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The site of a mass grave for children who died at the Tuam Mother and Baby Home
Source: Niall Carson / PA
THE PUBLICATION of the final report of the Commission of Inquiry into Homes for Mothers and Babies has led to calls for criminal investigations into the activities of religious institutions for single mothers in Ireland.
The commission’s five-year investigation, released Wednesday, found that about 9,000 children died in 18 different homes, where girls as young as 12 were admitted for seven decades.
It also found evidence of physical abuse and problems related to the burial of children, and that the private adoption of some children, although not illegal until the late 1990s, facilitated “illegal birth records.”
The human rights charity Amnesty International was among those calling for criminal prosecutions in light of the report’s release, citing unrecorded deaths and higher levels of infant mortality in institutions compared to society at large.
“One element of the right to reparation in human rights law is the right to justice,” said a spokeswoman for the group. TheJournal.ie.
“This means that the state must hold those who commit human rights abuses accountable, including through investigation and criminal prosecution when the evidence allows.”
The charity also explained that it was not requesting a criminal investigation under specific legislation, because it said it believed that the abuses revealed in the report should not be limited in scope.
The Taoiseach revealed in its apology to the household survivors that the report was sent to the Director of the Public Ministry (DPP) and examined by the Attorney General.
Micheál Martin also said that gardaí and the DPP may “pursue” some of the issues raised, although he did not specifically indicate whether this would happen.
How exactly would a criminal investigation into household activities begin and could it realistically happen?
Possible crimes
Given the findings contained in the commission’s report, there is no shortage of potential crimes that could be investigated.
The report makes specific reference to physical assaults, while it could be argued that cases of neglect could arise that led to the death of boys who lived in homes or the rape of underage girls before they lived in institutions.
Other possible crimes include if vaccine trials involving children in some households were carried out with their consent; a full chapter of the report of the Mother and Baby Household Inquiry Commission deals with these trials.
But much of this is based on speculation, rather than specific evidence. In reality, a level of certainty would be required before a case or cases could be initiated.
It would also be necessary to identify the legislation that was violated.
Taoiseach Micheal Martin giving a state apology in the Dáil this week
Source: Sam Boal / Rollingnews.ie
Dr. Sinead Ring of the University of Maynooth, an expert in criminal law and evidence and victim studies, notes that gardaí could investigate crimes related to the theft of children under Section 56 of the Crimes Against the Person Act of 1861 , or the common law crime of false imprisonment. .
While some of this legislation may no longer be valid, crimes can still be prosecuted in accordance with the laws in effect at the time they occurred.
For example, although the Crimes Against the Person Act of 1861 was repealed in 1997, a person can still be prosecuted under it if they committed a crime before that date.
Ring also notes that a criminal investigation could also be carried out against state officials that had nothing to do with the homes of mothers and babies.
“I see this a lot in my own research on historical child sexual abuse, where you often see gardaí who did nothing when they were informed about a crime of sexual abuse,” he explains.
“So there is a possibility that someone like a Garda will be prosecuted for that crime. But no real gardaí cases like this have really been taken. “
Responsible persons
In addition to identifying specific crimes, a prosecution would also involve identifying where the crimes occurred and who may have been responsible.
The latter is of particular importance, because criminal law is directed at individuals and not at entire institutions.
That would mean taking a case against someone who was in authority when negligence occurred that led to death, or someone who carried out an assault.
And a suspect must still be alive to be prosecuted, something that would likely rule out charges being filed in the vast majority of cases, except those that occurred more recently.
However, Ring notes that there would be no time limit for initiating prosecution in relation to any crime other than carnal knowledge of a girl between the ages of 15 and 17 under the Penal Law Amendment Act of 1935, where a twelve month limit applies.
Even then, the statute of limitations could theoretically be circumvented if the legislation were amended to repeal it.
In a statement this week, Project Clann, a group founded to establish what happened to single mothers and their children in Ireland during the 20th century, called for the Statute of Limitations Act of 1957 to be amended to allow do justice.
The group cited a precedent in the UK, where section 33 of the Limitation Act 1980 allows a court to repeal the statute of limitations when “it would be fair to allow an action to proceed ”.
They also urged the State to instruct the Chief State Attorney and the State Claims Agency not to invoke the Statute of Limitations in cases of institutional abuse.
“The courts will retain their residual discretion to refuse to allow cases to proceed when it is not in the interest of justice,” the group said.
Use of records
If a living suspect could be identified for a potential crime at a specific time, another factor in prosecution would be the burden of proof.
Unlike civil cases, where the standard of proof is based on the balance of probabilities, criminal cases require that a crime be proven beyond a reasonable doubt.
So if prosecutors could identify an individual, they would have to believe that the case against him was final by having enough evidence to initiate a prosecution.
In such a scenario, there is the question of how gardaí could access the evidence to investigate a possible crime.
Speaking on Morning Ireland on Wednesday, Project Clann co-director Maeve O’Rourke said that because survivors did not have access to records held by religious institutions, it could prevent them from pressing criminal charges.
While certain files related to religious-led household records will be sent to the Children’s Department, the orders will retain many others.
Ring explains that access to records held by the institutions would be key to any possible prosecution.
“It is closely related to the issue of administrative files and adoption-related information that is in the possession of religious orders,” he says.
“But the government to date has refused to legislate for those records to pass into the hands of the state, and there is still no real discussion about it.”
However, while the process would be easier if the files were in the possession of the state, this would not necessarily have to happen for prosecution to occur.
Because the Catholic Church is subject to civil law, garda investigators could obtain a search warrant from a judge to access some files on the foot of a criminal complaint.
“There is no reason why gardaí could not get a search warrant if he was investigating a crime and could show the judge that he was able to meet the requirements of the warrant,” Ring adds.
There is precedent for this abroad: court orders have previously been used to access church files as part of criminal investigations in the US, UK, Australia, and Belgium.
Specialized unit
Gardaí could play an alternative role to help initiate investigations.
The Clann Project also called for an independent unit to be established within An Garda Síochána to facilitate the homes of mothers and babies for survivors.
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Such a unit, with specially trained gardaí personnel, could provide a more welcome outlet for survivors to make complaints, which in turn could provide officers with a firm foundation on which to launch an investigation into suspected criminal offenses.
Investigations could be another route.
Doireann Ansbro, Head of Legal and Policy Affairs at the Irish Council for Civil Liberties, is among those who have called for the exhumation at Tuam and other sites where human remains have been found or suspected to be buried.
“The history of unexplained deaths and the extraordinary death rates in these institutions is really shocking,” he said.
Under the Medical Examiners Act 1962, medical examiners are required to conduct an investigation when an unexplained or suspicious death occurs.
Hypothetically, such an investigation could yield a verdict of criminal negligence involuntary manslaughter, which could pressure Gardaí to investigate the person or persons responsible.
Dr Vicky Conway, Associate Professor at Dublin City University School of Law and Government, singles out the investigation into the 1989 Hillsborough Stadium disaster as an example of what happened elsewhere.
She also says TheJournal.ie that there is “no doubt” that the inquiries are legally required in relation to unexplained deaths in maternal and infant homes, particularly in light of the high mortality rates in the institutions and the fact that they were places of care.
“I am very clearly of the opinion that any medical examiner who does not carry out investigations is not doing their duty,” says Conway.
“This relates to a large number of coroners in every relevant district, and it would take unprecedented resources to maintain it. But they are required to do so by law. “
However, the fact that an investigation or investigation is carried out may depend on the willingness of the authorities to press for it to be carried out.
“If there is the will and the resources are put into it, it absolutely could happen,” Ring concludes.
“It is very clear that thousands of women and children have suffered direct harm and possibly crimes have been committed. We cannot simply say that it is too difficult to try. “
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