The Board has received a number of queries on its policy concerning the holding of hearings abroad for the convenience of applicants who live outside the State. The Board has postponed a decision on this until now so as to assess the likely volume of such requests.
As at mid March 2004 the Board has received a substantial number of applications from persons living in the United Kingdom or further afield. Most of these applicants have been represented by Irish solicitors. The majority of these applications have been concluded by settlement without the requirement for a hearing. Where a hearing has been necessary, each of the applicants, bar one, has been able to travel to Dublin at the Board's expense in order to give evidence at a hearing. There has to date been only one application in which, out of medical necessity, arrangements have had to be made to take an applicant's evidence outside the State.
There are three different issues to be considered in the context of possible hearings abroad i.e. the efficiency of the process, the legal implications of a hearing abroad and the wishes of the applicants.
The efficiency of the process:
In the case of applications from within Ireland, the Board has in the interests of efficiency made special arrangements for settlements and hearings to take place in locations other than Dublin where applications have been clustered in urban areas such as Cork, Limerick and Galway. With this in mind, the Board has looked at the residential locations of foreign-based applicants and other than in the U.K. (and one U.S. location) they are not clustered in a way which would render it efficient to set up settlement sessions covering a large number of applications.
In many U.K. cases internal travel within the U.K. would appear to present as big a problem for applicants as coming to Dublin. Further, in the case of the U.K the vast majority of lawyers used by the applicants are Irish based. To date, settlements of applications from persons resident in the UK have been conducted in the normal way. Only a minority of lawyers bring their clients to settlement discussions and this has not been a problem in the case of foreign residents. Most applicants are willing to come to Dublin for a hearing on the basis that the Board will pay all reasonable travel and subsistence expenses. In such cases, the Board has adopted a policy of allowing persons from abroad to bring one companion free of charge once the matter is cleared with the Board's administration beforehand. Even if there were no legal impediments it is therefore unlikely that as a matter of routine the Board would set up hearing facilities in the U.K. or elsewhere.
The general policy of the Board on the need for hearings abroad does not cater for those who by reason of health or other serious difficulty cannot travel to Ireland. The Board has considered how these persons can be facilitated. Before outlining that policy it is necessary to set out certain legal matters, which may impinge on the Board's work in this area.
The legal implications of a hearing abroad:
There is no doubt that the law applicable to the Redress process is Irish law. The Board and the scheme are established by Irish law with no external jurisdiction or any international law element. The domestic nature of the scheme does not prevent those living abroad from applying, but the scheme under which they choose to apply is governed by domestic Irish law and not by the law of their country of residence.
The Board is a body established by the Oireachtas to assess the redress payable to victims of child abuse. It is not a court of law. The distinction between the Board and a court of law is illustrated by the provisions of section 18 of Residential Institutions Redress, Act 2002, which grants absolute privilege to the Board and its staff in connection with the Board's work. Such protection would not be necessary if the Board was a court of law. The absolute privilege covers the actions of the Board within the State only but confers no external protection.
Utterances by Board members and staff made abroad do not have the absolute privilege afforded by law to similar comments made within the State. The nature of the privilege actually enjoyed would vary within each jurisdiction. The Board has been advised that in England and Wales, for example, the utterances of Board members and staff would probably attract only qualified privilege, a lesser and more uncertain form of protection. Different rules would probably apply in other jurisdictions, creating a considerable degree of legal difficulty for the Board in carrying out its functions.
In addition there are a number of aspects of the redress scheme which depend upon the application of other aspects of Irish law. To give two examples. In the interests of obtaining a true account of the abuse which an applicant has suffered, it is the Board's policy to take his or her evidence on oath; the sanction for fraudulent evidence must be proceedings by the Irish authorities. This sanction would not be available in the case of hearings conducted outside the State. It is also an essential aspect of the scheme that applications are dealt with in the strictest confidence and it is therefore a criminal offence to make public any information about an application; this sanction also could not be enforced outside the State.
The wishes of applicants:
The Board's experience is that most applicants are willing to come to Ireland for a hearing of their application.
Decision of Board
Following a full consideration of all the relevant issues, the Board has decided that it will continue as a general rule to conduct settlements and/or hearings of applications, from persons who reside outside Ireland, at its premises in Dublin. All reasonable expenses incurred by applicants travelling to Dublin for a successfully concluded settlement or for a hearing will be met by the Board.
Applicants for whom travel to Dublin is impossible or too great a burden
The Board is, however, anxious within its policy framework to assist those for whom travel to Dublin is impossible or too great a burden. The Board will make every effort to settle informally (that is, without the need for a hearing) applications made by such persons and will for this purpose enter into negotiations in Ireland and/or by telephone, mail or otherwise with a view to reaching a settlement acceptable to the applicant. In the small number of cases where a settlement of this kind is not possible, and the applicant satisfies the Board that he or she is unable to travel to Dublin, the Board will be willing to consider an application (supported by appropriate evidence) to hear the oral evidence of the applicant at a suitable location close to his or her place of residence.
The applicant's oral evidence is but part of the evidence to be considered by the Board in any case. Other evidence includes the application form, medical reports and other verbal and written information. This other evidence will be received in Ireland only.
Having heard the oral evidence of the applicant, the Board will adjourn further consideration of the application and make its decision within Ireland. In that way the Board will facilitate applicants while minimising the exposure of the Board and its staff to the kind of legal difficulties which we have identified.
