Analysis:Last September it was proposed that a retired judge could adjudicate on files Cardinal Connell asserted were privileged, writes Patsy McGarry
Cardinal Desmond Connell complained last month to the Dublin Archdiocese Commission of Investigations that he had not been informed that it and the Archbishop of Dublin Diarmuid Martin had been in discussion about diocesan files over which the cardinal had claimed privilege, The Irish Timeshas learned.
The cardinal felt he had been treated unfairly in the matter.
This was rejected by the commission, which pointed out it had advised all against whom discovery orders were made that they could inform relevant parties and that they believed this had been done by the archdiocese. It has also emerged that in 2003, during the Ferns Inquiry, the then Apostolic Administrator of Ferns diocese, Bishop Eamonn Walsh, provided privileged documents to it on a strictly confidential basis and without prejudice.
Sources say the commission proposed to the archdiocese last September that retired Supreme Court judge Brian McCracken be invited to adjudicate on whether or not documents Cardinal Connell asserted were privileged to him, had such legal status.
The commission had proposed to read only those documents the judge deemed were not legally privileged and it further agreed the archdiocese would have freedom to challenge any such decision by Judge McCracken, either before itself or in the High Court. Last October, it is understood the archdiocese made a counter proposal. It said Archbishop Martin wished to make available to the commission legal advice given the archdiocese at various times where clerical child sex abuse was involved.
Archbishop Martin indicated there were third parties with an interest in the privilege element involved with some of this legal advice and he wished to see whether this privilege might be waived. He indicated that privilege would not be waived where legal advice involving insurance was concerned. He felt these counter proposals would mean it would not be necessary to involve Judge McCracken. He hoped to firm up his proposals within a week.
There was a further meeting in early November at which the same counter proposals were repeated with an emphasis on the consent of third parties, including Cardinal Connell.
It is understood that in the week before Christmas, Cardinal Connell's lawyers wrote directly to the commission claiming his personal legal privilege over the relevant documents. The commission is understood to have replied, asking him to make his case before mid-January. It also offered him an oral hearing to tease out matters. Frustrated at Archbishop Martin's inability to deliver the consent of third parties to his October proposals, the commission requested representatives of the archdiocese attend before it on December 19th, after which it ordered all documents covered by legal privilege and held by the archdiocese to be presented to it by January 15th last. This was done.
The commision's intention was to read all the privileged documents, beginning on January 28th, to determine whether relevant ones were privileged in the context of its work. It planned to notify the archdiocese about all such privileged documents it considered necessary to its work and to give the archdiocese an opportunity to make submissions on those documents.
It was also understood the archdiocese could notify relevant third parties of this so that they too, including Cardinal Connell, could make submissions if they so wished. However, the cardinal initiated his High Court action and last Thursday secured an interim injunction which prevented the commission doing this until yesterday. At the hearing yesterday the commission agreed not to deal with the documents until the High Court had dealt with the matter.
Cardinal Desmond Connell is understood to have expressed surprise to the commission last August at the high number of priests accused of abuse which it deemed a representative sample for the years January 1975 to May 2004, The Irish Times has learned. In the context of news reports that allegations had been made against 102 priests (now 147) between 1940 and 2006, he felt the figure of such allegations against 46 priests between 1975 and May 2004 was disproportionate. He also pointed out that many of the priests were also in religious congregations and so were under the control of their superiors.