Clockwise from left: Sgt Maurice McCabe, former Chief State Solicitor Eileen Creedon, now a High Court judge; Superintendent Noel Cunningham
The Disclosures Tribunal resumed in Dublin Castle.
Readers will recall how the tribunal, overseen by Supreme Court judge Peter Charleton, is investigating claims of an orchestrated smear campaign against Garda whistleblower Sgt Maurice McCabe, by former Garda Commissioner Martin Callinan with the knowledge of his successor Noirin O’Sullivan, as alleged by the former Head of the Garda Press Office Supt Dave Taylor.
The tribunal is currently dealing with the inquiry’s term of reference ‘e’ which is to investigate if false allegations of sex abuse or any other unjustified grounds were inappropriately relied upon by the then Garda Commissioner Ms O’Sullivan during the O’Higgins Commission of Investigation in 2015.
Yesterday, the tribunal heard transcripts from the O’Higgins Commission of Investigation; it heard a number of serious “errors” made in terms of claims made about Sgt McCabe during the commission; and it heard how Ms O’Sullivan consulted the Department of Justice about the legal strategy of An Garda Siochana taken at the commission.
It also saw a transcript of the tape recording that Sgt McCabe had made of a meeting he had with Supt Noel Cunningham and Sgt Yvonne Martin on August 25, 2008.
And it heard that at least one section of a document signed by the Chief State Solicitor of the time Eileen Creedon, now a High Court judge, was incorrect and contained a claim attributed to Supt Noel Cunningham which was proven to be untrue by the tape.
It also heard that Supt Cunningham’s notes matched what was revealed in the tape recording – prompting Kathleen Leader BL, for the tribunal, to ask how it ended up in Ms Creedon’s letter.
Readers should note Ms Creedon’s name was not mentioned in yesterday’s proceedings.
In addition, Kathleen Leader BL, for the tribunal, told the tribunal that Sgt McCabe’s integrity was impugned at the commission.
Readers will recall how a retrospective allegation was made against Sgt McCabe by a 14-year-old daughter of a Garda colleague of Sgt McCabe’s in 2006 and, following an investigation by then Inspector Noel Cunningham, the DPP directed that no prosecution take place.
The allegation made by the then girl, referred to in the tribunal as Ms D, was that, during a game of hide and seek in 1998, when she was about six, Sgt McCabe pressed against her. Ms D used the word “humping” in her Garda statement.
Ms D made the allegation in a statement to gardai in December 2006, about 11 months after her father, Mr D, lost his position as sergeant in charge of the crime unit and was reverted to regular sergeant, following a report made by Sgt McCabe against Mr D for attending the scene of a suicide after drinking alcohol.
Ms D’s allegation was investigated by Supt Noel Cunningham and the DPP ordered that no prosecution take place.
The DPP’s directions included the following:
“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. Further, the account given to her cousin [redacted] differs in a number of respects to that given to her parents and the Guards. There is no basis for a prosecution.”
The tribunal has already heard that Sgt McCabe was verbally briefed of the DPP’s full instructions by the Cavan State Solicitor Rory Hayden on April 5, 2007, the day they were issued, but he kept his knowledge of the directions to himself.
The tribunal has also already heard that Sgt McCabe and Supt Cunningham didn’t eventually meet to discuss the DPP’s directions until May 8, 2007.
Ms D’s allegations resurfaced six years later, on August 9, 2013, when Ms D received counselling from RIAN counsellor Laura Brophy.
During this counselling, Ms D repeated the 2006 claim and Ms Brophy unnecessarily re-referred – in so much as it had been previously referred and investigated – the matter to Tusla but conflated the “humping” allegation with an allegation of rape which was wholly unrelated to both Ms D and Sgt McCabe.
This allegation of rape sat in an unallocated Tusla file until May 2014 when it was simultaneously found to be a mistake and yet travelled officially all the way up to the Garda Commissioner Noirin O’Sullivan’s office – even though certain gardai involved in moving it up the chain of command knew about the 2006/2007 allegation and knew that there was no such rape allegation made by Ms D against Sgt McCabe in 2006/2007.
The tribunal has already heard that, within days of the mistake in the Tusla referral being discovered, the then Assistant Commissioner Kieran Kenny received an amended referral but never passed it on to Ms O’Sullivan.
Sgt McCabe didn’t learn of this false rape allegation until a letter was sent to him in December 2015.
The false rape allegation was still on file in the commissioner’s office until the tribunal began earlier this year.
As mentioned above, the tribunal is currently investigating if false allegations of sex abuse or any other unjustified grounds were inappropriately relied upon by the then Garda Commissioner Ms O’Sullivan during the O’Higgins Commission of Investigation in 2015.
Essentially, the tribunal is currently tasked with deciphering what exactly Ms O’Sullivan’s approach was during the O’Higgins Commission of Investigation and to decide if it was justified.
The O’Higgins Commission of Investigation – between May 13, 2015 and December 17, 2015 – looked at allegations of Garda misconduct in the Cavan-Monaghan area, as laid out by Sgt McCabe.
During the inquiry, Ms O’Sullivan was represented by Colm Smyth, SC, while Sgt McCabe was represented by Michael McDowell, SC.
Yesterday the tribunal heard Kathleen Leader BL for the tribunal, take Judge Charleton, and those in attendance, through sections of transcripts from the O’Higgins Commission of Investigation.
They heard audio recordings from the commission while Ms Leader’s lengthy statement was followed by all in attendance on screen.
Ms Leader also read out correspondence and statements given to the tribunal from members of the Department of Justice, the Office of the Attorney General and the former Justice Minister Frances Fitzgerald.
Specifically, Ms Leader revealed:
At least two errors, which were not in Sgt McCabe’s favour, were relayed in the O’Higgins Commission of Investigation.
This follows Patrick Marrinan SC, for the tribunal, last August telling the tribunal that in respect of the “litany of grave errors” concerning Tusla, “There isn’t an error in his [Sgt McCabe’s] favour. Nobody made a mistake by which he benefited.”
These errors at the O’Higgins Commission included a stance taken by Colm Smyth, SC for the then Garda Commissioner and other gardai, early on in the commission; and an incorrect claim attributed to Supt Noel Cunningham in Ms Creedon’s letter.
The transcripts and audio recording revealed how when Chief Superintendent Colm Rooney was giving evidence at the commission on May 15, 2015 – about one of the incidents which the commission was tasked with investigating, namely a public order incident and possible sexual assault on a bus in Kingscourt, County Cavan – Mr Smyth started to ask Chief Supt Rooney about a meeting he had with Sgt McCabe and about Sgt McCabe’s “motivation” and “credibility”.
Chief Supt Rooney told the commission: “It was probably late 2007, yes, definitely. He came to my office and he was in that state and he demanded of me that I write to the Director of Public Prosecutions and I challenge a decision that Director of Public Prosecutions had made in respect of him.”
This prompted Sean Gillane, SC for the commission, to question the relevance of that line of questioning.
Michael McDowell SC, for Sgt McCabe, also questioned the line of questioning and asked why he wasn’t given any notice of it, which he said left him “very, very deeply shocked”.
He also said: “...If now his character and his motivation is about to be impugned, I am entitled as a matter of simple constitutional and natural justice, firstly, to have full notice of the attack that is going to be made on his character or his credibility or his motivation and I must be in a position to know what is coming, not to have a collusive effort between the Commissioner and senior ex-Gardaí to have examination and cross-examination or, sorry, cross-examination directed to these topics with a view to raising these issues without any notice to my client that this was coming.”
He added: “I find it deeply wrong that the Commissioner would without any notice to me use a witness, a retired witness with a view to launching an attack on my client. ”
Mr McDowell also said he sought “absolutely firm confirmation from Mr Smyth that he is instructed by nobody else but Commissioner to impugn my client’s credibility, to question my client’s motivation or to question my client’s behaviour.”
Mr Smyth went on to repeatedly state what his instructions were.
He repeated that his instructions were to challenge the integrity, motivation and credibility of Sgt McCabe.
For example, Mr Smyth had the following exchange with Judge O’Higgins:
Smyth: “I have instructions from the Commissioner, Judge. This is an inquiry dealing with allegations of malpractice and corruption on a grand scale by members of an Garda Síochána.”
O’Higgins: “No, this part of the Inquiry –”
Smyth: “I appreciate that but my instructions are to challenge the integrity certainly of Sergeant McCabe and his motivation.”
O’Higgins: “The integrity?”
Smyth: “His motivation and his credibility in mounting these allegations of corruption and malpractice.”
O’Higgins: “There is a difference. In relation to the question of credibility, as I have already indicated, that is an everyday matter. One can suggest to a witness that his evidence shouldn’t be believed because of something but an attack on somebody’s credibility, on his motivation or integrity is something that really doesn’t form part of this Inquiry. It would be necessary I think for you to go further and say that the complaints and the actions of Sergeant McCabe on your instructions were motivated by, his motivation was dishonest or wrong. In other words that he made these allegations not in good faith but because he was motivated by malice or some such motive and that impinges on his integrity. If those are your instructions from the Commissioner, so be it.”
Smyth: “So be it. That is the position, Judge.”
O’Higgins: “Those are your –”
Smyth: ” Yes, as the evidence will demonstrate, Judge.”
O’Higgins: “Okay, those are your –”
Smyth: “If we are allowed to proceed.”
O’Higgins: “Those are your instructions from the Commissioner.”
Smyth: “Those are my instructions, Judge.”
O’Higgins: “Very good.”
Smyth: “I mean this isn’t something that I am pulling out of the sky, Judge, and I mean I can only act on instructions.”
O’Higgins: “If those are your instructions, so be it, we will have to deal with them then.”
Mr Smyth would later go on, months later, to claim there was “no mention” of challenging McCabe’s integrity (more below).
Mr Smyth also had this exchange with Judge O’Higgins on May 15, 2015:
O’Higgins: “But you are attacking his motivation and you attacking his integrity.”
Smyth: “Right the way through.”
O’Higgins: “Full stop.”
Smyth: “Yes, full stop.”
O’Higgins: “So be it.”
The commission’s transcript and recordings also showed how Mr McDowell requested “knowledge of this so-called evidence” mentioned by Mr Smyth above.
Judge O’Higgins said Mr McDowell was entitled to have knowledge of those matters and assured Mr McDowell that he would not be ambushed.
In addition, in terms of Mr Smyth challenging Sgt McCabe’s credibility, Mr McDowell pointed out that there had to be a conflict of fact before credibility could become an issue.
On this point, Judge O’Higgins called it a “fair observation” and went on to repeatedly ask Mr Smyth to clarify what facts were at issue between Sgt McCabe and the gardai he was representing.
On the same afternoon, on May 15, 2015, proceedings were briefly adjourned to allow Mr Smyth take instructions.
In respect of this adjournment, Mr Smyth gave a statement to the tribunal saying:
“Commissioner O’Sullivan gave instructions to counsel to challenge the credibility and motivation of Sgt. McCabe following counsel’s advice which was furnished in an email to the Commissioner dated the 15th of May 2015.”
Mr Smyth was referring to an email which was sent to Ms O’Sullivan, by way of Superintendent Fergus Healy who was acting as her liaison with the commission.
The email was prepared by Michael McNamee BL, part of Mr Smyth’s legal team, in which, according to a statement he gave to the tribunal, he and his colleagues “prepared an email providing recommendations and seeking unequivocal confirmation of instructions as had been agreed before the recess…”
In his statement Mr McNamee added: “Superintendent Healy, having received and duly transmitted the email to Commissioner O’Sullivan reverted with verbal instructions to proceed as suggested in the email.”
This was the email:
Dear Superintendent Healy,
As counsel appointed to represent the interests of an Garda Síochána before the O’Higgins Commission, it is our view that it is appropriate and necessary that the conduct of any member of the force be challenged by way of cross-examination if and to the extent necessary.
It is likely that in the course of this process, which is a private hearing, it will become necessary to put to Sgt. Maurice McCabe certain background issues which touch upon and concern the history of his dealings with members of Garda management.
In particular, we consider it necessary and in the interests of a fair and balanced examination of the subject matter of the investigation, that specific issues be put to Sgt. McCabe regarding his conduct and interactions with senior management following the completion of a formal garda investigation into a complaint against Sgt. McCabe which resulted in a direction by the DPP that no further action was to be taken against Sgt. McCabe.
The purpose of such a line of inquiry is to open to the Commission of Investigation the full factual background grounding the complaints made by Sgt. McCabe so that all the circumstances are clearly put before the commission for consideration.
In relation to the same matter, these are Supt Healy’s notes of that afternoon on May 15, 2015:
Made several telephone conversations with Commissioner O’Sullivan to get instructions on the questioning of Sergeant Maurice McCabe at the Commission-
The requirement was to question the ‘motive’ of the member for the making of various complaints
Commissioner sought time to speak to DOJ
Then returned with instructions that we
1 In light of developments on the front that Sergeant McCabe had issues with now working in Mullingar & his welfare could we seek a deferral until we seek advice
commissioner then rang a second time and advised that on reflection that if it came out in the course of questioning then counsel should explore it, & was her view that if he (Counsel) was advising that we explore the area of motive & that it was necessary then she was inclined to give instructions to him to explore that issue. It would be remiss of her not to instruct him to proceed. Therefore Commissioner instructed Counsel to pursue that specific line of questioning.
In addition the tribunal heard that the former assistant secretary at the Department of Justice, Ken O’Leary, was twice contacted twice by Ms O’Sullivan on May 15, 2015, to discuss the issue of the legal approach being taken by her counsel.
Readers will recall former Minister for Justice repeatedly said before Christmas that she had “no hand, act or part” in the legal strategy taken at the O’Higgins Commission of Investigation.
Readers will also recall the infamous email which was sent to Ms O’Sullivan on May 15, 2015, concerning the same.
In any event.
When Mr Smyth returned to the commission on the afternoon of May 15, 2015, he had the following exchange with Judge O’Higgins:
Smyth: “My instructions are re-confirmed.”
O’Higgins: “Very good. Your instructions, as I understand them, are that Sergeant McCabe acted as he did for improper motives.”
O’Higgins: “Okay. And that his integrity is being challenged in that respect.”
Smyth: “In that respect.”
The transcript and recording then showed how, after that exchange, Judge O’Higgins turned to the matter of notice to Mr McDowell and Mr Smyth conceded that he could give Mr McDowell notice in writing as to what certain witnesses would say.
This would be done over the following weekend.
Judge O’Higgins once again turned to his point that there can only be a credibility issue if there is a conflict of facts between Sgt McCabe and his client and he suggested that there didn’t appear to be any conflict of facts concerning the Kingscourt incident which was the subject of the module they were discussing.
Mr Smyth said: “I think the issue of credibility arises in all modules.”
Mr Smyth also later added: “You are asking me, Judge, to spell out the facts as they are. If the evidence of Sergeant McCabe is given, I will be challenging Sergeant McCabe in strong terms and there will very quickly appear to be dispute between — I hope there will be, you will see that there is a serious dispute on the facts from which the issue then of credibility arises to determine which version of events is likely to be the correct one. That is the position, Judge…”
The commission transcript revealed how Mr Smyth, on several occasions, claimed that Sgt McCabe made demands in relation to the DPP’s directions – harking back to the evidence given by Chief Supt Colm Rooney.
On May 15, 2015, Mr Smyth told the Commission:
“Judge, if are you asking am I going to probe for the sake of being gratuitously offensive to Sergeant McCabe about some investigation that was conducted that he was a subject of, that doesn’t really concern me. I am more concerned with his demand that he made of this witness to contact another superintendent, a superintendent to have that superintendent do something.”
On May 18, 2015, Mr Smyth told the Commission:
“…he [Sgt McCabe] made complaints directed to Superintendent [Michael] Clancy. There was a letter of 28th February 2008. He told inspector or Superintendent [Noel] Cunningham who will be one of the next witnesses in this module that he was withdrawing. He only made those complaints on the basis that he wished Superintendent Clancy to seek further clarification from the DPP.”
On the same day, Mr Smyth added:
“…the complaints he [Sgt McCabe] was making were complaints about the working and about the administration and about the management and about issues touching on probationer Garda in Bailieborough station and are relevant to this module as much as they are relevant to other modules. It flows right through all modules, the motivation and the credibility of Sergeant McCabe in making the allegations he made. And he withdrew, he was prepared to — the only reason we have Yvonne apparently Sergeant Yvonne Martin who is a witness to a statement that he made. The only reason he made the allegation she made on 28th February in a letter which was sent to Superintendent Clancy ultimately was that he was making those allegations to force the hand of Superintendent Clancy to seek further clarification from the DPP.”
The transcript of Monday, May 18, also shows how, naturally, Mr Smyth’s contentions chimed with the aforementioned five-page letter, written by the then Chief State Solicitor Eileen Creedon, which was given to the commission that morning.
In her 20-point letter, Ms Creedon 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.
Specifically, at point number 19, the letter stated:
“Having been appointed to investigate Sergeant McCabe’s complaint against Superintendent Clancy, now Superintendent Noel Cunningham, having attempted on a number of occasions to meet with Sergeant McCabe, eventually met with Sergeant McCabe by appointment on the 25th August 2008 in Mullingar Garda Station, to receive details of his formal complaint.
“Superintendent 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 Rooney. In the course of this meeting Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaints against Superintendent Clancy was to force him to allow sergeant McCabe to have the full DPP directions conveyed to him.”
The tribunal heard yesterday that the purpose of the meeting on August 28, 2008, was to have a discussion about a report Supt Clancy requested Sgt McCabe to make in relation to Mr D, the father of Ms D – following two incidents in October 2007 in which Mrs D (on October 15, 2007) confronted Sgt McCabe at Bailieboro court house and Ms D (on October 17, 2007) confronted Sgt McCabe on a street in Bailieboro.
Sgt McCabe’s report to Supt Clancy was dated February 25, 2008 and detailed a case, as Sgt McCabe saw it, for the DPP’s directions to be circulated to the D family.
A tape recording of this meeting reveals that the following conversation took place:
Maurice McCabe: “Had you known about it, Mick Clancy, Mick Clancy told me if I can put a good case forward he would send the file to the DPP and he will ask that each of the parties get the full directions.”
Noel Cunningham: “Oh yes.”
McCabe: “So that is why I done that. And I said to Mick Clancy I reported all these into Noel Cunningham.”
Cunningham: “But what I’m saying to you is this, this is a written report by you, ok, in relation to and at the beginning you refer to an actual investigation I did and at the end of it you said all you want is to ask the DPP to allow the full DPP directions to be conveyed to me and the other party, that file in particular to Mrs D, OK. Now I understand that and that. But what I’m saying is the middle bit is what I have to pursue now…”
Cunningham: “Well what do you call it, I don’t know, if you want to…what I’m saying to you is this? I need to know what I’m doing in relation to this.”
McCabe: “Well here’s what you are doing, I reported most of these issues except the [redacted] one in December 06. I informed my wife and my solicitor and a best friend of mine and I made notes in relation to this and all the issues and it was my understanding that they were going to be highlighted on the DPP file for Garda Management to know and they would be fully aware of it and suddenly the opposite has to happen.”
Cunningham: “But you reported this Maurice in February 2008?”
McCabe: “I didn’t write a complaint. I wrote to Mick Clancy on Mick Clancy’s advice highlighting the problems I had with Mr D. That’s what Mick Clancy advised me to do.”
Cunningham: “And so what do you want?”
McCabe: “All I wanted was for the DPP direction to be shown to each party.”
Cunningham: “Is that where this stands now are you saying, do you want to make a report or statement to that effect now to say to me that the reason you outlined these was in response in a request from you then District Officer, Superintendent Clancy, to highlight the difficulties that you were having with Mr. D. in order that the DPP should be appraised of it or whatever or as a result of which the directions of the DPP would be made known to each..”
McCabe: “That’s exactly it.”
After the tribunal heard Ms Leader BL, for the tribunal, read out the above transcript of the recording, she told Judge Charleton:
“Sir, you will no doubt have noticed that the matters which were discussed on the 25th of August 2008, did not concern complaints against Superintendent Clancy as set out in paragraph 19 of the letter of the 18th. This matter will be returned to shortly. It was instead about whether, as Sergeant McCabe requested, the letter from the DPP refusing to prosecute him for the Ms D allegation and stating plainly the reasons for that refusal, should be circulated. That letter to the O’Higgins Commission, sent on behalf of the Garda Commissioner, got this wrong.”
Readers should note that, on the morning of May 18, 2015, – after receiving Ms Creedon’s letter – Mr McDowell SC, for Sgt McCabe, described Ms Creedon’s letter “remarkable” and a “despicable document”.
Specifically, he said: “I have to say, Judge, and I hope that this does get back to the Commissioner because it is utterly and completely inexplicable bearing in mind the things she has said and done in public in relation to my client, including appointing him to the professional standards unit of An Garda Síochána on a limited basis in recent times. I find this a despicable document, I have to say.”
He added: “… It is a conflation of falsehoods, evasions and untruths. My client, my client, Judge, and I want to make it clear unless anybody here has any other view, my client will deal 100% with all allegations made against him of impropriety of any kind whatsoever. He is quite prepared to deal with that. But what he’s not prepared to deal with, Judge, and I want to make this very, very clear to you, he is not prepared to be ambushed in this way, in bad faith by a Commissioner who is not a witness in this Tribunal and has no right to have counsel sit in and listen to guards’ evidence in a disciplined force and receive an ongoing transcript of what’s happening. That is not what this Act was all about and it is not what this Commission should be doing. I want to put it in the strongest possible terms to you, Judge.”
In any event, Judge O’Higgins said he found the contents of the letter to be “inadmissible to the inquiry” as he didn’t find the contents relevant to the subject matter of the module he was dealing with.
Mr McDowell said he was glad to hear it, but insisted:”I want to be clear, Judge, that the process that is being happening here has from the very beginning been perplexing. The Commissioner of An Garda Síochána has asked to be represented by a senior counsel. She is not a witness as far as I know and yet she has the facility of having a legal team here, on what basis I am not quite clear, but granted that she is here. That itself is remarkable it is a bit like if Judge Yvonne Murphy had granted the Archbishop of Dublin the right to listen to all evidence before her Commission of Investigation. It is a most unusual step bearing in mind what is happening because members of a disciplined forces subject to discipline are being required to give evidence here knowing that everything they say is reported back to the Commissioner.”
Judge O’Higgins then asked Mr Smyth to comment on the relevance of the letter’s contents.
Mr Smyth said: “It is relevant in this way, Judge, because I say that Sergeant McCabe was motivated to do certain things, to make certain allegations based on the fact that he required clarification from the DPP on certain matters touching on his situation.”
The judge repeated his question of relevance.
Mr Smyth said: “Because he made complaints directed to Superintendent Clancy. There was a letter of 28th February 2008. He told inspector or Superintendent Cunningham who will be one of the next witnesses in this module that he was withdrawing. He only made those complaints on the basis that he wished Superintendent Clancy to seek further clarification from the DPP.”
The judge replied that that explanation didn’t address the relevance of the document.
But Mr Smyth insisted: “It does, Judge, because the complaints he was making were complaints about the working and about the administration and about the management and about issues touching on probationer Garda in Bailieborough station and are relevant to this module as much as they are relevant to other modules. It flows right through all modules, the motivation and the credibility of Sergeant McCabe in making the allegations he made. And he withdrew, he was prepared to — the only reason we have Yvonne apparently Sergeant Yvonne Martin who is a witness to a statement that he made. The only reason he made the allegation she made on 28th February in a letter which was sent to Superintendent Clancy ultimately was that he was making those allegations to force the hand of Superintendent Clancy to seek further clarification from the DPP.”
Judge O’Higgins said he would allow Mr Smyth to establish that Sgt McCabe had a grievance, real or perceived, but he repeated that the contents of Ms Creedon’s letter were irrelevant to the module of that day.
After this, Chief Supt Rooney was recalled to give evidence.
He had the following exchange with Mr Smyth.
Smyth: “Chief Superintendent Rooney. You had a conversation with Sergeant McCabe?”
Rooney: “I had, Judge, June/July.”
O’Higgins: “You are aware of the ruling of the Court and the parameters of it.”
Rooney: “Yes, Judge. In June/July 2007 Sergeant McCabe sought a meeting with me and I facilitated him in that regard and I saw him at my office in Monaghan Station.”
Smyth: “Arising out of that did you get the distinct understanding that he had a grievance.”
Rooney: “I did, Judge.”
Smyth: “Just that we don’t go into the background of that grievance, but that the grievance unrelated to matters that he was complaining about regarding administration in Bailieborough?
Rooney: “Yes, Judge.”
Smyth: “It was a grievance outside of that, a separate matter altogether, is that correct?”
Rooney: “Well it was twofold.”
Smyth: “You don’t have to tell us what it was?”
O’Higgins: “I don’t want the details of the grievance.”
Smyth: “It was unrelated to the complaint he was making about — Unrelated — administration in Bailieborough and about other complaints about a probationer Garda, and so on.”
Rooney: “Yes, Judge.”
On the same day, Supt Cunningham was questioned and he had this exchange with Mr Smyth:
Smyth: “Superintendent, you were aware that Sergeant McCabe had a personal grievance with the guards, you don’t have to say what the grievance was but were you aware of that?”
Cunningham: “I was aware, Judge, yes.”
Smyth: “Could you put a timeframe on when you became aware of the personal grievance?”
Cunningham: “Early 2007, Judge.”
Cunningham: “2007…. If I’m not mistaken I think was September 2008 or something like that? I am not sure, Judge, …I think it was June that was, I think, Judge, around August 2008, around August 2008.”
You may recall how Chief Supt Rooney, at the outset of the commission, on Friday, May 15, 2015, said he had a meeting with Sgt McCabe in early 2007 and that: “He came to my office and he was in that state and he demanded of me that I write to the Director of Public Prosecutions and I challenge a decision that Director of Public Prosecutions had made in respect of him” – prompting the debate about Mr Smyth’s line of questioning and Ms O’Sullivan’s legal strategy.
The tribunal heard that, after Supt Cunningham gave his evidence recounted above, Sgt McCabe also gave evidence on June 24, 2015, and said he was “extremely happy with the decision made by the DPP” in relation to Ms D’s allegation.
Ms Leader told the tribunal that Sgt McCabe did say he was annoyed but he admitted he “told the Commission that he was annoyed that Superintendent Cunningham delayed (as he saw it) in communicating the DPP’s directions to him and he complained to Chief Superintendent Rooney in relation to this delay. He continued and told the Commission that he accepted the decision of Superintendent Clancy not to make the DPP’s directions available.”
Sgt McCabe then went on to be questioned by Mr Smyth.
They had the following exchange:
Smyth: “I don’t want to waste more time on it. Just very briefly two questions I want to ask you, Sergeant McCabe, the first one is on 26th February 2008 you sent a letter to Superintendent Clancy containing a number of complaints that you had, is that correct?”
Smyth: “One matter I want to ask you again, just arising, finally, out of that, I think that Superintendent Cunningham met you for the purpose of discussing that, is that correct?”
McCabe: “He met me on the last day that I was Sergeant in Charge.”
Smyth: “He met you in Mullingar on 25th August 2008?”
Smyth: “This is an issue of credibility I want to put to you?”
Smyth: “There was a meeting there in Mullingar Garda Station and that meeting was the Sergeant Yvonne Martin, is that correct?”
McCabe: “That is correct.”
Smyth: “I think there were notes taken at that meeting?”
McCabe: “There was, by each side.”
Smyth: “A detailed report was prepared by Superintendent Cunningham, there is no dispute about that?”
McCabe: “There is, I didn’t see it, he has given his version.”
Smyth: “All right. It was forwarded, that report, to Superintendent Rooney, this is the issue I want to ask you about?”
Smyth: “In the course of that meeting, Sergeant, you advised Superintendent Cunningham that the only reason you made a complaint against Superintendent Clancy was to force him to allow you to have the full authority directions conveyed to you?”
McCabe: “That is absolutely false.”
McCabe: “Absolutely Judge.”
Smyth: “The only reason, and this will be the evidence of Superintendent Cunningham, the only reason that you wrote those list of complaints for Superintendent Clancy, do you understand, that you made the complaints about Superintendent Clancy was that you wanted to put pressure on Superintendent Clancy to get the full directions from the authority conveyed to you.”
McCabe: “That is absolutely false. Absolutely.”
Smyth: “Fair enough?”
McCabe: “I have a clear recollection of that meeting…”
Yesterday, Ms Leader explained:
“The meeting in Mullingar was tape recorded by Sergeant McCabe. We have that tape. It clearly demonstrates, as the extract already quoted bears out, that Sergeant McCabe was not at that meeting making any complaint against Superintendent Clancy. What he was doing was simply asking that the DPP letter be circulated. This was not accompanied by any threat. One supposes, Sir, that when later in the hearings of the O’Higgins Commission the tape was produced, on day four, to the Commission, having previously been disclosed by Sergeant McCabe, the matter of a threat at Mullingar meeting was negatived.”
The tribunal heard how, also on June 24, 2015, Mr O’Higgins recalled point 19 of Ms Creedon’s letter and put the following to Mr Smyth:
“On first flush, this appears to us to be incorrect. I am not saying definitively but on first flush is seems to us been to be incorrect. It seems to be incorrect for the following reasons: It does not appear that Superintendent Cunningham was not appointed to investigate a complaint against Superintendent Clancy.
“The meeting was not about complaints against Superintendent Clancy but concerned a request to him. No complaints were made about him. Neither in the report of Superintendent Cunningham nor in his note of the meeting is there reference to a complaint about Superintendent Clancy. Neither is such a contention supported by the transcript of the recording of the meeting.
“This meeting was concerned with observations that had been made by Sergeant McCabe on the 25th February, not about any matters with which this enquiry is concerned but with comments made by Sergeant McCabe about incidents on the 15th and 17th October et al.
“In the course of that letter, Sergeant McCabe said: ‘I urge you, if you can, to ask the Director of Public Prosecutions to allow full DPP directions to be conveyed to me and the other party, in particular Mrs D in this particular case, due the fact that all parties were in close proximity and I would really appreciate it. That is all I am asking.’
“Superintendent Cunningham’s report dated the 17th September contains the following passage: “He said that the report was a bid by him to have the full DPP directions conveyed to him and the D’s in relation to the allegations against him by Ms D and the subsequent investigation.”
“It seems to us, therefore, that on the meeting of the 28th August and the superintendent’s subsequent report on it, that they had nothing to do with complaints against Chief Superintendent Clancy. We can’t see, therefore, how reliance can be placed on them in support of a contention that the only reason Sergeant McCabe made complaints against Superintendent Clancy was to force him to allow Sergeant McCabe to have the full DPP instructions. In other words, it seems to us that the matters relied on in paragraph 19 of the chief State Solicitor’s letter are referable, it seems to us, to matters not concerning complaints against Chief Superintendent Clancy.
“I bring that to your attention, that is something that I would like you to address.”
Mr Smyth told the judge that “this tape came up somewhat by surprise to us during the course of the examination by me of Superintendent Cunningham, I am going have to take him through this transcript.”
Then, Mr Smyth and Supt Cunningham had this exchange:
Smyth: “Superintendent Cunningham, there is a transcript, which has now been made available by Sergeant McCabe, of a conversation that took place between you and Sergeant McCabe and Sergeant Yvonne Martin at Mullingar Garda station on 25th August 2008?”
Cunningham: “That is correct, yeah.”
Smyth: “Have you had an opportunity to consider that transcript in full?”
Cunningham: “I have, Judge.”
Smyth: “Does it accurately record what you remember of that meeting and what you have noted of that meeting?”
Cunningham: “Well I have only brief notes but what I would say is, it would reflect what I would remember of what went on, and it’s my language, it’s my conversation, it’s my type of language, yes, Judge.”
Smyth: “And are you fully satisfied with the content of that transcript?”
Cunningham: “I have no difficulty with it, Judge.”
Following this, Sean Gillane SC, for the commission, put the allegation that had been made against Sgt McCabe to Supt Cunningham.
They had the following exchange:
Gillane: “Superintendent Cunningham, I ask the question lest we lose sight of a particular issue, and it may well be that just the wrong end of the stick has been grabbed, and if it has, whether by me or anybody else, we might need to loosen it. On the last occasion Sergeant McCabe was asked, or it was put to him, that in relation to this August meeting with you and Garda Martin that, and I am quoting: “The only reason he made a complaint against Superintendent Clancy was to force you to allow him have the full directions of the DPP.” And Sergeant McCabe said: “That is absolutely false. Are we all in agreement now that Sergeant McCabe is correct in relation to that?
O’Higgins: “Do you understand the question?”
Cunningham: “I am sorry, pardon me.”
Gillane: “In other words if it was put Sergeant McCabe, and I question, but I just want to be as accurate as I can, it was put to Sergeant McCabe that he had said to you that the only reason he made a complaint against Superintendent Clancy was to force the release of the DPP’s direction. Sergeant McCabe said that was absolutely false. It just seems from your evidence this morning that we are all in agreement that he is correct about that. Am I right?”
O’Higgins: “Do you understand what Mr Gillane is asking you?”
Cunningham: “The allegations are against Mr. D in his report of the 25th February.”
Gillane: “All right.”
Cunningham: “He made it clear, and it is clear in the transcript, that the reason that he made the allegations was on the instruction of Superintendent Mick Clancy and to force – force may be the wrong word – to have the DPP’s directions made available to himself and to the D family, to both parties.”
O’Higgins: “Can I intervene and ask you to agree or disagree that all these conversations and your report and the transcript were in the context not of any complaints against Superintendent Clancy, but rather in the context of the D episode and a request to Superintendent Clancy. In other words you weren’t investigating any complaints against Superintendent Clancy?”
Cunningham: “The only thing I would say in relation to that, Judge, is page 3 of the report of Sergeant McCabe, the final page, which it says: “Garda authorities.”
Cunningham: “And that is not Mr. D.”
O’Higgins: “Go ahead.”
Cunningham: “Garda authorities are and were fully aware and informed of all of the above.”
Cunningham: “Now his authority at the time was Superintendent Clancy and previously other superintendents also; do you know what I mean?”
O’Higgins: “Is this advanced by you in support of a claim that the matters of the 28th February were in fact in some way a complaint against Superintendent Clancy?”
Cunningham: “No, I am not saying that, Judge. No, I would never say that, Judge.”
O’Higgins: “What I am asking you to agree or disagree is that the conversation of the 28th February, your subsequent conversation with Sergeant McCabe, your subsequent report were all arising not about complaints against Superintendent Clancy but about the observations and the matters dealt with in the document of the 28th February.”
Cunningham: ” Yes, Judge. Yes, Judge.”
O’Higgins:”I am not putting words in your mouth.”
Gillane: “Can I then ask you, following on from that, Superintendent, it’s just that there’s no point in us wasting our time in relation to a matter if doesn’t arise, and I know you didn’t write this letter but again I infer from your evidence that in relation to paragraph 19 of the letter written by the Chief State Solicitor that has been referred to this morning, that following then is, I put no higher than this, the wrong end of the stick, in the course of this meeting Sergeant McCabe advised Superintendent the only reason he made the complaint against Superintendent Clancy was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him. That just doesn’t appear to be right.”
Cunningham: “That’s correct.”
Later, Superintendent Noel Cunningham, who was still in the witness box, addressed Mr Justice O’Higgins directly saying:
“Judge, if I may, just the last question asked of me, if I may just refer to my report of 12th September 2008 to the chief superintendent, which I think is a question raised by Mr. Gillane, and it clearly says:
“Sergeant McCabe stated that this report was composed by him to highlight matters that occurred in Bailieborough where he was Sergeant in Charge in Bailieborough station. He stated the report was a bid by him to have the full directions of the DPP conveyed to him and the Ds in relation to the allegations made against him by Ms D and subsequent investigation.”
“That was my account of that meeting with Sergeant McCabe and that, I would respectfully say, Judge, is what the taped transcript shows.”
Gillane: “We are still in agreement.”
Mr McDowell then asked Supt Cunningham about Ms Creedon’s letter and her contention in paragraph 19. Specifically, Mr McDowell asked Supt Cunningham if he had had sight of Ms Creedon’s letter:
McDowell: “The very last sentence. I mean, I take it that you mean, when you say — when you look at the last paragraph of the letter of the 18th May, I think you have seen that letter, isn’t that right, the Chief state Solicitors letter.
McDowell: “Sorry, paragraph 19.”
Cunningham: ” No, I haven’t seen any letter of the 18th May, as has been referred to.”
McDowell: “Is it the position, Superintendent Cunningham, that you hadn’t been furnished with a copy of that letter, had you not?”
Cunningham: “I have it now.”
McDowell: “No, had you before?”
McDowell: “Yes, so you didn’t actually –”
Cunningham: “I don’t remember seeing it, possibly.”
McDowell: “You didn’t see the text at paragraph 19 before it was sent, isn’t that right?”
Cunningham: “I don’t want to catch anybody short by saying something that I — I have so many documents given to me, Judge, with respect, so many documents in a short period of time.”
O’Higgins: “Paragraph 19.”
Cunningham: “I don’t want to suggest –”
O’Higgins: “Do you see paragraph 19 of that letter.”
Cunningham: “This is the first time I believe I am reading this, paragraph 19, “Having been appointed…” I suppose, Judge, the operative word there is against, if we look at the second last line,
“…made the complaint against Superintendent Clancy was to force him to allow Sergeant McCabe to have full DPP directions conveyed to him.”
McDowell: “In the spirit of agreement, can we say that that completely misrepresents your understanding of the meeting, he was not saying that he was making a complaint against Superintendent Clancy for the purpose of blackmailing Superintendent Clancy into changing his mind.
Cunningham: “Well, no, I’ve never heard the word blackmailing until there now.”
McDowell: “No, but I mean to force him. The gist of that last sentence is he was making a complaint solely motivated to force this man to change his mind, isn’t that right?”
Cunningham: “Yes, and I still believe that. His sole motivation for making this complaint, sure isn’t that what’s —
O’Higgins: “What complaint?”
Cunningham: “The complaint against the letter of the 25th against Mr. D. As I said, the only word that I would have —
O’Higgins: “Just one second. As I understand the case that’s being made on behalf of your clients or all of them, is that insofar as the question of motivation is relevant at all and it might impinge on credibility, that your case is fairly and squarely that, one fine day, Sergeant McCabe, because he was refused his request or demand, however you like to put it, in relation to the DPP’s direction, from that, because of that he started to make complaints against Chief Superintendent Clancy. That’s your case, as I understand it and tell me if I am wrong.”
Smyth: “The question that was — I think the superintendent puts it eloquently, indeed the difference is between the words “to” and “against” and certainly I put the question, I used the word “against” and I have to accept that the report was made to Superintendent Clancy to force him to allow Sergeant McCabe to have the full directions.”
McDowell: “Well just…. –”
Smyth: “I still contend that the report the use of the word “against “is not the correct word but the report was made to Superintendent Clancy to force him to allow Sergeant McCabe to have the full directions conveyed to him and indeed to —
O’Higgins: “In relation to the D affair.”
Smyth: ” Yes, in relation to the D..”
O’Higgins: “And not the complaints against Superintendent Clancy with which we are dealing in this inquiry.”
Smyth: “Well, we’re not in this module dealing with complaints –“
O’Higgins: “We are not dealing with anything to do with the D affair in this inquiry. Your case can only be in relation to matters covered by this Commission of Investigation, and the D affair is not a matter within the remit.
Smyth: “That’s absolutely correct but it’s in the context of motivation or credibility, as you say, in relation to the complaints made by Sergeant McCabe, that’s why it was raised.”
O’Higgins: “This document, the 28th of February and the subsequent tape and the subsequent report are in the context not of any complaint against Superintendent Clancy but a request to Superintendent Clancy in relation to matters arising out of the D affair.”
Smyth: ” Directions of the DPP, and that deals with the motivation.”
O’Higgins: “This does not deal with any complaint against Superintendent Clancy with which we are concerned in this investigation.”
Smyth: “I think this has been established, Judge.”
O’Higgins: “Okay, that’s fine.”
After the tribunal heard this exchange, Ms Leader told the tribunal:
“Sir it would appear from the above exchange that Superintendent Cunningham never maintained that Sergeant McCabe had made complaints against Superintendent Clancy so as to force him to circulate the directions of the DPP. Rather, what was inserted into the letter of the 18th of May 2015 was an error made by someone other than Superintendent Cunningham. This Sir, would seem to be confirmed by the statements made by the lawyers for the Garda Commissioner. In this regard Mr Smyth SC says:
“A misunderstanding in instructions which came from clients other than Commissioner O’Sullivan resulted in an inaccuracy related to an interaction with sergeant McCabe on the 25th August, 2008 in Mullingar Garda Station. Those instructions as initially understood were accurately reflected in paragraph 19 of the letter of the CSSO to the Commission of Investigation dated the 18th May, 2015. The said complaint made by sergeant McCabe was against Mr. D. and not Superintendent Clancy. The inaccuracy in question was that the complaint being made by Sergeant McCabe was against Superintendent Clancy. The complaint had in fact been forwarded to Superintendent Clancy. This complaint came to be investigated by Superintendent Noel Cunningham. This error was corrected but did not alter the substance of the matter being put to Sergeant McCabe about the meeting in Mullingar on the 25th of August, 2008 and which sergeant McCabe accepts.”
The tribunal also heard of a statement given to the tribunal by Sgt Yvonne Martin.
In it, she said:
“I was requested to attend a meeting on 25th August 2008 with Superintendent Noel Cunningham and Sergeant Maurice McCabe at Mullingar Garda Station. The purpose of my attendance at this meeting was to witness the notes taken by Superintendent Cunningham.
“I did not take part in the discussion between Superintendent Cunningham and Sergeant Maurice McCabe.
“In May 2015, nearly 7 years later, I received a telephone call from Superintendent Cunningham who informed me that he had given Chief Superintendent Fergus Healy my phone number and that I would be receiving a call from him regarding the above meeting.
“Subsequently I received a telephone call from Chief Superintendent Fergus Healy who told me that I might be required to attend at the O’Higgins Commission of Investigation to give evidence in relation to the above meeting.
“I received no further communication from Chief Superintendent Healy, Superintendent Noel Cunningham or anyone connected with the Commission.
“The contents of this statement are based on my memory of the meeting and a review of documentation relevant to the Commission which has been provided to me by the Chief State Solicitor’s Office on foot of a High Court Order.
“For completeness I never attended at the Commission of Investigation, nor have I ever, to this day, been contacted by the Garda Commissioner, her legal team, GSOC or the media, to clarify my involvement in or recollection of the above meeting. Further, I was never stationed in Bailieboro Garda Station nor did I have any dealings with any of the members attached to it.”
The tribunal heard that this was where the commission stood until November 4, 2015, when Ms O’Sullivan gave evidence to the commission.
Before she was sworn in, Judge O’Higgins had an exchange with Mr Smyth SC, for Ms O’Sullivan, in which he said that he erred when he previously said he was challenging Sgt McCabe’s integrity.
They had the following exchange:
O’Higgins: “Before we commence, there is one matter that I would like a bit of assistance and clarification on, from you, Mr Smyth. It is in relation to a question that been dormant for some time, concerning the integrity of Sergeant McCabe and his mala fides or bona fides in making his complaints. Now, I formed the impression from those parts of the transcript, rightly or wrongly, that the integrity and the motivation and the bona fides of Sergeant McCabe were being attacked. Was I right or was I wrong informing that impression?”
Smyth: “Judge, first of all, I say that my instructions at all times were to the challenge the motivation and the credibility of Sergeant McCabe and those remain my instructions. I never used the words mala fides, those were the words that in the first instance came from Mr. McDowell and then were introduced by yourself in interpreting what my instructions were. I gave my instructions to you clearly, I said that I have to challenge the motivation
O’Higgins: “And the integrity of Sergeant McCabe?”
Smyth: “Yes, in making the allegations of corruption and malpractice. I never used the words mala fides.”
O’Higgins: “That’s so, but you are attacking his motivation and you are attacking his integrity.”
Smyth: “In relation to the corruption and malpractice allegations, yes. He has alleged corruption on the grand scale against Superintendent Clancy as he then was and Superintendent Cunningham and also against former Commissioner Callinan … among others. He indeed also made allegations of corruption against Assistant Commissioner Byrne and Chief Superintendent McGinn. He withdrew these allegations but he was invited to withdraw allegations of corruption against former Commissioner Callinan and he refused to do so…
O’Higgins: “In other words that he made these allegations not in good faith but because he was motivated by malice or some such motive that impinges on his integrity. If those are your instructions from the Commissioner so be it.
Smyth: “That Judge was your interpretation of what my instructions were.”
O’Higgins: “You said “so be it. That is the position Judge.”
Smyth: “As far as the Commissioner was concerned at all stages I had instructions to challenge Sergeant McCabe in relation to motivation and credibility.”
O’Higgins: “And integrity.”
Smyth: “No, there was no mention of integrity.”
O’Higgins: “Yes there was because he was motivated by malice or some such motive that impinges on his integrity. If those are your instructions from the Commissioner, so be it. “Mr. Smyth: So be it, that is the position Judge.”
Smyth: “Can I just refer to you page 190 from which you are reading at the moment. And if you see at the top page you introduce the words integrity. I appreciate that the integrity, his motivation and his credibility in mounting these allegations of corruption and malpractice. That’s what I said his motivation and his credibility in mounting these allegations of corruption and malpractice and you said there is a difference.
O’Higgins: “Sorry, Mr. Smyth, that is not really quite correct. If you look at page 189 last sentence: “I appreciate that but my instructions are to challenge the integrity certainly of Sergeant McCabe.”
O’Higgins: “But the clarification that I am seeking from you is are your instructions to challenge the integrity of Sergeant McCabe.”
Smyth: “My instructions are contained at his motivation and his credibility only.”
O’Higgins: “Well. Okay. So this clarification I am seeking from you. His motivation is being challenged. His integrity is not now being challenged and if I formed the impression because you said my instructions are to challenge the integrity. That was an –”
Smyth: “That was an error.”
O’Higgins: “So the motivation of Sergeant McCabe is being challenged. His credibility is being challenged but his integrity is not now being challenged.”
Smyth: “That was certainly an error and I think my instructions are quite clearly set out at the top of page 190, at the top of page 190 where I say that his motivation and credibility in mounting the allegations of corruption and malpractice.”
O’Higgins: “And insofar as you said that my instructions are to challenge the integrity certainly of Sergeant McCabe that is an error.”
Smyth: “That is an error on my part.”
O’Higgins: “Well that’s the clarification that I sought. So the position now is that his motive is under attack, his credibility is under attack from the Commissioner but not his integrity.”
Smyth: “Just to be clear about it the credibility insofar as he made these allegations of corruption and malpractice is under attack, there is no question about that.”
O’Higgins: “No question about that.”
O’Higgins: “Is his motivation under attack now?”
O’Higgins: “So his motivation and credibility are under attack but not his integrity.”
Smyth: “Yes, that’s correct, Judge the Commissioner has a duty of care to all members. She wasn’t acquiescing and then she has to hold the balance between on the one part she has Sergeant McCabe who she has a concern for and for his welfare. And on the other hand she has a concern for superintendents who are under her control and she has to hold the balance. She cannot come down on the side of Sergeant McCabe and say I agree with everything he says without challenge or I am simply acquiescing [to] everything he says without challenge or I am simply acquiescing everything he says.”
Yesterday, the scheduled witnesses didn’t give evidence as there had been extensive documentation given to the tribunal recently and the investigators need more time to read through it.
The witnesses will now resume giving evidence on Friday.
Readers should note that yesterday, as Judge Charleton wrapped up the proceedings, Paul Sreenan SC, for Mr Smyth, said:
“On three occasions counsel on behalf of the Tribunal this morning and this afternoon referred to counsel’s letter to the Commission on behalf of Commissioner Nóirín O’Sullivan and the letter that she is referring to was the 18th of May 2015 letter. That is, of course, a letter not from counsel but from the Chief State Solicitor’s Office. It was drafted by counsel. The draft was sent on the evening of Saturday the 16th of May, it appears at page 762, the email sending it, of the brief, with advice to ensure the factual accuracy of the draft. I just want to clarify that in case there is a misunderstanding.”
Judge Charleton replied:
“I appreciate, and I think everyone listening to the opening will appreciate, that that particular letter, the long letter with the 19 paragraphs, one of which was completely wrong, another of which I doubt the accuracy of but I said nothing about it, we will consider it during the course of the hearing, of course came from the Chief State Solicitor’s Office and was directly addressed to Mr. Justice O’Higgins at the Commission, the purpose of which was to say insofar as we are going to pursue this issue of, I am just going to use the word “credibility” for the moment in inverted commas, it will be pursued in this manner and against this background. And that all came from counsel but of course came, as you say, through that channel.”
More to follow about the email sent to Ms Fitzgerald on May 15, 2015.
A full transcript of yesterday’s proceedings can be read here