The parents of schoolboy Brian Rossiter are angry with the terms of reference for the statutory inquiry and are seriously considering not participating in it, their solicitor said today.
The Minister for Justice Michael McDowell established the inquiry, to be led by senior counsel Hugh Hartnett, to inquire into the arrest of the 14-year-old boy who fell into a coma in Garda custody and later died.
Cian O'Carroll said the problem was that the terms of reference constitute a set of six allegations against six named gardaí and one retired garda superintendent. "None of the allegations come close to the real nib of this case which is 'was Brian Rossiter killed as a result of the actions of gardai on the night'?"
Speaking on RTE Radio One today Mr O'Carroll said Pat and Siobhan Rossiter were seriously considering not participating in the inquiry unless it was reframed and may rely instead on a High Court case to inquire into the factors leading to Brian's death.
"The High Court provides a much better venue and forum to bring out the real truth of what happened to Brian than this inquiry does," he said.
Siobhan Rossiter has started High Court proceedings against the Minister for Justice, the Garda Commissioner and the State for the wrongful killing of her son while in custody.
The Rossiter family believe because the inquiry does not seek to inquire into whether Brian died as a result of injuries sustained while in custody any effort to seek to discern this will be deemed outside the terms of reference.
"The inquiry has been established under the 1924 Dublin Police Act and it forms what could best be described as some form of internal garda disciplinary forum," said Mr O'Carroll.
He said this creates the scenario where the gardaí likely to be called to give evidence could - quite lawfully - refuse to give evidence on the basis that to do so might self-incriminate.
He also said that the limit of €1,008 per day expenses for senior counsel effectively curtailed the Rossiter family from securing the best available legal advice, were they to participate.
"The figure for senior counsel per day that the Minister has set as a maximum is €1,008. . . the reality is that top legal representation costs money and the market rate is a hell of a lot higher than that," Mr O'Carroll said.