Murray v Commission to Inquire into Child Abuse

• Jurisdiction: Ireland
• Judge: Mr. Justice Henry Abbott
• Judgment Date: 27 January 2004
• Neutral Citation: [2004] IEHC 102
• Court: High Court
• Docket Number: [2003 No. 1998 P]
• Date: 27 January 2004

[2004] IEHC 102

THE HIGH COURT

[Rec. No. 1998P/2003]

HC 225/04

MURRAY & GIBSON v. COMMISSION TO INQUIRE INTO CHILD ABUSE & ORS

BETWEEN

MICHAEL MURRAY AND DAVID GIBSON

PLAINTIFFS

AND

THE COMMISSION TO INQUIRE INTO CHILD ABUSE, THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Citations:

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S1

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S4

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S5

CANADA, AG V CANADA (COMMISSIONOF INQUIRY ON THE BLOOD SYSTEM) 1997 3 SCR 440

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S12

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S13

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S25

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S15

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S11(4)

DUNNE V DPP 2002 2 ILRM 241

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S1(1)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S4(1)(A)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S14

CONSTITUTION ART 6

CONSTITUTION ART 15.5

MAGUIRE V ARDAGH 2002 1 IR 385

BORGES V FITNESS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL UNREP O CAOIMH 5.3.2003 2003/6/1109

LOFTUS V AG 1979 IR 221

GOODMAN INTERNATIONAL V HAMILTON 1992 2 IR 542

MCMAHON V LEAHY 1984 IR 525

MCCONNELL V UK 2000 30 EHRR 289

PROCOLA V LUXEMBOURG 1955 22 EHRR 193

COMMISSION TO INQUIRE INTO CHILD ABUSE, RE 2002 3 IR 459 2003/9/1901

HAUGHEY, RE 1971 IR 217

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S14(4)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S21

MAHON V AIR NEW ZEALAND 1984 3 AER 201

FINLAY INQUIRY INTO THE REPORT OF THE IRISH BLOOD TRANSFUSION SERVICE 1997

HILLIARD V PENFIELD ENTERPRISES LTD 1990 1 IR 138

MCDONNELL V BRADY 2001 3 IR 588

KELLY V UK UNREP ECHR 4.5.2001

OSMAN V UNITED KINGDOM (UK) 1999 29 EHRR 245

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 62 BMLR 16

X CO COUNCIL V A 1985 1 AER 53

DPP V QUILLIGAN (NO 3) 1993 2 IR 305

B V DPP 1997 3 IR 140

O'C (J) V DPP 2000 3 IR 478

O'C (P) V DPP 2000 3 IR 87

L (J) V DPP 2000 3 IR 122

O DOMHNAILL V MERRICK 1984 IR 151

TOAL V DUIGNAN (NO 2) 1991 ILRM 140

PRIMOR PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459

O'KEEFFE V COMMISSIONER OF PUBLIC WORKS UNREP SUPREME 24.3.1980 1980/9/1610

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S54(4)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S13(1)

COMPANIES ACT 1990

CIVIL LIABILITY ACT 1961 S8

MCCARTHY V SOUTH INFIRMARY UNREP ABBOTT 7.3.2003

FLOOD V LAWLOR 1999 3 IR 107

SCARRIFF V TAYLOR 1996 1 IR 242

MURPHY V FLOOD 2000 2 IR 298

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

R V CHIEF CONSTABLE OF NORTH WALES POLICE EX PARTE EVANS 1982 1 WLR 1155

UNIVERSITY OF LIMERICK V RYAN UNREP BARRON 21.2.91 1991/6/1486

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

R V CHIEF CONSTABLE OF NORTH WALES POLICE EX PARTE EVANS 1982 1 WLR 1155

HOUSING ACT 1966

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 2

LAW REFORM COMMISSION CONSULTATION PAPER ON DEFAMATION (1991)

DUNCAN & NEIL DEFAMATION 1978 PAR 6.13

TRUSTEES (APPOINTMENT OF NEW TRUSTEES) ACT 1850

TRIBUNALS OF UNQUIRY (EVIDENCE) ACT 1921

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S5(4)

BABINGTON COUNTY COURT PRACTICE 2ED

CLEGG V CLEGG 22 ILTR 42

HARNETT, RE 17 LR IR 543

DUFFY (DECEASED), RE 5 LR IR 92

WARD V HAROLD 27 ILTR 115

COUNTY COURTS (IRL) ORDERS 1890

CARLTON THE JURISDICTION & PROCEDURE OF THE COUNTY COURTS IN IRELAND

FERRIS V HANNAH (CIRCUIT COURT)

BOAK V MOORE 7 LR IR 322

SCANLAN PRACTICE & PROCEDURE IN ADMINISTRATION MORTGAGES SUITS IN IRELAND 1963 53

HEALEY V BRIGHT 1936 70 ILTR 224

SOMERS V ERSKINE 1944 IR 368

COUGHLAN V CORCORAN 1950 48 ILTSJ 84

WILLIAMS EXECUTORS & ADMINISTRATORS 1893 9ED PART IV P1658

MCCARRON V MCCARRON UNREP SUPREME 13.2.1997 1997/4/1414

CARTER V ROSS UNREP MURPHY 8.12.2000

CANNON & NELLIGAN EVIDENCE

FENNELL LAW OF EVIDENCE IN IRELAND

PHIPSON EVIDENCE 15ED 2000 P306

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S5

EAST DONEGAL COOPERATIVE V AG 1970 IR 317

KELLY V O'LEARY 2001 2 IR 526

LAW REFORM COMMISSION CONSULTATION PAPER ON PUBLIC INQUIRIES 2003

CONSTITUTION ART 6

STATUTE OF LIMITATIONS ACT 1957

FAMILY LAW ACT 1995 S29

Synopsis:

- [2004] 2 IR 222

Facts: The plaintiffs, acting on behalf of the congregation of Christian Brothers, brought proceedings challenging certain aspects of the procedures of the Commission established to inquire into child abuse and also sought to challenge the constitutionality of the Commission to Inquire into Child Abuse Act, 2000 ('the 2000 Act'). The plaintiffs claimed that the Commission was empowered to make findings of sexual abuse against persons who were either dead, suffering from a disability or missing and therefore unable to rebut the relevant allegations. It was contended that many of the allegations related to incidents that had occurred many years ago and evidence to contest same was unavailable. Issue was also taken with the entitlement of the Commission to make findings against deceased persons and publish same in the public domain. The plaintiffs challenged rulings issued by the Commission relating to the interpretation of the 2000 Act and its statutory functions as being contrary to natural and constitutional justice. The defendants rejected the claims of the plaintiffs and submitted that the lapse of time that had occurred was not a reason for the Commission not to investigate matters before it. Furthermore it was contended that deceased persons were not entitled to the protection of personal rights relating to good name and character and there was no absolute barrier to investigating or publishing findings against dead persons. The plaintiffs' claim was both hypothetical and premature and the 2000 Act enjoyed the presumption of constitutionality.

Held by Abbott J in making the following order. There was no constitutional right of deceased persons to a good name. However in cases where evidence was given against absent persons a standard of corroboration was required before the Commission made an adverse finding. There was a statutory mandate upon the Commission to inquire into all the available evidence which outweighed the difficulties presented by the lapse of time that had occurred. A declaration would be made in favour of the right of representative of the deceased and those incapacitated to cross-examine on their behalf in the interests of fair procedures and constitutional justice. A declaration would also issue that the Commission provide the parties to the inquiry with an interpretation of the terms of reference provided by the 2000 Act insofar as it related to corroboration and testing of evidence of witnesses including complainants and respondents.

Reporter: R.F.

1 JUDGMENT of Mr. Justice Henry Abbott delivered the 27th day of January 2004 .

INTRODUCTION

2 The plaintiffs are members of, and nominated to represent the interests of, the congregation of the Christian Brothers. The first named defendant is a body corporate established pursuant to the provisions of the Commission to Inquire Into Child Abuse Act, 2000(hereafter "the Act"). The plaintiffs dispute a final ruling of the Investigation Committee of the first named defendant made on the 18 ^th October, 2002.

3 In simple terms the issue in the proceedings is whether the Committee is empowered to make a finding of serious sexual abuse by one person in a particular institution of another, within that institution, within a period many years ago in circumstances where that first person is either dead, under a disability, unplaced or disadvantaged in the inquiry by reason of being hampered or hindered from rebutting the allegations, due to prejudice caused by the lapse of time since the alleged incidents took place.

THE ACT

4 The long title of the Act is as follows:

5 AN ACT TO ESTABLISH A COMMISSION, TO BE KNOWN AS AN COIMISI ÚN CHUN DROCH ÚS ÁID LEANAÍA FHIOSR Ú, OR, IN THE ENGLISH LANGUAGE, THE COMMISSION TO INQUIRE INTO CHILD ABUSE, TO INVESTIGATE CHILD ABUSE IN INSTITUTIONS IN THE STATE, TO ENABLE PERSONS WHO HAVE SUFFERED SUCH ABUSE TO GIVE EVIDENCE TO COMMITTEES OF THE COMMISSION, TO PROVIDE FOR THE PREPARATION AND PUBLICATION OF A REPORT BY THE COMMISSION CONTAINING THE RESULTS OF ITS INVESTIGATION AND ANY RECOMMENDATIONS IT CONSIDERS APPROPRIATE FOR THE PREVENTION OF CHILD ABUSE, THE PROTECTION OF CHILDREN FROM IT AND THE ACTIONS TO BE TAKEN TO ADDRESS ANY CONTINUING EFFECTS OF CHILD ABUSE ON THOSE WHO HAVE SUFFERED IT AND TO PROVIDE FOR RELATED MATTERS.

6 Section 1, subsection 1, provides as follows:

7 1. - (1) In this Act, unless the context otherwise requires-

8 "abuse", in relation to a child, means-

9 a ( a) the wilful, reckless or negligent infliction of physical injury on, of failure to prevent such injury to, the child,

10 b ( b) the use of the child by a person for sexual arousal or sexual gratification of that person or another person,

11 c ( c) failure to care for the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare, or

12 d ( d) any other act or omission towards the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare,

13 and cognate words shall be construed accordingly;

14 "Commission" means the Commission to Inquire into Child Abuse established by section 3;

15 "Committee" means, as the context may require, the Confidential Committee or the Investigation Committee...