The executive summary of the ACP review of the Murphy Report
The Association of Catholic Priests (ACP) requested Fergal Sweeney, an Irish barrister who has also served as a judge for many years in Hong Kong, to undertake a review of the Murphy Report from a purely legal perspective.
Under our Constitution, Courts of Justice provide for the administration of justice in public, with appropriate constitutional and legal protection for the various parties to the action, and with power to impose penalties.
Since the foundation of the Irish independent State there has been a long tradition of Tribunals of Inquiry that were set up by politicians to investigate matters of serious public concern and report back to the Dáil with their findings. Such tribunals have no power to impose penalties other than a limited discretion to award or refuse costs to a witness.
Damage
Because the findings of a tribunal can cause devastating reputational damage to witnesses and/or persons whose activities are being investigated, (sometimes in private and without their knowledge), there have been many constitutional challenges to Tribunals in the Irish Courts with consequential delay and legal expense.
Because of growing concerns regarding the tribunals, in terms of cost and delays, the Law Reform Commission prepared a paper on the topic in 2003 in which they recommended “that legislation be enacted providing for a private, low-key inquiry which focuses on the wrong or malfunction in the system and not the wrongdoer. The commission expects that such an inquiry would not attract the rules of constitutional justice”.
Following subsequent Dáil debates in which the pitfalls of the proposed legislation were highlighted by some opposition deputies (yet ultimately ignored), the Commissions of Investigation Act 2004 was enacted to enable purely fact-finding investigations into matters of serious public concern to then report back to the Dáil promptly and within budget. It was intended that they would become a ‘lawyer free zone’ where facts could be established without the need for cross-examination or comment.
Lessons
It was anticipated that Commissions of Investigation would be set up to inquire into systemic and institutional failures so that lessons could be learnt for the future. As they were not intended to judge or assess individual behaviour they did not have the same constitutional and legal protections for individual participants as are provided in the traditional courts system.
Commissions of Investigation nonetheless still share with tribunals the ability to cause serious reputational damage to individuals should a commission go beyond examining institutional responses and proceed to assess, to ‘name, blame and shame’ individuals for their role in any such failure of institutional response.
To avoid such risks and preserve the citizen’s constitutional protections the Irish Supreme Court had previously established four ‘minimum rights’ that an individual is entitled to avail of before his/her good name is put in jeopardy. None of these minimum rights are catered for in the 2004 Act, which was designed to by-pass such hurdles by focusing on institutional responses rather than the role of any individual.
Allegations
The Murphy Commission was established in 2006 under the Commissions of Investigation Act, 2004. The Dáil empowered the Murphy Commission to investigate the institutional responses of Church and State authorities, and “to report on the handling by Church and State authorities of a representative sample of allegations and suspicions of child sexual abuse against clerics operating under the aegis of the Archdiocese of Dublin over the period 1975 to 2004” (Murphy Report, Par. 1.1).
This Review of the Commission of Investigation Act, 2004 in relation to the work and Report of the Murphy Commission accepts and acknowledges that grave injustice and suffering were inflicted on young people and their families by the sexual abuse of children perpetrated by clerics in positions of trust, operating under the aegis of the Archdiocese of Dublin. This review also acknowledges that the failure by the diocese to respond in a timely or effective manner to allegations of such abuse aggravated the wrongdoing and extended the injustice and the suffering of innocent children.
Address
This review examines the operation of the Murphy Commission under the Commissions of Investigation Act 2004. It does not seek to absolve the failure of those in positions of authority in Church and State. Rather, this review wishes to address certain areas of concern relating to the work of the commission as a matter of natural and constitutional justice. In doing so, this review acknowledges the vast amount of very valuable work done by the Murphy Commission.
This review is precluded from using any of the evidence, affidavits or submissions put to the commission, and from using any of the drafts of the final report, due to a 30-year embargo on publication (2004 Act, Sections 11, 41, 50), with severe penalties for breaching these ‘secrecy provisions’.
The Murphy Report at para 1.6 sets out its understanding that it “It was not the function of the commission to establish whether or not child sexual abuse actually took place but rather to record the manner in which complaints were dealt with by Church and State authorities”.
The Murphy Report at para.1.7 made clear it was aware of the limits of its mandate: “This commission’s investigation is concerned only with the institutional response to complaints, suspicions and knowledge of child sexual abuse”.
In the course of its investigation the Murphy Commission in my opinion went well beyond its mandate in respect of one category of witness by building up and making a ‘case’ (called ‘the Commission’s Assessment’) against individual clerics who testified before the commission, instead of being “concerned only with the institutional response to complaints, suspicions and knowledge of child sexual abuse” (Report, Par. 1.7).
In thus extending its task, well accepted minimum rights of natural and constitutional justice were not observed and an individual’s constitutional right to his good name was not protected in the course of the commission’s work.
Standards
As one examines the report, standards of proof were not always respected by the commission which resolved all or any differences of recollection against individual clerics without stated reasons.
The report dismisses out of hand any reasons, explanations or mitigating circumstances put forward by those clerics whom it ‘names and shames’.
Indeed, in its report the commission only refers to such arguments and submissions as were made by the clerics who testified in order to try to dismantle them.
The commission’s mandate was to report on the handling by Church and State authorities of a representative sample of allegations and suspicions of child sexual abuse against clerics operating under the aegis of the Archdiocese of Dublin. When the report is critical of the handling by State authorities, in only one or two cases is the individual employee named. When it is critical of the handling by Church authorities, in every case is the individual named. No reason or explanation is given for this disparity of treatment.
There was an important recommendation in the LRC consultation paper that parties at risk of reputational damage who disputed a point of evidence and/or its interpretation should have their submissions, including any disagreements with the commission’s conclusions, recorded in the commission’s Final report. I am aware that lawyers for clerical witnesses did submit alternative interpretations of evidence to the commission, indeed I have had an opportunity to read some of them. Remarkably, none of them surfaced in the Final report.
It is submitted that badly worded phrasing in the report (1.24) could have given rise to an incorrect interpretation that the vast majority of priests of the Archdiocese of Dublin were aware of abuse and “simply chose to turn a blind eye”. This has had serious consequences for priests of the diocese who were wholly innocent of such knowledge or behaviour.
The report fails spectacularly to recognise the ‘learning curve’ in the case of those in authority in the diocese, while recognising the importance of that learning curve in the case of all other category of witness or relevant authority.
The report fails to acknowledge the specific context of the mission of the Church with its pastoral approach to sin and forgiveness.
It is at times when the public is most agitated by the perceived wrongdoings of one sector of society that any statutory investigation has to be seen to carry out its work in an impartial and dispassionate manner.
It is difficult to avoid the conclusion that the practices and procedures of the Murphy Commission departed far from the remit given to it under the terms of the Commission of Investigation Act, 2004, and in carrying out its duties it fell far short of meeting the concerns of the Law Reform Commission (2003, 2005) and, more importantly, of natural and constitutional justice.
This is the executive summary of the review. The full document can be read at www.associationofcatholicpriests.ie
