TrustHLT/LaCour huggingface dataset:
GR1 (Government): on the part of those who had originally had him inducted him into a religious order, and thereafter had employed him in various schools, he was allowed to continue with the depredations which are recounted.
GR1 (Government): But the involvement of the Department of Education occurred in the early 1980s.
GR1 (Government): And the minister in Ireland has long time since apologized for the failure in the case of Mr. Brander,
GR1 (Government): when in the early 1980s, a complaint made about him was not dealt with appropriately.
GR1 (Government): But one cannot extrapolate from that, and from comments about children who are in residential institutions, one can't extrapolate from that and cover the 3,500 Irish schools, primary schools.
GR1 (Government): It simply isn't appropriate and is impermissible.
GR1 (Government): And it certainly can't be said that the department habitually ignored anything in respect of the type of school that the applicant was in, where she was, as I say, being taught by the abuser.
GR1 (Government): It's also important to recall, given the reliance the applicant tries to place on the Ryan report, that the applicant's difficulty in the Irish High Court wasn't the failure to call evidence in respect of a lot of other children who'd been abused.
GR1 (Government): It was a failure to address international standards or national standards as to what should have been in place.
GR1 (Government): And although Mr. Justice Ryan took a long time
GR1 (Government): to address all the details of the abuse that had occurred in those residential institutions, it's not necessarily the case that that length of time was spent addressing what should have been in place at the time in Irish primary schools.
GR1 (Government): And in that regard, there is a report, which again we append, which is that of Richard Rollinson, who is a United Kingdom academic.
GR1 (Government): And he, in the course of his report, admittedly dealing with residential schools, but he has a general comment about the state of knowledge in the 1960s and 1970s, about the knowledge of the risk of abuse by a person in a position of trust, and what he says there is quite consistent with what Professor Ferguson had said and with what the government is saying here.
GR1 (Government): That is, there was no real significant knowledge of the risks.
GR1 (Government): And so we say that when one applies the established case law of this Court, one must look to see what the State knew or ought to have known.
GR1 (Government): The State did not know here of the propensities of Mr. Hickey.
GR1 (Government): And when the question comes as to what it ought to have known, the applicant hasn't really put before this Court any evidence as to what should have been in place in terms of additional safeguards.
GR1 (Government): Clearly, she believes there should be additional safeguards.
GR1 (Government): There were safeguards in place at the time appropriate to what was understood at the time to be the reality of what risks might arise in the context of the school in which the applicant was.
GR1 (Government): This brings me to another important point, which I hopefully can deal with fairly briefly.
GR1 (Government): Because in the course of the written observations, indeed, the session before the Court is the third set of written observations, which the applicant and, indeed, the respondent has put in for various procedural reasons.
GR1 (Government): The applicant has persisted in seeking to recharacterize the Irish school system in a way inconsistent with what the Irish Supreme Court has said is, in fact, the way it is organized and why it is organized like that.
GR1 (Government): The Court will recall that in portions of the Irish Supreme Court judgment, which have been cited in the written observations, the Irish Supreme Court has said quite clearly that the State, for historical reasons and for reasons that have seemed good to the Irish people through successive parliaments, has been deprived of the control of education, the control of teachers that might otherwise be the case in a state-run system.
GR1 (Government): The applicant in the written observations up until this point has described that as a technical bureaucratic distinction.
GR1 (Government): We say it's a fundamental misunderstanding and misrepresentation of, in fact, the Irish school system.
GR1 (Government): But in light of what Mr. Holland says today,
GR1 (Government): he makes now apparently no argument that the way the Irish school system operates forms part of his case.
GR1 (Government): It did seem to form a significant part of his case until now.
GR1 (Government): Now it appears it doesn't.
GR1 (Government): With respect, we would agree with him.
GR1 (Government): We would agree with him.
GR1 (Government): And in fact, whether Ireland has a state system, a partial state system, a private system, that doesn't affect obligations in terms of Article 3.
GR1 (Government): The reality is, if the state knew or ought to have known of the risks in a school, in a sports club, in a social care setting, the principle is that appropriate action must be taken.
GR1 (Government): But the reality is that all depends on what knew or ought to have known.
GR1 (Government): And therefore, I think the court can ignore, in large measure, much of the criticism, the heartfelt criticism, from, we suggested, perhaps a philosophical basis at the way that the Irish people have adapted the educational system to suit their own particular purposes.
GR1 (Government): That no longer forms part, it seems to us, of the applicant's case.
GR1 (Government): We also say that the applicant has failed.
GR1 (Government): We say this quite frequently in written observations.
GR1 (Government): She has failed to sue the most obvious defendant.
GR1 (Government): And the most obvious defendant here was the school management authority, the bishop.
GR1 (Government): There is a letter exhibited at appendix 19 in my friend's written observations.
GR1 (Government): And it's the letter they received back from the solicitor for the bishop.
GR1 (Government): It makes three points, three observations.
GR1 (Government): There is a blanket denial from the bishop that he could be responsible for the actions of his predecessor in office.
GR1 (Government): This government points out that that particular argument doesn't appear to be a particularly attractive one to the bishops in the fact that the statistics we've put into our written observations discloses that many millions of euro have been paid out by dioceses in Ireland, particularly the Archdiocese of Dublin, in respect of past incidents of abuse.
GR1 (Government): So that point is made in the letter.
GR1 (Government): We do, but certainly is not tested.
GR1 (Government): And certainly, the applicant didn't choose to test it.
GR1 (Government): But the relevance of that, we believe, also has to be seen in light of the fact that there are two other points made in that letter.
GR1 (Government): The second point made in that letter is that the bishop says that you could not be vicariously liable for acts of sexual abuse since those acts fall so far outside the terms of employment.
GR1 (Government): That issue was, of course, contested vigorously by the applicant against the minister in the Irish domestic proceedings.
GR1 (Government): So she didn't accept that at face value.
GR1 (Government): That formed a major part of her case against the minister.
GR1 (Government): And finally, the third point the bishop makes, and this is a matter I can't take any further than this, but I note that in response, the bishop says to the solicitor for the applicant that this has been extremely difficult for our client in view of the deaths of all these people.
GR1 (Government): That's the bishop believes that it is not true to state that this allegation was known to Bishop Lucy, as is claimed in your letter.
GR1 (Government): So all we know is, all we, the government, know is that at a certain point in 1999, there was a case being made on behalf of the applicant that Bishop Lucy, the patron of the school, knew of the complaint made earlier.
GR1 (Government): I don't know if he knew.
GR1 (Government): The government doesn't know if he knew.
GR1 (Government): But we know the applicant believed he knew.
GR1 (Government): And yet that point was never proceeded with and was never pursued.
GR1 (Government): We believe the applicant is being somewhat selective in suggesting that she couldn't have sued the bishop, since she clearly pursued the other issue which had been denied in the letter, issue of vicarious liability.
GR1 (Government): And of course, it's also the case that the state itself sent the minister in the Irish proceedings also sent a letter denying liability in somewhat similar, not identical terms, obviously, but denying the minister's liability and why the minister was not liable.
GR1 (Government): And that letter was not accepted at face value.
GR1 (Government): And the matter was pursued right up to the Supreme Court.
GR1 (Government): So we do believe that there was a case to be made there.
GR1 (Government): And it's a case that was never made and was never tested.
GR1 (Government): There is no vacuum and was no vacuum at the heart of the Irish school system at the time, or indeed now.
GR1 (Government): It's the balance that has been struck in Ireland is that the state did not have the type of control that might have existed in other countries for good reason.
GR1 (Government): That does not, of course, mean there's no responsibility in terms of ensuring protection of children.
GR1 (Government): Of course not.
GR1 (Government): But the nature of the educational structures is not something we believe which the applicant now seeks to rely on.
GR1 (Government): The applicant makes a number of other allegations which we feel we should briefly respond to.
GR1 (Government): The rules for national schools were there.
GR1 (Government): They were being implemented.
GR1 (Government): There is no suggestion that the fact they didn't feature in any act of parliament had any effect on matters.
GR1 (Government): The evidence of Mr. O'Dlanon, the school's inspector,
GR1 (Government): was very clear, which was that if any complaint was made to him, it would have been dealt with, and the teacher would probably have lost his license.
GR1 (Government): That was the evidence which is there and is pointed to.
GR1 (Government): There's also a suggestion that the attitude of the state respondent, the government, is in some way changing here about the rules for national schools.
GR1 (Government): That is absolutely untrue.
GR1 (Government): The reality is that in the framework that was in place at the time, which was a framework which was appropriate, it was a school run and managed by the patron and by the manager.
GR1 (Government): The minister had a more limited role.
GR1 (Government): And if a matter was brought to his attention, it was dealt with.
GR1 (Government): It was the academic standards in the school that were appropriate, because that was perceived at the time to be appropriate.
GR1 (Government): One cannot cast back 40 years and try and impose, we say, on Ireland or any other contracting state, standards of today.
GR1 (Government): And if one looks at Ireland of 40 years ago, we would respectfully suggest there is absolutely no evidence that the standards of protection for children in Ireland at the time were any less than in other contracting states.
GR1 (Government): And indeed, if that was the case or a case was to be made in that regard, now, 14 years after the case commenced, one can be, I think, morally certain the applicant would have identified those standards and put them before the court.
GR1 (Government): The only document which the applicant adds into the pot today is a Home Office Memorandum from 1952.
GR1 (Government): Notwithstanding the historically close relations Ireland has had with the United Kingdom, by 1952, Home Office Memoranda did not percolate through to the Irish school system.
GR1 (Government): And therefore, I don't think merely citing that can advance the applicant's case in any way.
GR1 (Government): May I please take questions?
Dean Spielmann (JudgeP): Thank you very much, Mr. Mc Donagh.
Dean Spielmann (JudgeP): I turn now to the judges if there are questions.
Dean Spielmann (JudgeP): This does not seem to be the case.
Dean Spielmann (JudgeP): The court is, Judge Charleton.
Peter Charleton (Judge): If I may, Monsieur le President, I have some questions.
Peter Charleton (Judge): Firstly, for the state, that's to say the government of Ireland, can you give me another instance where the state pays the salary of anyone, leave out the word teacher for the moment, but is not liable for his or her misconduct vicariously?
Peter Charleton (Judge): That's the first question.
Peter Charleton (Judge): I have some others.
Dean Spielmann (JudgeP): Yes, please.
Dean Spielmann (JudgeP): Will I put all of them together?
Dean Spielmann (JudgeP): Then we will rise and we will come back later.
Dean Spielmann (JudgeP): Yes, okay.
Peter Charleton (Judge): Secondly for the state, could a teacher by sexual abuse ever, absent negligence, make his employer vicariously liable?
Peter Charleton (Judge): And then thirdly again for the state, just by way of clarification, I take it that the reference to the Carrigan Report and the Criminal Law Amendment Act 1935 is to the provision which makes any sexual action with a girl of 14 years or under unlawful and something to which she cannot consent.
Peter Charleton (Judge): Those are my questions for the state, Mr. President.
Peter Charleton (Judge): I have some also for the applicant.
Dean Spielmann (JudgeP): Put them immediately to the audience, please.
Peter Charleton (Judge): Breyer. Okay. It is said that the master was immune and that the State wanted
Peter Charleton (Judge): to sweep any allegation in relation to sexual abuse of a child under the carpet.
Peter Charleton (Judge): If that is so, why is it on the transcript that, again, not using names, the master had a special arrangement by way of secretly looking into the other classroom to observe the other teacher with a piece of paper that he could uncover to see what was happening and also ceased any time there was a noise of a car in his abuse? In other words, how
Peter Charleton (Judge): is your submission consistent with the fact that he feared being found out?
Peter Charleton (Judge): I have another question also for the applicant. It's in relation to the bishop. In Ireland,
Peter Charleton (Judge): we have a procedure called the O'Byrne letter. If you have potentially four defendants, for
Peter Charleton (Judge): instance, someone trips on the road and you don't know whether the hole in the road was caused by the gas company, the electricity company, the municipal authority, you write an O'Byrne letter to all of them, and once you have written that letter calling on them to sort out liability amongst themselves, it is the losing defendant against whom the order for costs is made. That being so, what possible reason do you have for not suing
Peter Charleton (Judge): the bishop? And then the last question to the applicant's
Peter Charleton (Judge): representatives, and by the way, this is not addressed to the applicant who is the victim in this case. It is addressed to the council. What suggestion was actually made at trial
Peter Charleton (Judge): through evidence as to the protection of children that could prevent abuse? And are you making
Peter Charleton (Judge): the allegation that the Stay Safe program, which was implemented in 1999, and which all of us who have children who are under 14 or 15 are familiar with, may succeed in stopping this kind of abuse? Are you making the suggestion that it should have been a Stay Safe program,
Peter Charleton (Judge): whereby there is reference taught to children about private areas, private actions, something which did not happen up to that time? So those are my questions, Mr. Lepresto.
Dean Spielmann (JudgeP): Thank you, Judge Charleton, Judge De Gaetano, please.
Vincent A. De Gaetano (Judge): Thank you, Mr. President.
Vincent A. De Gaetano (Judge): I have two questions, one addressed to the, to counsel for the respondent government, and the other to both.
Vincent A. De Gaetano (Judge): The first question is, I would like to have some further reaction from the respondent government.
Vincent A. De Gaetano (Judge): What the government has to say in reply to the applicant's reference to the guidance note of the 6th of May, 1970.
Vincent A. De Gaetano (Judge): The applicant says it was totally ineffectual, in effect, no real guidance whatsoever.
Vincent A. De Gaetano (Judge): I would like to have the respondent government's reaction to that.
Vincent A. De Gaetano (Judge): I believe the counsel for the applicant made this statement, again reiterated the statement, even in his submissions.
Vincent A. De Gaetano (Judge): The second question is, and I ask this question because I don't know what the position is in Ireland totally, is apart from suing the bishop or the archbishop, which my colleague has just mentioned, is there the possibility of suing instead the diocese or the archdiocese as a juridical person?
Vincent A. De Gaetano (Judge): In other words, not the bishop in his individual capacity.
Vincent A. De Gaetano (Judge): I wonder if I could have some clarification on that point.
Vincent A. De Gaetano (Judge): Thank you very much.
Dean Spielmann (JudgeP): Thank you.
Dean Spielmann (JudgeP): Any other questions?
Dean Spielmann (JudgeP): No.
Dean Spielmann (JudgeP): The court will now rise for 15 minutes, following which the parties will return for a second round of short pleadings to respond to the submissions in the first round and to answer the judges' questions.
Dean Spielmann (JudgeP): The hearing is suspended.
Dean Spielmann (JudgeP): The hearing is resumed.
AP1 (Applicant): Members of the Court, if I could first address Mr. Justice Charlton's question as to the,
AP1 (Applicant): he used the phrase, a phrase, as to the alleged immunity of the master, or the headmaster.
AP1 (Applicant): And I think first I should say that we haven't asserted, nor need we, that the master was immune from the consequences of his acts.
AP1 (Applicant): And in that light, may I say, when you're reading the Ferguson report, I'd invite you, and I don't think this is unfair of me, albeit it is somewhat speculative, I'd invite you to bear in mind and ask yourselves the question, what would Ferguson have written if he had had possession of the Ryan Report, which of course had not yet been published?
AP1 (Applicant): So I don't say the master was immune.
AP1 (Applicant): And the phrase, sweep under the carpet, is not our phrase.
AP1 (Applicant): It comes from the Ryan Report.
AP1 (Applicant): I was quoting the Ryan Report directly.
AP1 (Applicant): And we do not say that the master perceived no risk.
AP1 (Applicant): Of course he perceived a risk.
AP1 (Applicant): But he clearly took the view that it was a low risk which he could take.
AP1 (Applicant): And he was proved right, not merely for the decade of his abuse in that school, but for the following 20 and odd years before in 1995 he was finally exposed.
AP1 (Applicant): The issue in this case is not whether the master felt immune.
AP1 (Applicant): In fact, the issue in this case, as I've tried, I hope to emphasize, is why once he was exposed in 1971 to the manager, the manager, it seems, was not in receipt of any training or background or instruction which would have led him to tell the department of the complaint.
AP1 (Applicant): That's my answer to Mr. Justice Charleston's first question.
AP1 (Applicant): As to the second question regarding the O'Byrne letter, I hope without being unfair, I can deal with that and Judge D'Agatano's question as to suing the bishop together.
AP1 (Applicant): An O'Byrne letter is a common law rule, I think is fair to say.
AP1 (Applicant): A practice is probably a better word for it.
AP1 (Applicant): It's not in the rules of court or anything like that.
AP1 (Applicant): But it is a practice in which the Irish courts have said, if you have a number of possible defendants and you believe all of them may be liable or some and you're not sure which, you write them all a letter saying, we're going to sue all of you.
AP1 (Applicant): And if we fail against one, we'll seek to have the costs which are recovered against us by that one in turn recovered from the defendant against whom we succeed.
AP1 (Applicant): And a couple of things are to be noted about those letters.
AP1 (Applicant): The first is they are matters of discretion in the court.
AP1 (Applicant): At the end of the case, out come the O'Byrne letters.
AP1 (Applicant): And the court may or may not decide to adjust the costs accordingly.
AP1 (Applicant): And one of the issues which the courts will consider in making that discretionary decision is whether in reality there was any proper basis at all for suing the successful defendant.
AP1 (Applicant): And in this case, and this addresses, I hope, Judge D'Agetano's question, Irish law, as we have said in our submission, was perfectly clear that a bishop is not a corporation sold, which means that one bishop is not liable for his predecessor's wrongs.
AP1 (Applicant): That is the state of Irish law.
AP1 (Applicant): Now, the state says correctly that many bishops have not raised that issue in litigation.
AP1 (Applicant): They do so, as indeed I think Mr. Justice Kagan said,
AP1 (Applicant): often out of a sense of honor, which does them credit.
AP1 (Applicant): But this bishop in this case chose to do that by his letter.
AP1 (Applicant): And correctly, counsel, as it happens it wasn't me, advised at the very start of the proceedings, don't sue the bishop because he has in law a complete defense.
AP1 (Applicant): I can't say whether he considered the O'Byrne letter issue, but I can say that had I been advising, I would have said, an O'Byrne letter might give you certain comfort or protection or a reasonable hope that it would work out.
AP1 (Applicant): But it is by no means, an O'Byrne letter is not a license for unwarranted proceedings against defendants who have an absolute defense.
AP1 (Applicant): And the matter goes further.
AP1 (Applicant): As things turned out, we lost against the state but succeeded against Mr. Hickey.
AP1 (Applicant): So what would have happened had we sued the bishop and failed?
AP1 (Applicant): We'd have got an order for costs against us in favor of the bishop and what's called an order over for those costs against Mr. Hickey.
AP1 (Applicant): The bishop would have come to us looking for his costs, would have had to pay him.
AP1 (Applicant): We'd have looked for them in turn for Mr. Hickey, who hasn't the capacity to pay them.
AP1 (Applicant): So we would have been significantly prejudiced, even had the O'Byrne letter been active.
AP1 (Applicant): And then to come back and finish my reply to Judge Chitana's question, in Ireland, the diocese of the Roman Catholic Church do not have legal standing as legal entities.
AP1 (Applicant): They are not, in the Irish phrase, corporations, sole, and they cannot be sued in that capacity.
AP1 (Applicant): And I made this point, in fact, in my submissions because the Canadian cases point up the distinction.
AP1 (Applicant): In Canada, the diocese, at least in certain states of Canada, does have legal status as a corporation.
AP1 (Applicant): But that was brought about by legislation.
AP1 (Applicant): And I think Dolan Bennett's legislation in the early 1900s.
AP1 (Applicant): So legislation was required to give the diocese a status such that it had capacity to be sued and perpetual succession.
AP1 (Applicant): There is no such statute in Ireland.
AP1 (Applicant): Finally, if I may come back to Mr. Justice Charlton's
AP1 (Applicant): question about Stay Safe, the 1999 standard, and indeed the later standard, I think Children First, which has been updated from time to time, I do not make the anachronistic argument that we must apply to 1973 the standards of 1999, or indeed the standards of today.