Petition for Judicial Review of decision to appoint Susan O’Brien QC as Chair of Historical Child Abuse Inquiry

A petition for judicial review of the decision to appoint Susan O’Brien QC to chair an inquiry into historic child abuse in Scotland has been refused.

The Congregation of the Poor Sisters of Nazareth and The Daughters of Charity of Saint Vincent de Paul challenged the decision of the Scottish Ministers to appoint Ms O’Brien as Chair to the Historical Child Abuse Inquiry.

The petitioners contend that the Scottish Ministers were not entitled to appoint Ms O’Brien, because she has a close association with an interested party to the inquiry, contrary to section 9(1) of the Inquiries Act 2005. They also rely on the common law principle of “apparent bias”.

In 2007, two alleged victims of abuse had sought damages from the Poor Sisters of Nazareth, but their claims were held to be “time barred”. Ms O’Brien represented the two clients in their appeal to the House of Lords.

In the course of her career, she acted for other individuals who alleged that they were the victims of abuse. She also assisted a pressure group that sought to change the law relating to time bar. 

The petitioners, both religious organisations who will come under scrutiny in the course of the inquiry, maintain that a fair-minded and informed observer would conclude that Ms O’Brien, who is due to commence her duties today (1 July 2015), was moving from the role of adviser to adjudicator in the same cause and that by appearing in the appeal before the House of Lords, she had supported the claims of her clients.

Lord Woolman did not accept the submission that Ms O’Brien “supported” her clients’ claims, in the sense that she was seen to personally endorse their veracity.

He said: “She only acted for the claimants at a very late stage to argue a point of law. She simply advanced her clients’ case to the court.”

He added: “Ms O’Brien’s narrative of her career discloses that she had a wide-ranging practice covering many areas of the law. She represented pursuers and defenders. In particular, she acted both for and against the government. She could not be identified with only one side.”

Lord Woolman therefore held that Ms O’Brien did not have a close association with an interested party to the Inquiry.

The judge also held that the petitioners had failed to establish apparent bias.

He decided that a fair-minded and informed observer would be aware that the inquiry “will not determine liability” and that Ms O’Brien “did not support her clients’ claims”.

Accordingly, such an observer would not conclude that there is a real possibility that the tribunal would be biased.

The full Opinion of Lord Woolman will be available here from 5pm today.

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