It is painfully clear Mr Kelly has no experience of the standards of proof applicable to the presentation and conclusion of a Redress Board case. It is equally clear he has no knowledge or understanding of the full extent of institutional abuse in industrial schools in Ireland between 1930 and 1985.
Mr Kelly’s breathtaking ignorance of such matters does not restrict him, however, from promoting his book which he does by seriously inaccurate and loosely worded statements which only serve to further insult and demean the survivors and non-survivors of State-sponsored institutional abuse.
Mr Kelly claims he, in the course of researching his book, “met a number of them declared totally innocent in court who found that their accusers struck gold at the Redress Board”.
What sort of journalism is this? What number of men does he refer to? Who are they? What were they accused of? Did the accused defend themselves before the Redress Board? If not, why not?
Mr Kelly’s glib conclusion that “their accusers struck gold at the Redress Board” is nauseating and no particulars whatsoever have been given of it.
He continues: “There have already been a number of occasions when charges of sexual assault have been found without any basis whatsoever.”
Again, in the loose journalistic style adopted by Mr Kelly, no specifics are given, no example or cases quoted.
Mr Kelly takes the easy route and does not dwell on the true legal difficulties and complexities of such cases. Historically, due to fear and prejudice, complaints were not made. Historically, it has been virtually impossible to prosecute cases of sexual abuse in the criminal courts due to the alleged abusers pleading delay and difficulty in defending themselves after many years and due to non-availability of witnesses.
Similar difficulties have been encountered by plaintiffs in the very few cases that have been taken in the courts seeking redress for abuse.
The most common feature of these cases is the early application of the alleged abuser to strike out the case since it is out of time under the statute of limitations and such applications are made in virtually all cases.
In relation to criminal cases, it is well known that in many hundreds of cases the DPP felt there was insufficient evidence to prove cases of abuse beyond a reasonable doubt. Mr Kelly makes no effort to make this clear or to deal with the legal history surrounding these types of cases.
Because of the foregoing, those who suffered abuse were deflated, hurt and felt let down particularly in so far as they interpreted these difficulties as a further example of their not being believed having had the courage eventually to come forward.
It was these difficulties which led to the setting up of the Redress Board.
Mr Kelly says “it is clear that once financial compensation was put on offer the number of claims of abuse increased exponentially”.
What in fact happened here was that claimants had so many obstacles in their way prior to the Redress Act that very few came forward and those who did, more often than not, did so unsuccessfully. The Redress Act removed various barriers such as the statute of limitations and other legal difficulties which, at last, gave the unfortunate victims a private forum whereby they could process such claims.
Mr Kelly states that when Bertie Ahern gave his apology in respect of such matters of May 1999, “things went haywire”.
Mr Kelly is of the view that the enactment of the redress scheme and the rise by 449 in the number of complaints means things are going “haywire”.
Would he agree that the setting up of the Stardust and the Hepatitis C tribunals, and a sudden increase in the applicants to those tribunals, constituted things going “haywire”?
Mr Kelly also states that “those who carried out abuse should face jail.”
It is a well-known fact that very few such abusers received sentences or were convicted at all, or were indeed prosecuted, and the only successful prosecutions tended to be those where a plea of guilty was forthcoming.
In relation to the operation of the redress scheme, Mr Kelly is indeed correct when he states that Michael McDowell anticipated that the scheme “won’t need strict proof, adversarial justice or courtroom procedures”.
The reality, of course, is quite different. The majority of applicants and legal representatives who have appeared before the board will confirm that the proofs are indeed extremely strict and that adversarial justice is part and parcel of the hearing process which includes lengthy cross-examinations of applicants and legal debate between the applicants’ representatives and the board. The redress scheme adopts the majority of courtroom procedures, but it does not slavishly follow them.
I suspect the reason the system is adversarial is because the Redress Board finds itself in a position where defendants simply do not turn up — in which event the board engages in strict and forensic cross-examination which can be quite distressing for applicants.
Mr Kelly should ask the board how many cases went to hearing and how many alleged abusers turned up? In 99% of the hearings I was involved in, none of the respondents turned up.
If I was accused in the wrong of such things I would defend myself at every opportunity. Would Mr Kelly? Would an alleged abuser?
Mr Kelly’s efforts at categorising victims of institutional abuse alongside garda Blue Flu, army deafness claims and false insurance claims only serves to heap further abuse and injury upon these unfortunate people.
Mr Kelly variously describes the redress scheme as a place where accusers struck gold, a flagrant waste of taxpayer’s money, a State-sponsored honeypot, a State-sponsored ATM machine where virtually anybody who keys in a claim gets a payout.
How wrong you are, Mr Kelly. How many of the 15,500 victims have you interviewed. I suggest you interview, say, 100 of them, then revisit your column of August 21 with shame.
Murphy, English and Co