The solicitor acting for the family of Brian Rossiter has expressed concern that the legislation being used to set up a statutory inquiry into his death may prove limiting and prevent a full exploration of what happened the boy while in Garda custody.
Brian Rossiter (14) was arrested in Clonmel on public order offences on September 10th, 2002, and held overnight in Clonmel Garda station with the consent of his father. The following morning, he was found unconscious and he died on September 13th.
The Rossiter family solicitor, Cian O'Carroll, said that while he welcomed Minister for Justice Michael McDowell's decision to set up a statutory inquiry into Brian's arrest and detention in Clonmel Garda station, he had some concerns about the legislation upon which the inquiry is being based.
Mr O'Carroll pointed out that Mr McDowell had initially suggested using the new Garda Bill to ground the inquiry but, following some concerns from the family, had opted instead to base it on the Dublin Police Act, 1924.
"Initially, it seemed that the Dublin Police Act gave more scope than the new Garda Bill, in that it would allow Hugh Hartnett SC to compel not just serving gardaí but also retired members of the force and civilians to give evidence," said Mr O'Carroll.
He explained that the inquiry would be based on Section 12 of the Dublin Police Act which gives the Minister for Justice the power to appoint a person to commence an investigation into alleged wrongdoing by a member of An Garda Síochána.
"However, it does appear that there is a prerequisite for a complaint to be made against a named garda or named gardaí before any inquiry into alleged wrongdoing can be embarked upon," Mr O'Carroll said.
"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 . . ."
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.
"We believe that would be a quick and cost-effective way of carrying out this inquiry. It would be similar to a tribunal but without the associated costs, and it shouldn't take very long to carry out," he said.
"We're not talking about something like the Morris tribunal. The focus . . . would be a very short period of time, a number of days and the cast of characters, gardaí and civilian, would not be huge so it could be carried out quite expeditiously."
Mr O'Carroll acknowledged that Mr McDowell was genuinely concerned about the case.
A Department of Justice spokesman said the department would be consulting with the Rossiters in relation to the terms of reference of the inquiry.
He added that the details of what form it would take and where it would be based would be worked out in a parallel process.