Commission To Inquire Into Child Abuse (Amendment) Act 2005

PART 1 Preliminary and General

1. Short title, construction and collective citation.

1.—(1) This Act may be cited as the Commission to Inquire into Child Abuse (Amendment) Act 2005.

(2) The Principal Act, section 32 of the Residential Institutions Redress Act 2002 and Part 2 of this Act may be cited together as the Commission to Inquire into Child Abuse Acts 2000 and 2005 and shall be construed together as one.

(3) The Residential Institutions Redress Act 2002 and section 34 may be cited together as the Residential Institutions Redress Acts 2002 and 2005.

2. Interpretation generally.

2.—(1) In this Act, “Principal Act” means the Commission to Inquire into Child Abuse Act 2000.

(2) In this Act—

(a) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c) a reference to any other enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or adapted by or under any other enactment.

PART 2 Amendments of Principal Act

3. Amendment of section 1 (interpretation) of Principal Act.

3.—Section 1(1) of the Principal Act is amended—

(a) in the definition of “abuse”, by inserting in paragraphs (c) and (d), after “results”, “, or could reasonably be expected to result,”,

(b) by inserting the following definition after the definition of “abuse”:

“ ‘admit’, in relation to a document, means—

(a) if the document is an original document, admit that it was written, signed or executed as it purports to have been, and

(b) if the document is a copy of another document, admit that it is a true copy of the other document,

and cognate words shall be construed accordingly;”,

(c) by inserting the following after the definition of “advisor”:

“ ‘authorised officer’ shall be construed in accordance with section 23;”,

(d) by deleting the definition of “inquiry officer”, and

(e) by substituting the following definition for the definition of “serious offence”:

“ ‘serious offence’ means an offence for which a person of full age and capacity and not previously convicted may be punished by imprisonment for a term of one year or by a more severe penalty;”.

4. Amendment of section 4 (functions of Commission) of Principal Act.

4.—Section 4 of the Principal Act is amended—

(a) in subsection (1)(b)—

(i) by inserting the following subparagraph after subparagraph (i):

“ (ia) to inquire into the manner in which children were placed in, and the circumstances in which they continued to be resident in, institutions during the relevant period,”,

and

(ii) by deleting, in subparagraph (ii), “where it is satisfied that such abuse has occurred,”,

and

(b) by substituting the following subsection for subsection (6):

“(6) In performing its functions the Commission shall bear in mind the need of persons who have suffered abuse in childhood to recount to others such abuse, their difficulties in so doing and the potential beneficial effect on them of so doing and, accordingly, the Commission and the Confidential Committee shall endeavour to ensure that meetings of the Confidential Committee at which evidence is being given are conducted—

(a) so as to afford to persons who have suffered such abuse in institutions during the relevant period an opportunity to recount in full the abuse suffered by them in an atmosphere that is sympathetic to, and understanding of, them, and

(b) as informally as is possible in the circumstances.”.

5. Amendment of section 5 (reports of Commission) of Principal Act.

5.—Section 5 of the Principal Act is amended—

(a) in subsection (3)—

(i) by substituting the following paragraph for paragraph (a):

“(a) may contain findings that abuse of children, or abuse of children during a particular period, occurred in a particular institution and may identify—

(i) the institution where the abuse took place, and

(ii) the person or, as the case may be, each person who committed the abuse but only if he or she has been convicted of an offence in respect of abuse,”,

and

(ii) by substituting the following paragraph for paragraph (b):

“(b) may contain findings in relation to the management, administration, operation, supervision and regulation, direct or indirect, of an institution referred to in paragraph (a),”,

and

(b) by substituting the following subsection for subsection (4):

“(4) In preparing its report, the Commission shall, in so far as any part of the report is based on evidence recorded by the Confidential Committee, have regard to the fact that that evidence received by that Committee could not be tested or challenged by any person and (if it be the case) was not corroborated.”.

6. Amendment of section 11 (meetings and procedures of Committees) of Principal Act.

6.—Section 11 of the Principal Act is amended—

(a) in subsection (3)—

(i) by substituting the following paragraph for paragraph (a):

“(a) A meeting of the Investigation Committee, or a part of such a meeting, at which evidence relating to particular instances of alleged abuse of children is being given may, if the Committee considers it appropriate, having had regard to the desirability of holding such meetings otherwise than in public, be held in public.”,

and

(ii) by inserting the following paragraph after paragraph (b):

“(c) A meeting of the Investigation Committee, or a part of such a meeting, at which evidence relating to particular instances of alleged abuse of children is being given may, if the Committee considers it appropriate, be held otherwise than in public but with such access thereto as may be determined by the Committee by such persons as are deemed by the Committee to have a sufficient interest in the meeting.”,

and

(b) in subsection (6), by substituting the following paragraph for paragraph (a):

“(a) A Committee may, if and whenever the Chairperson so determines, act in divisions each of which shall consist of such member or members of that Committee as the Chairperson may determine.”.

7. Amendment of section 12 (functions of Investigation Committee) of Principal Act.

7.—Section 12 of the Principal Act is amended, in subsection (1)—

(a) by substituting the following paragraph for paragraph (a):

“(a) to provide, as far as is reasonably practicable, for persons who have suffered abuse in childhood in institutions during the relevant period, an opportunity to recount the abuse and other relevant experiences undergone by them in institutions,”,

(b) by inserting the following paragraph after paragraph (a):

“(aa) to inquire into the manner in which children were placed in, and the circumstances in which they continued to be resident in, institutions during the relevant period,”,

and

(c) by substituting, in paragraph (d), the following subparagraph for subparagraph (iii):

“(iii) the manner in which any of the things referred to in subparagraph (ii) was done,”.

8. Amendment of section 13 (report of Investigation Committee) of Principal Act.

8.—Section 13 of the Principal Act is amended—

(a) in subsection (2), by substituting the following paragraphs for paragraphs (a) and (b):

“(a) may contain findings that abuse of children, or abuse of children during a particular period, occurred in a particular institution and may identify—

(i) the institution where the abuse took place, and

(ii) the person or, as the case may be, each person who committed the abuse but only if he or she has been convicted of an offence in respect of abuse,

(b) may contain findings in relation to the management, administration, operation, supervision and regulation, direct or indirect, of an institution referred to in paragraph (a), and”,

and

(b) in subsection (4)(b), by inserting, after “interim report”, “(which may specify the determinations standing made, at the date of the preparation of the interim report concerned, by the Committee pursuant to section 12)”.

9. Amendment of section 14 (powers of Investigation Committee) of Principal Act.

9.—Section 14 of the Principal Act is amended by adding the following subsections after subsection (7):

“(8) The chairperson of the Committee may direct in writing a person whom the Committee considers to be in possession or control of evidence or a document that is required by the Committee—

(a) to make an affidavit setting out or exhibiting the evidence or document and to furnish the affidavit and any exhibits referred to in it to the Committee not later than such date as may be specified in the direction for that purpose, or

(b) to give, by notice in writing furnished to the Committee not later than 6 days after the date of the direction or such later date, notified to the person in writing by the chairperson, as the Committee may determine, the particulars specified in the direction in relation to the evidence or document.

(9) The chairperson of the Committee may, in relation to evidence or a document that is required by the Committee—

(a) deliver interrogatories in writing, signed by the chairperson, to a person whom the Committee considers to be in possession or control of the evidence or document for the examination of the person, and

(b) direct the person in writing to make an affidavit answering the interrogatories and to furnish it to the Committee not later than the date specified in the direction for that purpose.

(10) The evidence contained, and, as appropriate, any exhibit referred to, in a document or affidavit furnished to the Committee pursuant to subsection (1), (8) or (9) or in a notice furnished to it pursuant to subsection (8) may be received by the Committee as prima facie evidence of the matters to which it relates.

(11) The chairperson of the Committee may direct in writing a person whom the Committee considers to be in possession or control of a document required by the Committee to admit—

(a) the document, or

(b) the contents of the document,

or both, saving all just exceptions, by notice in writing furnished to the Committee not later than such date as may be specified in the direction for that purpose, and, if a person admits the contents of a document pursuant to a direction under this paragraph, those contents may, in relation to the person, be received by the Committee as prima facie evidence of the matters to which they relate.

(12) Where a person, without just cause or excuse, does not comply with a direction under subsection (1), (8), (9) or (11) the chairperson of the Committee may direct that the whole or part of the costs, as taxed by a Taxing Master of the High Court, of—

(a) a person appearing before the Committee (including the person to whom the first-mentioned direction was given), or

(b) the Committee,

in relation to proof of the matters specified in that direction shall be borne by the person to whom it was given.

(13) Subsection (12) is in addition to, and not in substitution for, section 20A (inserted by the Residential Institutions Redress Act 2002).

(14) Evidence of a conviction of a person of an offence whose ingredients consist of or include abuse of a child in an institution during the relevant period in relation to the Committee shall be received by the Committee as evidence of abuse of the child in the institution during the relevant period aforesaid.”.

10. Amendment of section 15 (functions of Confidential Committee) of Principal Act.

10.—Section 15 of the Principal Act is amended in subsection (1) by substituting the following paragraph for paragraph (c):

“(c) to make proposals of a general nature with a view to their being considered by the Commission in deciding what recommendations to make under section 5(2), and”.

11. Amendment of section 16 (report of Confidential Committee) of Principal Act.

11.—Section 16 of the Principal Act is amended—

(a) by substituting the following subsection for subsection (1):

“(1) Subject to subsection (2), the Confidential Committee (‘the Committee’) shall prepare a report in writing (‘the report’), based on the evidence received by it pursuant to subsection (1)(b) of section 15, setting out the proposals made by it pursuant to subsection (1)(c) of that section.”,

and

(b) in subsection (4) by substituting the following paragraph for paragraph (a):

“(a) shall, not more than one year after the establishment day, prepare and furnish to the Commission an interim report on such matters relating to the evidence and proposals aforesaid or otherwise relating to its functions as it may determine, and”.

12. Amendment of section 17 (privilege) of Principal Act.

12.—Section 17(1) of the Principal Act is amended by substituting “authorised officer” for “inquiry officer”.

13. Amendment of section 18 (privileges and immunities for witnesses) of Principal Act.

13.—Section 18(2) of the Principal Act is amended by substituting “authorised officer” for “inquiry officer” in each place where it occurs.

14. Amendment of section 19 (option for certain persons) of Principal Act.

14.—Section 19 of the Principal Act is amended by substituting the following subsection for subsection (1):

“(1) Notwithstanding section 14(4), a person who is giving, or is to give, evidence to the Investigation Committee of alleged abuse suffered by the person in childhood may at any time, with the consent of that Committee and subject to the rights of others and the requirements of justice, cease giving, or decline to give, evidence to that Committee and, if he or she does so, may, with the consent of the Confidential Committee, give evidence to the Confidential Committee of the alleged abuse.”.

15. Amendment of section 21 (admissibility of certain evidence) of Principal Act.

15.—Section 21(2) of the Principal Act is amended by substituting “authorised officer” for “inquiry officer”.

16. Amendment of section 23 (inquiry officers) of Principal Act.

16.—Section 23 of the Principal Act is amended—

(a) by substituting the following subsection for subsection (1):

“(1) The Commission may authorise such and so many members of its staff or such and so many consultants or members of their staffs as it may determine (referred to in this Act as ‘authorised officers’) to perform the functions conferred on authorised officers by this section.”,

(b) in subsections (2) to (8) by substituting ‘authorised officer’ for ‘inquiry officer’, in each place where it occurs, and

(c) by adding the following subsection after subsection (8):

“(9) In addition to the functions specified in the preceding subsections, an authorised officer shall, for the purpose of assisting the Investigation Committee and the Commission in the performance of their functions, perform such other functions as the Investigation Committee may determine and specify in writing for the purposes of this subsection.”.

17. Amendment of section 25 (directions of High Court) of Principal Act.

17.—Section 25 of the Principal Act is amended—

(a) in subsection (1), by deleting “sitting otherwise than in public”, and

(b) by adding the following subsection after subsection (5):

“(6) The High Court shall, if it considers it appropriate to do so, hear an application under subsection (1) otherwise than in public.”.

18. Periods in relation to which Confidential Committee and Investigation Committee perform their functions.

18.—(1) Notwithstanding anything in the Principal Act, the Commission may direct a Committee to perform its functions in relation to a specified period (“a specified period”) that is longer than the relevant period and, if it does so—

(a) that Committee shall comply with the direction, and

(b) references in the Principal Act, in relation to that Committee, to the relevant period shall be construed as references to the specified period.

(2) If the Commission gives a direction to a Committee under subsection (1), the Commission shall, in performing its functions and notwithstanding anything contained in the Principal Act, take account of reports of that Committee in respect of the whole or any part of the specified period in relation to that Committee.

19. Judicial review.

19.—The Principal Act is amended by inserting the following section after section 26:

“26A.—(1) A person shall not question in a court or other tribunal a decision or determination of the Commission or a Committee otherwise than by way of an application to the High Court for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (‘the Order’).

(2) Subject to subsection (3), an application to the High Court for leave to apply for judicial review under the Order in respect of such a decision or determination as aforesaid—

(a) shall be made not later than 2 months from the date of the decision or determination, and

(b) shall be made by motion on notice (grounded in the manner specified in the Order in respect of a motion ex parte applying for such leave) to the Commission or, as the case may be, the Committee that made the decision or determination,

and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision or determination is invalid or ought to be quashed.

(3) The High Court may extend the period specified in subsection (2) if it considers that there is good and sufficient reason for doing so.