M.B (applicant) v the Commission to Inquire into Child Abuse (respondent) and the Residential Institutions Redress Board (notice Party)
Judicial review - Application for leave - Applicant's husband gave evidence before his death to the respondent - Applicant sought to obtain his evidence to ground her claim for compensation before the notice party - Request refused - Issue of confidentiality - Whether evidence given in confidence before Commission could be obtained for use before Redress Board - Commission to Inquire into Child Abuse Act, 2000, s. 27 - Commission to Inquire into Child Abuse (Amendment) Act, 2005, s.19.
The High Court (Mr Justice O'Neill); judgment delivered November 7th, 2007.
The obligation of confidentiality contained in section 27(1) is absolute and further exceptions cannot be admitted beyond those set out in subsection (2). It is clear that section 27 is part and parcel of a balanced scheme designed to cater for a variety of needs of those who wish to make allegations of abuse suffered in childhood. Many of those persons want their allegations heard in an adversarial context and want to confront the perpetrators. Their allegations fall to be dealt with by the investigation committee who are equipped with the relevant powers to pursue an investigation of those allegations. The necessity to protect the interests of all persons involved, requires nothing short of absolute confidentiality which could only be breached in circumstances expressly described in subsection (2) of section 27. The statutory prohibition on disclosure contained in section 27(1) could not be expressed in clearer terms and the absolute nature of the prohibition could not be more forcefully legislated, than has been done, by the making of a contravention of subsection (1) a criminal offence.
The High Court so held in refusing both reliefs sought.
Margaret Nerney, SC, with Elizabeth Skally, BL, for the applicant; Donal O'Donnell, SC, with Caroline Costello, BL, for the respondent; Kevin Cross, SC, with Fintan Valentine, BL, for the notice party.
Mr Justice O'Neill commenced his judgment by saying that the applicant was seeking leave pursuant to section 26(a) 2000 Act, as inserted by section 19 of the 2005 Act to seek by way of judicial review an order of certiorari quashing the decision of the respondent, communicated by letter of February 21st, 2006, to refuse to make available, to the applicant or to the notice party, any records in the possession of the notice party of evidence given, by the applicant's late husband J.B., to the confidential committee of the respondents. In addition as the application was brought later than two months from the date of the decision challenged, the applicant was seeking an order pursuant to section 19(3) of the 2005 Act, extending the period of two months for the purpose of bringing this application.
Mr Justice O'Neill set out the factual background to the case. The applicant's late husband J.B was born in 1935. The applicant and her late husband were married in 1973 and J.B. died on July 14th, 2005. The late J.B. was a native of Ireland but emigrated to the United Kingdom in the early 1950s and lived and worked there until the end of his life. In or about the month of June, 2001, J.B. became aware, through material he discovered in his local library, of the existence and function of the respondent. At that time the late J.B. disclosed to the applicant that he had suffered abuse while in a residential institution in Ireland between 1945 and 1951. The late J.B. then corresponded with the respondent and arrangements were made for him to give evidence to the respondent. The applicant and her husband then travelled over to Dublin in early December, 2001, and stayed in a hotel in Dublin for two nights. J.B. then attended at the confidential committee of the respondent and gave his evidence. The late J.B. did not, at that stage, or at any stage, disclose to the applicant any detail whatever of the abuse suffered. Neither did he furnish any detail of this to any professionals, such as a solicitor who appeared to have acted for him in 2001. The late J.B. never attended at any psychiatrists or counselors. The applicant averred that, at all times, from June, 2001, onwards, the late J.B. believed that his approach and application to the respondents would result in an award of compensation to him. The applicant further averred that her husband was not aware of the existence of the notice party or of the separate functions of the respondent and the notice party. The applicant averred that when the her husband came to Dublin in December, 2001, and was met by an officer of the respondent and escorted from his hotel to the respondent's offices and back, he was assured that there would be an award of compensation to him. The applicant also averred that, after the giving of this evidence to the confidential committee, the late J.B. continued to await an award of compensation, and, as time went on, he would occasionally remark on the delay in receiving his award. The applicant further averred that the late J.B. firmly believed that he had nothing further to do and no further application to make, beyond that which he had made to the respondents, in order to obtain the compensation. As his health declined and as he neared death, the applicant averred that J.B. expressed the wish that the applicant would receive the compensation to be awarded to him.
Mr Justice O'Neill said that following the death of J.B., the applicant set about pursuing the matter of compensation. In due course, the applicant instructed a solicitor and learned that a separate application had to be made to the notice party. This application was made on the applicant's own behalf as a person entitled pursuant to section 9 of the 2002 Act. As a result of diligent inquiries carried out on her behalf by her solicitor it became apparent that no record whatever existed of the abuse suffered by J.B. except the record of the evidence given by him to the confidential committee of the respondent. When this became apparent, the applicant's solicitor corresponded with the respondent seeking to obtain from them a record of the late J.B.'s evidence, or alternatively, that this record would be sent directly to the notice party on a confidential basis. Mr Justice O'Neill observed that the record in the possession of the respondent of the evidence given by the late J.B. was of critical importance to the applicant's application for compensation because notwithstanding the fact that that record would be inadmissible evidence in a court, pursuant to section 10(4) and (5) of the 2002 Act, this record would be sufficient proof of the abuse suffered by the late J.B. for the purposes of obtaining an award of compensation.
Mr Justice O'Neill then considered the correspondence in this case noting that, having received the applicant's request, the respondent, in a letter of February 21st, 2006, refused that request in the following terms:
"Re: Mr J.B. (Deceased). Dear Sirs, I refer to your letter dated 9th February, 2006, with enclosures. It is clear from the attached documentation that Mr B. opted to give evidence before the confidential committee which operates completely separately from the investigation committee. The confidential committee is prohibited by the provisions of s. 27 of the Commission to inquire into Child Abuse Act 2000, from disclosing information provided to it in the course of the performance of its functions under the Act. I am therefore not in a position to assist with your request . . ."
Mr Justice O'Neill said that this letter was replied to by letter of February 24th, 2006, from the solicitors for the applicant in which they raised the question of applying to the High Court for directions pursuant to section 25 of the 2000 Act. The respondents replied by letter of March 1st, 2006, in which they said that this was not a case of a lack of co-operation between the Commission and the Redress Board. The Commission was precluded by law from disclosing the requested material to any party aside from the exception set out in the legislation. Mr Justice O'Neill noted that it was when faced with this situation that the applicant sought the advice of counsel and set about launching these proceedings. Mr Justice O'Neill added that needless to say the applicant's application for compensation to the notice party would be entirely dependent upon a successful outcome for her in these proceedings, otherwise she would be deprived of an essential proof necessary to establish a claim for compensation from the notice party. From this review of the factual background, Mr Justice O'Neill concluded that, manifestly, the central issue in this case was whether or not section 27 of the 2000 Act, precluded the respondent from disclosing to anyone the record of the evidence given to the confidential committee by the late J.B. Mr Justice O'Neill set out the provisions of section 27 which reads as follows:
"(1) Subject to the provisions of this section but notwithstanding any provision of, or of an instrument made under, a statute or any rule of law, a person (including the confidential committee) shall not disclose information provided to the confidential committee and obtained by the person in the course of the performance of the functions of the person under this Act.
(2) "a person referred to in subsection (1) ('the person') shall disclose information so referred to -
(a) for the purpose of the performance of the functions of the person under this Act,
(b) to the legal representatives of the parties to any proceedings referred to in subsection (3),
(c) to a member of the Garda Síochána if the person is acting in good faith and reasonably believes that such disclosure is necessary in order to prevent the continuance of an act or omission constituting a serious offence, and
(d) to an appropriate person (within the meaning of the protections for persons Reporting Child Abuse Act, 1998) if the person is acting in good faith and reasonably believes that such disclosure is necessary to prevent, reduce or remove a substantial risk to life or to prevent the continuance of abuse of a child."
(6) A person who contravenes subsection (1) shall be guilty of an offence".
Mr Justice O'Neill stated that having carefully considered the submissions of the parties he was satisfied that the obligation of confidentiality contained in section 27(1) is absolute and further exceptions cannot be admitted beyond those set out in subsection (2). Mr Justice O'Neill remarked that it is clear that section 27 is part and parcel of a balanced scheme designed to cater for a variety of needs of those who wish to make allegations of abuse suffered in childhood. Many of those persons want their allegations heard in an adversarial context and want to confront the perpetrators. Their allegations fall to be dealt with by the investigation committee who are equipped with the relevant powers to pursue an investigation of those allegations. The confidential committee has a completely different function, which is set out in section 15 of the 2000 Act, and was designed for those persons who do not wish to make allegations of abuse in an adversarial context, but who wish to disclose their abuse under an assurance of confidentiality. Mr Justice O'Neill said that as a result of this, in order for the confidential committee to be able to discharge its function, it is necessary that all evidence given to it is subject to a confidentiality, which not only protects the interests of those making allegations, but also the interest of those against whom allegations are made, as those persons will not have an opportunity to contest those allegations.
Mr Justice O'Neill was satisfied that the necessity to protect the interests of all persons involved, required nothing short of absolute confidentiality which could only be breached in circumstances expressly described in subsection (2) of section 27. Mr Justice O'Neill added that none of the exceptions to the general prohibition on disclosure in subsection (1) applied in the instant case and further noted that, the force of the prohibition on the disclosure is most unusually, underpinned by the creation in subsection (6) of a criminal offence, where there is a contravention of subsection (1). Mr Justice O'Neill said that, if the respondents were to comply with the request made by the applicant they would be committing a criminal offence. Turning to the law, the first case of note was that of Cully v Northern Bank Finance Corporation Ltd [ 1984]ILRM683 in which Mr Justice O'Hanlon set aside a subpoena where the witness, an officer of the Central Bank, would, if compelled to give evidence, be in breach of the oath of secrecy which he had taken under the provisions of section 31 of the Central Bank Act, 1942. Mr Justice O'Neill cited a further example of a statutory prohibition on disclosure in the case of O'Brien v Ireland [ 1995]1 ILRM 222 in which Mr Justice O'Hanlon held that the relevant provisions of Defence Act, 1954, the Rules of Procedure (Defence Forces), 1954, the Defense Force Regulations, 1982, and the Diplomatic Relations and Immunities Act, 1967, protected certain documents from disclosure. Having considered both of these cases Mr Justice O'Neill said that in his opinion the statutory prohibition on disclosure contained in section 27(1) could not be expressed in clearer terms and the absolute nature of the prohibition could not be more forcefully legislated, than has been done, by the making of a contravention of subsection (1) a criminal offence. Mr Justice O'Neill added that, if disclosure was refused in the foregoing two cases on the basis of a statutory prohibition on disclosure, a fortiori in this case, it must also be.
Mr Justice O'Neill then addressed the submission by the applicant that the procedures set out in section 25 of the 2000 Act, whereby the respondent can apply to the High Court for directions, could be availed of by the respondents in order to enable them to make the disclosure sought. In the opinion of Mr Justice O'Neill this was not an avenue which could lead to the solution of the applicant's problem as the court could not sanction, on a section 25 application, conduct which otherwise was a criminal offence, adding that, if the court was to do so, it would be impermissibly interfering with the legislative provision contained in section 27(1) of the 2000 Act.
The applicant's counsel further submitted that there was an analogy between section 27 of the 2000 Act and section 12 of the Garda Síochána (Complaints) Act, 1986. On considering this argument, Mr Justice O'Neill held that he could not accept that such a parallel exists. In reaching this conclusion Mr Justice O'Neill considered the wording of section 12(1) which reads as follows:
"a person shall not disclose confidential information obtained by him while performing functions, as a member of the Board, a tribunal of the Appeal Board, or as a member of the staff of the Board, unless he is duly authorised to do so".
Mr Justice O'Neill was of the opinion that it is clear from this section, far from being a total absolute prohibition on disclosure, the board in that case was vested with the power or discretion to authorise disclosure.
The applicant also submitted that the refusal of the respondent to furnish the record of J.B.'s evidence was a breach of the applicant's rights under Article 6(1) of the European Convention on Human Rights which provides as follows:
"In the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
In considering this argument, Mr Justice O'Neill commented that it must be remembered that the applicant was not deprived of her statutory right to apply to the notice party for compensation, adding that her problem was that she was unable to obtain an essential proof to establish her claim. Mr Justice O'Neill said that the inability to come up with the necessary proofs to establish a claim is not a denial of access to justice, either in breach of Article 40 of the Constitution of Ireland or of Article 6(1) of the ECHR. Mr Justice O'Neill further noted that an inability to produce an essential proof is commonplace and invariably will result in the failure of the claim involved, however, it is well settled that a right of access to courts does not mean the right to succeed in any particular claim.
Mr Justice O'Neill concluded his judgment by summarising that the case of absolute prohibition, under section 27(1) of the 2000 Act, which the applicant saw as a barrier standing between her and success in her claim to the notice party, is there for sound reasons of public policy and does not infringe any provision of the Constitution of Ireland or of the European Convention on Human Rights, and when correctly construed, means that the respondent could not lawfully grant the applicant's request for the records of the late J.B.'s evidence. Mr Justice O'Neill held that the decision of the respondent of the February 21st, 2006, was in all respects within jurisdiction and lawful. Further, Mr Justice O'Neill added that, the applicant had not demonstrated any grounds for contending that the decision was invalid nor had the applicant made out any substantial grounds to that effect. Lastly, Mr Justice O'Neill held that he was satisfied that there could not be good and sufficient reason for extending the time for the making of this application, as required by section 19(3) of the 2005 Act, where the applicant had failed to demonstrate any grounds for contending that the impugned decision was invalid.
Accordingly, Mr Justice O'Neill refused both reliefs sought.
Solicitors: O'Donnell Breen-Walsh O'Donoghue (Cork) for the applicant; A & L Goodbody (Dublin) for the respondent; Sharon Moohan (Dublin) for the notice party.
Michèle Rayfus, barrister