Balancing the rights of victim-survivors and impugned persons in public inquiries

Abstract

Previous research on public inquiries has evaluated deficiencies in truth-seeking or traumatic experiences of victim-survivors of inquiry processes. This article addresses a specific gap in the literature, offering a critical perspective on the Irish approach to procedural fairness in public inquiries. Irish public inquiries have been significantly influenced by judicial development of the right of impugned parties to fair procedures. In contrast, despite some innovations to support witnesses in criminal trial, this article argues that Irish courts and inquiries to date have adopted an imbalanced approach between the interests of victim-survivors of harm providing testimony as witnesses to inquiries and impugned parties in inquiry processes and reports. In particular, the approach to testimony in inquiries does not reflect advances in how courts gather best evidence, including that of ‘vulnerable’ persons, either in Ireland or comparatively. This approach results in public inquiries being unnecessarily re-traumatising and distressing for victim-survivors.

Introduction

The use of public inquiries has increased globally in recent years in response to allegations of widespread or systematic wrongdoing (Sköld and Swain, 2015). Public inquiries are typically established on a statutory basis, with powers to compel documents and witness attendance, while offering procedural safeguards (Beer 2011; Prasser, 2006). Ireland has made extensive use of public inquiries to address a range of scandals, since the 1990s, with Gleeson and Ring (2020) noting that public inquiries have become a ‘central feature of Irish life’. Such inquiries have addressed the relationship between the Irish planning system, politicians and business (Hamilton, 1994; Mahon and Flood 2012; McCracken, 1997; Moriarty, 2011); harms, regulatory failures and negligence that has resulted in loss of life (Finlay, 1997; Keane, 1981); police misconduct (Barr, 2006; Charleton, 2017; Morris, 2008); and non-recent institutional abuses, including child sexual abuse (Ryan, 2009; Murphy, 2005; McAleese, 2013; Murphy, 2021; Murphy, 2009, 2011).

Previous research on inquiries has addressed deficiencies in truth-seeking (McAlinden, 2013) and the negative and traumatic experiences of victim-survivors of inquiry processes (Hamber and Lundy, 2020; Pembroke, 2019). This article addresses a specific gap in the literature, offering a critical perspective on the Irish approach to procedural fairness in public inquiries, and draws on comparative legal reforms and alternative approaches. Legal obligations to protect the right to a good name of persons impugned at inquiries have been the subject of much litigation and concern in Ireland. Recent scholarship provides increasing evidence of re-traumatisation and distress of victim-survivors at public inquiries, when subjected to cross-examination and disbelief of their testimony (McAlinden et al., 2025; McAlinden and Naylor, 2016).

This issue has gained renewed importance in Ireland recently. Following media revelations from survivors regarding non-recent sexual abuse in elite boys’ day schools, the Irish government established a non-statutory inquiry in 2023, to recommend a framework for a government response to these allegations. While its 2024 report affirmed that the risk of re-traumatisation arising from cross-examination of testimony is a key concern for victim/survivors, the report ultimately recommended an existing model similar to previous approaches, with no further steps to address risks of distress or re-traumatisation. In July 2025, the Irish government established a Commission of Investigation into the Handling of Historical Child Sexual Abuse in Schools. ¹ The Commission's terms of reference oblige it to ‘strive to be as survivor-centred as possible, consistent with fair procedures’, but avoids detailing how this balance may be struck.

This article argues that Irish courts and inquiries to date have adopted an imbalanced approach between the interests of victim-survivors providing testimony as witnesses to inquiries and individuals and organisations whose behaviour is potentially impugned in the inquiry process and report. The examination of testimony in inquiries has not kept pace with the advances in how courts gather best evidence, including that of ‘vulnerable’ persons, either in Ireland or comparatively. This approach results in public inquiries being unduly and unnecessarily re-traumatising and distressing. Section 2 considers the exceptional legal character of public inquiries in adversarial common law systems. Section 3 considers the practice of procedural fairness at public inquiries. Section 4 addresses the right to cross-examination in Irish law and notes a significant trend of re-balancing this right with the emergent rights of victim-survivors in criminal procedure, which is not yet reflected in the practice of Irish public inquiries. Section 5 considers comparative experiences in England and Wales and Northern Ireland and Australia. Section 6 concludes by evaluating the potential for change in Irish public inquiries.

The character of public inquiries

In Ireland, public inquiries include tribunals of inquiry, commissions of investigation and non-statutory inquiries. This article will focus on the former two inquiry types, as both are established by legislation and have been evaluated by Irish courts in terms of how they engage legal rights and responsibilities of parties. Tribunals can be established under the Tribunals of Inquiry (Evidence) Act 1921–2011. ² The 1921 Act, as amended, does not establish detailed procedures for tribunals: a tribunal may make such orders as it considers necessary for its functions and has all the powers, rights and privileges of the High Court. In practice, tribunals have exercised powers to enforce attendance of witnesses and production of documents – failure to comply is an offence. ³ In contrast, commissions of investigation can be established under the Commissions of Investigation Act 2004 and have their terms of reference set by a Minister of government by statutory instrument. Part 3 of the 2004 Act offers the chair of the commission discretion as to how the inquiry will operate. Evidence provided to commissions of investigation is sworn but is usually provided in private. Though commissions retain the statutory discretion for public hearings, this has been exceptional in practice. ⁴

Both tribunals and commissions of investigation have a distinctive legal character, but one that Irish courts have curtailed through their emphasis on the reputational rights of impugned persons. First, Irish courts have affirmed that public inquiries are ‘legally inert’ but nonetheless warrant procedural protections of impugned individuals’ good name in society. ⁵ Charleton J stated, as chair of the recent Disclosures Tribunal (2017): ‘No one may be criticised to the extent of diminishing their good name without what are essentially the entitlements of a person accused of a serious crime. These rights enure to the benefit of those who may be criticised despite the fact that a tribunal has no powers of sanction and cannot award damages for a civil wrong.’ Second, public inquiries are not bound by the rules of evidence adopted in Irish courts. A tribunal is entitled to ‘admit any evidence which it deems to have probative value.’ ⁶ Third, public inquiries are unusual in an adversarial, common law, system due to their inquisitorial character, ⁷ with the result that witnesses are called by an inquiry, not by a party to proceedings and can be subject to cross-examination as only permitted by the inquiry. ⁸ However, in Lawlor v Flood the Supreme Court noted that while inquisitorial, inquiries may take on an adversarial character in impugning the reputation of individuals but that ‘some of the rights long associated with adversarial proceedings do not translate into those of an inquisitorial nature.’ ⁹ The courts have also recognised the likely persistence of adversarialism as the dominant common law practice despite the exceptional context of public inquiries. ¹⁰ It is in this context that the Irish Law Reform Commission report on Public Inquiries (2005) recommended that: ‘procedures developed and applicable in the adversarial process should only be extended to tribunals of inquiry when absolutely necessary.’ Thus, four key principles – a legally inert status, an inquisitorial character, a freedom of choice of procedures and an obligation to protect the reputation of impugned parties, considered in the next section in depth, must be examined and balanced in Irish public inquiries.

Inquiries often face significant public and stakeholder expectations to achieve a range of justice needs, especially in the absence of a clearly statutorily defined function. Gallen (2023) has previously argued that inquiries are best understood as raising expectations that the testimony of victim-survivors will be validated, acknowledged and used to inform the implementation and practice of other justice mechanisms. McAlinden et al. (2025: 141) suggest that in the context of non-recent harms, accountability and catharsis ‘are of central importance in establishing victim-centred justice discourses yet which inquiry mech­anisms usually struggle to deliver’. Ireton (2023: 214) suggests ‘the role of an inquiry may be made up of a number of elements: learning lessons; providing catharsis; making recommendations to prevent recurrence; developing public policy; and discharging the government's obligations to investigate alleged breaches of Articles 2 and 3 of the European Convention on Human Rights (ECHR)’. Ireton expresses concern that the evolution of public inquiries has unjustifiably raised expectations that inquiries can provide findings of culpability and that, in the absence of a stated legal function of public inquiries, it may be impossible to reconcile all the interests of participants and other affected parties. She (2023: 227) concludes the evolution of inquiries may have ‘blurred the lines between a political and a legal process’ and that as result an inquiry is ‘never going to constitute a process whose primary focus is providing long sought-after answers or justice for survivors and the bereaved, or the opportunity for their voices to be heard’.

However, while public inquiries can never usurp the judicial function and provide legal findings of liability or guilt, they have an inescapable investigative and perhaps truth-seeking function. Ireton (2023) emphasises that inquiries typically investigate matters at a level of broad administrative or systemic failure, rather than individual incidents and, in so doing, are designed to complement rather than replace other justice and accountability measures. Hogan et al. (2019) note an inquiry is typically expected to provide a broad and comprehensive set of findings, as determined by its terms of reference. In contrast, a court's focus is narrowed to consider reasonable doubt of guilt in a criminal context or whether a cause of action is more likely than not in the civil context. Similarly, while in court a judge may confine decision-making to whether legal standards of proof are met, inquiries are ‘tasked with reporting on matters of high political moment that ostensibly justify extraordinary public expenditure, does not have that comfort. A tribunal is required to actually state where the truth lies.’ (Charleton, 2017: 26). Moreover, some inquiries, such as Royal Commissions in Australia discussed below, referred matters to criminal investigations.

The expectation that an inquiry does justice work is also risky for those seeking meaningful accountability. In the context of non-recent abuses, O’Rourke (2021: 438) argues the Irish state ‘has taken advantage of victim-survivors’ lack of access to the ordinary democratic mechanisms of the courts, police investigations, inquests, and archives to create mandates and procedures for these ad hoc mechanisms which do not meet human rights law requirements’. In circumstances where access to civil or criminal justice is challenging or illusory for non-recent cases, executive control over public inquiries means survivors may place expectations on a public inquiry to meet justice needs because other avenues of justice are effectively closed to them or present equally challenging processes (Smith and Duff, 2020). While there thus be may be undue expectations on a public inquiry, inquiries can nevertheless be capable of providing political accountability without direct legal liability or consequences by publication of its report, evidence or recommendations alone. In setting this revised expectation, it nonetheless remains reasonable for all participants to expect that they be treated and questioned with respect, dignity and ideally in a trauma-informed fashion. There are many ways in which an Irish public inquiry could be reformed (Shilliday et al., 2023). One suitable focus is to interrogate whether the existing balance of procedural fairness between participants alleging abuse and those whose reputation is appropriate, especially in the Irish context of ongoing practices of cross-examination.

Procedural fairness at public inquiries

Neither the legislation governing tribunals nor commissions of investigation provide detailed guidance on procedures or procedural fairness and so Irish courts have clarified the procedurally fair functioning of public inquiries. In Haughey v Moriarty, the Supreme Court concluded that: ‘…the principal function of such Tribunals has been to restore public confidence in the democratic institutions of the State by having the most vigorous possible enquiry consistent with the rights of its citizens into the circumstances which give rise to the public disquiet.’ ¹¹ In doing so, the court identified the procedural phases of a tribunal as including ‘a preliminary investigation of the evidence available; the determination by the Tribunal of what it considers to be evidence relevant to the matters into which it is obliged to enquire; the service of such evidence on persons likely to be affected thereby; the public hearing of witnesses in regard to such evidence and the cross-examination of such witnesses by or on behalf of persons affected thereby; and the preparation of a report and the making of recommendations based upon facts established at such public hearing.’ ¹²

The 2004 Act presents any Commission of Investigation with the opportunity to establish its own procedures. Section 11(2) of the 2004 Act provides that the Commission can direct which persons can be present while evidence is heard, can restrict the presence of legal representation unless required by fair procedures, and can direct who can examine and cross-examine witnesses. Section 14 provides that evidence may be received by the Commission, orally before the Commission, by affidavit, or ‘otherwise directed by the commission or allowed by its rules and procedures. This may include by means of a live video link, a video recording, a sound recording or any other mode of transmission.’ Section 15 confers on commissions the power to establish their own rules and procedures regarding evidence and submissions received. Section 34 provides that before submitting its reports to the specified Minister, a commission shall send a draft of the report, or the relevant part of the draft report, to any person who is identified in or identifiable and allow them time to respond. As a result, a Commission of Investigation is afforded significant latitude regarding its procedures, subject to the requirements of procedural fairness established by the Irish courts. Beyond the duty to notify identifiable witnesses under section 34, there are no meaningful safeguards to protect the interests of witnesses, especially those who are foreseeably ‘vulnerable’ or subject to prior experiences of trauma that may be exacerbated by the provision of testimony and cross-examination.

Several cases regarding an individual's right to a good name under the Irish Constitution, and the state's duty to protect and vindicate this right, have shaped how inquiries operate in Ireland. Not all of these cases concerned inquiries which have ‘victims’ who have directly experienced traumatic events, physical harm or who can claim their legal rights have been violated (Hogan et al., 2019). Though victim status is now recognised in the Constitution, this distinction has not significantly impacted the development of this Irish jurisprudence to date. The central case concerning procedural fairness for those whose reputation is impugned is Re Haughey, where the Supreme Court articulated minimum standards of protection which drew upon Article 40.3 of the Constitution to guarantee the due process rights of those involved in proceedings before an Oireachtas committee:

that he should be furnished with a copy of the evidence which reflected on his good name;

that he should be allowed to cross-examine, by counsel, his accuser or accusers;

that he should be allowed to give rebutting evidence; and

that he should be permitted to address, again by counsel, the Committee in his own defence. ¹³

These criteria have since been confirmed and considered in other Irish cases concerning public inquiries. In Mooney v An Post, the Supreme Court held that the minimum procedural rights required in the case were that ‘he is entitled to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.’ ¹⁴ In Lawlor v Flood, Murphy J highlighted the fact that such procedural rules were important as the nature of the inquiry switched from inquisitorial to adversarial, as Haughey was accused of misconduct. ¹⁵ However, Murphy J also stressed that the constitutional rights flowing from In re Haughey are ‘not a ritual or a formula requiring a slavish adherence.’ ¹⁶ This flexibility was affirmed in O’Callaghan v Mahon, where the Supreme Court ‘stated that the requirements of natural justice will vary depending on the gravity of what is alleged, whether or not personal responsibility is to be established, whether there is a “paper trail” or other body of uncontradicted evidence or corroboration available, whether the inquiry sits in public or in private, and other matters’. ¹⁷ Thus while Irish inquiries generally maintain an inquisitorial character, the subject matter of an investigation may result in a more adversarial process where the reputation of individuals or institutions are impugned. In this context the ability of impugned parties to cross-examine witnesses is seen as paramount. The Report of the Scoping Inquiry in 2024 considered this issue as follows in the context of allegations of child sexual abuse:

The more serious the findings of wrongdoing that have to be made by an inquiry, the more likely it is that full procedural rights have to be afforded to persons accused of the wrongdoing, and this is particularly so before a tribunal. Although a commission has flexible processes available to it to determine such issues, it may decide that cross-examination is necessary to fairly dispose of accusations of wrongdoing. Although there are comments in the case law suggesting that it is open to a commission to make findings of serious wrongdoing without affording rights of cross-examination, it appears to be a matter of the degree of seriousness of the accusation, and there has been no case testing the limits of commissions’ powers in this respect (Scoping Inquiry, 2024, Vol. 3, 415).

In this context, allegations of child sexual abuse are seen as likely attaching the full range of procedural safeguards, such as the right to cross-examine witnesses, for impugned parties (Scoping Inquiry, 2024). The Scoping Inquiry report (2024) detailed some survivor experiences of cross-examination, described as ‘aggressive and inappropriately confrontational, with experienced legal teams attempting to discredit their testimonies.’ Others described being ‘portrayed as liars and unreliable witnesses in court’, with one participant describing what he experienced on the stand as ‘a character assassination’ (Scoping Inquiry report). McAlinden et al. (2025) document survivor experiences that that adversarial processes at Irish and Northern Irish inquiries are the equivalent of ‘put[ting] someone on proof’ and another participant suggesting ‘victims felt they were essentially being branded as liars by proxy’. The cautious approach suggested by the Scoping Inquiry report reflects the existing practice of Irish public inquiries regarding the cross-examination of witnesses, but not the recent recognition in Irish criminal procedure of the re-traumatising nature of cross-examination. The lack of balance suggested by the Scoping Inquiry report and not precluded by the broad terms of the reference of the Commission of Investigation established in 2025, suggest the potential for foreseeable distress and re-traumatisation of survivors at this newly established inquiry.

Cross-examination in Irish law

The right to cross-examination in Irish law

Cross-examination is a central feature of the Irish legal system, as in other adversarial common law jurisdictions. In State (Healy) v Donoghue, Gannon J affirmed that an accused person possessed the procedural right ‘to hear and test by examination the evidence offered by or on behalf of his accuser’ by virtue of Article 38.1 of the Irish Constitution. ¹⁸ In Donnelly v Ireland the Supreme Court affirmed that cross-examination was an ‘essential ingredient in the concept of fair procedures’. ¹⁹ However, the courts have noted that the right to cross-examine is not absolute but is ‘[s]ubject to the trial judge's entitlement, even duty, to control the trial and give appropriate rulings’. ²⁰ Examples of this include in DPP v Piotrowski, it was held that a trial judge is entitled to intervene and control cross-examination related to the general credibility of a witness. ²¹ In McNamee v Revenue Commissioners, ²² Laffoy J approved of the principle in Browne v Dunn, where Lord Halsbury stated: ‘The extent to which fairness requires cross-examination is essentially dependant on how a trial runs. Fairness, however, is what the law requires both in relation to procedures that are dedicated towards achieving a correct conclusion in a trial and in relation to the right of a witness to be given a real opportunity to comment on a verdict the implication of which may only be interpreted as adverse.’ ²³ In DPP v MS, the Irish Supreme Court considered the obligation to ‘put the case’ to witnesses in criminal and civil contexts. While affirming the obligation of counsel to do so, the Court noted: ‘Application of the rule requires thoughtful engagement with how the trial is running; not all situations demand “putting” the opposite case to the witness.’ ²⁴

While thus recognised as a prominent element of procedural fairness, the right to cross-examine needs to be understood in the context of competing concerns in the fairness of proceedings, including the growing recognition of victims’ rights in Irish law. In The People (DPP) v VE, Ní Raifeartaigh J affirmed the Irish Constitution included rights of victims of crime under the personal rights provisions of Article 40.3 and the specific rights of children under Article 42A.1. ²⁵ Regarding the interaction of these rights with procedural fairness, Ní Raifeartaigh J concluded that: ‘The fairness of the trial may require some accommodations to be made for a complainant who has a particular vulnerability. Such persons may fall victim to sexual offending, and indeed their very vulnerability can sometimes render them particularly at risk of abuse. A trial process which seeks to be fair to such complainants must take into account their special needs in order to place them on an equal footing with other complainants.’ ²⁶ The Court noted that: ‘Other countries have been much more proactive in recent years in terms of developments intended to secure the best evidence from vulnerable witnesses while simultaneously protecting the right of cross-examination as far as possible.’ ²⁷ The Court adopted the English Court of Appeal positions in Barker and Lubemba discussed below. ²⁸ In 2024 in People (DPP) v WC, the Supreme Court agreed that the rights of victims (including complainants) must be considered at trial, and it is the duty of the court ‘to ensure focus whereby the examination of witnesses is conducted as an exploration into where the truth lies and not as an exercise in re-victimisation or in confusion.’ ²⁹ In addition, legislative changes have supported recognition of victims’ rights. The EU Victims’ Directive 2012 was transposed into Irish law via the Criminal Justice (Victims of Crime) Act 2017, which enables a court to restrict cross-examination to protect victims from secondary victimization, if not contrary to the interests of justice and if questions relate to the private life of a victim unrelated to the offence. ³⁰

Other changes, understood as special measures, have further altered the nature of examination of witnesses in Irish law, including the use of intermediaries to engage in questioning of children and adults with ‘special protection needs’. ³¹ However, the implementation of intermediaries has been challenging, though there is evidence of improvement and greater use in recent years (Gallagher et al., 2024). In addition, Irish law has recently begun providing for pre-trial, ground rule hearings. ³² In DPP v VE the Irish Court of Appeal affirmed that the use of ground rules and pre-recorded evidence had not restricted defendant's counsel's ability to examine the witness, a child with a learning disability, in an unfair manner. ³³ However, Cusack (2017) has identified limited enthusiasm for Ireland's statutory special measures framework among practitioners to date. As a result, the Irish legal system has begun to acknowledge that while a foundational aspect of an adversarial system, cross-examination is not an absolute entitlement of a legal defence, and that courts can and should exercise supervisory control over cross-examination to ensure it remains reasonable and fair to all parties to proceedings. In this regard, Irish courts have begun to recognise that traditional approaches to cross-examination have limits as mechanisms for establishing truth, reflecting the need to augment investigators’ and courts’ abilities to obtain best evidence as in the UK discussed below.

Legislative changes and recent case law recognise that the need for procedural fairness for accused persons warrants re-configuration in the context of stated categories of vulnerable witnesses, typically children and those who allege sexual abuses. In DPP v AM, the Supreme Court reviewed this trend of legislative changes and reflected that ‘[t]his narrative should not obscure the fact that reform has been slow and patchy and…even where legislation has been enacted, there have been delays in providing the practical measures necessary for its effective implementation. Even so, the arc of legislative intervention is clear.’ ³⁴ These changes are welcome. To date, however, such concerns have not impacted the design or approach of cross-examination in Irish public inquiries. While child sexual abuse allegations are undoubtedly capable of seriously damaging an impugned parties’ reputation, it is difficult to justify a victim-survivor facing a more challenging experience of cross-examination at a public inquiry than in a criminal trial.

Cross-examination in public inquiries

While courts have accepted that that parties to criminal and civil trials have a right to cross-examine, unless this is limited expressly by statute, ³⁵ they have also identified that the full range of fair procedures, including cross-examination, may not be required for other contexts, such as public inquiries outside of court proceedings. ³⁶ However, other dicta affirm the potential application of cross-examination of witnesses to inquiries by counsel of impugned persons. To date, courts have not recognised the need to balance the right to cross-examine against victim-survivor rights in an inquiry context and therefore leave open the possibility of traumatisation via cross-examination. To date since the foundation of the modern Irish state in 1922, there have been 35 tribunals of inquiry and 18 commissions of investigation. Several inquiries related to child sexual abuse and other non-recent institutional abuses have addressed concerns regarding procedural fairness. There is a significant increase in the volume of litigation challenging aspects of the procedures of tribunals since in the 1990s. ³⁷ Some of this litigation concerned the nature of cross-examination at public inquiries directly. In Maguire v Ardagh, the Supreme Court held that the procedure adopted by a parliamentary subcommittee whereby cross-examination by affected parties was restricted to one day and was postponed until the end of all the examination in chief violated the minimum standards of protection identified in Re Haughey. ³⁸ However, in O’Brien v Moriarty the Supreme Court held that it was consistent with fair procedures for a tribunal to impose restrictions on the time allowed for cross-examination and on the matters on which cross-examination would be permitted. ³⁹

The rights of an impugned person are most obviously engaged where they are alleged to have engaged in serious criminal conduct. In the context of Irish public inquiries, this has largely concerned allegations of child sexual abuse. Some attempt was made in Irish public inquiry practice to mitigate the traumatic effects of cross-examination for survivors of child sexual abuse. The Commission to Inquire into Child Abuse (CICA) contained both a Confidential Committee where victim-survivor testimony was not subject to cross-examination and an Investigation Committee where witnesses providing evidence were subject to cross-examination. ⁴⁰ The CICA Act 2000, as amended, provided that:

In preparing its report, the Commission shall, in so far as any part of the report is based on evidence recorded by the Confidential Committee, have regard to the fact that that evidence received by that Committee could not be tested or challenged by any person and (if it be the case) was not corroborated. ⁴¹

The CICA Act did not make specific provision concerning the requirements of fair procedures. In its Third Interim Report (2003), the Commission provided that fair procedures for persons whose conduct was impugned required full Haughey rights. However, the Commission was still subject to significant legal challenge by religious orders whose members were alleged to have committed criminal acts of child sexual abuse. In Re Commission to Inquire into Child Abuse, the High Court stated while the CICA Act required as ‘sympathetic’ and informal an atmosphere for victim-survivor testimony as possible, ‘[t]here can be no question of sacrificing the requirements of a patently fair hearing in favour of sympathy for a complainant or for the creation of an atmosphere.’ ⁴² In Murray v Commission to Inquire into Child Abuse, the High Court held that representatives of the deceased and incapacitated members of the congregation had the right to cross-examine witnesses, which was deemed necessary for ensuring the operation of fair procedures and constitutional justice in the context of inquiries. ⁴³ However, in discussing the right to cross-examine, the court held that this could be subject to controls and be kept ‘within reasonable bounds’. ⁴⁴ The litigation nonetheless resulted in a conservative approach from the Commission in its subsequent procedures and final report, which excluded naming even those members of religious orders that had previously been criminally convicted (Ryan, 2009).

The impact of these cases and the lengthy and expensive nature of these tribunals and CICA led the Irish state to legislate for commissions of investigation, intended as cheaper and largely private forms of public inquiry, to mitigate the cost and risk of litigation that was prevalent in tribunals of inquiry (LRC, 2003). ⁴⁵ Subsequent reflection has suggested that the role of cross-examination in public inquiries can and should be adjusted. Despite some ad hoc adjustments, inquiry design or terms of reference have not yet incorporated the developments evident in criminal procedure in Ireland or elsewhere. In reflecting on these issues, the Irish Law Reform Commission report (2005) concluded that the inquisitorial nature of inquiries meant that ‘examination and cross-examination of every witness by every represented party, in addition to counsel for the tribunal, is not appropriate.’ In its Third Report (2018: 23), the recent Disclosures Tribunal addressed the role of cross-examination in public inquiries. Charleton J, as chair of the inquiry, stated:

While cross-examination is an instrument for finding the truth, it can also be used to obfuscate and to divert attention away from the central issues. It is expected that represented parties will provide their legal representative with clear instructions; that they will tell them what facts they will later testify to. Cross-examination as to credit can be legitimate… The law of evidence allows the control of cross-examination as to the credit of a witness based on its usefulness to the determination of the facts at issue and its length. That is a rule of commonsense.

The Smithwick tribunal (2013) considered the role of collusion between paramilitaries and law enforcement in the context of the conflict in Northern Ireland and its cross-border impact in the Republic of Ireland. Given the ongoing sensitivity of that subject, the Tribunal enabled some witnesses, mostly former members of the Royal Ulster Constabulary, to give evidence anonymously, using a cipher rather than their own name, behind a screen or off-camera via video link. In addition, a small number of witnesses gave evidence in private, with some transcripts being read into evidence at public sittings of the tribunal. A Cervical Check Tribunal regarding late or missing cervical cancer screenings in Ireland issued practice directions (2020) to ensure ‘a just and expeditious hearing’ for all parties, in particular by setting time limits for the examination and cross-examination of different categories of persons appearing before the tribunal. ⁴⁶ Thus more recent tribunals of inquiry have begun to recognise the need to adapt procedures to enable witnesses to give their best evidence and in doing so, restrict cross-examination in some ways.

In contrast to tribunals and CICA, commissions of investigation have typically offered greater flexibility in procedure to impugned persons but have yet to address the needs of vulnerable witnesses in a manner that consistently provides evidential weight to their testimony, especially when it has been obtained in therapeutically informed ways. Two commissions of investigation into child sexual abuse, in the archdiocese of Dublin and diocese of Cloyne respectively (2009, 2011), operated with the same formal procedures, which involved a combination of ‘formal’ hearings and a further, significant number of informal hearings, primarily with survivors. Both commissions provided draft reports to those who were identified or identifiable for response and comment. After amendments to the report by the Commission, a second draft was circulated to affected parties for further review and submissions.

In 2015, a Commission of Investigation was established regarding mother and baby homes and a representative sample of county homes. ⁴⁷ The Commission of Investigation into Mother and Baby institutions operated with a similar structure to CICA, containing both an Investigative Committee and a Confidential Committee, which was intended to provide a forum for persons who were formerly resident in institutions to provide accounts of their experience informally. ⁴⁸ In contrast, evidence given before the Investigation Committee was to be sworn evidence, subject to cross-examination where required in the view of the Commission. ⁴⁹ Despite the fact that the Commission gave no evidential weight to the testimony provided to the Confidential Committee, 90% of participants contributed to the Confidential Committee only (Gallen, 2022). At a 2021 online seminar, Commissioner Mary Daly stated that this evidence did not inform the findings in the main Commission report because it was not given ‘under oath’ and to integrate such evidence would have taken ‘hundreds of hours’ and further expense. ⁵⁰ It remained unclear to survivors that they could testify to both Committees (Corrigan and Lundy, 2021), and those who provided evidence to the Confidential Committee were not informed that testimony would not be integrated into the Commission's findings (Enright et al., 2025).

The ongoing Commission of Investigation (Response to complaints or allegations of child sexual abuse made against Bill Kenneally and related matters) received testimony from survivors in private while also receiving testimony from Mr Kenneally and others, such as members of the Gardaí, in public. The commission is not concerned with the substance of Mr Kenneally's actions (which have led to his conviction for sexual abuse), but with how the abuse was handled. While Mr Kenneally has complained in his testimony that he had not been given transcripts of survivors’ testimony or the opportunity to cross-examine survivors, the commission confirmed that he was not entitled to such procedural rights. ⁵¹

In Shatter v Guerin, the Supreme Court suggested obiter the potential for limited procedural rights at Commissions of Investigation compared to tribunals of inquiry. ⁵² Charleton J stated that the obligation to provide fair procedures need not necessarily involve granting a person who is potentially subject to negative findings a right to cross-examine. ⁵³ He highlighted that ‘the purpose of the 2004 Act was to enable an inquiry to be conducted with witnesses attending and being examined by the commission but not, necessarily, by any party with an opposing factual stance.’ ⁵⁴ Charleton J specified that minimum fair procedures at a commission entailed notice of the negative findings and a chance to comment prior to publication. He further commented that:

It is to be doubted that the full panoply of Haughey rights are necessary just because a negative comment impacting on the good name of a citizen may be made; even through a public inquiry. The Oireachtas has determined, through passing the 2004 Act, that lesser strictures than those applicable to a public tribunal should apply to a commission of investigation, most usually held in private. It would be contrary to sense to extend the rights derived from the 1971 Haughey decision from tribunals of inquiry to commissions of investigation…. ⁵⁵

These comments highlight the intended flexibility behind the Commission of Investigation model and the intention to move away from a court-like process. ⁵⁶ As a result, while significant, the procedural guarantees of impugned parties to an inquiry are somewhat malleable in the context of inquiry design and procedure and therefore could be designed in such a manner as to augment the rights and interests of other parties, principally alleged victims of wrongdoing relevant to the inquiry's terms of reference. The practice to date, however, has largely created a dichotomy between receiving testimony in an unchallenged informal or confidential manner (Mother and Baby Homes, 2021; Murphy, 2009, 2011) and testimony that can form the basis of the findings of the inquiry directly. There has been no explicit effort to integrate these elements of inquiries to main findings, nor any effort to mitigate the foreseeable damage caused by the practice of cross-examination. The result is to relegate much survivor testimony to an untested status, impacting the overall findings and recommendations of inquiries.

The Scoping Inquiry report (2024) reflected on the ongoing role of cross-examination in public inquiries. It noted that where survivors ‘wish to have their abusers named publicly and findings made against them is likely to require that those survivors be cross-examined by lawyers representing the person against whom they make allegations of wrongdoing.’ The report acknowledged that such cross-examination ‘would likely be retraumatising’ and ‘will inevitably involve questioning the accuracy of survivor's testimony and the truthfulness of their evidence’ and ‘will seek to undermine the accuracy of that witness's memory’. Nonetheless the inquiry report maintained that the right to cross-examination particularly arose where:

the tribunal was dealing with grave allegations against an individual, which, if true, would constitute a breach of the criminal law, and thus were a clear and obvious attack on his good name,

there was little or nothing by way of a paper trail or corroboration,

there was immediate and extensive media coverage of allegations made against the individual and

the evidence against the person largely turned on the testimony of one witness, so that the personal credibility of that witness was a vital factor.

The report concluded that in the context of serious criminal offences such as child sexual abuse, ‘[i]t is difficult to see how a lesser form of procedural rights could apply.’ While recent statutory special measures restricting cross-examination and providing supports for victims are acknowledged by the Scoping Inquiry report (2024), these do not form part of the recommendations for inquiry design related to child sexual abuse in schools nor the terms of reference of the subsequently established Commission of Investigation. Instead, the report notes: ‘The recent legislative and practical reforms aimed at taking into account the impact of court proceedings on victims of crime are instructive when considering what steps a future inquiry might take to support victims.’ However, the existence of these supports in the area of criminal law, with high thresholds regarding evidence, raises the question of why similar supports cannot be provided, as a matter of course, within the terms of reference or statutory procedures for an inquiry, rather than rely on the discretion of an inquiry chair alone. Explicit provision of these protections would provide foreseeable comfort to survivors about their potential experiences in an inquiry and temper the expectations of potentially impugned parties about how they can engage with inquiry processes. Such an approach could ensure that victim-survivor testimony is tested in a less traumatising fashion but still form part of the principal findings of fact of a public inquiry. In this way changes in how the requirements of procedural fairness are achieved may be more able to address some of the high expectations on public inquiries that Ireton (2023) identified. An insistence on an unrestricted approach to cross-examination of witnesses in inquiries is further at odds with comparable inquiries abroad.

Comparative perspectives

Writing extrajudicially over 20 years ago, O’Donnell (2004: 52) argues that ‘no jurisdiction has been able happily to reconcile the essentially investigative nature of inquiries with the adversarial procedures traditionally felt necessary to protect rights’. Since then, the Irish criminal justice system and courts have developed their understanding of how trauma, and the communication needs of vulnerable witnesses, impact how to achieve best evidence. Irish inquiries have lagged behind. The experiences of comparable jurisdictions to Ireland demonstrate that greater integration of developments of these protections for vulnerable witnesses into public inquiries can be achieved than is the case presently in Ireland.

England and Wales

In England and Wales, there has been considerable change to the treatment of cross-examination in legislation and case law, but there remains an ongoing need for judicial vigilance to disrupt long established legal practices that result in cross-examination being a distressing experience in court processes. Special measures offer support to witnesses in criminal trials, if the court considers that the quality of the evidence given by a witness is likely to be diminished by ‘fear or distress’. ⁵⁷ English law provides for the restriction of the cross-examination of any complainant by the accused where the quality of their evidence is likely to be diminished if the cross-examination is conducted by the accused. ⁵⁸ While English law provides for pre-recorded cross-examination since 1999, pilot studies did not commence until 2013 and full access to pre-recorded cross-examination for vulnerable witnesses not until 2020. ⁵⁹ In addition to legislative restrictions, several Court of Appeal decisions redefine the rules of cross-examination to protect vulnerable witnesses, all involving sexual offences involving young children. ⁶⁰ Henderson (2014) argues instead of replacing or re-balancing the rights of victims and defendants, these decisions re-assert the fundamental purpose of cross-examination as a vehicle for investigation and truth, rather than as rhetorical speech or advocate's communication to juries.

In R v Barker the Court of Appeal concluded that the ‘forensic techniques of the advocate (in particular in relation to cross-examination) or the processes of the court…have to be adapted to enable the child to give the best evidence of which he or she is capable.’ ⁶¹ The essential task of the advocate is to ‘formulate short, simple questions which put the essential elements of the defendant's case to the witness’. ⁶² In R v W and M, the Court rejected the use of suggestive or tagged questioning in the context of child witnesses. ⁶³ The court concluded: ‘It is generally recognised that particularly with child witnesses short and untagged questions are best at eliciting the evidence. By untagged we mean questions [which] do not contain a statement of the answer which is sought.’ ⁶⁴ In R v E, the Court concluded that cross-examiners should adopt a cautious approach when challenging or seeking to undermine the testimony of a vulnerable witness, ⁶⁵ concluding that ‘direct challenges’, such as accusations of lying, are unhelpful and risk confusion. ⁶⁶ In R v Wills, the Court criticises the use of ‘inappropriate comment’ in cross-examining a 15-year-old witness: ‘for vulnerable witnesses, the traditional style of cross-examination where comment is made on inconsistencies during cross-examination must be replaced.’ ⁶⁷ Across these cases Henderson (2014) discerns a re-assertion of the function of cross-examination as to ‘test witness’ evidence for accuracy and completeness’ and that ‘mere confrontation no longer has a place in cross-examination of a child or other vulnerable person.’ Henderson (2015) has since argued to extend these reforms in cross-examination beyond vulnerable witnesses to all examination.

In England and Wales, ground rule hearings are permitted to enable judges to establish the nature and extent of intended examination of witnesses and provides the opportunity for a judge to assess draft questions for cross-examination, and to adapt trial procedure to enable vulnerable witnesses to give best evidence (Cooper et al., 2015). While GRHs do not have a statutory footing, they were endorsed by the Court of Appeal in R v Lubemba and are now mandatory in all cases involving intermediaries and regarded as good practice in all cases involving child witnesses and all other cases involving a vulnerable witness or defendant. ⁶⁸ In R v YGM the Court of Appeal concluded that best practice requires several restrictions to cross-examination:

The identification of any limitations on cross-examination should take place at an early stage.

Before the witness is cross-examined, it is best practice that the trial judge also directs the jury in general terms that limitations have been placed on the defence advocate.

If any specific issues of content have been identified that the cross-examiner cannot explore, the judge may wish to direct the jury about them after the cross-examination is completed.

Every advocate and trial judge is expected to ensure that they are up to date with current best practice in the treatment of vulnerable witnesses. ⁶⁹

There has thus been considerable change to the approach to cross-examination and fair procedures in England and Wales in criminal trials, that provides clear guidance for Irish courts and public inquiries. This has also been reflected in the practice of UK public inquiries. There is wide and frequent use of public inquiries in the United Kingdom, with 68 inquiries costing £638.9 million between 1990 and 2017 (Norris and Shepherd, 2017). Public inquiries in England and Wales share with Irish inquiries their origin in the Tribunals and Inquiries (Evidence) Act 1921. Practice of public inquiries under this Act was reviewed by the Royal Commission on Tribunals of Inquiry (1966). The Commission (1966: 16, para. 28) recommended the amendment of the 1921 Act and that all tribunals should follow six principles of procedural fairness (the Salmon principles):

Before any person becomes involved in an inquiry, the Tribunal must be satisfied that there are circumstances which affect him and which the Tribunal proposes to investigate.

Before any person who is involved in an inquiry is called as a witness, he should be informed in advance of allegations against him and the substance of the evidence in support of them.

(a) He should have adequate opportunity of preparing his case and of being assisted by legal advisors. (b) His legal expenses should normally be met out of public funds.

He should have the opportunity of being examined by his own solicitor or counsel and of stating his own case in public at the inquiry.

Any material witnesses he wishes called at the inquiry should, if reasonably practicable, be heard.

He should have the opportunity of testing by cross-examination conducted by his own solicitor or counsel any evidence which may affect him.

On the basis of these principles, the Royal Commission felt able to recommend that there should be no statutory rules of procedure. These principles largely reflect those in Re Haughey in Irish law and the Irish courts have concurred that there is no major distinction between them. ⁷⁰ However, in English law, the principles have not been taken to be mandatory or immutable for fair procedures. In R v Secretary of State for Health, ex p Crampton, Bingham MR stated: ‘while the rationale of the six cardinal principles is undoubtedly sound and anyone conducting an inquiry of this kind is well advised to have regard to them, the Royal Commission Report itself has not been embodied in legislation and numerous inquiries have been conducted, and satisfactorily conducted, since 1966 without observing the letter of those principles’. ⁷¹ Indeed English law has moved on from strict adherence these principles and in doing so provides a template for Irish law to do likewise.

After a multi-year process of consultation and analysis on the effectiveness of existing public inquiries, the UK Public Inquiries Act 2005 was established to ‘provide a comprehensive statutory framework for inquiries set by Ministers to look into matters of public concern’. ⁷² The 2005 Act repealed the 1921 Act. Section 41 of the 2005 Act provided for the power to make additional rules concerning the evidence and procedures of inquiries, which resulted in the Inquiry Rules 2006 that address a range of issues including how evidence is to be taken, procedures for oral hearings and the issuing of warning letters to witnesses. ⁷³ The 2005 Act provides for the status of core participants for persons affected by the terms of reference of an inquiry. Typical practice is that it is only counsel to the inquiry and the inquiry panel can ask questions of a witness to an inquiry. ⁷⁴ However, a chair can also direct that a witness be examined by their own legal representatives or those of a core participant after an application from the relevant party to do so. ⁷⁵ However, the House of Lords Select Committee in post-legislative scrutiny (2014) confirmed that ‘the right of a witness to be examined by his own counsel, and to have his counsel cross-examine other witnesses, has already gone’. ⁷⁶ There have been 42 inquiries established or announced under the 2005 Act at the time of writing. Inquiry practice under the 2005 Act has instances where cross-examination was barred (House of Lords Select Committee, 2014), subject to preliminary lists of questions being disclosed, and significant acknowledgement of the limits of an adversarial approach to cross-examination as a means of delivering truth. In addition, the post-enactment review of the 2005 Act (2014: para. 235) reflected on the ongoing utility of the Salmon principles. It noted regarding cross-examination:

The fourth and sixth Salmon principles, which allow a person the opportunity of being examined by his own solicitor or counsel, and of testing by cross-examination any evidence which may affect him, are over-prescriptive and have the effect of imposing an adversarial procedure on proceedings which should be inquisitorial. They should no longer be followed. Reliance should be placed on the chairman who has a duty to ensure that the inquiry is conducted fairly.

Instead of an untrammelled right to cross-examination by counsel for impugned parties, such parties are entitled to respond prior to publication of the report, often known as Maxwellisation. ⁷⁷ Under the Inquiry Rules 2006, Rule 13(3) requires an inquiry chair to send a warning letter to a person before including any explicit or significant criticism of that person in an interim or final report. It also requires that they be given a reasonable opportunity to respond. Rule 15 contains detailed requirements for the letter's content. Amid criticism that such an approach is overly prescriptive, Ireton (2025) has recently argued that a chair should be given discretion to ‘decide when and how best to use warning letters, depending on an inquiry's specific circumstances.’

The significant reforms to both cross-examination and the nature and operation of public inquiries in England and Wales demonstrates the capacity to retain procedural fairness for accused and impugned persons but to re-calibrate the function of cross-examination and the investigative nature of inquiries to reduce the foreseeable distress and risk of re-traumatisation to alleged victim-survivors. These reforms offer a clear template for Irish practice in public inquiries and are supported by similar reforms in other common law jurisdictions.

Northern Ireland

In Northern Ireland, special measures such as evidence by live link or pre-recorded, were available to child witnesses since the 1990s. ⁷⁸ The conduct of criminal trials regarding sexual offences was subject to significant public attention and advocacy for reform following a significant rape trial in 2018 in which four professional rugby players were acquitted of sexual offences in the so-called ‘Belfast Rugby Trial’ (Iliadis et al., 2021). The subsequent Gillen Review (2019) recommended ‘a new culture of cross-examination, which departs from the conventional adversarial approach’. The report issued a series of recommendations to reform the conduct of trials of sexual offences (Killean et al., 2021) including advocating for significant training, resources and legislative reform related to jury trials, with an emphasis on reform of cross-examination and advocacy. To this end, Gillen (2019) identified a ‘need to redefine conventional rules for cross-examining children and vulnerable people in criminal trials, coupled with the delivery of a strong direction to advocates to change their current practice’. The report noted significant opposition to the idea of pre-recorded examination of witnesses within the profession in Northern Ireland. The 2019 Protocol for Vulnerable Defendants states that ‘All reasonable steps should be taken to assist the vulnerable defendant to give their best evidence, understand and participate in the proceedings, and engage fully with their defence. The ordinary trial process should, so far as necessary, be adapted to meet those ends.’ ⁷⁹

The Northern Irish experience of public inquiries demonstrates however that an inquisitorial approach and questioning through counsel for the inquiry are no guarantees of reducing survivor re-traumatisation and that further and specific measures are necessary. The Inquiry into Historical Institutional Abuse 1922 to 1995 (the ‘HIA Inquiry’) was established in 2012. The Inquiry contained a statutory inquiry within the meaning of the Inquiries Act 2005 and an Acknowledgement Forum, a separate body to which those who experienced abuse in institutions within the terms of reference can describe those experiences in private and in confidence. The powers of the HIA Inquiry are contained in the Inquiry into Historical Institutional Abuse Act (Northern Ireland) 2013 and in the Inquiry into Historical Institutional Abuse Rules (Northern Ireland) 2013. The Act and Rules replicate the status and entitlements of core participants under the 2005 Act. ⁸⁰ Section 15 provides that core participants will be entitled to submit questions to Inquiry Counsel that the core participant would like to have asked of a witness before the Inquiry, if submitted to Counsel to the Inquiry three working days in advance, and are entitled to seek permission to question a witness directly. Under section 21, the Inquiry Chair was entitled to hold preliminary hearings on any preliminary matter deemed necessary. In terms of protecting the due process rights of impugned parties to the inquires, the Rules provide that the Chairman may send warning letters to persons who are the subject of criticism in inquiry proceedings. ⁸¹

The Hart (2017) sought to address survivor concerns by limiting ‘unnecessary’ cross-examination and instead providing for the ‘testing’ of evidence by lawyers for the Hart Inquiry, on the basis that the inquiry would explicitly be inquisitorial rather than adversarial. The Report (2017: Vol. 1, 12) acknowledged that this process of testing evidence was nonetheless difficult for survivors: ‘Some applicants found it very difficult to accept that this process necessarily involved the views of institutions or individuals being put to them and their then being asked to comment upon whatever contrary view was being put forward.’ The HIA inquiry report did not name witnesses or alleged abusers unless anonymity was waived voluntarily. The inquiry held both public and private hearings, the latter to avoid prejudicing ongoing or imminent criminal trials. The inquiry provided witness support officers throughout survivor engagement with the process and counsellors during inquiry hearings themselves. Parties impugned in the draft report received a warning letter and were invited to respond by a specified date; responses were then considered by the Inquiry in drafting the final report.

However, despite these procedural innovations for victim-survivors, the reported experience of the inquiry remained distressing for many survivors. Patricia Lundy (2020) has noted the challenging and damaging experiences of survivors in giving testimony. ⁸² Hamber and Lundy (2020) note that more than half of the victims interviewed thought the private testimony given to that inquiry's Acknowledgement Forum was a positive experience where they were believed and acknowledged, though a sizeable number felt exposed or vulnerable after attending the forum. The statutory or formal inquiry was also problematic particularly regarding cross-examination: ‘16 out of 43 victims interviewed said they felt victimized or intimidated’. Hamber and Lundy (2020) concluded that similar to other inquiries, the HIA inquiry was ‘highly adversarial and employ intrusive cross-examination tactics to discredit complainants’. The experience of victims at the HIA inquiry confirms that neither a stated commitment to a victim-centred approach nor to an inquisitorial style inquiry are per se sufficient to ensure that the manner of questioning of testimony is not distressing or re-traumatising.

The Muckamore Abbey Hospital Inquiry was established in 2021 under the Inquiries Act 2005 to examine abuse of patients at Muckamore Abbey Hospital and its causes and circumstances that enabled it to happen and to prevent re-occurrence of similar abuses. ⁸³ The Inquiry prioritised supporting all witnesses to give their best possible evidence, which would enable their voices to be heard, but also crucially to inform the findings and recommendations of the inquiry. ⁸⁴ Ireton and Ratcliffe (2024) note that the inquiry adopted a very broad definition of ‘vulnerable’, including all patients and family members as potentially vulnerable. Ireton and Ratcliffe (2024: 61) note that inquiry staff were trained in how to engage with vulnerable witnesses in a trauma-informed manner and received support from Registered Intermediaries, which is the first public inquiry in Northern Ireland to adopt this approach:

‘Two fundamental considerations underpinned the training: the concept that all witnesses are potentially vulnerable and the significance of a public inquiry being an inquisitorial process (in contrast, for example, to the criminal and civil justice systems).’ Such an approach was based on the Achieving Best Evidence guidance followed in Northern Ireland and the internationally accepted PEACE model of investigative interviewing. Notably, the Inquiry Chair has not permitted cross-examination of victim-survivor witnesses. Instead, Counsel to the Inquiry Team ‘may question witnesses to clarify facts, probe and resolve inconsistencies, and seek additional evidence, but may not engage in questioning aimed at discrediting evidence or undermining the credibility of a witnesses, as occurs during cross-examination in adversarial proceedings.’

Such an approach reflects the tenor of the reforms to cross-examination in England and Wales. Ireton and Ratcliffe (2024: 61) conclude: ‘By allowing the Inquiry to depart from some of the norms of adversarial advocacy practice, the inquisitorial approach allows questioning to be done in a less confrontational way, which is particularly important in the context of vulnerable witnesses. It enables those witnesses to give evidence in a way they find more comfortable.’ Further empirical evidence, such as interviews with victim-survivor participants to the Inquiry, would strengthen the policy basis for adopting this investigative interview approach in public inquiries and align the role of this approach with growing interest in investigative interviewing (Walsh et al., 2025).

Australia

Australia has further innovated in its treatment of cross-examinations and examination of witnesses at public inquiries, further isolating the conservative Irish approach in the common law context. Three public inquiries have noted significant challenges in the treatment of victim-survivors of sexual and gender-based violence, particularly related to cross-examination (RCIRCSA, 2017; State of Victoria, 2016; VLRC, 2016). Statutory reform of cross-examination in Australia among state jurisdictions has typically offered courts discretion in determining whether a particular witness is ‘vulnerable’ and eligible for alternative forms of examination. For instance, in Western Australia, witnesses may be eligible where they are likely to ‘suffer severe emotional trauma or to be so intimidated or distressed as to be unable to give evidence satisfactorily’. ⁸⁵ Cossins (2020) suggests that Australia's growing willingness to provide legislative restrictions on cross-examinations result in part from recognition that the right to cross-examine is not absolute. Empirical evidence in Australia affirms that cross-examination, when lengthy and challenging of witnesses, can damage witnesses’ wellbeing and the quality of their evidence (Quilter and McNamara, 2023).

In addition to legislative changes affecting criminal and civil trial conduct of cross-examination, the Australia conduct of public inquiries also demonstrates a greater coherence with these legislative reforms and a more consistent care for witnesses than is the case in Ireland. For instance, the Royal Commission into Institutional Responses to Child Sexual Abuse 2013 adopted several valuable practices that could inform reforms in Ireland. First, in its Practice Guidelines No. 1, the Royal Commission narrowed the conditions under which impugned persons could engage in cross-examination of witnesses. The Commission published a programme of hearings and then invited applications for ‘Leave to Appear’ from affected persons. This was generally granted when an applicant:

has been summoned to give evidence;

is an institution, or is a representative of an institution, that is subject to the inquiry to be undertaken;

may be the subject of an adverse allegation.

Where an affected person is granted leave to appear, the Commission could impose conditions on that appearance, including limiting the topics or issues upon which cross-examination could focus and/or limiting the time for examination or cross-examination. A total of 913 people applied for leave to appear, of whom 703 were successful (RCIRCSA, 2017). The Commission enabled examination of witnesses by counsel for the Commission or by parties with a sufficient interest to do so. In enabling third parties to assess witnesses, the Commission could ask the third party ‘to identify the purpose of the examination; set out the issues to be canvassed; and state whether a contrary affirmative case is to be made, and if so the details of that case including providing a signed statement of evidence advancing material contrary to the evidence of that witness.’ ⁸⁶ Finally, the Commission created conditions where testimony received in its private sessions may nonetheless bear evidential weight. Practice Guideline 1 provided for a procedure by which certain information gathered at private sessions could be relied upon by the Commission after a further hearing involving limited cross-examination by an impugned party. ⁸⁷ The Commission said that the information gathered in private sessions ‘informed our investigations, public hearings, and the development of Royal Commission recommendations.’ (RCIRCSA, 2017). Davis (2015) recognises ‘the prioritisation of survivor voices’ in the Australian Royal Commission as a particularly noteworthy feature of the Australian government's response to childhood institutional abuse. Tjandra (2022) suggests that the evolution of Australian Royal Commissions aids in the truth-seeking process of affected victim-survivors and helps re-build trust in public institutions through its treatment and validation of affected persons. Ireland's approach to public inquiries would benefit from drawing on the best practices and innovations in each of these jurisdictions.

Conclusion: Cross-examination truth and public inquiries

This article has reviewed the practice of procedural fairness in Irish public inquiries. The approach taken, particularly regarding the re-traumatising nature of cross-examination, has been unduly conservative and fails to have due regard for the emergence of victim-survivor rights and alternative approaches to achieving best evidence. The concerns of the 2024 Scoping Inquiry report suggest that cross-examination is required at Irish public inquiries, and that such cross-examination will remain inevitably distressing and re-traumatising for victims-survivors. This article rejects this inevitability and provides evidence of plausible and important alternatives. At a minimum, Irish public inquiries can and should adopt the range of special measures that restrict and moderate the right to cross-examination that already exist in Irish criminal law. This range of special measures, such as ground rule hearings and the use of intermediaries, are not perfect, but there is no logical justification for denying victim-survivors these accommodations and protections that they would be afforded as witnesses in a criminal trial. Survivors providing testimony to a public inquiry should not have a foreseeably worse experience than in a criminal justice context. More broadly, Irish public inquiries could profitably adopt the innovative approaches pursued abroad, in Australia and Northern Ireland especially.

However, the introduction of such special measures at Irish public inquiries is likely inadequate. Regarding Australia, Cossins (2020: 496) concludes: ‘the introduction of special measures for protecting vulnerable witnesses implicitly condones the traumatising impact of the adversarial system, resulting in the paradoxical situation whereby a complainant may be allowed a court dog, support person or other measures to reduce her stress and re-traumatisation within a system that is designed to traumatise her and prevent her from giving her best evidence.’ A more fundamental change could follow the growing use of investigative interviewing can and should be explored in the context of Irish public inquiries, especially in commissions of investigation, where the lack of publicity in general in commission hearings has already led to judicial acceptance of the potential for procedural discretion in such commissions and the ability to be fair to impugned parties without affording them the full range of Haughey rights. In Northern Ireland, the Muckamore inquiry evidences the capacity of a British public inquiry to operate without cross-examination of witnesses but retain fair procedures. Ireton and Ratcliffe (2024) note: ‘The very broad discretion an inquiry chair has to determine the procedure and conduct of an inquiry, and their control over the budget of the inquiry, also means a public inquiry is uniquely placed to adopt bespoke, novel and innovative approaches to challenges encountered, to address the needs of vulnerable participants.’ To date Irish inquiries have largely been slow to adopt innovative practices, overly cautious regarding the prospects of judicial review of inquiries and disconnected from developments in Irish criminal procedure and the law of evidence. A broader reading of the Irish courts’ jurisprudence and recent legislative changes suggests the recognition of victim-survivor rights entails a re-balancing of the right to cross-examination, one that should be extended to reforming the practice of public inquiries.