On the 2nd of September 2003 the Investigation Committee of the Commission to Inquire into Child Abuse suspended its work and ceased to gather evidence in accordance with its statutory powers. On the same date the then Chairperson, Ms. Justice Laffoy notified the Government of her decision to resign to take effect from the date of the publication of the Third Interim Report. On the 26th September 2003, the Minister for Education announced the appointment by the Government of Mr. Sean Ryan, S.C. as Chairperson designate of the Commission. The Minister also announced that Mr. Ryan had been requested to undertake his own independent review of the Commission and to make all necessary recommendations having regard to the following:
1. “The interests of the victims of abuse;
2. The completion of the Commission's work within a reasonable period of time and in a manner consistent with a proper investigation; and
3. To achieve objectives without incurring exorbitant costs.”
Mr. Justice Ryan's Review into the working of the Commission to Inquire into Child Abuse and the Review of the Attorney General were published on the 14th January, 2004.
The Third Interim Report of the Commission was published on 30th January, 2004. This Report outlined the work of the Investigation Committee from its inception to the date of cessation together with a history of the difficulties encountered by the Committee in its attempt to fulfil its statutory remit.
Amongst such difficulties highlighted by the Third Interim Report were the delay in setting up of a compensation scheme and the difficulty surrounding the issue of the provision for the costs of legal representation.
These difficulties had a consequential knock on effect on the work of the Committee, for example Complainants (and/or their legal advisors) refused to submit statements of their proposed evidence in compliance with requests from Inquiry Officers in accordance with Section 23 of the Act until these matters had been finalised. These difficulties were ultimately addressed in the Redress Act of 2002.
The Investigation Committee then imposed a deadline of the 30th June, 2002 for receipt of Complainant statements. At the expiration of this date, statements had been provided by 1,800 Complainants. In early January 2003 in an effort to accelerate the preliminary inquiries, a final date for Respondent statements was imposed — which deadline was 2nd May, 2003. However, in exceptional cases the deadline was extended to September, 2003.
The Third Interim Report also highlighted practical difficulties inherent in the nature of the complaints themselves. For example where single Complainants referred to a number of institutions and a number of Respondents. The investigation of complaints was further complicated by the age of the Complainants and the number of deceased, incapacitated and untraced Respondents.
The time delay between the commencement of the Review process of the Investigation Committee's Mandate in December, 2002 — and publication of the Review reports in January, 2004 further inhibited the work of the Committee.
Ms. Justice Laffoy's resignation took effect on the 12th December, 2003 and Mr. Justice Ryan's chairmanship commenced on the 15th December, 2003.
As I have previously indicated Mr. Justice Ryan’s Review into the workings of the Commission to Inquire into Child Abuse was published on 14th January, 2004 and in that review he made the following recommendations.
Mr. Justice Ryan furthermore suggested a number of statutory amendments to the legislation which he set out in some detail in his review. There is no need for me to detail those proposals at this point.
Upon Mr. Justice Ryan's appointment to chair the Investigation Committee, the Committee resumed its work and proceeded with its gathering and assessment of evidence. Its work included:
Seventeen (17) written submissions requiring consideration were furnished. These were submitted by the following parties:
Individual Complainants: (1 submission)
Solicitors for Complainants (4 submissions)
Survivor group(s) (4 submissions)
Solicitors for individual Respondents (1 submission)
Solicitors for congregations, who are management Respondents in the process (6 submissions)
Chief State Solicitor
Minister for Education and Science
These submissions, although apparently small in number, in fact represent the views of a substantial number of individual participants. For example, the solicitors for Complainants who made submissions represent between them more than one thousand and fifty four individual Complainants.
In general these may be divided into two categories; those from or representing the views of Complainants, and those from or representing the views of Respondents.
A. Nine submissions were made by or on behalf of Complainants:
B. Six submissions were made by or on behalf of Respondents
A. Obligation of the Investigation Committee to hear all Complainants
Everybody in the process recognises and acknowledges the need for closure. Many but not all recognise the importance of achieving closure within a reasonable period of time. As matters currently stand the Investigation Committee has in excess of 1,700 Complainants, each of whom make allegations against a number of Respondents. Heretofore, the Investigation Committee has conducted what in essence is a mini-trial in respect of the allegations made by each of these individuals. If each of these mini- trials were on average to conclude within just two days, it would take the Investigation Committee in excess of 10 years to hear all complaints assuming that hearings were conducted six days a week without any break during that period.
It is self evident that the Investigation Committee does not have the capacity to hear 1,700 mini-trials.
The indications are that there is likely to be some drop off in the number of Complainants who actually wish to proceed before the Investigation Committee. It is not known to what extent this drop off will occur.
The question in this context is whether it is necessary to hear all Complainants who wish to give evidence before the Investigation Committee.
Complainant representative groups have said in consultation that all those who wish to be heard should be entitled to a hearing. It is fair to say that they were almost unanimous on this point.
However, the Commission in papers submitted to the Attorney General dated 29th January 2003 and 12th February 2003, the Attorney General in his review to the Government (published 14th January 2004) and Mr. Justice Ryan in his Review (published 14th January 2004) all agree that the Investigation Committee should not be under an obligation to hear all Complainants who wished to be heard, and that it is necessary to confer on the Committee a discretion in determining which cases need to go to a full hearing.
The Inquiry is mandated to determine the causes, nature, circumstances and effect of abuse. It is mandated to determine the extent to which the institutions themselves contributed to the occurrence or instance of abuse having regard to their systems of management, administration, supervision and the regulation of those institutions. This Inquiry should be about broader issues then questions of personal individual culpability.
If the Investigation Committee is required to conduct a large number of mini-trials, then its capacity to inquire into the abuse of children at an institutional level in a meaningful and purposeful way having regard to the spirit of the legislation is effectively defeated.
The legal team proposes that the Investigation Committee should hear as much evidence as required to establish whether abuse took place in any given institution. For this purpose it may well be that it will have to hear all Complainants who make allegations against that institution. However, it is desirable that the Investigation Committee would have a discretion as to the Complainants whom it wishes to call. In essence, the main focus of the inquiry should whether abuse took place at an institutional level and in any given institution and how much and of what nature. The evidence of witnesses should be at the discretion of the Investigation Committee with the advice of its legal team, and in those circumstances it may be unnecessary to hear all available witnesses in respect of a given institution.
Accordingly, the legal team has proposed that the Investigation Committee will ask the Government to introduce the appropriate amending legislation to the Act of 2000 to provide it with the required discretion.
B. Decision to conduct a hearing into “Naming and Shaming”
I now return to the issue of “Naming and Shaming”. In his review Mr. Justice Ryan had the following to say:
"The inquiry into child abuse can survive a prohibition on naming individuals. But it cannot survive a prohibition on naming institutions. The Investigation Committee would be entirely toothless in its capacity to inquire and would be confined to reporting that abuse of a particular kind happened on some occasion somewhere in Ireland.”
Later when considering this issue in the context of the Christian Brothers challenge to the Act he points out::
. “The question of course is bound to come up for consideration at the inquiry even if the Courts entirely reject the challenge."
The question is whether in fact the Investigation Committee should continue with its previously expressed policy (irrespective of its power to do so) of naming individual perpetrators in the majority of cases.
Given that the Investigation Committee has already indicated an interpretation of the Legislation which tends to require the naming of perpetrators in the majority of cases, the view of the legal team of the Investigation Committee is that a change in this position should not take place without affording interested parties an opportunity to be heard on the issue.
Accordingly, the Investigation Committee has circulated a paper which is available today and will appear on the Commission’s web site. The Paper details the policy which the Commission has adopted to date, the procedural implications of that policy, it identifies the approach taken in other inquiries internationally, identifies the arguments for and against naming and the likely consequences of maintaining or alternatively, changing the status quo.
It is proposed that the Investigation Committee will afford interested parties an opportunity to make submissions on this issue in open session commencing on May 24th 2004 at a The Distillery Building, Church Street, Dublin 7.
Pending the determination of the challenge to the Act which is listed for hearing in the Supreme Court on June 29th and the implementation of any legislative change(s) which may be required it is proposed that the Investigation Committee convenes a public hearing, the purposes of which will be fourfold:
It is envisaged that evidence in relation to these matters will be adduced in a non-adversarial manner. It is intended that this will be an information seeking process and whilst questions from parties will be entertained, the need for cross-examination is not expected to arise at this stage.
This part of the inquiry will take place in June and will be held in public at the Distillery Building, Church Street, Dublin 7. The Committee looks forward to receiving the cooperation and assistance of all parties.
I think it is fair to say that in so far as hearings are concerned, the difficulties encountered by the Investigation Committee have centred on:
The paramount concerns of the Investigation Committee must include the desirability of closure and the reduction where possible of the adversarial nature of the process of inquiry.
The Law Commission of Canada identifies a guiding principle in this context
“Do no further harm.”
This principle should be seen as a guiding star to help us navigate through the task which lies ahead.
It is apparent that much of the difficulty encountered in attempting to put in place procedures which comply with the law and are satisfactory to all parties, have stemmed from the very disparate nature of the types of issues which have to be considered.
For example, procedures that may be appropriate and effective to deal with an issue arising from a direct complaint against a named individual of serious sexual abuse may be wholly inappropriate in dealing with a largely collective contention of serious neglect and deprivation on the part of a number of persons who were present in an institution at a relevant time. It might properly be commented that a "one size fits all" approach to procedures just will not work.
To move from a position where naming is the norm to one where naming is the exception is likely to result in a whole range of other aspects of the process going ahead on a basis which is different to heretofore.
The procedures regarding the timing of the provision of documentation to the parties is under review and the legal team has proposed to the Investigation Committee that it will circulate all statements and accompanying documentation as soon as practicable.
When the Committee is in receipt of documentation furnished by way of discovery, it is proposed that such documentation as is relevant will be furnished to each interested party. Once all parties interested in a particular institution have received relevant documentation, the Committee will convene a preliminary hearing in respect of that institution.
An opportunity will be given to parties to address procedural issues specific to the institutional hearing then proposed. It is hoped that all issues in relation to procedural matters can be agreed between the parties. Where this is not possible it is proposed that the Investigation Committee will rule thereon.
When all of the parties have had a reasonable opportunity to consider the evidence likely to be presented, it is proposed that hearings in respect of a relevant institution will take place. It is likely that these will commence with a public session, which will have the effect of setting the scene in respect of that institution, and placing on the record any general non-controversial evidence concerning the nature of the institution.
It is proposed that the Investigation Committee will conduct as much as possible of the hearings in public so that general questions which do not involve going into the detail of individual instances of alleged abuse, will, as a matter of normal practice, be the subject of public hearings.
A number of written submissions included reference to the question of expert evidence. This matter also came up for discussion in the course of the consultation process.
The Investigation Committee recognises that there is a range of areas of expert evidence where the conclusions reached have the capacity to be relevant to all or to a significant number of institutions. One of the difficulties encountered in the past in attempting to put forward working procedures stemmed from the competing requirements to: -
The legal team is of the view that the following would be an effective and appropriate means of dealing with most if not all such areas.
A. The Committee should identify areas of general application which would benefit from obtaining an expert view. The Investigation Committee is actively seeking to identify such areas and an invitation is issued to all concerned parties to propose areas which would benefit by early expert evidence.
At present the legal team has identified the following areas of expertise which the Investigation Committee may feel suitable to be dealt with in this manner:
B. It is envisaged that the Investigation Committee will commission from an independent expert a report on the "state of knowledge" in respect of any given area, including where appropriate, a report setting out competing views which are widely held within the expert community.
The legal team is of the view that a distinction may be made between expert evidence which has the potential to be relevant to a significant number of separate institutions, and may thus, be said to be of general application, expert evidence that may be relevant only to a single institution, and expert evidence which may be relevant to an individual accusation. Evidence relevant only to a single institution can be dealt with as part of the general scene setting evidence for that institution and it does not require to be attended to with the same degree of urgency as evidence of more general application. The same applies with even greater force in respect of evidence likely to be relevant only to one, or a small number of individual allegations of abuse. It is however important that areas of general application are identified in early course so that they may be the subject of specific public hearings in accordance with the process suggested above, at an early stage, if the Investigation Committee considers that to be appropriate.
One of the questions which will determine the way in which private hearings of evidence relating to specific instances of abuse are conducted is the question of the interpretation of the requirement that those hearings be "otherwise than in public".
The legal team has recommended to the Investigation Committee that this requirement should not be applied in a way that prohibits the presence, at a particular unit of inquiry, of more than one person who makes an allegation of abuse against the institution under investigation. The purpose of this recommendation is to allow all relevant evidence, in respect of the particular unit of inquiry, to be conveniently heard together and in the presence of all interested parties.
The legal team has prepared a suggested schedule of hearings which it will endeavour to follow over the course of the forthcoming months. It is not possible at this remove to be absolutely certain as to the duration of any particular phase of the inquiry. The Committee has already received a very large volume of documentation pursuant to discovery directions which have issued. The process of identifying and obtaining documents of relevance continues and the Investigation Committee’s ability to keep to its proposed dates will be effected by its capacity to process the documentation which is received.
The schedule sets out the order in which it is proposed the Committee will conduct its inquiries into the named institutions. Insofar as alterations to dates are required, such alterations will be posted on the Commissions website and parties will obtain adequate notice.
The following is the proposed schedule of hearings:
24th – 28th May: Public hearings on discussion document
16th June: Decision of the Investigation Committee on discussion document Hearing
18th June: Issues – St. Joseph’s Industrial School, Ferryhouse
21st – 30th June: Hearings:- The emergence of child abuse
5th – 23rd July: Hearings: -St Joseph’s Industrial School, Ferryhouse
26th July: Issues – Artane Industrial School
28th July: Issues – St. Vincent’s Industrial School, Goldenbridge
4th September: St Joseph’s Industrial School, Ferryhouse continued; urgent hearings; discrete cases . Issues:- St Patrick’s Industrial School, Upton
5th October: Artane Industrial School
In his review, Mr. Justice Ryan indicated that he would write to all of the Complainants to inquire whether it was their intention to proceed before the Investigation Committee. In the course of submissions and consultations interested parties have asked why this has not yet been done.
The reason is that it seemed unfair to ask Complainants to indicate their wishes in this regard before they knew the nature of the changes that were proposed.
The Investigation Committee intends now writing to each Complainant. Such a letter has been prepared and it will go out next week. Efforts have been made to set out in a clear succinct and transparent manner the choices available and the likely consequences of exercising these choices.
Representations have been made to the Investigation Committee as to the manner in which it should communicate this letter to Complainants. There is a lack of agreement as to whether the Committee should notify Complainants personally or whether they should be notified through their solicitors. Most Complainants have made their application to the Investigation Committee through solicitors. However, the representatives of victims’ groups have asked that this letter be sent to Complainants personally.
It has been decided that this letter will be sent to all Complainants individually. It will be sent to the address which they gave in their initial application unless notification of a change of address has been furnished in which case it will go the new address.
At the same time, the Committee will also write to each Complainant’s solicitor notifying them of the position and enclosing a copy of its letter to their clients.
In conclusion, I wish to put on record at this stage something which emerged in the course of the consultations conducted with many of the interested parties. What emerged from those meetings was a unified view that this Commission faces a difficult but important and valuable task It was clear that there is a willingness and desire from all concerned parties to be of assistance to the Commission and a desire that the Commission establish the truth of what happened so that lessons may be learned to the benefit of future generations.
On behalf of the legal team I wish to express our gratitude to the parties for the assurances and good wishes, which they have expressed. Whilst many may find the changes proposed difficult, it is hoped that the need for such changes will be recognised, and that the Investigation Committee will be able to proceed with its work to an appropriate conclusion.
Mr. Chairman, members of the Committee, ladies and gentleman the only other thing which I wish to say at this time thank you for your patience.