Report finds four senior scouts acted 'inappropriately' in handling of sex assault claim

A barrister's report which was carried out on behalf of Scouting Ireland to review the handling of a sexual assault allegation made by an adult member of the association found that four senior Scouting volunteers at times acted "inappropriately" in how they dealt with the allegation.

One of the four volunteers was also found to have "inappropriately contacted staff" involved in managing the complaint "seeking to exert influence in favour of the subject of the assault allegation", whereas the three others were found not to have "inappropriately contacted staff involved in managing the Complaint" seeking to exert any such influence.

The unpublished report seen by RTÉ News, which was commissioned by Scouting Ireland in April 2018, and recently sent to the Minister for Children Katherine Zappone, was carried out by barrister Lorna Lynch.

It throws new light on the controversial handling of a sexual assault allegation previously reviewed in January last year by Child Protection Consultant Ian Elliott.

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His report led to four volunteers, involved in the handling of the complaint, stepping aside from their roles, including the Chief Scout Christy McCann.

It also led to the suspension of State funding to the organisation when the board voted to reinstate Mr McCann.

They all now possibly face disciplinary action.

Ms Lynch's report highlights a lack of clarity around procedures to be followed by volunteers in Scouting Ireland when dealing with safeguarding issues. 

The case reviewed by Ms Lynch involved an allegation made by a female adult scout in 2015 against a male adult scout, which was alleged to have taken place five years earlier.

The woman who made the allegation later dropped the complaint within Scouting Ireland, when the DPP decided there were no grounds to prosecute.

The controversy surrounds the handling of decisions made regarding the suspension of the male adult scout's membership of Scouting Ireland while the complaint was being considered by its Child Protection Management Team (CPMT) and its Board. 

The man had stepped aside once notified of the complaint, but it was for the CMPT and the board to make a formal decision on his suspension.

The barrister's report found that two volunteers, Therese Bermingham and David Shalloo, on the Child Protection Management Team (CPMT) acted "inappropriately" by participating in a CPMT conference call in July 2016, where a discussion took place and a vote was taken as to whether the issue of the suspension should be recommended to the board of Scouting Ireland. 

Ms Bermingham chaired the meeting while stating her objection to an adult sexual assault allegation being discussed as a child protection issue and that the CPMT was the wrong forum.

She also did not vote on the decision about the subject of the complaint's suspension being made at the meeting. 

However the barrister found that she should have absented herself completely and not stayed on the call.

In a statement, Ms Bermingham said: "I reject one finding in the report, which claims "on the balance of probabilities I did not act appropriately" by continuing to chair a conference call where I was abstaining from a vote. If I had left the call there would not have been sufficient participants for a quorum and the investigation would have been delayed".

Mr Shalloo was also criticised for staying on the call, even though he declared a conflict of interest and only intervened to state that he thought the matter was being dealt with in the wrong forum.

Ms Bermingham was also found to have not acted appropriately by failing to bring the suspension to the Board as was her role to do so.

The barrister did not accept her rationale in failing to do so because she said she was "conflicted" in doing so, but had instead asked CEO John Lawlor to bring the matter to the board.

In response to the report, Ms Bermingham said that "Scouting Ireland did not arrange for its volunteer board members to receive legal advice from its retained solicitors in this case or generally, and I acted bona fide at all times and requested that the CEO bring the recommendation from this call to the board meeting."

Ms Bermingham added: "I acted with integrity and transparency at all times as an unpaid volunteer and in the best interests of child protection and the fair investigation of the assault complaint and this has now been confirmed in the Lynch report.

"The report also acknowledges that there was no relevant procedure in place for such instances.

"It is important that this report is reviewed in context, in particular acknowledging that it was I who, in January 2016, brought to the attention of the Board of Scouting Ireland my concerns with the lack of documented procedures for safeguarding and it was on foot of my persistence with these issues that the Elliott review was sanctioned."

A further controversial aspect of the handling of the case arose when the adult male scout who was the subject of the complaint received word that the DPP was not proceeding with a prosecution.

The man contacted Mr Shalloo seeking to be reinstated in Scouting Ireland.

Ms Lynch reported that Mr Shalloo said that he told the man that "the DPP was only one element of the matter" and that it may be sometime before he would be cleared to return to scouting.

However, on foot of this contact Mr Shalloo asked Chief Scout Christy McCann to meet the man at the centre of the complaint. He reported that he did this out of concern for his mental health.

However, Ms Lynch found that Mr Shalloo acted inappropriately in requesting the meeting, as the reinstatement of the man at the centre of the complaint to Scouting Ireland was still a "live issue" before the Board.

In a statement, Mr Shalloo said that "despite the limited nature of the Terms of Reference, I welcome the findings of the Lynch report which operate to exonerate me and show that I did not inappropriately contact the staff involved in managing the complaint seeking to exert influence in favour of the subject of the complaint.

"In respect of the findings of inappropriate behaviour made against me, I appreciate how such conclusions were arrived upon in light of the limited and obstructive Terms of Reference provided to Ms Lynch. I have written to Scouting Ireland requesting that a thorough and unobstructed review of this complaint take place in order to provide a complete and transparent set of findings.

"Despite that there is no finding made against me in the Lynch report that is either explicitly or implicitly contrary to the rules, Code of Good Practice, policies or procedures of Scouting Ireland, I have recently learned that disciplinary proceedings are to be initiated against me."

In relation to a third senior volunteer, National Secretary Ollie Kehoe, there was controversy about his attempt to have the man at the centre of the complaint reactivated on the organisation's data base while he was still suspended but after the DPP decision had been made not to prosecute.

The report states that Mr Kehoe stated his understanding was that if a member was suspended they would remain on the data base but could not attend functions.

The barrister stated: "Despite the fact that there is no evidence of a clear process which governs the issue of a suspended member's status on the data base" Mr Kehoe did "not act appropriately" in relation to his attempts to have the subject of the complaint returned to active status on the data base and specifically that he inappropriately contacted the CEO,  a member of staff involved in managing the complaint, seeking to exert influence in favour of [the subject of the complaint]."

In a statement, Mr Kehoe said: "My position, as stated to the barrister, was that the CEO, John Lawlor, had no authority to remove members from the data base without permission of the board. I therefore cannot see how my attempt to contact him could seek to influence any decision relating to the suspension of the man at the centre of the complaint or otherwise. My sole purpose in contacting the CEO related to ensuring his [the man who was the subject of the complaint] membership was preserved whilst he remained suspended." 

The barrister also found that Mr Kehoe "did not act appropriately" when he failed to disclose to the Board the full contents of a meeting, he had with the man who was the subject of the complaint, where the man made reference to being annoyed at how he had been treated by staff. He was also found to that he "did not act appropriately" in failing to disclose notes of the meeting.

Mr Kehoe said: "When I went to meet the man, I was mandated to do so by the Board. The purpose of the meeting was to ascertain if he would abide by the authority of the Board, as a condition of having his suspension lifted.

"I did not think that the man's voicing of his frustration with how he was treated throughout his suspension by staff members was relevant to the matter I was reporting back to the board, which related only to his agreement to abide the conditions placed by the Board."

Mr Kehoe also stated that "I did not deliberately withhold notes, I previously mislaid them but gave them to the barrister when I found them. There was no reason to withhold them. I acted at all times in good faith in relation to my volunteering role".

Mr McCann was also found to have acted inappropriately by agreeing to meet the man at the centre of the complaint while he was still suspended but after the DPP's decision had been made.

Mr McCann had responded to a request from Mr Shalloo to do so, after the man at the centre of the complaint, who was keen to be reinstated, had felt he was not being treated fairly by Scouting Ireland staff.

Mr McCann's view was that as Chief Scout he had duty of care to "reach out and talk to anyone in confidence and understand "where they are at" and that that he was seeking to avoid the situation where the man would sue Scouting Ireland.

However, at the time the solicitor for the man at the centre of the complaint was in contact with Scouting Ireland's legal team. 

Mr McCann was also found to have acted inappropriately in not telling the Board that he had this meeting.

In statement, Mr McCann said: "The findings of the Investigation confirmed that I did not contact any staff involved in managing the complaint seeking to exert influence in favour of any party involved in the complaint.

"I was not involved with the management of the complaint and intentionally I did not interfere with the management of a complaint made by one adult member of Scouting Ireland against another adult member.

"My involvement with the investigation came about because of a meeting I had with one of the parties to the complaint. I did not attend that meeting with any intention of becoming involved in the 'management of the complaint'.

"While I understand why such a meeting might be considered not appropriate the meeting was not in contravention of any rule, policy or procedure of Scouting Ireland."