Preliminary Investigations & Collecting Proofs Training

1. Training on Preliminary Investigations and Collecting the Proofs 6th July 2016

2. Prayer Colette Stevenson

3. Objectives • To establish where the process of the preliminary investigation/ collecting the proofs fits into the whole case management structure. • To explain how to initiate and conclude the preliminary investigation/collecting the proofs. • To explain and explore how to practically carry out the preliminary investigation/collecting the proofs. • To discuss future developments in this area.

4. Key Times • Break- 11:00-11:15 • Lunch 13.00-14.00

5. Introductions and Questions Colette Stevenson

6. Setting the context Teresa Devlin

7. Standard 4- Care and Management of the Respondent Indicator 4.3- When statutory authority investigations and assessments have been completed, the Church authority resumes the preliminary investigation/collecting the proofs as provided for in two separate canonical processes for clerics and non ordained religious : • Canon 1717(1)-(3)(cleric) • Canon 695 (non ordained religious).

8. Preliminary Investigations/Collecting the Proofs • Guidance on when preliminary investigation/collecting the proofs finds no case to answer • Guidance on when preliminary investigation/collecting the proofs finds there is a case to answer

9. Preliminary Investigations/Collecting the Proofs • Improve Standards • Process of Natural Justice • Skilled personnel – assessment skills, canonical support

10. Whats next • Fr Fintan Gavin – Canonical perspectives on initating the process • Cleo Yates – Practical application of process of preliminary investigation/collecting the proofs • Cleo Yates and Fr Fintan Gavin – Canonical and practical perspectives on ending the process • NCMC - Proposal

12. BREAK

13. Initiating the Preliminary Investigation –The Role of Canon Law Rev. Fintan Gavin, J.C.D. Vice-Chancellor Archdiocese of Dublin 6th July 2016

14. Terminology used in Presentation • Ordinary (Bishop, Provincial) Church Authority • Designated Liaison Person • Investigator, Auditor, Delegated Person • Person who makes the complaint Complainant • Cleric or religious who is being accused, Respondent

15. Canon 1717 – Code of Canon Law Can. 1717 § 1 Whenever the Ordinary receives information, which has at least the semblance of truth, about an offence, he is to enquire carefully, either personally or through some suitable person, about the facts and circumstances, and about the imputability of the offence, unless this enquiry would appear to be entirely superfluous. § 2 Care is to be taken that this investigation does not call into question anyone's good name. § 3 The one who performs this investigation has the same powers and obligations as an auditor in a process. If, later, a judicial process is initiated, this person may not take part in it as a judge.

16. Procedure for Non-Ordained Religious • a very similar process is followed. • Instead of invoking canon 1717 – canon 695 should be referred 16

17. Canon 695 Can. 695 § 1 A member must be dismissed for the offencesmentioned in canon. 1397, 1398 and 1395, unless, for the offences mentioned in can. 1395 § 2, the Superior judges that dismissal is not absolutely necessary; and that sufficient provision can be made in some other way for the amendment of the member, the restoration of justice and the reparation of scandal. § 2 In these cases the major Superior is to collect the evidence concerning the facts and the imputability of the offence. The accusation and the evidence are then to be presented to the member, who shall be given the opportunity for defence. All the acts, signed by the major Superior and the notary, are to be forwarded, together with the written and signed replies of the member, to the supreme Moderator. 17

18. Procedure for Non-Ordained Religious • Collect any available information to prove the existence of facts alleged and the possible imputability of the person being accused (respondent) what is needed, by analogy with canon 1717, is to initiate a collection of proofs which proves there is a case to answer. • No need to seek authorisation from any other authority. • The accused- (respondent) to have the accusation put to him with the proofs gathered to sustain it and be given a right of defence • The Provincial, once he has all the material gathered must present them to his council. 18

19. General remarks • One Canon – but Complex • Purpose – • The preliminary investigation does not determine someone’s guilt,instead it merely assists the Ordinary in making a judgement about whether this information should give birth to a full penal process in which a formal accusation is made. • It’s a Procedure - an executive administrative process – not a canonical process

20. The One who Receives the Information • The Ordinary (canon 134§1) – Bishop, Religious Superior (Church Authority) • By mandate usually the designated liaison person • Does not have to be a cleric • Some understanding of canon law useful • Complaint can arrive in any number of ways

21. The First Decision – Semblance of Truth Code leaves it vague The certitude being sought is “much less than probable and even less than certain. In the end the Ordinary is looking to see if the notification contains facts, circumstances, and imputability which are even remotely possible. When this semblance of truth is gained, no matter how low a certitude it might contain, it carries a certain level of moral and juridic responsibility which impinges on the Ordinary to convoke a preliminary investigation. 21

22. Initiating a Preliminary Investigation Canon 1717 § requires the Ordinary to conduct a further inquiry if he decides that there is some ‘semblance of truth’ to the accusation. initiates the preliminary Investigation by a decree - indicating the date the complaint was received, - the name of the cleric accused, - the object of the investigation, i.e. a violation of article 4 of the norms of Sacramentorum sanctitatis tutela(SST) - the provisions of universal law under which the investigation is committed. 22

23. The One who Conducts the Inquiry Delegated person (investigator), appointed by decree granting the investigator the powers of an auditor (canon 1717§3) Canons on auditors and proofs help us to understand something of the role of the investigator Doesn’t have to be a cleric, can be male or female Canon 1428 § 2 talks about the person being outstanding for good character, prudence and learning. It is important the person has good investigative and interviewing skills. Doesn’t need to be a canon Lawyer but support of one is useful 23

24. Investigator - Task The task given to the person carrying out the Preliminary Investigation is simple : to examine the facts,circumstances, and imputability concerning the allegation and to report back to the Ordinary. The investigation focuses on the facts and circumstances extant in a particular case, asking who? What? Where? and when? Circumstantial evidence is admissible and would include items such as the residence of the individual at the time of the complaint or the internal consistency of the complaint itself. The law presumes the imputability (canon 1321) 24

25. Types of “indications” – “proofs” Declaration of the parties (cc. 1530-1538) Through Documents (cc.1539-1546) Public Private Documents Witnesses (cc. 1547-1573) Expert Testimony (cc. 1574-1581) Access and Inspection (cc.1582-1583) Presumptions (cc.1584-1586) It is important to recognise that every type of indication has different probative values. 25

26. Protecting Everybody’s Good Name Canon 1717 § 2 Care is to be taken that this investigation does not call into question anyone's good name. This canon needs to be read in relation to canon 220 which states: No one may unlawfully harm the good reputation which a person enjoys, or violate the right of every person to protect his or her privacy. 26

27. Protecting Everybody’s Good Name • Publicity • One has to balance a number of things here – the right to a person’s good name – the need to protect the common good and to protect children and vulnerable adults. The ordinary has to determine if children are currently at risk. • Transparency and Privacy 27

28. Questions

29. Preliminary Investigations/ Collecting the Proofs Ms. Cleo Yates Wednesday 6th July 2016

30. Canon Law "You should learn to understand and - dare I say it - to love canon law, appreciating how necessary it is and valuing its practical applications: a society without law would be a society without rights. Law is the condition to love“ Pope Benedict XVI, Letter to Seminarians, 2010 . Law is the condition to love" Pope Benedict XVI, Letter to Seminarians, 2010

31. Why bother?

32. What Does Canon 1717/Canon 695 mean in layman's terms? • Gather Facts • Consider Circumstances • Determine Credibility (that it isn’t manifestly false or frivolous)

33. Assessment Tool: 5W1H

34. HOW? In undertaking the investigation you should interview/consult the following: • Subject • Complainant • TUSLA • Gardaí • NBSCCCI • Any witness requested by either the subject or complainant

35. HOW? (con’d) Read the full case file; in particular refer to the following: • Account from Complainant • Response from Subject • Appointments of Subject • Letters of testimonials • Relevant correspondence

36. WHO? Accused details: Name: Fr……… Date of Birth: Address: Current status. No of complaints: Complainant’s details: Name:………. Date of Birth: Current Address

37. WHAT? WHEN? WHERE? ALLEGATION: in full • Account from complainant • Response from respondent • Accounts from any witnesses

38. WHEN & WHERE? • INTERVIEWS of all those contacted

39. WHY? FINDINGS…… • Bullet point facts…….. CONCLUSION…… • The credibility of the complaint is unsubstantiated (it is manifestly false or frivolous) • I find the allegation credible (there is a case to answer

40. Watch out for………. • Must remain independent • Use the facts, do not get caught up with sentiment • Try to interview all concerned. If not must have valid reason why not.

41. Watch out for………. • Remember it is your role to gather facts and information and to determine credibility. • Work within your time frame, not that of others • The report is for the Church Authority not the subject or complainant. Feedback should be given re findings & conclusion

42. Questions

43. LUNCH

44. Concluding the Investigation Ms. Cleo Yates Wednesday 6th July 2016

45. Concluding the Investigation… • Write the report • Get it checked and signed off by a Canon Lawyer • Present it to the Church Authority who will give their votum to Rome • Share the conclusion with the relevant parties.

46. Concluding the Preliminary Investigation/Collecting the ProofsThe Role of Canon Law Rev. Fintan Gavin, J.C.D. Vice-Chancellor Archdiocese of Dublin 6th July 2016

47. The Second Decision – Closing the Investigation • When? When he/she believes they have gathered enough information to enable the Ordinary to make a determination. • The level of certitude being sought is greater than a mere “semblance of truth”, but it is less than “moral certitude” which is required (is there a case to answer) • compile a report with their findings,including all the testimony and acts of the preliminary investigation. • Include opinion (votum) of investigator? • A decree closing the Preliminary Investigation. • Ordinary may review report with his review board or the National Case Management Committee. 47

48. Ordinary - Coming to a Decision • When the Ordinary makes his decision he should issue a decree which announces his decision. • If the ordinary comes to a judgement that the allegations were false or frivolous, he must issue a decree which should state this and include the motives for this conclusion as contained in the acts of the preliminary investigation • Ifhe comes to a determination that a delict may have been committed then he should issue a decree to that effect and refer the case to CDF for direction. (SST art 16). 48

49. Referral to CDF • The referral to the CDF by Ordinary. -Acts of the case and form which CDF have developed and asked to be filled out in its entirety. This includes all “relevant documentation”, the personal data and curriculum vitae of the cleric; the details of each allegation (what, when, with whom, age and sex of the alleged victim, how often etc.) details of any treatment or counselling; precise ministerial situation of the priest and how he is being provided for; an assessment of whether minors are presently at risk; any information about criminal or civil liability suits; whether any future ministry is foreseen; the Ordinary’s own Votum– his assessment of the situation and recommendation of the type of process he is recommending. • Provincial send through Superior General to CDF 49

50. Ordinary - Coming to a Decision Non-Ordained Cleric • Provincial must send all the material to the supreme moderator of the institute, along with a votum in which he expresses a personal opinion and communicate the opinion of the council concerning their preferred outcome for the individual religious in question. • The supreme moderator receives the documentation, call a meeting of the general council. • They vote: - dismissed (Canon 700), communicated to (CICLS) -respondent remains a part of the Church, a permanent management plan is created, including the provision of monitoring. 51