Christian Brothers challenge Laffoy brief
Lawyers for the order yesterday urged the Commission to avoid reaching any conclusion where the supposed abusers were no longer alive.
However, the Commission was also warned that many alleged victims would not be willing to co-operate further with the inquiry if the Commission chairperson, Ms Justice Mary Laffoy, ultimately made such a ruling. Yesterday's public hearing of the Commission in Dublin heard legal argument on behalf of a number of religious orders and alleged victims about whether the time lapse in hearing the cases would prejudice the alleged offenders.
Mary Irvine SC for the Christian Brothers said any findings based on evidence that could not be contested would be "unreliable" and "totally inappropriate."
"How can the Commission adjudicate in the absence of the party against whom allegations are made," she argued.
The majority of the estimated 2,000 cases being investigated by the Laffoy Commission date before the 1970s with some going back over 60 years ago. Ms Irvine said any adverse finding would also have an effect on the good name of other members of the Christian Brothers who were not the subject of any allegations of child abuse. She pointed out that there was a lack of the usual legal safeguards of a jury and appeal process in relation to the Commission: "You have an asserted wrong that is counterbalanced by nothing. The superior courts have found that unsafe. It is a one-sided account."
However, Ms Irvine added: "We are not saying that you can never make a finding where people are dead."
She accepted that the Commission could make findings against an alleged offender where there were a large number of similar complaints. However, Ms Irvine warned that it was too easy for the Commission to believe "its foremost function is to adjudicate between a complainant and respondent."
The barrister reminded the Commission that it had no legal obligation to "name and shame" people even where it was satisfied that abuse had taken place.
"It is not the top priority of your work," she remarked.
However, David McGrath SC for one of the alleged victims, said Ms Irvine's argument was based on "a legal fallacy" that no evidence could be taken about a dead person because they were no longer alive. "That is done day in and day out in the civil courts," said Mr McGrath. He warned that a large number of alleged victims might not be prepared to continue to co-operate with the Commission if Ms Justice Laffoy was to rule in favour of Ms Irvine's argument.
In a separate matter, the Oblates of Mary Immaculate were criticised for their delay in producing documentation sought by the commission.
The hearing was told that the commission was anxious to obtain records from an unnamed school run by the religious order which closed in 1974. The inquiry heard that over 180 cases of alleged child abuse relate to the Oblates.
