UK report suggests 'over-enthusiastic' pursuit of abuse allegations can leadto miscarriages of justice, says counsel
Lawyers for the Christian Brothers have drawn the High Court's attention to a report of a UK Parliamentary Committee which suggested that "a new genre of miscarriages of justice" has arisen from the "over-enthusiastic pursuit" of allegations of child abuse in children's homes and other institutions.
Ms Mary Irvine SC, for the Christian Brothers' Congregation, read from sections of the report at the continuing hearing yesterday of proceedings by the congregation against the Laffoy Commission into institutional child abuse.
The report by the Home Affairs Committee of the UK Parliament dealt with the conduct of investigations into past cases of abuse in children's homes.
Some 700 allegations of abuse have been received by the Laffoy Commission against present, former or deceased members of the Christian Brothers' Congregation.
It contends the commission should not name deceased members of the order in the commission's eventual report.
It also objects to the commission, which is headed by Ms Justice Laffoy, making findings of abuse against deceased persons and others whom the congregation describes as too elderly or infirm to give instructions, who cannot be located and who are otherwise prejudiced in their ability to defend themselves.
The action is against the commission, the Minister for Education and Science and the Attorney General, all of whom are opposing the proceedings.
Yesterday, while stating she was not suggesting there was any kind of "trawl" being conducted by the commission's investigation committee, Ms Irvine said there must be a "great risk" that persons coming from a support group could meet with other survivors' groups and pass on information "albeit in an innocent way".
She noted the UK report pointed out that the consequences of false allegations can be devastating for those against whom the allegations are made and their families.
The report also noted that the defendants in abuse cases face enormous prejudice at trial, particularly through the very nature of the offence alleged.
The report said child abuse was so totally divorced from the experience of most people that juries were more likely to believe allegations of abuse on the basis there was "no smoke without fire". It expressed concern about proposals to remove safeguards for defendants and suggested these might further prejudice defendants in historical child abuse trials.
She was also contesting the right of the investigation committee to reach findings of abuse against an individual or institution on the basis of aggregated and accumulated evidence without first reaching a specific determination in the case of each allegation.
She further argued there was no entitlement on the part of the committee to "water down" the "lapse of time" jurisprudence of the courts when dealing with allegations dating back many years.
Later yesterday, Ms Irvine sought to call evidence in relation to the effect of lapse of time on the memories of complainants and alleged abusers from a psychiatrist, Prof Patricia Casey. Counsel for the Commission and the State objected on the grounds this evidence had not been put before the commission itself.
After legal submissions, both sides agreed that it was not necessary to hear Prof Casey's evidence given that Mr Justice Abbott had said he would take judicial notice that lapse of time may distort the memories of both complainants and respondents and may lead to memory loss.
The hearing continues today.
