COMMISSION TO INQUIRE INTO CHILD ABUSE INVESTIGATION COMMITTEE PROCEDURAL HEARING HELD IN PUBLIC ON 26th, 29th, 30th & 31st JULY, 2002
PROVISIONAL RULING OF THE INVESTIGATION COMMITTEE DATED 9th OF
congregation and the member as to the power of this Committee to publish findings of abuse –
hearing. The public hearing commenced on 26th July and continued over four days ending on 31st July, 2002. At the public hearing 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 this Committee’s legal team, namely:
This Committee’s counsel also made submissions.
the issue of prejudice caused by the effects of lapse of time was that it is relevant to the making of a determination or a finding of abuse by this Committee identifying a person or institution, rather than to the publication of the determination or finding. Secondly, the point in time at which the issue of prejudice in relation to making a determination falls to be considered is when this Committee has got in all the evidence through its investigations, discovery directions and hearing all witnesses as to the relevant allegations.
the procedural hearing, may make submissions in writing on this provisional ruling, such submissions to arrive not later than 5 p.m. on Friday 4th October 2002. Such submissions will be considered before a final ruling issues, and, if necessary, the parties who were represented at the procedural hearing will be invited to submit written comments on any submission which this Committee proposes to incorporate in the final ruling. The principles adopted in the final ruling will guide the future proceedings of this Committee but, where the interests of fairness so dictate, will not be applied to a particular decision or determination.
Section 10 provides for the establishment of two committees, : the Confidential Committee and this Committee. The scheme of the Act is to provide two distinct forums for hearing evidence of abuse which is within the statutory remit of the Commission and for conducting the mandated inquiry into abuse in institutions during the relevant period. The published report is the report of the Commission. By virtue of section 17, absolute privilege attaches to the report of the Commission.
(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
(e) prepare and furnish a report pursuant to section 13.
As was pointed out in the Commission’s opening statement delivered on 29th June 2000, the Commission interprets section 12(1)(c) of the Act on the basis that the duty thereby imposed applies where the prerequisite stipulated in section 4(1)(b)(ii) is complied with – “where [this Committee] is satisfied that such abuse occurred.”
3.8 Section 13 amplifies the reporting function of this Committee. It is required to submit to the Commission a report of the results of the inquiry referred to in section 12, which specifies the determinations made by it pursuant to that section. Sub-section (2) of section 13 provides that the report –
supervision and regulation, direct or indirect, of an institution identified in the report 1 Opening Statement, page 15, fn 26.
pursuant to paragraph (a) and, as respects those functions, the persons in whom they were vested and may identify those persons, and
(c) shall not contain findings in relation to particular instances of alleged abuse of children.
3.9 Section 14 confers powers on this Committee, inter alia, to direct attendance of witnesses, and production and discovery of documents and to seek the assistance of the High Court in compelling compliance with such directions. By virtue of section 18 a witness is afforded the same immunities and privileges as a witness in the High Court. However, section 21 removes the privilege against self incrimination but includes the safeguard that incriminating evidence shall not be admissible in criminal or civil proceedings or before a tribunal.
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 a person 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 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 a Tribunal of Inquiry set up to examine a matter 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 , 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 determinations framed in general terms.
3.12 As has been stated the published report is the report of the Commission. Section 5 (1) provides that the report of the Commission shall have regard to the reports submitted by the Confidential Committee and this Committee and shall specify the determinations made pursuant to its
2 Supreme Court of Canada: Canada (Attorney General) v Canada (Commission of Inquiry on the Blood System) 3 S.C.R. 440, per Cory J.
inquiring function. That inquiring function is performed either through the Confidential Committee or this Committee and the determinations are the determinations of the relevant Committee.
Sub-section (3) of section 5, in paragraphs (a), (b) and (d) thereof, contains provisions in relation to the report of the Commission in identical terms to the provisions contained in paragraphs (a), (b) and (c) of section 13(2) in relation to the report of this Committee. Paragraph (c) of sub section (3) of section 5 provides that the report of the Commission shall not identify, or contain information that could lead to the identification of, persons the subject of abuse in childhood. There is a consistent thread throughout the provisions of the Act in relation to publicly identifying victims of abuse: persons who were the subject of abuse in childhood shall not be identified, directly or indirectly, and findings in relation to particular instances of abuse alleged by persons who testify shall not be reported; and hearings at which evidence of particular instances of alleged abuse is given must be held otherwise than in public.
Sub-section (4) of section 5 ensures that findings in the published report which are not the product of the inquiry carried out by this Committee are seen to be such. Sub-section (4) provides that, if 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.
This Committee recognises that the definition of “abuse” encompasses a broad spectrum of types of conduct, which along the spectrum are of varying degrees of gravity so as to attract a greater or lesser degree of public condemnation, if found to exist. This Committee also recognises that there is inbuilt in paragraphs (c) and (d) of the definition a threshold which is not a low threshold.
3 Second Interim Report of the Commission (November 2001), Appendix C.
4.2 Less than one third of the persons who signified a wish to testify to this Committee had, by the end of March 2002, submitted a statement detailing the allegations in accordance with the Act. A final date for submission of statements was imposed. No complainants’ statements are being accepted after 30th June 2002 save in exceptional circumstances. The current position is that approximately 1,800 complainants are proceeding. The non-availability of the majority of complainants’ statements until the relatively recent past has meant that a meaningful review of the procedures for processing and hearing allegations could not conducted earlier.
It is believed that the age profile, which the analysis set out in paragraph 4.1.reflects, applies to the complainants who are proceeding. While it has not been possible to analyse the age profile of persons against whom allegations are made, the persons holding management positions in the institutions or the officers who performed the functions of the regulatory authority on a day to day basis, in so far as they are alive, the assumption must be that they are considerably older than the complainants. This Committee is aware, and the examples cited by counsel for the first Management Respondent in his submissions bear this out, 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
4 Section 23.
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.
It was contended on behalf of the first Complainant that the submissions made on behalf of the first Management Respondent amount to an oblique challenge to the constitutionality of the Act and the fact finding system created by the Oireachtas, in that the arguments advanced amount to saying that the powers conferred by the Act could never be exercised in the case of dead or elderly Respondents by reason of lapse of time which, if correct, would mean that for all practical purposes this Committee could never investigate an allegation of abuse dating
5 Second Interim Report, page 6 6 McDonald v Bord na gCon I.R.217
from (say) the 1950’s, thus defeating the express statutory mandate conferred on this Committee.
The reply on behalf of the first Management Respondent was that this contention is unsustainable: the first Management Respondent does not suggest that the provisions of the Act are unconstitutional, but rather that there is both a constitutional and an un-constitutional way of operating the provisions and that the consitutional interpretation must be preferred. The constitutional interpretation, it was submitted, requires regard to be had to fair procedures and natural justice, including issues such as prejudice caused by delay. It was unequivocally put on the record on behalf of the first Management Respondent that the arguments advanced on its behalf do not constitute a direct or indirect challenge to the constitutionality of the Act and that the first Management Respondent has no objection to the Act itself, provided that it is operated in accordance with natural and constitutional justice.
Similarly, counsel on behalf of the second Management Respondent stated that the submissions made on behalf of the second Management Respondent do not in any way constitute a challenge to the constitutionality of the Act; in so far as the Constitution is invoked in relation to the Act it is for the purpose of indicating that this Committee must, in adopting its procedures, in fixing its rules and when dealing with the adjudication process itself, conform to constitutional principles.
This Committee has considered it prudent to record the foregoing submissions as a preface to emphatically stating that the validity of the Act of 2000, or any provision of it, having regard to the provisions of the Constitution may only be reviewed by the High Court in proceedings in which such validity is challenged.
Counsel for the first Management Respondent relied on the decision of Henchy J. in McMahon v Leahy as emphasising the need for the decision-maker to have regard to constitutional values, even where the express terms of the statute might appear to require him or her to proceed to a conclusion in an automatic way, and quoted the following passage from the judgment, at page 541, adding the emphasis which appears in the following quotation:
7 McDonald v Bord na gCon, page 239 8 East Donegal Co-operative v Attorney General 317 at page 341 9 In re Haughey  I.R.217 at page 254 10  I.R.548
“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, if it 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 the 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”.
Counsel for the second Management Respondent relied on the same passage in her submissions.
In their analysis of the submissions of the first Management Respondent, counsel for the first Complainant, in their written submissions, suggested that disaffection with the clear and expressed statement in the Act that the relevant period runs from 1940 until 1999 is at the root of the submissions made on behalf of the first Management Respondent and that, in effect, that it seeks to ignore this clear legislative statement.
The position maintained by the first Management Respondent is that the statutory remit of this Committee must be exercised in accordance with natural and constitutional justice, which do not permit this Committee to ignore issues of prejudice caused to persons against whom allegations are made, notwithstanding its explicit statutory remit to inquire into abuse during the designated period.
This Committee considers that, in delimiting the duration of the inquiry which the Commission is mandated to conduct and report the results of, the Act is clear and unambiguous and is reasonably open to one construction only: that it extends from at least 1940 to 1999. In the light of the principles outlined at the commencement of this paragraph, it cannot construe the Act in such a way as to effectively ignore part of its mandate. As it must, in accordance with the principles set out in paragraph 5.1, it presumes that its clear mandate in relation to the entirety of the relevant period, as defined in the Act, is constitutional.
5.5 The presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas, but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by the Act are to be conducted in accordance with the principles of constitutional justice. Indeed, there is express recognition of this in section 4(6) of the Act, which directs the Commission, in the performance of its functions, to act in a manner compatible with the requirements of justice.
11 Hegarty v O’Loughlin I.R 148 12 East Donegal Co-operative v Attorney General at page 341
The Committee is bound to act fairly and judicially in accordance with the Constitution. In fulfilling its statutory mandate to inquire and report, the Committee must apply fair procedures, as has been acknowledged in its public statements.
Subject to fulfilling the requirements of fair procedures, there is no rule of law which requires the Committee to apply rules of evidence applicable in a court of law. However, from the outset the Commission has publicly declared the principles in relation to the taking of evidence which this Committee will apply. As the Commission stated in the opening statement, all witnesses who give evidence to this Committee shall be required to give evidence on oath. In making findings of fact, this Committee will –
While this Committee does not regard it as pertinent to the issues which arise in the Issue Paper, as the matter was debated in the course of the procedural hearing, it records that it considers that, in applying the civil standard of proof, which, as it is entitled to do, it has
13 Loftus v Attorney General  I.R. 221 14 Goodman International v Mr. Justice Hamilton 2 I.R. 542 15 For example, at the second public sitting of the Commission held on 20th July 2002 - transcript at page 46 16 Goodman International v Mr. Justice Hamilton per Costello J. at page 565 17 Opening statement, page 8
adopted, it should do so in the manner outlined in the judgment of Henchy J. in Banco Ambrosiano v Ansbacher & Company .
This Committee’s understanding of the application of fair procedures to a public inquiry and, in particular, to the inquiry and reporting function reposed in it will be outlined later in this ruling after setting out its understanding of the proper interpretation of its remit under sections 12 and 13.
(i) the institutions, 18  1 I.L.R.M. 669 at page 700 et seq
(ii) the systems of management and regulation of the institutions, and
(iii) the manner in which the systems were implemented by the persons and bodies charged
with their implementation. This Committee rejects the submission that identifying institutions and personnel who worked in, managed or regulated institutions is a minor aspect of its functions. On the contrary, the manifest intention of the Oireachtas is that it should be an integral part of the inquiry.
In setting out the provisions of section 12(1) earlier, emphasis has been added to the key words. It is the view of this Committee that the Oireachtas specifically directed this Committee to address the following questions:
While the foregoing is not intended to be an exhaustive list of the questions which this Committee is required to address, it highlights the focus of the inquiry. The focus of the inquiry is on institutions, perpetrators, personnel who were working in and were responsible for managing institutions, and personnel charged with responsibility for regulating institutions, which are the subject of allegations of abuse during the time frame stipulated. The focus is not on persons who allege they were abused or their specific allegations.
6.3 This Committee is mandated to report in the manner set out in section 13. Any suggestion that the legislature intended the reporting mandate to be of lesser importance than the mandate to inquire is not tenable. Both functions are principal functions set out in section 12. The substantive provision which defines the nature of the report is section 13(1): it is a report of the results of the inquiry, encompassing the determinations made in the course of the inquiry. The provisions of sub-section (2), which specify matters which the report must not contain and matters which the report may contain, are subsidiary to the substantive requirement that the report should record the results of the inquiry and the determinations made in the course of the inquiry. The provisions of sub-section (2) are wholly consistent with the provisions in section 12 which define the nature of the inquiry, the results of which form the substance of the report. Paragraph (c), which is directory, precludes reporting findings in relation to particular instances of alleged abuse. This is consistent with section 12, where the focus is on the institution and the personnel in and charged with responsibility for the institution, rather than on the individual making the allegation. Paragraphs (a) and (b), which are permissive, allow for the reporting of findings as to:
The focus in these provisions, again, is on the institution and the personnel in and charged with responsibility for the institution during the time span stipulated, with express recognition that, in the case of an institution, in the context of making findings, part only of the time span may be relevant.
Reporting on the results of the inquiry conducted in accordance with section 12 must of necessity involve identifying the institutions, individual perpetrators and personnel involved in management and regulation the subject of the determinations made in accordance with section
12. While paragraphs (a) and (b) of sub-section (2) confer an element of discretion on this Committee, in that it may desist from reporting certain findings identifying institutions, identifying perpetrators of abuse and identifying personnel involved in management and regulation, this does not diminish the overriding obligation imposed on this Committee to report on the results of its inquiry and the determinations it makes in the course of the inquiry.
If, absent paragraphs (a) and (b), a doubt might have been expressed as to the power of the Committee to identify institutions, perpetrators and other personnel, the presence of these paragraphs rules out any such doubt.
Fairness and justice may require that institutions and individuals be identified. A general finding that abuse occurred, say, in the 1950’s in a particular type of institution known to be under investigation would be unfair to institutions of that type in respect of which there was no evidence of abuse in that period and to the personnel associated with those institutions. A finding that boys were sexually abused in a particular institution, say, during the 1960’s, without naming the perpetrator where it is possible to do so, would be unfair to personnel working in the institution during that period against whom no allegations of such abuse were made.
19 Opening statement, page 16
occurred, and the persons, or group of persons, or corporations involved in the management and administration of the institutions and the persons or organisations charged with their regulation. It is an inevitable consequence of the two-phased structure of the inquiry, necessitated by the requirement that the Committee be satisfied that abuse occurred before embarking on the remainder of the inquiry, that institutions and individual perpetrators would be the subject of findings which would identify them at the end of the first phase and that their identity would become public in the second phase, if those hearings are held in public.
This Committee’s statutory mandate to report relates to the results of its inquiry and the determinations it has made in the course of the inquiry and, in general, necessitates naming institutions, individuals perpetrators, persons, groups of persons and corporations the subject of its determinations.
The Commission’s statutory mandate to report, in so far as it relates to the part of its mandate to inquire carried out through this Committee, is the same as the Committee’s mandate to report, subject to the proscription on publishing the identification of a person the subject of abuse in childhood.
20 In Re Haughey per O’ Dalaigh C.J. at page 263
21 Publicly announced at the second public sitting held on 20th July 2000 – transcript at page 6
7.4 In relation to unincorporated groups of individuals, it is considered that a body or organisation such as a religious congregation is distinguishable from other groups, for example, boards of management, which will subject to scrutiny during the course of the inquiry.
This Committee proposes, in future, to adhere to its existing practice of granting collective representation in proceedings before this Committee to a religious congregation which had management responsibility at the relevant time for an institution in which it is alleged that abuse occurred. As it was submitted at the procedural hearing that the rationale underlying the decision of this Committee to grant representation to the first Management Respondent in connection with the investigation of institutions which at the relevant time were managed by that congregation is incorrect in law , such representation is granted not necessarily as a matter of right. This Committee expresses no view on the former or current structure or legal status of that congregation or the legal or constitutional rights of any congregation or its past members. However, it is recognised that the congregations of religious who had managerial responsibility for the institutions 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. Moreover, it is recognised that historically they have been, and currently they are, associated in a distinctive manner with the institutions. By reason of that association, where an institution is under investigation by this Committee, whether or not
22 In so far as it was stated in a letter sent in April 2001 to the solicitors for the first Management Respondent that the requirements of consitutional justice require the collective representation be granted.
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 reputations of the current members of the congregation. Having regard to the obligation of this Committee to act fairly it is considered appropriate that a congregation of religious in such a position should be afforded protection analogous to the protection afforded to a living person against whom allegations are made which are likely to reflect on his good name. Therefore, this Committee will continue to afford the first Management Respondent and the second Management Respondent and any other congregation in a similar position the minimum protection outlined in paragraph 7.1 above. It is anticipated that the adoption of this approach will assist in eliciting the true facts.
This Committee adopts, and will continue to adopt, a different approach in relation to Boards of Management of schools. When it emerges, in the course of preliminary investigation under section 23 of the Act, that the current Board of Management of the school did not have management responsibility at the relevant time, it is recognised that the current members of the Board of Management could not be properly implicated in any determination of this Committee or the subject of an adverse finding. The current Board of Management (represented by the current chairperson) ceases to be involved in the process, save to the extent that it may be necessary to seek discovery or production of documents.
7.5 In relation to a deceased individual who would have been a Respondent if alive, it is noted that there is no definitive decision of a Court of competent jurisdiction on whether the constitutional protection of a citizen’s good name and the concomitant right to fair procedures extends to a deceased person and that doubts have been expressed as to the existence of such protection in deceased persons in judicial pronouncements. . Nonetheless, this Committee, having regard to its obligation to act fairly and with a view to pursuing such lines of inquiry as will elicit the full and true facts, intends, in the case of a deceased person under investigation who was a member of a religious congregation at the date of his or her death, to allow the congregation, through its own representation, to represent the interest of the deceased person also. However, if it were to become apparent that, if such deceased person were alive, there would be a conflict of interest between him and the congregation, in such case this Committee will treat the situation as if the deceased person were not a member of the congregation at death.
Where a deceased person, who is under investigation by this Committee, was not a member of a religious congregation at the date of death, this Committee will seek to ascertain whether there exists a person who, if he or she were allowed to represent the interest of the deceased, could assist in the ascertainment of the true facts and achieving a fair determination, and, if so, will allow such person to represent the interest of the deceased person.
As it was submitted at the procedural hearing that the rationale underlying the approach hitherto formulated by this Committee in relation to deceased persons whose conduct is under investigation is incorrect in law, such representation is granted not necessarily as a matter of
23 Hilliard v Penfield Enterprises Ltd.  1 I.R. 138; McDonnell v Brady & Ors  3 I.R. 588
24 In so far as it was stated in a letter sent in July 2001 to the solicitors for the first Management Respondent that there is a constitutional imperative to safeguard and vindicate the good name of a deceased person.
right. The purpose of the representation is to enable the interest of the deceased person to be protected against an unfair determination through cross-examination and submissions.
meaningfully partake in the process and, in particular, conduct a meaningful and effective cross-examination. While it was not suggested by any party that, by the procedures it has adopted, this Committee has inhibited, or will inhibit, the right to cross-examination where such exists, it has noted and will have regard to the dictae in the judgments delivered in the Supreme Court in Maguire and Ors.v Ardagh and Ors. (the Abbeylara Case) relied on by counsel for the first Management Respondent, which emphasise the importance of the right of a person to cross-examine those whose evidence may affect his right to his reputation. In particular, it is noted that it is not permissible to adopt a practice which would seriously erode the value of cross-examination as it has been traditionally understood, or to deny to persons whose reputations and livelihoods are brought into issue the full power to cross-examine fully, as a matter of right, and without reasonable hindrances.
7.9 The gravamen of the case made on behalf of the first Management Respondent in relation to the observance by this Committee of the principle audi alteram partem in the performance of its inquiring and reporting functions overlaps with the argument advanced on its behalf on the effect of lapse of time, which will be considered later in this ruling. While, in essence, it encompasses the application of the principle to living persons involved in the process as of right, as well as its application to persons absent from the process, for example, by reason of death, it will be considered here in the context of making findings about persons who are absent from the process.
25 Unreported, 11th April 2002 26 Per Keane C.J. at page 161 27 Per Hardiman J. at page 103
It was argued, in reliance on the decision of the Supreme Court in the Abbeylara case as to the nature of the Abbeylara Inquiry, and the reasoning which underpinned the decision, that observance of fair procedures and the principle audi alteram partem creates an entitlement to cross-examine which is real and substantial and not just notional. The argument advanced by counsel was that, as the Abbeylara Inquiry had assumed a function of making findings of fact, the Supreme Court held that it was “an adjudicative inquiry.” Moreover, it was argued, the Supreme Court identified the nature of fact-finding: it is “a rigorous analytical process leading to factual conclusions.” A body such as this Committee, which is empowered to make findings of fact, exercises an adjudicative function and certain consequences flow from this, it was argued. If the lapse of time since the occurrence of events being investigated is such that the evidence cannot be tested in an adjudicative manner, a conclusion cannot be formed. To hear one side only does not comply with fair procedures; both sides must be heard in a meaningful way. If there is no factual evidence to test the account given by a person making allegations, the capacity to make determinations is hampered because of the effects of passage of time, and the absence of witnesses. Cross-examination of a witness impugning the conduct of a party absent from the process by reason of death or otherwise is mere “window dressing” Naming should only follow where there has been an adjudication based on a testing of the evidence. Even if an allegation is true, if it cannot be tested, it cannot be satisfactorily established sufficiently in the exercise of the adjudicative function so as to be pronounced as being a fact. Facts must be established, not merely asserted. There must be a real forensic analysis of the evidence.
28 Per Denham J. at page 28 29 Per Hardiman J. at page 23
7.10 It is acknowledged that the statutory function to 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 a determination of abuse where the person against whom the abuse is alleged is dead or, alternatively, 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 a 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 the veracity of a witness. This flows from the obligation to act fairly.
The prejudice contended for is the inability of the individual against whom the allegation is made, or the congregation which managed the institution at the relevant time, to participate in a meaningful way in the process and to effectively defend himself or itself in a meaningful way. The factors giving rise to this inability, the impact of which may vary depending on the antiquity of the allegations, were stated to include -
• absence of physical evidence, for example, the alteration of the locus in quo. As has been stated, this argument overlaps with the argument on the application of the principle audi alteram partem, the basis of which is that, if the person whose conduct is impugned is hampered in effectively testing or challenging the evidence against him, the principle is not observed.
8.4 The point on which there was agreement was that, in the application of “lapse of time” jurisprudence to this Committee, the fact that the process of this Committee is a recently established statutory inquisitorial process must be recognised. It was acknowledged that the element of establishing culpability for delay or the consequences of lapse of time in initiating a civil claim or a criminal prosecution, which is a feature of the jurisprudence, does not apply. Therefore, it was submitted, in the context of this process, the only issue for consideration is the existence or otherwise of such prejudice, which is to be ascertained by analogy to the approach adopted in civil cases (applying the test whether there is a substantial risk that it is not possible to have a fair trial), or in relation to a prospective criminal trial (applying the test whether there is a real and serious risk of an unfair trial.) The relevant test in this inquisitorial process was posited in terms of various formulae: is there a real and substantial risk that this Committee will get the wrong result because of the effects of lapse of time; has lapse of time rendered it unsafe to conclude that abuse took place?
8.5 This Committee rejects the submission that its procedures should provide for consideration of the issue of prejudice after taking a complainant’s evidence. The procedural consequence of the successful invocation of the “lapse of time” jurisprudence by a party, 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 prohibit 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. It is the view of this Committee that, as a general principle, in order to properly fulfil its statutory mandate, it must carry out a preliminary investigation of each allegation, obtain discovery and production of all documents relevant to the issues raised on the allegation, hear the person who makes the allegation, procure the attendance of and hear all other witnesses whose testimony is relevant and pursue all lines of inquiry to establish the true facts. To do otherwise would be an abrogation of its mandate. However, this Committee does not rule out the possibility that, in exceptional
30 Primor plc v Stokes Kennedy Crowley  2 I.R. 459 31 P.C. v D.P.P.  2 I.R. 25
circumstances, it may terminate its investigation without making any determination in accordance with section 12 at an earlier stage. The passage of a significant period of time since the abuse is alleged to have occurred, even coupled with the death in the intervening period of an alleged perpetrator or other person who might be able to testify as to the facts, would not constitute such exceptional circumstances.
While the procedure suggested by the first Management Respondent may appear superficially attractive, to the extent that a complainant would not be subjected to cross-examination if the person whose conduct is impugned successfully pleads prejudice as a bar to proceeding with the inquiry, by forgoing compelling available witnesses to answer questions, this Committee might effectively enable a body in the position of the first Management Respondent to dictate the course of the inquiry
8.6 An adjudication made pursuant to the Act must be made in accordance with constitutional justice. The “lapse of time” jurisprudence is of relevance to the adjudicative process of this Committee in so far as it gives guidance as to the circumstances in which lapse of time gives rise to a degree of prejudice which interferes with the ability of a fact-finder to achieve fairness. However, where, as in the established jurisprudence, prejudice as a consequence of lapse of time is raised as an issue with a view to halting an adversarial process, the Court, in deciding whether the process should be halted, is concerned with the assessment of risk: in the case of a civil action, whether there is a substantial risk that it is not possible to have a fair trial; in the case of a criminal trial whether there is a real and serious risk of an unfair trial. As has been stated, it is considered that it would be an abrogation of its statutory mandate if this Committee were not, as a general rule, to bring the investigation of allegations to conclusion, in the sense of exhausting the capacity to gather relevant evidence. Adopting this approach, the process will have been completed when the issue of prejudice in relation to the making of a determination falls to be considered. Such consideration will not be a speculative operation. It will be a matter of evaluating all of the evidence and all relevant factors, including, if present, factors identified in the “lapse of time” jurisprudence as giving rise to prejudice, and assessing the weight to be attached to the evidence in the light of such factors, with a view to deciding whether a finding may be made which is not unfair or unjust.
Therefore, a test predicated on risk is not appropriate. It is the view of this Committee that the correct test is whether it is unsafe to make the determination. However, this test is to be applied in the context that the statutory mandate of this Committee clearly envisages that determinations that abuse occurred, which identify perpetrators, institutions and personnel working in and charged with responsibility for institutions will be made arising out of incidents which existed a long time ago, even sixty year ago in some cases. In giving due weight to that clear mandate, as it must do, this Committee believes that the existence of prejudice founded on the antiquity of the allegations which renders the making of a determination directed by section 12 of the Act unsafe must be the exception rather than the norm.
8.7 As the analysis of sections 12 and 13 of the Act set out earlier and summarised in paragraph 6.7. indicates, it is the view of this Committee that the focus of the inquiry it is mandated to carry out relates to what happened in a particular institution during the stipulated period (1940 to 1999) or part of that period, and is not on individual allegations of abuse. The determinations which this Committee is obliged to make as to the occurrence of abuse as a preliminary step to investigating the broader picture – why abuse occurred and the attribution of responsibility for its occurrence – are determinations about a particular institution, an individual or individuals who perpetrated abuse, and other personnel working in and charged with responsibility for the institution during the stipulated period or part of the stipulated period, not determinations about specific allegations of abuse. It follows that the issue of prejudice to a person or body which may result from the making of a determination falls to be considered, not in relation to each particular allegation of abuse or the allegations of a particular complainant, but by reference to the unit of the inquiry which is the subject of the determination – the particular institution within a particular time frame. It is at the point in time when this Committee is considering whether to make the determination which it is obliged to make in relation to that unit, that the issue of prejudice falls to be considered. Accordingly, prior to making a determination which will form the basis of the second phase of its inquiry, this Committee will conduct all its investigations, obtain discovery and production of all relevant documentation, and hear all relevant evidence in relation to the institution, or in relation to the institution in the relevant time frame. It will consider submissions made on behalf of any person or body asserting that the making of a determination against him or it would result in unfairness or injustice and any contrary submissions offered by any other interested party. The decision whether to make the determination or not will be based on the totality of the evidence adduced in relation to the institution and its personnel, or the institution and its personnel within the relevant time frame, or in relation to the person alleged to have perpetrated the abuse, as the case may be. The totality of the evidence means such documentary evidence as is available and the sworn testimony of all complainants, respondents, and all other witnesses who testify in respect of that module of the inquiry. In deciding whether to make the determination, this Committee will have due regard to the factors which are alleged to give rise to actual prejudice. 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.
the abuse at a particular time in that institution and there is no contrary evidence, the appropriate determination, in fulfilment of the Committee’s statutory mandate, is a determination which identifies the deceased person and the institution.
If the argument advanced on behalf of the Management Respondents were to prevail, viewed
against the factual background outlined earlier, in all likelihood the outcome, in relation to the
majority of institutions which are the subject of the allegations being investigated, would be that
this Committee would be unable to make findings containing a sufficient degree of specificity to 32 In particular, the judgment of Hardiman J. in J.O.C. v D.P.P.  3 I.R. 478 enable it to embark on the main investigation as to how much abuse occurred and why it occurred. If the argument were to prevail, the investigation would effectively cease in limine. In short, the intention of the Oireachtas manifested in the Act would be frustrated.
This Committee considers that the argument cannot prevail because, in accordance with the principles outlined earlier, which govern the proper interpretation of its statutory functions, this Committee cannot ignore its clear statutory remit. It is not within its competence to embark upon a process of investigation and reporting of a type which the clear language of the Act does not admit of and which is fundamentally at variance with the clear intention of the Oireachtas as reflected in the words of the Act and, in particular, of sections 12 and 13.
passage of time before making the determination or finding. The test which will be applied is whether it is unsafe to make the determination. The test will be applied against the clear statutory mandate that determinations and findings identifying parties and institutions should be made. The issue of prejudice will be considered at the end of the evidence gathering phase on the issue as to whether abuse occurred in relation to the particular institution, or the particular module in relation to the institution, or the particular individual.
9.3 Where a determination or finding of abuse, identifying a person or persons and/or an institution is made, as a general rule, the determination or finding will be made public in the course of the second phase in the work of this Committee and through the published report of the Commission.
Issue Paper agreed at procedural hearing held in camera on 3rd July, 2002.
II. In respect of individual Respondents, it will be necessary to consider whether there is a complete or partial limitation upon the jurisdiction of the Commission under any, or all, of the above headings, where that individual Respondent is:-
III. In respect of managerial Respondents and the Department, it will be necessary to consider whether there is a complete or partial limitation upon the jurisdiction of the Commission under any, or all, of the above headings by virtue of the fact that:-
And, in particular, the extent to which any, or all, of the following factors may be relevant under any specific heading:-
(iii) The nature of any prejudice which would need to be established before the exercise by the Commission of its jurisdiction (if there be one) not to consider, or report on, or publish, findings in respect of matters within its remit; and
(iv) any other factors which the parties may wish to urge.