The Minister for Justice has insisted that the inquiry he has set up into the 2002 death of 14-year-old Brian Rossiter after a night in Garda custody will be able to get at the truth.
The Department of Justice issued a statement to this effect at the weekend after the Rossiter family's solicitor Cian O'Carroll said he had concerns about the legislation on which the inquiry was based, the Dublin Police Act. Mr O'Carroll said he believed this Act only allowed for an investigation into alleged wrongdoing if there was a complaint against a specific named garda.
"For that reason, it would not appear to give Hugh Hartnett licence to embark into a general inquiry into the manner and condition of Brian Rossiter's arrest and detention," he said.
Officials at the Department of Justice worked over the weekend on the terms of reference for the statutory inquiry to be conducted by barrister Hugh Hartnett SC. Mr O'Carroll said yesterday that the Rossiter family would like the inquiry to take place in public, but they did not yet know whether this would happen.
The department said yesterday it would send the terms of reference to Mr Hartnett next week "following consultation with the relevant parties". Mr O'Carroll confirmed yesterday that as the family's representative, he was among those to be consulted.
"The terms of reference will enable Mr Hartnett to inquire into all the circumstances surrounding the arrest and treatment in custody of Brian Rossiter and the role of all gardaí who came into contact with him over the relevant period," the Department said.
"The Minister is completely satisfied that this can be achieved through the inquiry format which has been decided upon, ie the Dublin Police Act 1924, as amended," it added.
Mr O'Carroll said he believed the most appropriate mechanism to carry out a full and proper inquiry would be through the Commissions of Investigations Act 2004, which would allow for a comprehensive and more efficient inquiry.
He said yesterday that while he understood that the Minister had very good legal advice available to him, "I still have some concerns that this will restrict Mr Hugh Hartnett somewhat".
He added: "In particular the problem we have is that the legislation allows him to examine the truth of any complaint of neglect or violation of duty by a member of An Garda Síochána.
"That effectively means that there must be in existence a complaint against a member before he can inquire into that. That is not the case at the moment. There is a general complaint against the manner in which Brian was treated in custody."
Pat and Siobhán Rossiter had been pressing Mr McDowell for an inquiry into the arrest and detention of their son, Brian, who was found unconscious in a cell in Clonmel Garda station following his arrest in the town on September 10th, 2002. He was discovered unconscious at around 9am on September 11th and was rushed by ambulance to St Joseph's Hospital in Clonmel. He was later transferred to Cork University Hospital but he never regained consciousness and died on September 13th.
The family later learned that another juvenile arrested with Brian alleged that he was assaulted by a named officer, and that Brian had told him he had also been assaulted by gardaí after being arrested.