In the dark over abuse inquiry

18/05/2006

It is always dangerous to disagree with a judge over his or her interpretation of the law. It is akin to bearding the lion in its den, writes Mary Raftery.

That said, I would like to take issue with Mr Justice Se?Ryan, chairman of the Commission on Child Abuse. My concern relates to the constraints he has placed on lawyers appearing for victims of abuse during their cross-examination of the religious orders.

The commission has just entered the final and critical phase of its inquiries. What it calls its Phase 3 hearings were to have been the climax of the process, allowing for the first time robust cross-examination of the heads of religious orders which ran the industrial schools.

The idea of this phase was that it would probe the areas of accountability and responsibility for the abuse suffered by those who spent time in these institutions as children. Many of the victims of this abuse have already given evidence to the commission. Their testimony was called Phase 2. All of it was held strictly in private, with the result that there has been no public airing whatsoever of the allegations of abuse made to the commission.

For the past two weeks, we have been hearing the defence of the religious orders against these accusations, which remains unknown to us. This cross-examination phase has been eagerly anticipated for some time. It has, however, been shown so far to have been disturbingly brief.

This week's hearings with the Sisters of Mercy, and last week's with the Rosminian order, finished way ahead of schedule. Cross-examination of the Rosminians, who ran seriously abusive institutions at Upton in Cork and at Ferryhouse just outside Clonmel, took only one day out of its allotted three. The Sisters of Mercy were questioned on a number of their institutions, and were let go after only three of the scheduled five days of hearings.

It was in the middle of the cross-examination of Mercy nun Sr Margaret Casey that Mr Justice Ryan made clear the limits he was placing on such questioning.

Sr Casey was being examined by David McGrath SC, representing the victims of abuse at Our Lady of Succour Industrial School in Newtownforbes, Co Longford. He quoted from the sworn testimony given in private during the Phase 2 hearings from a former inmate, and put this to Sr Casey: "I wet the bed frequently, usually out of fear, and for this my day started with a beating." Mr Justice Ryan immediately stopped him. He would not permit him to use victims' testimony in this way, he said, as the law prevented it. He could put general points to the witness (Sr Casey), such as bedwetting in general, but could not question her on specific allegations.

It is worth quoting Mr Justice Ryan's exact words: "There is a specific statutory prohibition on hearing in public or dealing with evidence relating to specific individual complaints of abuse. So, we have to comply with the legislation."

It is indeed true that the early legislation which established the commission stipulated that evidence of abuse allegations should be heard in private. However, this law was amended last year, with an important change made to this particular provision.

Section 6 of the Commission on Child Abuse (Amendment) Act 2005 states that such evidence may in fact be heard in public, should the commission so decide. Mr Justice Ryan himself played a major part in drafting this amending legislation.

This discretion over what is to be private (hidden, secret, even?) and what is to be in full public view has the potential to be an important asset to the commission. It allows it to preserve the privacy of those complainants who might request it, while at the same time being able to make full use of their testimony of abuse during the phase which allows cross-examination of the religious orders.

The practice, however, has been somewhat different. Since we, the public, have not been permitted by the commission to hear the evidence dealing with allegations of abuse, we have received an oddly skewed impression - we hear a public defence where we have not heard the accusations.

To disallow now the specific allegations to be put to the relevant religious orders means that it could be argued that victims' lawyers are forced to operate with one hand tied behind their backs. It also does no favours to the religious orders concerned, insofar as they are denied the opportunity to deal in detail with the allegations made against them.

Next week, we are to hear from the Christian Brothers, against whom possibly the greatest number and the most serious allegations of abuse have been made. It will be our only chance as a society to witness their responses to these allegations.

It would be a great loss were the process of cross-examination to be curtailed in such a way that we will never get to hear the detail of the accusations being levelled against this congregation, together of course with their own defence.

One without the other will always remain only half the story.

? The Irish Times