People found to be the perpetrators of child abuse and religious institutions should be identified unless there are strong reasons not to do so, the Laffoy Commission was told yesterday.
Mr Frank Clarke SC, legal adviser to the commission, also stressed that the purpose of the commission was not to solve individual complaints. It was not like a court, he said.
He was making a submission at a public hearing to consider whether findings of abuse should be published, particularly where there were considerable time delays, and whether there were limitations on the jurisdiction of the commission.
Mr Clarke said the role of the investigative committee was in naming individual perpetrators or those respondents in institutions of abuse.
"Given the statutory mandate you have, you should only decline to make a determination and to give publicity to the determination if you consider it to be unsafe," he said.
The legislation gave a mandate to the commission to make a determination and it also gave a further discretion on whether or not the individual should be named.
Mr Clarke said the inquiry process would be a pointless exercise if the commission did not go on to identify the perpetrators. The statutory remit did not confine the commission only to hearing complaints, he said.
"The commission has almost got into an inappropriate mindset by way of looking into individual cases," he said. The commission was an inquiry looking at things on an institutional basis, he added.
Ms Justice Laffoy, chairwoman, said they had an awful lot of knowledge of the facts about institutions and they tried to test memories as to facts, personnel, distribution of buildings.
"We see it as our job to test recollections. We would see it as our duty as we have to be satisfied."
Mr Clarke said counsel for the orders had placed far too little weight on the fact that the Oireachteas identified that it was a matter of the public good.
Mr Kevin Feeney SC, for the sisters who ran 26 industrial schools, said where there was only the evidence of the complainant, where the respondent or witnesses were dead, there was no alterative but to say there was a real risk of an unfair determination.
In that case, what followed was the that commission could not name an individual or institution. As to the reputations of dead people, they overlapped onto the continuing interests of the order.
Ms Mary Irvine SC, for the Christian Brothers, said the commission should be cautious in identifying anybody as being perpetrators of abuse, particularly against dead respondents.
"If the legislative intent was that you, as Mr Clarke says, should identify the perpetrator, I believe it would have been stated in the Act," she said.
This was going to be the history, almost the bible of abuse in this country from the 1940s, she said. She hoped that nobody would be named in that history unless fair procedures and natural justice had been applied.
Ms Justice Laffoy said she hoped to have reached a provisional ruling by the first week of September.