A LEADING LAWYER has said the Bill Kenneally inquiry is a “perfect example” of how to conduct a Commission of Investigation into child sexual abuse in schools run by religious orders.

The findings of a scoping inquiry published this week revealed almost 2,400 allegations of sexual abuse of children in schools run by religious orders, against 844 alleged abusers.

The scoping inquiry recommended that a Commission of Investigation be established, as opposed to a Tribunal of Inquiry.

It’s recommended that the commission “addressed broader questions of systemic failings and institutional responsibility, rather than make findings on individual instances of sexual abuse.”

The survivors told the scoping inquiry that they wished for a full investigation to be open to the media and public, but to also be the “least adversarial model available”.

The report noted “that these preferences are not easily reconcilable” because an inquiry held in public “would typically mean a tribunal” which is “court-like and adversarial in its processes as a consequence of its public nature”.

Meanwhile, the default position of a commission is that it sits in private.

The scoping inquiry recommended a commission because it is “less court-like, with more flexibility as to its procedures, and is more likely to encourage a broad range of survivors to participate”.

Darragh Mackin, a director with Phoenix Law who represented most of the victims’ families of the Stardust fire, told The Journal that the Commission of Investigation into basketball coach Bill Kenneally  shows how a commission can be “sufficiently adversarial to investigate cases like this”.

That commission was formed to examine how State agencies and organisations handled reports of Kenneally’s crimes.

Kenneally is currently serving two prison terms for abusing 15 boys between the years 1979 and 1990, and was first jailed in 2016.

“On a number of occasions, the Keneally Commission exercised the correct discretion to hold the evidence in public,” said Mackin.

“While the Commission of Investigation has a presumption of privacy, when you’re dealing with victims of sexual abuse and a public interest case such as this, the reality is the presumption should always be for public.”

The scoping investigation also pointed to Commission of Investigation on Bill Kenneally and noted that Keneally himself, a convicted child sexual abuser, was called to give evidence in public and in front of media.

However, Mackin cautioned that “given the sheer enormity of this investigation, there are question marks on whether a Commission is sufficient to investigate in a case like this”.

The scoping investigation recommended that a future Commission adopts a sampling approach to decide what issues it must investigate and the extent of the investigation.

While the report acknowledged that the sampling approach has been criticised by survivors, it added that it is “difficult to see how else an inquiry can propose to deal with large amounts of complaints”.

Mackin said the proposal of sampling is to “address the concern that the commission will take too long by virtue of the sheer number of witnesses that will have to be heard”

“It is in no victim’s interest that this process takes any longer than it needs to, so when pragmatism is ultimately required, it’s in everybody’s interest that it is utilised, such as witness statements being read in evidence as agreed.

“There is a balance to be struck and that isn’t necessarily in sampling, it’s in agreeing evidence and ensuring that only witnesses that need to be heard are called and that if witness statements can be read in, that is an alternative that is not far off sampling but ensures an effective process where no evidence if left out.”

Meanwhile, the report recommended that “consideration be given to extending the Terms of Reference of Commission to include all schools” and a sampling approach may also be used for this.

Mackin said “it may be the case that complainants only come forward from a variety of schools”.

However, he added that if it “becomes clear that every school is affected, it would be inappropriate to close down any line or avenue of investigation”.

Mackin also remarked that while it’s “exceptionally important that the commission takes whatever time is required, steps ought to be taken to try and minimise the length of time it takes”.

The report suggested that a “time frame of at least five years seems reasonable” and that in addition to sampling, a future commission “might consider sitting in divisions to expedite its work”.

Support is available

One in Four provides support for adult survivors of childhood sexual abuse; you can call 01 662 4070 or email info@oneinfour.ie

An extensive list of support services, for people in Ireland and abroad, can be read here.