Inquiry into schoolboy's death in garda custody suffered legal 'drawbacks'
Published 04/01/2016 | 02:30
An inquiry into the death of a 14-year-old boy while he was in garda custody suffered from serious legal "drawbacks".
Brian Rossiter lost consciousness when he was detained in Clonmel garda station in 2002.
He was subsequently transferred to Cork University Hospital, where he later died. It has now emerged that the State had been advised that a legal mechanism used to enquire into his death had "serious drawbacks".
It was likely to work "against getting at the truth", according to previously undisclosed legal advice. The newly discovered legal assessment is contained in a briefing note on the 'Kerry babies' case from December 1984.
At the time, the option of using the 1924 Dublin Police Act was dismissed as inadequate by the then Justice Minister Michael Noonan, who ultimately opted for a sworn inquiry.
However, the Act was later used by his successor, Michael McDowell, when he established a probe into the circumstances surrounding the death of the teenager in September 2002.
Now, according to the newly released state papers, the authorities had received legal advice as far back as December 1984, saying there were problems with this legislation.
The wording of the Act would mean an inquiry would have to be confined to alleged neglect or violation of duty by gardaí.
It would necessarily narrow its scope and restrict it from going into all aspects of the case.
Also, there was no provision of privilege for witnesses to protect them against defamation and statements made to an inquiry could be used in subsequent criminal proceedings.
The solicitor for the Rossiter family, Cian O'Carroll, said that if the legal advice from the 1980s had been known when the investigation into Brian's death was established in 2005, it would have "quite likely" led to a different type of inquiry.
Brian Rossiter was arrested in September 2002 in Clonmel and detained in the local garda station until the following day.
He lost consciousness during his time in detention and, following resuscitation, was taken to the nearby St Joseph's Hospital.
Brian was later transferred to Cork University Hospital, where he died on the afternoon of September 13, 2002.