the courts have been satisfied when work had been done by a relative or nephew not just on some general expectation but on a very specific ground that the relative or nephew would be given the land. Normally, there is the problem that the deceased is no longer there to deny the promise.”

In neither of the two modern Irish texts the Law of Evidence in Irelandby Caroline Fennell and Evidenceby Ruth Cannon and Niall Nelligan is the test for corroboration in a civil claim against a deceased person mentioned although in Phipson, Evidence, 15th Ed. (2000) it is as stated at p. 306:

13-11 ft is a rule of practice that courts will not act upon the uncorroborated testimony of such claimants unless convinced that such testimony is true.”

From the footnote and authorities it would seem that this is not the most “stringent” test and probably equates to the test in Somers v. Erskine.

From the foregoing authorities I am of opinion that in the absence of other convincing evidence the courts would be very reluctant as a matter of prudence to allow a claim against a deceased person unless it was corroborated in relevant material respects. This standard bears many similarities in terms of discretion with the standard now applicable to the warning on corroboration to be given at the discretion of the trial judge to the jury in trials relating to the evidence of sexual offence victims under s. 7 of Criminal Law Rape (Amendment) Act, 1990.

Turning to the provisions of s. 5(4) of the Act of 2000 I find the statement contained in paragraph 3.12 of the final ruling helpful:

Subsection 4 of section 5 ensures that findings in the published report which are not the product of the inquiry carried out by this Committee (the Investigating Committee) are seen to be such. Subsection 4 provides that, W the published report contains findings that are based on the findings of the Confidential Committee, the published report shall include a statement to that effect and that the evidence on which such findings are based could not be tested or challenged by any person and (if it be the case) was not corroborated. This provision would suggest that it was the intention of the legislature that the testing of evidence, the challenging of evidence by a person and the corroboration of evidence would be features of the inquiry of this Committee and would be of significance in the decision making process”.

In relation to the determination of the Investigating Committee it stated:

In particular if the person who is alleged to have perpetrated the abuse is absent from the process, in evaluating the available evidence, the implications of the non-availability of the account of the absent party will be weighed in the balance and, as has been stated, a high degree of caution will be exercised.”

I agree with these views and the interpretative approach being considered by the Committee in the final ruling. I find that on the approach to construction of the Act of 2000 already suggested by me the only inference that can be drawn from the expressed reference to corroboration and other testing in s. 5(4) is that the more rigorous inquiry envisaged by the finding by the Committee against respondents that they had being guilty of sexual abuse is that the standard of corroboration is required by the Act before a finding can be made.

The question is whether that standard is one of a requirement of corroboration which is mandatory in all cases or one analogous to the standard in the Act of 1990 and the so called rule of prudence or practice of the courts in relation to civil claims against the deceased to leave the decision as to the requirement of corroboration to the Tribunal deciding the facts to cases where the evidence is not found to be otherwise convincing. I find that the proper construction and interpretation of the Act of 2000 is that the Investigating Committee should exercise its discretion in relation to corroboration on the same basis as the courts have done in relation to the claims against the estates of deceased persons. My reason for so doing is, firstly, based on the practice of the courts in respect of such claims against the deceased and also on the basis of the application of the double construction rule as set out in East Donegal Cooperative v. Attorney General [1970] I.R. 317 at p. 341 and in Re: Haughey [1971] 1 I.R. 217 at p. 254 and bearing in mind the decision of Henchy J. in McMahon v. Leahy [1984] I.R. 525 where he sates at p. 541:

– but where… a post constitution statute authorises the making of an order in stated circumstances, the legislative intent must be held to comprehend the authorised order will not be made, even though the stated circumstances are shown to exist, Wit is shown that the order would necessarily infringe the constitutional right of the party against whom it would operate … [The presumption of constitutionality] carries with it not only the normal presumption that laws enacted by the National Parliament are not repugnant to the Constitution but also the presumption that the provisions of such laws will not be administered or applied in a way that will infringe constitutional rights. The presumption of constitutionality extends to both the substance and operation of a statute: it is a presumption that admits of rebuttal only by a contrary intention appearing in the terms of the statute itself”.

DELAY JURISPRUDENCE

I examine now the relevance of the cases in which the courts have stayed proceedings by reason of the delay and the arguments of the plaintiffs in relation to their complaint that while the Commission and its Committee set out the jurisprudence very clearly they did not apply it correctly to the issue of the delay in the inquiry. From the outset I note that the plaintiffs’ submissions were not made on the assumption that the proper construction of the Act of 2000 was that there was a requirement not only that evidence would be tested but also (at least at the discretion of the Committee) that there would be corroboration of that evidence in appropriate cases. When asked by me in the hearing whether this was a correct view of the plaintiffs position, counsel for the plaintiffs left the matter uncertain by saying that perhaps it did or perhaps it did not, but in any event if corroboration emerged as a requirement in relation to the evidence, that requirement placed the dead and the legally incapacitated at an even greater disadvantage by reason of the difficulty in obtaining instructions from them as to how corroboration might be obtained in respect of their accounts of the matters in dispute.

The principles of law relevant to an application to dismiss an action for want of want of prosecution were laid down in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 in the judgment of Hamilton C.J. at p. 475 as follows:

(a) the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

(b) it must, in the first instance, be established by the parties seeking a dismissal of proceedings for the want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

(d) in considering this latter obligation the court is entitled to take into consideration and have regard to

(i) the implied constitutional principles of basic fairness of procedures,

(ii) whether the delay and consequent prejudice in the special facts of the case were such as to make it unfair to the defendant to allow the action to proceed and make it just to strike out the plaintiff’s action,

(iii) any delay on the part of the defendant, because litigation is a two party operation, the conduct of both parties should be looked at,

(iv) whether any delay or conduct on the defendant amounts to acquiescence on the part of the defendant in the plaintiffs delay,

(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action did not, in law, constitute and absolute bar preventing the defendant from obtaining a dismissal but is a relevant factor to be taken into account by the court in exercising its discretion whether or not to strike out the claim, the weight to be attached to such conduct depending on all the circumstances of the particular case,

(e) whether the delay gives rise to a substantial risk that it was not possible to have a fair trial or is likely to cause or have serious prejudice to the defendant,

(f) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant’s reputation and business.

Taking the tests set out in Primor in sequence it is appropriate to examine whether and to what extent they compare with the tests that may apply to the Committee in delay cases.

1. The parties recognise that at the very least to some extent the Committee has an inherent jurisdiction to control its own procedure and dismiss a claim when the interests of justice so require.

2. The fact that there is a statutory mandate to inquire back to instances occurring in 1940, and possibly, before means that there is no objective test of inordinate and inexcusable delay such as suggested by test no. 2 in Primor and the other civil authorities.

3. The Committee must, as in test 3, exercise its discretion whether on the facts the balance of justice was in favour or against the case proceeding. This is recognised in a limited way by the Committee, but the Committee must, in exercising this discretion, have regard to the clear terms of the statute which directs the Committee to inquire into the facts where there is a complaint of a statement made by a complainant and if the complaint is proven to proceed with phase II of the inquiry.

4. Of the tests set out in paragraphs (a) to (g) the only tests that I consider appropriate for consideration in relation to an inquiry proceedings before the Committee are

(a) the implied constitutional principles of basic fairness of procedure;

(f) whether the delay had given rise to a substantial risk that it was not possible to have a fair trial.

There is the alternative test in subparagraph (f) as to whether it was likely to cause or had caused serious prejudice to the defendant. This prejudice is explained in sub-paragraph (g) by that stating that “the fact that the prejudice to the defendant referred to in (f) might arise in many ways and be other than that merely caused by the delay including damage to a defendant’s reputation and business.” It is clear to me that this type of prejudice as distinct from the prejudice in preparation of a defence is not something that would arise to the same significant extent to the respondent’s before the committee by reason of the fact that:

(a) the findings of the committee are legally sterile; and

(b) the factual prejudice envisaged by the judgments of the Supreme Court in relation to damage to reputation and good name and reasons of publicity during the course of the inquiry is minimised if not eliminated by the private nature of the inquiry up to the identification of the perpetrator in the event of a complaint being proven.

While corroboration of evidence against a deceased defendant or a defendant who is facing a claim to which a delay test is being applied does not appear to have been discussed as a principle by the courts when dealing with civil delay cases, it does emerge from the medical delay cases, especially that the fact that documents and records are missing is given a great deal of weight in deciding to stay or dismiss a case by reason of delay. Conversely the availability of records tends to lessen the chances of a dismissal or a delay. It appears to me that in placing emphasis on the availability otherwise of documents and records the courts have in fact implied an informal test in relation to the availability of corroboration of the claim and this fact was given recognition in the Primor judgment, where O’Flaherty J. states (at pp. 517 – 518), when dealing with the question of missing documents:

While it has not been established to my satisfaction that the missing documents would prove fatal to the processing of the case, this fact would undoubtedly contribute further confusion to the case. It should be emphasised that documentary evidence needs to be proved in a court like every other evidence. While the general rules of evidence with regard to admissibility, i.e. relevance, hearsay, opinion, etc. apply to documentary evidence, additional requirements include proof of contends and proof of due execution…

While counsel for the plaintiff bravely asserted to prove their case and W they failed to prove any particular document then their client would have to take the consequences, in the light of the deaths or absence of so many people important to this case, it is impossible to see how the documents will ever get to the stage of being proved let alone being explained or analysed.”

In Kelly v. O’Leary [2001] 2 I.R. 526 Kelly J. stated at p. 544:

I am satisfied that there is here a clear and patent unfairness in asking this defendant to defend this action after the lapse of time involved. Actual prejudice has occurred to the defendant by reason of the delay. The defendant has not contributed to this delay.

There is here a real and serious risk of an unfair trial. As a matter of probability the trial may amount to an assertion countered by a bare denial. Indeed even the ability of this defendant to make a denial is doubtful in respect of a number of allegations. Such an exercise would be far removed from the form of forensic inquiry which is envisaged in the notion of a fair trial in accordance with the law of this State.

Constitutional principles of fairness of procedure require that the action not proceed. To allow the action to go would put justice to the hazard.”

In reaching this conclusion Kelly J. followed Primor v. Stokes Kennedy Crowley as the authority setting out the criteria for his decision. In my opinion if Kelly v. O’Leary were to be decided in the context of an early application to cease an inquiry against a respondent in respect of allegations made against him or her under the Act of 2000, additional factors would come into play over and above those considered or required to be considered by Kelly J. Firstly, the statutory mandate of the Committee to inquire, by hearing all evidence both from complainant and respondent and any other witnesses would be of paramount consideration. It is my view, that in circumstances where there is a statutory mandate and direction to continue an inquiry in relation to all available evidence, the inquiry should not be halted in respect of any complaint by reason only of the criterion “as a matter of probability (the inquiry) may amount to an assertion encountered by bare denial “, as posited in Kelly v. O’Leary. Secondly in the case Kelly v. O’Leary, the learned trial judge did not have the possibility of considering the influence of a requirement of corroboration and how this would effect his assessment of an allegation countered by bare denial.

While the facts of the case Kelly v. O’Leary may typify many of the complaints to be investigated at Phase I of the Committee’s work in respect of respondents, dead, incapacitated or alive, I consider that in the context of the statutory framework the requirements of natural and constitutional justice highlighted and applied to this particular set of facts are sufficiently met in all but the most exceptional cases before the Committee by an assessment when all the evidence has been heard in Phase I as to whether a finding against a respondent is safe. Indeed it is axiomatic that when all the evidence is heard in a dispute the risks envisaged in a preliminary application and allowed to influence the court in an application such as Kelly v. O’Leary are in fact tested and realised. If on such testing and realisation, risks which are found to have been properly foreseen become facts upon which the safety of a decision in accordance with the principles of natural and constitutional justice can be assessed. Therefore, I consider that the criterion for the halting of the inquiry and not proceeding to a determination and finding against a respondent should, in the context of the inquiry by the Committee, be dependant on the question as to whether it would be unsafe to make such a determination as suggested by the Committee.

I have considered the cases relating to halting prosecutions by way of injunction or prohibition of the court where there has been delay on the part of the victim in reporting the alleged crime. These cases have many parallels with the civil cases but it must be remembered that the balance between the right to a fair trial and the right of the public and the complainant to have the complaint heard are brought into balance in a context which is much different and favours the respondent much more than in civil cases and indeed much more again than in the case of a respondent before the Committee. These criteria are set out in the judgment of Keane C.J. on pp. 93 and 94 of his judgment. I need not set them out here except to say that in one respect, these criteria favour the respondent before the inquiry and that it has been agreed by all parties. That the issue as to whether the respondent caused the complainant’s delay by reasons of domination or other activity is not an irrelevant consideration within the code of the Act of 2000. Notwithstanding the lack of domination being a factor militating against the respondent within the code of the committee, I consider that in view of the fact that the cases in criminal delay deal with an inquiry which as a matter or probability will be finally determined as to the facts by a jury who will sit and deliberate in the final analysis without any record of their deliberations or any means by which their deliberation may be tested (except in extreme cases) against the directions as to the law given by the trial judge. This secret aspect of the deliberations of the jury are in vital contrast with the deliberations of the Committee insofar as the Committee have an obligation to keep records in accordance with the requirements of the Act of 2000.

An examination of the jurisprudence relating to delay in criminal trials therefore strengthens me in my conclusion reached above on the examination of its closely related civil counterpart.

In reaching the foregoing conclusions I have borne in mind a submission which acquired its form to some extent during the oral submissions in court on behalf of the first named defendant relating to the assertion that the statutory mandate of the Committee to conduct an inquiry extended as far as the Committee “finding enough” cases upon which a meaningful inquiry could be continued at Phase II. There was a further version of this argument which, although less crude, reflected the introduction of a certain quantitative type of thinking in the submissions and. That related to the recognition of the applicability of the jurisprudence of the courts in relation to delay as a type of template, but that in view of the statutory mandate and the inquisitorial delay of the nature that that template would have to be raised sufficiently to allow what could be regarded as a critical mass of cases to facilitate inquiry at Phase II. I strongly disagree with such a quantitative approach and consider that the issue should be decided (as I have sought to do in this judgment) on the balancing of rights in accordance with the principles emerging from the jurisprudence on delay, the Act of 2000 and the principles of constitutional and natural constitutional justice arising from the cases referred to.

It is further submitted that the case of Borges v. Fitness to Practice Committee of the Medical Council (Unreported, High Court, Ó Caoimh J., 5th March, 2003) was an example of a situation where the High Court prohibited an inquisitorial body from proceeding to her a complaint in a particular way at the outset of the proceedings. I find that the situation of The Fitness to Practice Committee in that case may be distinguished fundamentally from that of the Committee under the Act of 2000, insofar as The Fitness to Practice Committee were determining matters which were of immediate and consequence serious to the plaintiff in that case. The procedure under The Fitness to Practice Committee had attributes which more closely resembled a forensic inquiry. Also, the Law Reform Consultation Paper on Public Inquiries including Tribunals of Inquiry, pointed out that there were significant differences between tribunals such as disciplinary tribunals and tribunals for the purpose of determining issues between parties in the administrative field and tribunals which had a more extended remit of fact finding such as tribunal set up as the resolution of both houses of the Oireachtas or the Commission and its committees set up under the Act of 2000.

POWER OF TRIBUNAL TO GIVE RULING

I am satisfied that on the authority of Haughey v. Moriarty [1999] 3 I.R. 1 the Commission and the Committee have a power to give a preliminary ruling. This power is to be implied additionally from the statutory requirement to make regulations relating to procedure given to the Commission. I make this finding conscious of the fact that the argument was probably as a prelude to arguing the constitutionality of the Act of 2000 but nevertheless from the abundance of caution I am now giving the ruling.

ALLEGED BIAS ARISING FROM ADVICE PRIOR TO LEGISLATION.

It is well accepted in this jurisdiction that parliamentary debates and explanatory memoranda are not admissible for the purpose of construction and interpretation of statues. This is in distinction from the use of preparatory materials to interpret legislation in the civil code in European jurisdictions. An example of this latter course, in this jurisdiction, is where a convention such as the Brussels Convention is incorporated into Irish law. I know of no Irish judge who disqualified himself or herself from hearing a case dealing with legislation considered and voted in some way by them as a member of the Oireachtas. For these reasons and again on the basis of the abundance of caution the argument was used only to set up a constitutional argument, I find that whatever consultative role the Commission had as a non-statutory body in relation to the development of the policies incorporated into the Act of 2000, are not matters which can give rise to any bias however defined.

CROSS-EXAMINATION

In view of the importance of cross-examination for the purpose of insuring fair procedures and constitutional justice set out in Maguire v. Ardagh, I consider that the submissions on behalf of the plaintiffs that the representatives of the dead and the plaintiffs’ congregation seeking to defend their derivative interest under the dead and the incapacitated and untraceable, were under a serious disadvantage in relation to the procedures suggested by the Final Ruling and procedures of the Committee by requiring a statement from the respondent as a precondition for the right to cross-examine. I am not certain that the submissions of the defendant accepted that this was so and certainly counsel for the Commission gave examples of what might happened in relation to cross-examination by the representative of the congregation in relation to a complaint against a deceased or incapacitated member to show how the Final Ruling and its procedures would work in practice. However, I accept that there is at least ambiguity in relation to the right of the representatives (however defined) of the deceased and incapacitated to cross-examine by reason of the redirects of the final ruling of a narrative statement from a narrative statement respondent. In considering this question I accept that a tribunal of inquiry such as the Committee has a right to arrange its business so that there is not the multiplicity of representatives seeking to cross-examine every witness on purpose, these representatives seeking to cross-examine may be required to show the intended scope of the cross-examination. I consider that the right of the representative of the deceased and incapacitated to cross-examine (notwithstanding difficulties in obtaining the fullest instructions for such cross-examination) is vitally important for insuring the operation of fair procedures and constitutional justice in the context of inquiries by the Committee. The issue is dealt with I Fennell’s The Law of Evidence in Ireland, 1st Ed., at p. 74 as follows:

The strength of the entitlement and basis for cross-examination, and its centrality to our process of legal adjudication, is illustrated by the decision of Declan O’Broin v. District Justice Jarlath Ruane and the Attorney General [1989] IL.R.M 732. The applicant herein was arrested under section 21 of the Road Traffic (Amendments) Act, 1978, which provides that it shall be presumed, until the contrary is proven, that the statutory procedure has been complied with.

The applicant’s solicitor cross-examined the prosecuting Garda Sergeant in regard to compliance with section 21. Objection by the prosecution to the effect that such a general question was not permissible having regard to subsection 4, was upheld by the District Justice.

Lynch J. in the High Court however, held that although cross-examination was ‘a fishing cross-examination’ in the sense that the solicitor for the applicant was not in the position to show any particular non-compliance with section 21 unless something should be elicited in the course of same; it should be allowable. Lynch J. was of the opinion that:

‘it seems to me… that the defending solicitor entitled to inquire in a general way as to what happened to his client form the time he was brought to the Garda Station in relation to the taking of specimens and the treatment of such specimens in order to see whether compliance with section 21 was observed. I think he may do this in

a general way… of course on the other hand the District Justice must be entitled to control cross-examination and keep it within reasonable bounds. If for example, the general sort of cross-examination seem to go on repetitively, the District Justice, would clearly be entitled to say: that’s enough of that. You have made your point. But he must allow some reasonable general inquiry as to what procedures were in fact done and followed in the Garda station so that the defending solicitor, even in the absence of any specific allegation of a contravention of the requirements of section 21, made sure that these requirements were complied with’.”

I consider that this passage is equally applicable to cross-examination on behalf of the representatives (however defined) of the deceased and incapacitated in Phase I of the Inquiry and in view of the importance of the matter in ensuring fair procedures, I consider that it is appropriate to make a declaration in that regard.

AGGREGATION OF EVIDENCE

Aggregation of evidence is not known as a term of art to the law in this country. As presented by the Final Ruling it appears that the device might be used to seek corroboration from multiple events where there is no corroboration in law. Counsel for the Commission clarified the intentions of the Commission that this would not be so. The clarification should be formalised in further interpretation of terms of reference.

CONSTITUTIONAL ISSUE

As I have not found that the application of the Act of 2000, in accordance with principles of procedural fairness and constitutional justice, involves a construction which is contrary to the Act, I consider that it is inappropriate to give judgment in relation to the constitutional arguments raised on behalf of the plaintiff and I do not propose to do so.

RELIEF

I refuse all declaratory relief sought except in relation to the declarations set out hereunder. These declarations may not fit into any particular pleading category but, nevertheless, I consider that in the interests of justice and having regard to the doctrine of judicial restraint and the fact that it was acknowledged on all sides that the case was not a pleading case, and was dealt with by counsel for the defendant during the course of their submissions by an attempted summary of the issues and by me in this judgment in similar vein. I propose to make the following declarations following the requirement in Haughey v. Moriarty

1. A declaration that the Committee provide the parties to the inquiry with an interpretation of the terms of reference provided by the Act of 2000, insofar as it relates to the corroboration and testing of evidence of witnesses including complainants and respondents.

2. A declaration that the Committee extends its final ruling by a further interpretation of its terms of reference under the Act of 2000, so as to provide opportunities and procedures for the representatives of the deceased and the congregation and the incapacitated to cross-examine witnesses in the interests of fair procedures and constitutional justice.

3. A declaration that the Committee extends its final ruling by a further interpretation at its terms of reference and the Act of 2000, to incorporate the clarification of counsel from the first named defendant to the court regarding the so called aggregation of evidence.

Upon delivering judgment herein I invited the parties to make submissions to the form of order to be made and any further submissions for the purpose of clarification of any matters arising and it was submitted on behalf of the plaintiffs that the Court would make such further declarations in relation to findings of ultra viresor intra vires as would reflect the foregoing judgment, and, that as the Court had found the preliminary ruling and framework document to be intra vires, the Act (in some respects at least), the Court should then go on to consider the constitutionality of the Act, in accordance with case pleaded and argued by the plaintiffs.

ULTRA VIRES ISSUE

Dealing with the proposed declarations one to three which I consider reflect my consideration of the case made to me by the plaintiffs, I find that I cannot envisage making a declaration of ultra viresby reason of the fact that the interpretation of the terms of reference provided by the Act of 2000 did not go far enough in setting out in detail, the understanding of the first named defendant of the Act of 2000, as it related to corroboration or the first named defendants understanding of the detail of the testing of evidence. The preliminary ruling and the framework document are not ultra viresthe Act in relation to these two aspects insofar as they go. However, as I consider that the question of the development of the criteria for corroboration and testing of evidence in the terms of reference are so fundamentally important to ensuring fairness of procedures based on natural and constitutional justice for any brother living or dead affected by the inquiry that I am prepared to make a declaration in the following form:

4. declaration that the Committee is acting ultra vires the Act without providing an interpretation of the terms of reference provided in the Act insofar as it relates to the corroboration and testing of evidence of witnesses including complainants and respondents.”

In relation to the finding of the Court the requirement that a brother would furnish a statement as a pre-condition to the right to cross-examine a witness I find that Declaration No. 2 may be mirrored appropriately by the following further declaration by way of clarification:

5. A declaration that the final ruling and framework document of the Committee is ultra vires the Act in the case of inquiries in relation to allegations of abuse against brothers who are dead, untraced or otherwise incapable by reason of age, infirmity or loss of memory in giving instructions by reason of the requirement that the respondent must furnish a written statement as a pre-condition to the right to cross-examine witnesses.”

In relation to the third declaration, it is inappropriate to make any declaration of ultra vires in relation to the aggregation of evidence in view of the clarification by counsel to the first named defendant.

CONSTITUTIONAL ISSUE

Whereas at the outset of the proceedings counsel for the plaintiffs invited the Court to hear the arguments in relation to the claimed unconstitutionality of the Act, it was made clear that the Court was not being asked to adjudicate on such arguments unless it refused to hold that the preliminary ruling and framework documents proposed a procedure which was ultra viresthe Act, nevertheless counsel for the plaintiffs argued that insofar as the ruling of the Court was that many of the matters challenged, particularly the right of the Committee to proceed under the Act in respect to complaints made against deceased and persons under a capacity were intra viresthe Act, that the Court would give its opinion in relation to the constitutionality of the Act as affected by these issues. I sympathise with this latter submission and I am prepared to act so as to facilitate the interests of the plaintiffs in having an adjudication of the Court in relation to certain constitutional issues which may arise on appeal from this Court.

I do so for two reasons, firstly I have found that for the Committee to proceed with a complaint against the deceased brothers is intra viresthe Act and this is fundamentally contrary to the case argued on behalf of the plaintiffs, and secondly, by reason of the fact that both parties requested me from the outset to refrain from acting with judicial restraint in relation to the issue by reason of the public importance and urgency of having the inquiry of the Committee and work of the first named defendant continue without protracted delays by a re-submission of the constitutional issues to the Court.

I deal with the issues in relation to the constitutionality arguments as follows.

1. Locus standi.

Whereas I have held that the plaintiffs’ claim for the declaratory relief in relation to the ultra vires issue is not premature, the same arguments do not apply to the standing of the plaintiffs or the persons they represent as persons whose constitutional rights are to be denied by an operation of the Act. In examining the constitutionality of the Act, the double construction rule is to be applied as set out earlier in this judgment and in the arguments of the parties. It is to be presumed that Act will be applied in a constitutional way having regard to the requirements of fair procedures and natural and constitutional justice. It is a fundamental aspect of this judgment in relation to the ultra vires issue the Act provides important balance and safeguards in terms of a requirement of corroboration of evidence to ensure such fair procedures and compliance with natural and constitutional justice, in the same way as is achieved by the Courts in litigation relating to claims against deceased persons as analysed by me earlier in this judgment. In examining the constitutionality of the Act I may only assume that the Committee will, having regard to the judgment of the Court, attend to expanding and clarifying the terms of reference in relation to these matters to ensure constitutional and natural justice. The dictum of Hamilton C.J. in Haughey v. Moriarty [1999] 3 I.R. 1 at p. 75, referred to by me in rejecting the prematurity of the plaintiffs’ claim in relation to the ultra vires issues, does not go far enough to override the necessity to make the presumption that the Committee will eventually abide by the rules of natural and constitutional justice and provide for fair procedures. It was not argued by the plaintiffs that the Act prevented the Committee from stopping an inquiry in relation to a complaint by reason of prejudice suffered by death, delay or incapacity at an earlier stage of the inquiry and before all investigations were complete, nor was it argued that the Act did not empower the Committee to refuse to make a finding against a deceased or incapacitated person at the conclusion of the inquiries by reason of prejudice ultimately found by the Committee making it unsafe to decide against a respondent. The application of the Act envisaged by the Court therefore does not displace the presumption of constitutionality, and therefore I consider the plaintiffs do not have a locus standi to seek to have the Act declared unconstitutional, insofar as I find that their rights or the rights of those they represent are not denied by the Act itself and may be protected by a full explanation of terms of reference of the Committee.

If I am incorrect in the foregoing view I am of the opinion that the Act is not in violation of the doctrine of separation of powers as provided for in Article 6 of the Constitution insofar as it amounts in substance to a bill of attainer bill of pains and penalties. The basis for such argument is that such inquiry could result in an adverse finding against the dead and incapacitated who are denied an opportunity to cross-examine as required by Maguire v. Ardagh. I find that while the dead and the persons suffering from an incapacity may not cross-examine as successfully as a person of full capacity, the right to cross-examine is no more denied to them than to similar persons in ordinary litigation. Moreover the disadvantage suffered by such persons is considerably balanced by the introduction of a statutory mandate for the Committee to seek corroboration as appropriate. Even if there were some attenuation or diminution of the constitutional rights of such persons by reason of a less advantageous position to cross-examine this is more than balanced by the statutory mandate and requirement to seek corroboration as appropriate.

I accept the submissions of the defendants that such a disadvantage on the part of the deceased or the representatives or persons suffering an incapacity to

cross-examine has never been the subject of charges of constitutional inadequacy or of constitutional sanction. As an example (and notably in the statutory sphere), the Statute of Limitations, 1957 and The Civil Liability Act, 1961, permitting actions to proceed against deceased persons have never been found to be unconstitutional, in this respect, although the subject of constitutional attack in other areas. In the more modern context s. 29 of the Family Law Act, 1995 relating to declarations as to marital status envisages (at least implicitly) that such declarations may be sought and granted by the courts in relation to the marital status of deceased persons who would otherwise satisfy the jurisdictional requirements of that Act.

On the basis of Desmond v. Glackin, already referred to, I find that the Act does not provide retroactive penal legislation insofar as the inquiry in relation to the complaints of the complainants could have been carried out earlier, either under the management of the institution and the Department of Education, or under the jurisdiction of the criminal courts in relation to the more serious allegations, if the allegations had been made earlier.

The Act does not offend against the guarantee of equal protection and the guarantee of equality before the law as envisaged by Article 40.1 of the Constitution. Any of the complaints were capable of being made against any deceased or incapacitated person at the time when the alleged complaints took place. The legislation does not introduce difficulties caused by death or incapacity. These are events which equally apply to all citizens and not as a result of any inequality introduced by the Act.

I find that the guarantees of the Constitution of Ireland under Article 40.3.1 and 40.3.2 guaranteeing the right to basic fairness of procedures have not been breached by the alleged disadvantage of the plaintiffs in the attempted investigation

of the dead, the disabled, the unlocated and the disadvantaged, or the alleged right of cross-examination being further circumscribed, apart altogether from the impossibility of taking instructions, for the reasons that fairness of basic procedures is guaranteed by (a) statutory requirement of corroboration as appropriate, (b) the commitment of the Committee to test the evidence as appropriate, (c) the acknowledged right and inability of the Committee to stop the inquiry either exceptionally at the outset, or at a concluding stage of the inquiries, by reason of prejudice arising from delay, death or disability using the standards of jurisprudence evolved by the Courts in civil and criminal litigation. In conclusion, if compelled to do so, I find no reason advanced by the plaintiffs to displace the presumption of constitutionality of the Act and would find the Act to be consistent and in accordance with the Constitution.

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • Other useful sites are One in Four [C]
  • and Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

[1] Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/

[2] Index of Court Appeals EWCA on this blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

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About cathy fox blog on Child Abuse

the truth will out, the truth will shout, the truth will set us free...
This entry was posted in cathy fox blog, Child Abuse, Child sexual abuse, Childrens home, Church abuse, Court, Eire Ireland, Inquiries, Schools and tagged , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

2 Responses to Christian Brothers v Child Abuse Inquiry and others 2004 Jan 27 High Court Eire

  1. Pingback: An Index and Timeline of Court & Court of Appeal Documents on Cathy Fox Blog | cathy fox blog

  2. Pingback: Christian Brothers v Child Abuse Inquiry and others 2004 Jan 27 High Court Eire — cathy fox blog | Children in Shadow Blog | CHILDREN IN SHADOW ::: CHILDREN IN WAR

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