The fortunes of the Committee and the fortunes of the Commission have been intertwined since establishment. The real impact of the obstacles, recounted earlier,90 which have impeded progress of the work of the Commission, has been the inability of the Committee to advance its work. While it is not intended to reiterate in this chapter matters which have been dealt with earlier, the practical implications of the various obstacles which the Commission has encountered on the work of the Committee will be amplified. Against the background of those obstacles, the following were the main events in the progression of the Committee’s work:
Procedures
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On 29th June, 2000, in the Opening Statement,91 the manner in which the Committee proposed to conduct its inquiry and the principles which would guide it in fulfilling its remit were set out. Proposed Rules of Procedure were made public. At the second public sitting, entitlement to legal representation before the Committee was ruled on.Following the second public sitting, the Rules of Procedure were finalised, taking into account submissions which had been made to the Committee. By August 2000, the structure of, and procedures for, Phase 1 of the Committee’s inquiry were in place.
Requests to testify
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Between the beginning of July 2000 and 31st July, 2001, requests to give evidence to the Committee were accepted. A final date for acceptance of requests was imposed in May 2001. Thereafter, approximately three quarters of all the requests received were submitted before the deadline of 31st July, 2001.Commencement of preliminary inquiries
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Preliminary inquiries by Inquiry Officers carried out under the Act92 commenced at the beginning of December 2000 in relation to complaints of which the Committee was on notice by reason of submission of requests to give evidence. The first step in the preliminary inquiry was to obtain the statement of his or her proposed evidence from the Complainant. Because of the stance being adopted by the Survivors’Solicitors, the majority of statements were not forthcoming. A final date for acceptance of statements was imposed in March 2002. Thereafter, approximately two-thirds of all Complainants’ statements were submitted before the deadline of 30th June, 2002.
90 See chapter 2.
91 Appendix A.
92 Section 23.
Commencement of scheduling hearings
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The first evidential hearing was scheduled for the end of June 2001 but on the day of the hearing the Complainant withdrew. The antiquity of the majority of the allegations being investigated and the age profile and the state of health of many of the witnesses indicated the necessity to expedite evidential hearings. That was difficult to achieve for the following reasons:■ The real starting point of a preliminary inquiry was the Complainant’s statement, which was not forthcoming in the majority of cases until May and June 2002;
■ If it was forthcoming, in many cases there was difficulty procuring the statement or statements in response from the persons and bodies against whom allegations were made; and
■ In some cases, procuring compliance with discovery directions proved difficult.
To deal with these difficulties, procedural hearings were convened, either to deal with specific legal issues in relation to statements, discovery and such like or to get an explanation for delay, for example, delay in submitting Respondents’ statements, and to ensure that any default was remedied. By the beginning of 2002, procedural issues were being disposed of and preliminary inquiries were being advanced sufficiently to enable the Committee to schedule evidential hearings. However, when evidential hearings in relation to Industrial Schools came on stream, the Committee had to confront a legal issue raised by the Congregations of Religious (the Congregations) who managed the Industrial Schools in the past.
Procedural Hearing on lapse of time
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The legal issue, in broad terms, is the effect of the passage of time since many of the events which the Committee is investigating occurred on the ability of the Committee to fulfil its mandate properly and as envisaged by the Oireachtas. It is an issue which has been a matter of controversy from the outset and which has been consistently and repeatedly raised by the Congregations which managed the institutions in which the abuse is alleged to have occurred, the Management Respondents. In order to avoid repetition and in the interests of consistency, it was decided in the second quarter of 2002 that the Committee should attempt to formulate general principles on the issue of prejudice arising from lapse of time and allied issues. A procedural hearing was convened at which the Committee heard submissions from the following parties who represented the principal interests involved in the Committee’s work:1. The Management Respondent of an Industrial School for girls;
2. A Complainant who was alleging she had suffered abuse while resident in the Industrial School referred to at (1);
3. The Congregations of Christian Brothers who were the Management Respondents of both residential and day schools in respect of which allegations were pending before the Committee;
4. A Complainant who alleged abuse as a day pupil in a school managed by the Christian Brothers;
5. The Minister for Education and Science, as the statutory regulator of the majority of the institutions which featured in the Committee’s inquiry; and 6. The Attorney General representing the public interest.
Deadline for Complainants’ statements
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The Committee also heard submissions from the Commission’s legal team. The Procedural Hearing took place over four days ending on 31st July, 2002. It was conducted in public. A provisional ruling of the Committee on the issues raised at the Procedural Hearing (the Provisional Ruling) was published on 9th September, 2002. In it, any party on record with the Committee, who was not represented at the Procedural Hearing, was invited to make submissions in writing on the Provisional Ruling by 4th October, 2002. Submissions which were received were considered by the Committee.A final ruling of the Committee issued on 18th October, 2002 (the Final Ruling).93 In it, the Committee set out the general principles which it proposed to apply in relation to the issues in controversy, but emphasised that, where the interests of fairness so dictated, such principles would not be applied to a particular decision or determination. A direction for payment of the legal costs of the representative parties who were involved in the Procedural Hearing was made on 4th December, 2002.94 The correctness in law of the Final Ruling was subsequently challenged in the Christian Brothers’ Proceedings.
Apart from the Procedural Hearing on lapse of time, the other major event in the life of the Committee in the summer of 2002 was the expiration of the deadline for receipt of Complainants’ statements on 30th June, 2002. For the first time, the Committee was able to assess the total number of Complainants who remained committed to the process following the enactment of the Act of 2002. At that juncture, the figure was approximately 1,800.
Review of procedures
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When all the Complainants’ statements had been submitted, the Committee, also for the first time, was able to get an overview of the institutions which featured in the allegations and the number of individuals against whom abuse was alleged, although at that stage it had no way of assessing whether those individuals were alive or dead and if alive, whether they were traceable and, if so, whether they were capable of giving evidence. On the basis of the information then available, the Committee decided, as was announced in the Provisional Ruling of 9th September, 2002, to review its procedures.Effect of decision to review procedures
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As a consequence of the decision to review the procedures of the Committee, no individual hearings, other than hearings which had already been listed for September 2002, were scheduled. Thereafter, the work of the Committee was concentrated on preparing complaints for hearing in batches where the complaints were linked by93 Posted on the Commission’s website.
94 Posted on the Commission’s website.
institution or institution type, rather than for individual hearing. Because of the intervention of the Government review, no further evidential hearings were conducted.
Framework of procedures
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The Commission’s legal team consulted with the legal teams for representative Complainants and Respondents in September 2002. Following the consultation process, a Framework of Procedures was drawn up which envisaged the inquiry being conducted on a modular basis, the unit of the inquiry being a specific institution (for example, a specific Industrial School) or a type of institution (for example, National Schools). While under the procedures which had previously been applied, each Complainant had his or her own discrete hearing, under the Framework, a Complainant would give evidence in the module or modules to which his or her allegations related. For convenience of reference the text of the Framework is set out in Appendix E. The Framework was circulated to all parties on record with the Committee on 18th November, 2002.95 Submissions in relation to the procedures outlined in the document were invited from parties involved in the process by 5th December, 2002. As was stated in the Framework, the implementation of the procedures envisaged in it was wholly contingent on resources which the Commission had sought from the Minister for Education and Science being made available as a matter of urgency. The resources which the Committee considered it needed and which it applied for were sufficient resources to enable the Committee to conduct its hearings through four divisions working simultaneously preparing for hearing, and hearing, modules. The Commission received twenty-eight submissions on the Framework, of which twenty-two, which were submitted by the following parties, required consideration:■ Complainants (2)
■ Solicitors for Complainants (6)
■ Solicitors for Individual Respondents (3)
■ Solicitors for Congregations, who are Management Respondents in the process (8)
■ Solicitors for Health Boards, who are Management or Regulatory Respondents in the process (2)
■ The Chief State Solicitor for the Minister.
Transfers from the Confidential Committee
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The Act96 enables a person to transfer from his or her Committee of first choice to the other Committee. From time to time, witnesses who initially had chosen to give evidence to the Confidential Committee have transferred to the Investigation Committee. Being conscious of the fact that all complaints which related to a particular module required to be before the Committee when modules were being identified and assigned, the Commission imposed a final date for transfer from the Confidential95 It was also posted on the Commission’s website.
96 Section 19.
Committee to the Investigation Committee. The deadline was 31st January, 2003. From that date onwards, the case load of the Investigation Committee could not increase.
Government review of mandate
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On the final date for submissions in relation to the Framework, 5th December, 2002, the Commission received notification of the Government’s decision on its request for resources and of its decision to review the Commission’s mandate. The ensuing interaction between the Commission and the Department and the Commission’s involvement with the Review has been outlined earlier.97 The practical effect of the announcement of the review on the work of the Committee was that finalisation of the Framework was deferred pending the completion of the review. In the event, the outcome of that review was never published. As a consequence:■ The Framework was never finalised.
■ No evidential hearings were convened thereafter.
■ The focus of directions for discovery which issued thereafter was predominantly on State parties.
Deadline for Respondents’ statements.
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At the beginning of 2003, steps were taken to accelerate the completion of the preliminary inquiries. A final date for submission of Respondents’ statements was imposed in March 2003. The deadline was 2nd May, 2003. However, in the case of the Respondents with the greatest number of complaints to respond to, the deadline was extended. In particular, following a procedural hearing which was held in public onth March, 2003,98 the Christian Brothers were allowed the following extensions:
■ until 31st July, 2003 to submit statements in relation to Artane Industrial School, and
■ until 30th September, 2003 to submit statements in relation to St. Joseph’s Industrial School, Letterfrack.
Preparation of modules
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In anticipation of the outcome of the review, preparatory work continued on modules which had been identified, including the Newtownforbes Industrial School module.99 The Commission’s legal team was expanded to facilitate the preparation of modules.Christian Brothers’ proceedings
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In February 2003, the Congregations of Christian Brothers initiated a plenary action in the High Court seeking various declaratory reliefs, including a declaration that the Committee’s Final Ruling of 18th October, 2002 on lapse of time and allied issues is wrong in law in certain respects and offends the principles of natural and constitutional justice in other respects. In the alternative, the validity of certain provisions of the Act97 See chapter 2.
98 The Ruling of the Committee dated 27th March, 2003 is posted on the Commission’s website.
99 See chapter 9.
having regard to the provisions of the Constitution is impugned. The proceedings are still pending in the High Court.100
Further review