In a decision clearing the way for the commission inquiring into child abuse to proceed with its work, the High Court yesterday ruled against an application by the Christian Brothers.
In particular, the court rejected claims by the congregation that the investigation committee cannot make findings of abuse against deceased, elderly, infirm or untraceable members of the order or those unable to give instructions.
However, Mr Justice Abbott did grant declarations aimed at clarifying some aspects of the commission's procedures, including a declaration providing for the right to cross-examine.
The commission, initially chaired by Ms Justice Laffoy, who resigned earlier this year, was set up on a statutory basis in April 2000 under the Child Abuse Act, 2000, (the 2000 Act). Ms Justice Laffoy has since been replaced by Mr Sean Ryan SC, who is to be made a judge.
The commission proposes to carry out its work through two committees, the confidential committee and the investigation committee. The 2000 Act provides that the commission, having considered the reports of both committees, will prepare its own report and, if satisfied that abuse occurred during a particular period, set out findings to that effect and identify the institution and persons who committed the abuse.
An estimated 700 allegations of abuse are pending against surviving, deceased and untraceable members of the congregation.
The commission had refused applications on behalf of religious congregations to have its proposed procedures reviewed by the High Court, and legal proceedings were then taken on behalf of the Congregation of Christian Brothers, challenging the final ruling of the investigation committee of October 18th, 2002.
The action was heard by Mr Justice Abbott over five days last May and he reserved judgment. He delivered a 119-page judgment yesterday.
Given his rejection of most of the congregation's complaints about the committee's procedures, Mr Justice Abbott said he considered it inappropriate to address arguments that parts of the Commission to Inquire into Child Abuse Act, 2000 (the 2000 Act), under which the commission operates, is unconstitutional.
However, he granted a number of declarations aimed at clarifying the commission's procedures, including a declaration that the investigation committee provide further clarification of its terms of reference relating to the corroboration and testing of evidence of witnesses, including complainants and those against whom complaints were made.
The committee must also clarify its terms of reference so as to provide opportunities and procedures for lawyers representing the congregation and deceased persons to cross-examine witnesses, in the interests of fair procedures and constitutional justice.
The committee is further required to write into its final ruling of October 18th, 2002, a clarification given to the court that it did not intend to use aggregated evidence in order to seek corroboration from multiple events in circumstances where there was no corroboration in law.
In relation to the rights of dead persons to protection against adverse findings, the judge found no cases had been cited by the Brothers to justify the existence of a constitutional right of the deceased to their good name or reputation.
The judge said he was unable to find any legal authority in the history of the common law asserting a right of the deceased to a good name or to any property rights. He also found there was no place in the Constitution from where the rights of the deceased may be rationally inferred.
Dealing with issues relating to claims by the congregation of a right to its good name and to protection of that good name against adverse findings by the committee, the judge said these must be examined in light of the committee's mandate to investigate the management responsibility of the institutions involved.
He held the congregation had a right under the Constitution to protection of its good name. He also held that the congregation had a vital interest in representation at the first phase of the inquiry relating to the decision as to whether a finding of abuse had been made against members of the congregation.
That right of representation and constitutional rights would not be greater than the rights of living, present or past members of the congregation.
The judge rejected the claim that the congregation had a right, after a complainant had given their evidence, to have inquiries by the committee prohibited or indefinitely stopped by reason of the death, incapacity, untraceability or other disadvantage, such as memory loss, of those against whom complaints were made.
The congregation had conceded that where there was a confession or conviction of abuse in relation to complaints of abuse, arguments related to an incapacity to instruct lawyers for the accused person would not apply, he noted.
The judge said he agreed with views expressed by the investigation committee in relation to how it would assess evidence relating to allegations of abuse against a person who was not present, for whatever reason, to answer the allegations. The committee had said that, in such situations, a high degree of caution would be exercised.
The judge found that the investigation committee should exercise its discretion regarding the matter of corroboration (of a finding of sexual abuse) against deceased and legally incapacitated persons.
