Considering Human Rights in addressing Historic Institutional Child Abuse in Northern Ireland

We welcome this contribution from solicitor Khara Glackin of the South Tyrone Empowerment Project (STEP). Khara has provided extensive research and advocacy in the area of historical abuse and human rights.

 

Considering Human Rights in
addressing Historic Institutional Child Abuse in Northern Ireland

Historic institutional child abuse is certainly a very prevalent and deeply sensitive issue in Northern Ireland today. I wholeheartedly welcome the announcement on 29 September 2011
by the Northern Ireland Executive to establish a statutory Inquiry into this issue. A public Statutory Inquiry into historic institutional child abuse can only be brought under the Inquiries Act 2005.
This Inquiry will have the power to compel both witnesses and documentary evidence.  This Statutory Inquiry will in my view play a key role in securing the victims right to an effective remedy. The Inquiry itself should have broad terms of reference which has as its primary focus the provision of a sympathetic and experiences forum in which victims could recount the abuse suffered. The Inquiry should identify and report on the causes, nature and extent of physical and sexual abuse, with a view to making recommendations for the present and future.

 Human Rights Standards

Section 6(1) of the Human Rights Act 1998 prohibits public authorities, including a Minister, from acting in a way which is incompatible with a Convention right. As such, it must be ensured
that the entire inquiry process is compatible with the respective human rights obligations.   The Inquiry process must also be impartial and independent. It is essential that it be compatible with Articles
2 and 3 of the European Convention on Human Rights (ECHR).   The European Court of Human Rights in Jordan v UK (2003) 37 EHRR 52 considered that Article 2 of the Convention required that there should be some form of effective official investigation when individuals have been killed as a result of the use of force.  Five elements have been identified:

1)   The persons responsible for carrying out the investigation must be independent from those implicated.

2)   The investigation must be capable of leading to the identification and punishment of those responsible. The authorities must have taken all reasonable steps available to secure the
evidence concerning the incident.

3)   The investigation itself must be prompt.

4)   There must be public scrutiny of the investigation or its results sufficient to secure accountability.

5)   The next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his/her justifiable interests.

The essential elements of an effective official investigation under Article 2 ECHR are equally applicable in circumstances where an inquiry under the Inquiries Act is investigating allegations of Article 3 ill-treatment (Aksoy v Turkey [1996] ECHR 68; Assenov v Bulgaria [1998] ECHR 98).

 

Prosecution

It must be noted that the Inquiry itself is not capable to prosecuting the perpetrators. Throughout the inquiry process, all reasonable steps must be taken to secure the necessary evidence which would ultimately lead to the identification and punishment of those responsible. This evidence must then be presented to the Police Service of Northern Ireland.  The Police Service of Northern Ireland has a duty to investigate all allegations of child abuse regardless of the date the abuse occurred. There is no set time-limit for the investigation.  When the police consider that there is enough evidence against a suspect (or suspects), the senior investigating officer will contact the Public Prosecution Service who will advise if this is indeed the case. The Public Prosecution Service makes all decisions on whether or not to prosecute someone and takes all legal proceedings against people for criminal offences.  The Public Prosecution Service is independent of the police and Government and any inquiry.
After receiving a case file from the police, which includes witness statements and other evidence, the Public Prosecution Service will decide if there is sufficient evidence to prosecute and if so, what offences the offender should be charged with.

 

Redress

Given the wide diversity of circumstances and needs of victims/survivors, a negotiated redress programme would offer the best opportunity to meet these needs. Any redress scheme should be designed and administered on a case by case basis. It would thus have the capacity to respond to a greater range of needs.  To be successful, it must be carefully planned to respond to the particular needs of the victims/survivors it is intended to serve. It must also be fiscally responsible and realistic. It should be designed with input from the group it is intended to benefit. Compensation and benefits should be offered that respond to the full range of victim’s/survivor’s needs.

It is my view that any redress scheme should run parallel to the inquiry. Any redress scheme that is established must meet the needs of all the victims/survivors involved. In ensuring this, consultations must occur to establish the best redress approach. I am however wholeheartedly in favour of the offending institutions being asked to contribute to any scheme that is established. The offending institutions should be held accountable in this respect as well, for their acts and/or omissions. Any compensation scheme that is established should publish the framework or analytical screen used to
determine their awards as well as their decisions. Assessors should also have agreed information and tools to adequately test claims.

 

KHARA L. GLACKIN

SOLICITOR