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Monday 2 October 2023 Dublin: 13°C
# Legal questions
'We can't just say it's too difficult': Could criminal investigations into Ireland's mother and baby homes happen?
There have been calls for investigations following the publication of a long-awaited report this week.

tuam-mother-and-baby-homes Niall Carson / PA The site of a mass grave for children who died in the Tuam mother and baby home Niall Carson / PA / PA

THE PUBLICATION OF the final report of the Mother and Baby Homes Commission of Investigation has led to calls for criminal probes into the activities of religious-run institutions for unmarried mothers in Ireland.

The commission’s five-year investigation, published on Wednesday, found that around 9,000 children died in 18 different homes, where girls as young as 12 were admitted over seven decades.

It also found evidence of physical abuse and issues relating to the burial of children, and that private adoption placements of some children – although not illegal until the late 1990s – facilitated “illegal registrations of birth”.

Human rights charity Amnesty International was among those who called for criminal prosecutions in light of the report’s publication, citing unregistered deaths and higher levels of infant mortality in the institutions compared to wider society.

“One element of the right to redress in human rights law is the right to justice,” a spokeswoman for the group told

“This means that the state must hold those who commit human rights abuses accountable, including through criminal investigation and prosecution where evidence allows.”

The charity also explained that it was not asking for 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 his apology to survivors of the homes that the report has been sent to the Director of Public Prosecutions (DPP), and been examined by the Attorney General.

Micheál Martin also said that gardaí and the DPP can “pursue” some of the issues raised, although he did not specifically indicate whether this would take place.

How exactly would a criminal investigation into activities in the homes begin, and could it realistically happen?

Possible crimes

Given the findings contained within the commission’s report, there are no shortage of potential crimes that could be investigated.

The report makes specific reference to physical assaults, while cases could arguably be made for negligence leading to the deaths of children who lived in the homes, or the rape of underage girls before they lived in institutions.

Other possible crimes include whether vaccine trials involving children in some homes were carried out with their consent – an entire chapter of the Commission of Investigation into Mother and Baby Homes report deals with these trials.

But much of this is based on speculation, rather than specific evidence. A level of certainty would actually be required before a case or cases could be initiated.

The legislation that was broken would also need to be identified.

State Apology 58 Sam Boal / Taoiseach Micheal Martin giving a State apology in the Dáil this week Sam Boal / /

Dr Sinead Ring of Maynooth University, an expert in criminal law and evidence and victims’ studies, points out that gardaí could investigate crimes relating to child stealing under Section 56 of the Offences Against the Person Act 1861, or the common law offence of false imprisonment.

Although some of this legislation may no longer be valid, crimes can still be prosecuted under laws which were in place at the time they occurred.

For example, although the Offences Against the Person Act 1861 was repealed in 1997, a person can still be prosecuted under it if they committed a crime before then. 

Ring also highlights that a criminal probe could also be carried out into state officials who had nothing to do with mother and baby homes.

“I see this a lot in my own research into historical child sexual abuse, where you often see gardaí who didn’t do anything when they were told about a crime of sexual abuse,” she explains.

“So there is a possibility that somebody like a garda could be prosecuted for that offence. But there hasn’t really been any actual cases taken against gardaí like this.”

Persons responsible

As well as identifying specific crimes, a prosecution would also involve identifying where crimes took place and who may have been responsible.

The latter is of particular importance, because criminal law is aimed at individuals rather than entire institutions.

That would mean taking a case against someone who was in authority when negligence leading to death occurred, or someone who carried out an assault.

And a suspect must still be alive in order to be prosecuted, something that would likely rule out charges being brought in the vast majority of cases, except those that occurred more recently.

However, Ring points out that there would be no time limit to bring a prosecution in relation to any crime, aside from carnal knowledge of a girl aged between 15 and 17 under the Criminal Law Amendment Act 1935, where a limit of twelve months applies.

Even then, the statute of limitations could theoretically be circumvented if legislation was amended to dis-apply it.

In a statement this week, the Clann Project – a group founded to establish what happened to unmarried mothers and their children in Ireland during the 20th century – called for the Statute of Limitations Act 1957 to be amended to allow justice to occur.

The group cited a precedent in the UK, where section 33 of the Limitation Act 1980 allows a court to dis-apply the statute of limitations where it would be equitable to allow an action to proceed”.

They also urged the State to direct the Chief State Solicitor and State Claims Agency not to plead the Statute of Limitations in institutional abuse cases. 

“The Courts will retain their residual discretion to refuse to allow cases to proceed where it would not be in the interests 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 the 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 a crime to be proven beyond a reasonable doubt.

So if prosecutors could identify an individual, they would need to believe the case against them was definite by having enough evidence to initiate a prosecution.

In such a scenario, there is a question of how gardaí could access evidence to investigate a potential crime.

Speaking on Morning Ireland on Wednesday, Clann Project co-director Maeve O’Rourke said that because survivors did not have access to the records held by religious institutions, it could prevent them from pressing for criminal charges.

Although certain files relating to personal records from religious-run homes will be sent to the Department of Children, many others will be retained by the orders.

Ring explains that access to records held by institutions would be key to any potential prosecution.

“It’s bound up intimately with the question of the administrative files and the information relating to adoption that’s in the possession of the religious orders,” she says.

“But the government has to date refused to legislate to provide for those records to be taken into the possession of the State, and there’s still no real discussion about that.”

However, although the process would be easier if files were taken into the possession of the State, this would not necessarily need to happen for a 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 foot of a criminal complaint.

“There is no reason why gardaí wouldn’t be able to get a search warrant if they were investigating a crime and were able to show the judge that they were able to satisfy the requirements of the warrant,” Ring adds.

There is some precedent for this abroad: warrants have previously been used to access church files as part of criminal investigations in the US, the UK, Australia and Belgium.

Specialist unit

Gardaí could play an alternative role in helping to initiate investigations.

Clann Project also called for a standalone unit to be set up within An Garda Síochána to facilitate survivors of mother and baby homes.

A unit like this, staffed by specially trained gardaí, could provide a more welcome outlet for survivors to make allegations, which could in turn provide officers with a firm basis on which to kickstart an investigation into suspected criminal offences.

Inquests could be another route.

Doireann Ansbro, Head of Legal and Policy at the Irish Council for Civil Liberties, is among those who has called for exhumation at Tuam and other sites where human remains have been found or are suspected of being buried.

“The record of unexplained deaths and the extraordinary mortality rates in these institutions is truly shocking,” she said.

Under the Coroners Act 1962, coroners have obligation to hold an inquest where an unexplained or suspicious death occurs.

Hypothetically, such an inquest could return a verdict of manslaughter due to criminal negligence, which could then put pressure on gardaí to investigate the person or people responsible.

Dr Vicky Conway, Associate Professor at the School of Law and Government at Dublin City University highlights the inquest into the Hillsborough stadium disaster in 1989 as an example of where this occurred elsewhere.

She also tells that there is “no doubt” that inquests are legally required in relation to the unexplained deaths in mother and baby 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 view that any coroner who fails to hold inquests is failing to perform their duty,” Conway says.

“This relates to a large number of coroners in every relevant district, and it would take unprecedented resources to hold. But they are mandated to do so by law.”

However, whether any investigation or inquest ever takes place may depend on the willingness of authorities to push for them to be carried out.

“If the will is there, and the resources are put into it, absolutely it could happen,” Ring concludes.

“It’s very clear that thousands of women and children have been directly harmed, and crimes have possibly taken place. We can’t just say it’s too difficult to try.”

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