Q&A: Commission of inquiry or tribunal

There are important differences in the various methods of investigation, writes Juno McEnroe

Q&A: Commission of inquiry or tribunal

What is the difference between a commission of investigation and a tribunal?

The fundamental differences between the two forms of inquiry come down to the latter being held in public, usually being a longer process but also costing more. Ireland has had an unhealthy relationship with tribunals in the past with the Mahon, Moriarty, and Smithwick inquiries among others where eight-digit figures for bills featured like telephone numbers.

It was a key reason former tánaiste Michael McDowell (also a barrister for Maurice McCabe) introduced the new commission of investigations legislation in 2004. Lower cost and greater speed were two advantages flagged with the new inquiry.

However, legal experts also agree a full tribunal will allow more scope for cross-examinations at hearings and will likely be able to make stronger or more specific findings.

Will this benefit whistleblower Sgt Maurice McCabe and his family, who say they have endured a “private nightmare”, not helped by the previous private probes?

A fundamental desire of the McCabes is that there is an end to private inquiries. In his statement this week, Sgt McCabe said they were not agreeable to another commission to conduct “a secret investigation behind closed doors”, where they had no input. Lawyers for the McCabes would have a greater right to directly quiz or cross-examine witnesses about an alleged smear campaign in a tribunal.

Fresh terms can be added to the tribunal too, such as how specifically the Tusla false sex allegations made it into the public domain or who knew what around them. However, the terms will have to be very specific, to stop the inquiry becoming an endless process.

How will the cost and duration of a tribunal differ from a commission of investigation?

Costs are more defined for a commission of investigation and are less, according to senior lawyers. Therefore, we cannot expect a more costly investigation at the very minimum.

The costs and time for previous inquiries, such as the Mahon planning tribunal, stretched on for years and still continue in some cases.

While the previously planned commission over the McCabe smear campaign was set to last nine months, we can expect a full-blown inquiry will last at least a year if not two. It is worth remembering a 2008 Comptroller and Auditor General report on tribunals which blamed their problems on their wide reference terms, extended cross-examination, legal challenges and the non-co-operation of witnesses. All this could happen too.

What are the pros and cons involved in setting up a tribunal as opposed to a commission of investigation, as previously recommended?

Maurice McCabe says that during the O’Higgins Commission, which probed alleged malpractice in the force in Cavan and Monaghan, there were attempts by others to introduce the alleged false allegations against the whistleblower. This was stopped but it never became public. This exemplifies the whistleblower’s frustration over such manipulative secret attempts to discredit him. Draft terms obtained last night for the tribunal now suggest it will investigate how senior gardaí relied upon false allegations of sexual abuse or “other unjustified grounds” to discredit the whistleblower.

What will be different in this full tribunal as opposed to the original planned commission of investigation?

Government sources have confirmed draft terms of the tribunal include Tusla and the HSE, which means the two agencies will give evidence and sworn statements about what they did with accusations pertaining to Sgt McCabe.

Furthermore, the Irish Examiner understands that the Government is looking at how or what the Garda Commissioner did with any allegations or accusations about Sgt McCabe.

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