Inquiry gets go-ahead to continue its work, writes Carol Coulter, Legal Affairs Correspondent.
If there were hopes abroad that the work of the Laffoy Commission would be curtailed by the High Court in the Christian Brothers' challenge to its investigation work, these will have been dashed by Mr Justice Abbott yesterday.
The challenge centred on the Brothers' claim that it was unfair, and possibly unconstitutional, that findings of fact relating to physical and sexual abuse of children could be made by the commission against members of the congregation who were dead, or too old and infirm to defend themselves.
While Mr Justice Abbott gave three declarations concerning the need for corroborating evidence, clarifying the use of "aggregated" evidence, and the right of legal representatives of dead and infirm brothers to cross-examine, his judgment amounts to an endorsement of the commission's procedures for examining allegations of abuse against members of religious orders.
If the congregation had been successful in its challenge, it would have severely curtailed the commission's work. The only cases that could have been investigated would have been those where the alleged abuser was alive, in good health, and capable of providing detailed instructions to legal representatives.
Much of the work of the commission would have had to be discontinued because the bulk of the 700 cases now before it relate to the 1940s and 1950s, and therefore most of those accused, if alive, are in their 70s and 80s.
The commission's new chairman, Mr Sean Ryan SC, who was in court yesterday to hear the declarations, will now incorporate the judgment into his review of the remit of the commission, requested by the Government. He was asked to complete it within eight weeks, so it should be ready by the end of next month.
However, the Christian Brothers may well appeal the judgment to the Supreme Court. If they do, they are likely to ask for, and receive, an early hearing.
Meanwhile, Miss Justice Laffoy is working on her interim report on the work of the commission so far. That too is expected to be ready by late November. It is likely, therefore, that the commission's investigations, which were effectively suspended when the Government announced it was reviewing its remit, will resume at the beginning of the new year under Mr Ryan, who is due to be appointed as a judge of the High Court.
The Christian Brothers' challenge to this work centred on whether or not it was fair to investigate allegations against members or former members of the congregation who were unable to answer these allegations, because they were untraceable, too old and infirm, or, in many cases, dead.
They argued that the allegations were such that, if the commission upheld them, the reputations of those concerned, and of the congregation as a whole, would be deeply damaged. The families and colleagues of those who were ill and infirm would be affected. The passage of time, the fact that it would be impossible for many of the accused to defend themselves, all made the process unfair and contrary to constitutional guarantees of fairness.
All these arguments were already put to the commission itself in a challenge that was the subject of a procedural hearing in July 2002. The commission gave its ruling in October that year, where it spelled out its own interpretation of its powers under the Act setting it up. The Brothers challenged that interpretation in its case to the High Court.
In particular, they challenged the right of the commission to name in its final report accused people who were dead, disabled, unlocated or otherwise disadvantaged.
During the High Court hearing the commission's legal team further elaborated on its procedural ruling, explained how it was going about its work, and what guarantees it gave to those accused of abuse.
It stressed that the purpose of its final report was not "naming and shaming" individuals. However, because it had been asked by the Oireachtas to investigate if abuse occurred in institutions, when, of what type and where responsibility lay, the naming of individuals could arise.
Mr Justice Abbott accepted the general validity of its procedural ruling. He also agreed that dead people do not have a constitutional right to their good name. A religious congregation is entitled to its good name, and has the right to legal representation to defend it.
Referring to the question of possible findings against dead people or those unable to defend themselves, the judge said that such findings should not be made without corroboration. However, he left it up to the commission to use its discretion on corroboration, asking it to provide parties to the inquiry with an interpretation of the terms of reference in this regard.
The Brothers had also challenged one aspect of the commission's work where it required those accused to submit an outline of their responses so it could structure the cross-examination of complainants. The congregation pointed out that this was impossible where the accused was dead or incapable, and Mr Justice Abbott said that such a person's legal representatives should not be restricted in their cross-examination as a result.
He also commented on one suggestion that had emerged during the trial. This came from the commission, where it said that the inquiry would only extend as far as "finding enough" cases on which it could base a conclusion. While this did not go as far as the "sampling" proposal made by the Government during the controversy over the future remit of the commission, it did suggest that not all cases would be fully heard.
"I strongly disagree with such a quantitative approach," said Mr Justice Abbott, in a remark that is likely to be taken on board by Mr Ryan's review.