For over two years, the manner in which the Committee requires the Department to fulfil its statutory obligations in relation to complying with discovery directions issued to it under the Act has been clearly communicated to the Department, both in correspondence and at procedural hearings. Despite that, as of now, the direction issued on 10th March, 2003 has not been properly complied with and the Department has been directed to make further and better discovery.
While acknowledging the enormity of the task which the Department has faced, the difficulties which may not have been foreseen and the Committee’s own shortcomings, it has to be observed that , in general, the Department, as Respondent to the vast majority of allegations which the Committee is investigating, has not adopted a constructive approach to dealing with its role in the inquiry.
The vast amount of resources which the Department deployed in the production of the affidavit submitted on 27th June, 2003 in compliance with the discovery direction on 10th
5th
10
March, 2003 was disclosed at the procedural hearing on December, 2003. The Committee was informed that fourteen lawyers and thirty-five Departmental officials were involved at an ultimate cost to the State of \650,000. That is part of the price which has to be paid for the implementation of legislation which provides for the investigation of and reporting (in a manner which may involve naming an individual and an institution) on activity and behaviour which, at its most serious level, the community considers to be odious. At the public hearing on 31st March, 2003 in relation to the discovery direction of
th March, 2003, Counsel for the Committee made a submission which succinctly encapsulated the reasons why the proper and timely fulfilment by the Department of its obligations in relation to discovery is of the utmost importance. Because of the force of the passage, the Committee quotes it from the transcript and adopts it. Counsel said:
‘‘The difficulty with all of this is that it would be extremely dangerous for the Investigation Committee to embark upon potentially adversarial hearings until such time as it has done everything that it can to ensure that it has all the documents relevant to those hearings. It is inevitable that those hearings have the potential to be fraught. The nature of certainly some of the accusations being made is extremely serious, serious from the perspective of those making them and from the perspective of those against whom they are made. Some of them, as we know, are strenuously denied, and there is no two ways about it, a hearing involving very serious allegations with serious denials and doubtless contentions that the accusations are being wrongly put up are going to be fraught at the best of times.
The last thing one would want is to have to revisit any such application a second time. It would be bad enough for the parties having to go through it once without
them having to go through it a second time. It is for that reason most particularly that it would be extremely dangerous for the Commission to start putting people through going through those hearings without being sure or as sure as it can be . . . that it had all the documents because inevitably if important documents come to light after the hearing, it might mean that the hearing would have to be reopened’’.
TABLE K
Procedural Hearings involving Department of Education and Science as Respondent Date of Issue(s) dealt with Witnesses Legal Representation Outcome
Hearing * Signifies sworn
testimony
31st (1) Submission of None. For the Department: Adjourned until 12th October, outstanding Respondent David Goldberg S.C. November, 2001 for
2001 statements
12th (1) Issues which arose at (1) Thomas Boland, For the Department: Department directed to November,
TABLE K—continued
Date of Issue(s) dealt with Witnesses Legal Representation Outcome
Hearing * Signifies sworn
testimony
24th Failure of Department to John Dennehy, For the Department: Undertaking given by January, properly fulfil commitments Secretary General David Goldberg S.C. the Secretary General to
2002 given to the Investigation Barry Halton B.L. comply with the
Committee to deal with requirements of the
outstanding issues and, in
11th July, Raised by Department None For the Department: Re Issues raised by 2002 By reference to discovery
directions made on 10th
John McMenamin S.C.
Anne Power B.L.
Department:
Meeting of a legal team May, 2002 in relation to two
specific Complainants whose
TABLE K—continued
Date of Issue(s) dealt with Witnesses Legal Representation Outcome
Hearing * Signifies sworn
testimony
31st Issues raised by the None For the Department: Frank Clarke S.C. to October, Department in relation to John McMenamin S.C. peruse documents in 2002 compliance with a discovery Anne Power B.L. dispute in conjunction
direction made on 2nd July, with John McMenamin
2002 in relation to State
the statutory remit of the documents were relevant
Commission. For the Commission: December, direction for discovery John McMenamin S.C. October, 2002 varied.
2002 made on 8th October, Doirbhile Flanagan S.C.
2002 in relation to
(2) Issues as to outstanding Respondents’ statements
(3) Other issues in relation
Anne Reilly B.L.
to the obligations of the Department as Respondent.
20th (1) General issues in Paul Kennedy, For the Department: (1) Chairperson not January, relation to obligations of Principal Officer*. John McMenamin S.C. satisfied in relation
2003 the Department as Doirbhile Flanagan S.C. to the completeness
Respondent adjourned Anne Power B.L. of the Department’s
from 6th December, archive. A proper
TABLE K—continued
Date of Issue(s) dealt with Witnesses Legal Representation Outcome
Hearing * Signifies sworn
testimony
14th Examination of serving Liam Kilroy, For the Department: Evidence taken as part February, officer of Department on— Principal Officer* John McMenamin S.C of ongoing process.
2003
the Department, and For the Commission:
Frank Clarke S.C.
Officer*. Instructed by the Chief State Solicitor
the Department should be Anne Power B.L. 2003.
required to make discovery
TABLE K—continued
Date of Issue(s) dealt with Witnesses Legal Representation Outcome
Hearing * Signifies sworn
2003 Anne Power B.L. against the Department
in the terms determined
18th Examination of— (1) Edward Ward, For the Department: Evidence taken as part March,
Secretary*. Instructed by the Chief State Solicitor in relation to—
For the Commission:
(1) issues in relation to the Deirdre Murphy S.C.
reporting to the Anne Reilly B.L.
Department of specific
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