The Legal Strategy Against Maurice McCabe

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From top: RTE’s Katie Hannon on Prime Time; Labour TD Alan Kelly; Sgt Maurice McCabe arriving at Dublin Castle for the Disclosures Tribunal; former Garda Commissioner Noirin O’Sullivan and former Justice Minister Frances Fitzgerald

Last night.

On RTÉ’s Prime Time.

Katie Hannon had a report on Sgt Maurice McCabe and how he was treated during the O’Higgins Commission of Investigation, overseen by Justice Kevin O’Higgins.

Readers will recall how, on May 6, 2014, Sean Guerin SC, after examining allegations of Garda misconduct made by Sgt McCabe, Mr Guerin recommended that a Commission of Investigation be held into the complaints.

This would eventually lead to the setting up of the privately held O’Higgins Commission of Investigation in 2015.

At the outset of the O’Higgins Commission, counsel for the then Garda Commissioner Noirin O’Sullivan and An Garda Siochana said it would argue that Sgt McCabe acted out of malice and that evidence of this would be based on a meeting Sgt McCabe had with two gardai, Supt Noel Cunningham and Sgt Yvonne Martin, in Mullingar in August 2008.

Broadsheet has previously reported how it was also claimed at the O’Higgins Commission of Investigation that the reason Sgt McCabe was acting in such a way was because he wanted directions made by the DPP in 2007 – in respect of an “dry humping” allegation made by the daughter of a guard previously disciplined by Sgt McCabe in 2006 – overturned.

But the DPP’s directions were categorically in Sgt McCabe’s favour. They included the line: “Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault… there is no basis for prosecution.”

An Garda Siochana weren’t aware that Sgt McCabe had been fully briefed of the DPP’s directions on the same day they were issued in April 2007.

So.

An Garda Siochana were forced to drop both claims at the O’Higgins Commission of Investigation, when Sgt McCabe produced a recording of the meeting in Mullingar and told Judge O’Higgins he had been fully briefed of the DPP’s directions, was very satisfied with them and, therefore, had no reason to want them overturned.

Further to this…

Last night.

On RTE’s Prime Time, RTE’s political correspondent Katie Hannon reported on the O’Higgins Commission of Investigation.

She recalled the efforts by Ms O’Sullivan’s senior counsel to claim that Sgt McCabe had been making complaints about Garda malpractice because a grievance with a guard.

(It wasn’t reported about how the DPP’s directions were said to be the reason behind Sgt McCabe’s so-called grievance in the O’Higgins Commission of Investigation)

She also recalled how when this was first reported – by Michael Clifford in The Irish Examiner and Ms Hannon – after the commission’s report was published in May 2016, the then Garda Commissioner Noirin O’Sullivan faced down calls to resign.

And the Justice Minister Frances Fitzgerald insisted she retained confidence in Ms O’Sullivan.

Ms Hannon also recalled how Ms Fitzgerald was asked twice on Prime Time if she was taken aback by what happened in the O’Higgins Commission.

Ms Hannon reported that Ms Fitzgerald insisted she couldn’t comment on “selected leaks of a transcript”; that “they may not tell the full story”; and “they should not legally be in the public domain”.

Ms Hannon then explained there are now questions over what Ms Fitzgerald and the Department of Justice knew about the legal strategy at the O’Higgins Commission of Investigation.

And she told how Labour TD Alan Kelly has been asking questions about the same.

Ms Hannon reported:

“It goes without saying: if justice officials, or any political figures were aware of this strategy in advance, that would be a very serious matter.”

“…one of them [questions asked by Mr Kelly] asked the minister to outline, fully, the extent of meetings and communications that the former Garda Commissioner had with the Department of Justice prior to her giving those instructions to the legal team.

“Another asked specifically about a phone call that occurred, that is said occurred, on May 15, 2015,  and that is in fact the day this legal strategy was launched at the Commission of Investigation.”

During the report, Mr Kelly, in a pre-recorded interview, said:

I’ve been given information, I’ve had conversations, I’ve met with people and they’ve told me of their concerns, their concerns about who knew what in the Department of Justice regarding the legal strategy employed by the former Commissioner at the O’Higgins Commission.

“And they raised such concerns that I felt it necessary to put down the parliamentary questions that I did, to get to the bottom of what was known about the Department of Justice, when they knew it and, most importantly, were they privy to the legal strategy that was adopted by the legal team of the previous commissioner.

“Because if they were, that is absolutely very, very serious.”

He added:

“The responses are absolutely outrageous, they do not answer the questions. They’re an affront to democracy, they’re an affront to Dail Eireann. And I have asked the Ceann Comhairle to investigate these and he has told me today that he will.

“I’ve also written to the Minister for Justice, I’ve written to An Taoiseach to intervene and I’ve also rang the secretary general yesterday but, you know what, of course he never rang me back.”

Ms Hannon added that she has asked the Department of Justice if it was aware of the legal strategy employed at the O’Higgins Commission of Investigation in advance of its proceedings and was the Minister for Justice briefed of the same.

She said:

This evening, a spokesperson for the department replied that they couldn’t directly answer that question because of the limitations on what can be said when matters may come under the remit of the Disclosures Tribunal.

“…It begs the question, if the department was completely and totally out of the loop in relation to this legal strategy, how could it become a matter for the Disclosures Tribunal?

Further to this…

Readers should note that the day of the phone call mentioned by Ms Hannon – May 15, 2015 – was also the day Sgt McCabe told the O’Higgins Commission that he had been fully briefed of the DPP’s instructions.

And yet…

This was the letter Chief State Solicitor Eileen Creedon, now a High Court judge, gave to the commission on Monday, May 18, 2015.

Ms Creedon’s letter stated:

Sergeant McCabe was unhappy with the outcome of the decision of the Director of Public Prosecutions, as he believed that the decision ought to completely exonerated him rather than recording that there was not sufficient evidence to proceed against him.”

“Sergeant McCabe sought as an appointment to see Chief Superintendent Colm Rooney and this was facilitated in June/July 2007. At the meeting Sergeant McCabe expressed anger and annoyance towards the Director of Public Prosecutions. He demanded that Chief Superintendent Rooney communicate with the Director of Public Prosecutions to seek a declaration of his innocence from the Director of Public Prosecutions in relation to the allegation.

“Chief Superintendent Rooney advised Sergeant McCabe of the policy of the Director of Public Prosecutions in dealing with such issues, a policy which Sergeant McCabe was himself professionally aware of. Chief Superintendent Rooney told Sergeant McCabe that he could not seek such a declaration on Sergeant McCabe’s behalf from the Director of Public Prosecutions.”

“Chief Superintendent Rooney pointed out to Sergeant McCabe that from his own experience of dealing with criminal files to the Director of Public Prosecutions he was aware of the Director of Public Prosecutions role to determine if sufficient evidence was available on a file to direct a prosecution”

“Chief Superintendent Rooney pointed out to Sergeant McCabe that it was not the Garda Commissioner’s policy that An Garda Siochana challenge the Director of Public Prosecutions on his decisions.”

“Chief Superintendent Rooney further pointed out to Sergeant McCabe that, as a private citizen, it was open to him to write to the Director of Public Prosecutions if he so wished to ask the declaration he required.”

[In relation to the 2008 meeting in Mullingar] … “Superintendent [Noel] Cunningham was accompanied to this meeting by Sergeant Yvonne Martin. Notes were taken at the meeting and countersigned by Sergeant Martin, and a detailed report of the meeting was prepared by Superintendent Cunningham, and its contents agreed with Sergeant Martin, and forwarded to Chief Superintendent [Colm] Rooney.”

“In the course of this meeting Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaint against Superintendent [Michael] Clancy was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him.”

It was after this letter was issued that Sgt McCabe told his legal team that he had a recording of the meeting in Mullingar.

This recording was later given to Judge O’Higgins who told the commission it was in direct conflict with Ms Creedon’s letter.

As mentioned above, the matter was then dropped.

Watch back in full here

Related: Kelly on a quest: Four questions may lift the lid on alleged attempts to smear Garda whistleblower (Michael Clifford, The Irish Examiner)

Previously: Absence Of Malice

May Day

3 thoughts on “The Legal Strategy Against Maurice McCabe

  1. Catherinecostelloe

    This is a very good summary Bodger.. So to clarify
    # How things are done in Ireland.
    1. Ms Creedon , for writing an untrue statement to O Higgins Commission is promoted to High Court Judge
    2. Supt Cunningham who submitted a false statement to O Higgins has become a ” spokesperson” for garda sergeants nationwide. (WHAT??!!)
    3. Frances Fitzgerald told barefaced lies on national TV and brazenly contradicts Katherine Zappone and Jim o Callaghan.
    Finally , Maurice, you are one lucky dude because they nearly destroyed you. Justice is a vile corrupt kip.

    Reply

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