Meenan v Commission to Inquire into Child Abuse

JurisdictionIreland
JudgeMR. JUSTICE T.C. SMYTH
Judgment Date03 June 2003
Neutral Citation2003 WJSC-HC 8266
CourtHigh Court
Date03 June 2003

2003 WJSC-HC 8266

THE HIGH COURT

Record No. 197Sp No./2003
Record No. 404JR/No./2003
MEENAN v. COMMISSION TO INQUIRE INTO CHILD ABUSE
DUBLIN
COMMISSION TO INQUIRE INTO CHILD ABUSE ACT, 2000

and

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT, 2000
(ADDITIONAL FUNCTIONS) ORDER 2001 (S.I. No. 280 of 2001
IN THE MATTER OF THE COMMISSION TO INQUIRE INTO
CHILD ABUSE ACT, 2000, SECTION 14(3)

and

IN THE MATTER OF PROFESSOR PATRICK MEENAN

AND

DUBLIN
(JUDICIAL REVIEW)
Between/
PATRICK MEENAN
Applicant
-and-
COMMISSION TO INQUIRE INTO CHILD ABUSE
Respondent
Abstract:

Tribunals of inquiry - Commission to Inquire into Child Abuse - Witnesses - Direction to witness requiring attendance - Whether direction valid - Commission to Inquire into Child Abuse Act 2000, s.14(3)

The Commission issued a direction to the applicant to attend a public hearing of the vaccine trials division so that he might be examined on oath as to his involvement in the trial of the vaccine. The applicant indicated that he was unable to attend by reason of his age and ill health and ultimately issued proceedings challenging the validity of the direction.

Held by Smyth J. in making an order compelling the applicant to comply with the direction that the Commission did have jurisdiction to issue the direction and the direction was valid. The applicant was both a relevant and material witness and ought to have applied for an exemption from giving evidence before the issuing of the direction.

1

MR. JUSTICE T.C. SMYTH DELIVERED ON THE 3RD DAY OF JUNE 2003

2

I hereby certify the following judgment to be a true and accurate transcript of my shorthand notes in the above named judgment

MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT, AS FOLLOWS, ON THE 3RD DAY OF JUNE 2003
Introduction:
3

The Commission to Inquire into Child Abuse Act, 2000(hereinafter referred to as “the Act”) established a Commission and entrusted to it the role of inquiring into child abuse as defined in the Act. Two Committees were established under the legislation referred to respectively as the Confidential Committee, which had a “listening function”, and the Investigation Committee, which is charged in the general legislation with carrying out an inquiry by way of the ascertainment of facts.

4

The Oireachtas, on foot of the powers contained in the Act, added a further function to the Commission which was formulated under the Statutory Instrument referred to in the title hereof and hereinafter referred to as “the Statutory Instrument”. That function is, for convenience, referred to as “the Vaccine Trials issue”. This is a matter that the Commission is about to embark upon. The Statutory Instrument specifically confers the function of inquiring into the Vaccine Trials to the Investigation Committee. An additional member was appointed by the Government on foot of the statutory power to enable the Commission to establish a division to deal specifically with the question of the Vaccine Trials, referred to as the Vaccine Trials Division, which comprises the chairperson of the Commission, Ms. Justice Laffoy, and Professor Tempany (who has been added to the Investigation Committee and allocated to the Vaccine Trials Division). For ease of reference, I shall refer in this judgment to the Commission, rather than to Committee or Division (the greater including the less).

5

The Commission has for some time been carrying out preliminary investigative work and collecting evidence. It is anticipated that the Commission will in the very near future undertake its allotted task in a more public forum than the mere collection of documentation. There are three specific trials with which the Commission is concerned. Trial 1 is that with which the Division is most immediately concerned with and which it is hoped to have evidence from the Respondent for the oral hearing of that trial.

6

The Chairperson of the Investigating Committee of the Commission issued, on 31st March 2003, pursuant to the powers vested in her by Section 14(1) of the Act, a direction (hereinafter referred to as "the Direction") to Professor Patrick Meenan, the Respondent in the Special Summons and the Applicant in the Judicial Review proceedings, to attend a public hearing of the Vaccine Trials Division at the Arbitration Centre, the Distillery Building, 145-151 Church Street Dublin 7, on Tuesday, 17th June 2003, at 10.30am and thereafter from day to day as required. Prof. Meenan was directed to attend so that he might be examined on oath as to his involvement in the trial of a vaccine carried out in five Mother and Baby Homes and one Industrial School in 1960/1961. It was the view of the Commission that as a primary participant in the said trial into which the Commission is statutorily mandated to inquire that he occupies a central position as a witness to the Commission and, more specifically, as someone with particular knowledge as to the circumstances and conduct of the said vaccine trials.

7

Between 15th April 2002 and 8th May 2003, there was a protracted correspondence between the Commission and the solicitors instructed by Prof. Meenan. That correspondence indicates that Prof. Meenan intends to refuse to comply with the Direction to attend to give evidence. By letter dated 30th April 2003, the Commission sent to the Respondent a quantity or bundle of documents prepared by the Commission relating to the said trial which clearly, in the view of the Commission, shows his centrality to it. The view of the Commission is that the participation of Prof. Meenan as a witness before the Commission is a matter-which could potentially affect other interested persons. The documentation exhibited in these proceedings included a transcript of a hearing before the Commission on 20th March 2003. A number of interested parties appeared before the Commission, which included religious orders which had charge of six Residential Institutions, the Health Boards in whose functional areas the Institutions were, the Department of Health, and, University College Dublin (to which at the material time Professor Meenan, and a Professor Hillary, were attached) and Glaxo Smith Kline, the successors to the company which supplied the vaccine at the relevant time. There were some individuals also who considered they had an involvement in this regard and they made their representations to the Commission.

8

Prof. Meenan was Professor of Microbiology and Applied Medicine in University College Dublin from in or about the year 1958 until his retirement in or about the year 1984. He has retired from all professional functions and duties and has not practised medicine or otherwise been engaged in professional activities since in or about the year 1989. He had a remarkable and illustrious career, as is clear from the documentation placed before the court. In or about the year 1960, certain clinical trials were undertaken by, inter alia, staff attached to the Department of Microbiology at University College Dublin at the time, when Prof. Meenan was the head of the said Department.

9

I am satisfied that Prof. Meenan fully understands the necessity for the Commission to discharge its mandate to the fullest possible extent and that he understands the necessity to allay any public concerns there may be concerning the carrying out of the clinical trials in question. He has to date co-operated with the work of the Commission and provided it with a lengthy statement relating to his recollection of matters being considered by the Commission, and has also provided the Commission with an Affidavit of Discovery.

10

His difficulty is simply that, having regard to his age and state of his health, he does not have the physical or mental capacity to withstand what would necessarily be required of him, as he understands it, were he to be a witness before the Commission. He believes he may not have the concentration, stamina or energy to withstand what he perceives may be an ordeal in the giving of evidence before the Commission. He, himself, does not see his role as having been central, but whatever his view in this regard is, I am satisfied from a detailed consideration of the documentation placed before the court that he is a relevant witness and a significantly important witness, a view that appears to have been expressed by the Commission by reference to an expression of "centrality".

Review of Correspondence:
11

Communications between the Commission and Prof. Meenan are variously exhibited in the affidavit of Robert Kerr sworn on 14th May 2003, (exhibit RBK2(b)) and in that for Prof. Meenan (as Exhibit MM(a)), referred to in the affidavit of Margaret Muldowney sworn on 22nd May 2003. The documentation reveals a situation in which the health of the Respondent became a matter of reference as at 15th April 2002. The Commission, in its letter of 24th April 2002, assured the Respondent of its compassion and respect for his health and welfare in his dealings with the inquiry. In the period covered by the communications between the Commission and Prof. Meenan, it is clear that he had a bereavement, a personal accident in his home, and some adjustments to be made as a result of both those events. A medical report was made available to the Commission at the end of April 2002.

12

In November 2002, the Commission was concerned about the information being conveyed to it concerning Prof. Meenan's state of health and the impact which it was stated it had upon his ability to co-operate fully with the inquiry and a request was made for an up-to-date medical report concerning his condition and the alleged adverse effects upon him of his involvement in co-operating with the inquiry. The Commission was seeking to obtain from the Respondent a statement which might assist it in its inquiry and such as would "obviate the necessity for protracted examination and cross-examination in public on the issues...

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