“Drafted By Counsel, Circulated And Signed Off By The Client”

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From top: Sgt Maurice McCabe and his wife Lorraine; solicitor at the Chief State Solicitor’s Office Annemarie Ryan (middle back)

Yesterday.

At the Disclosures Tribunal.

It heard that Supt Noel Cunningham, in a statement to the tribunal, has said he signed off on a letter from the Chief State Solicitor’s office in May 2015 – before it was submitted to the O’Higgins Commission of Investigation – which included an incorrect claim attributed to him about a meeting later proven to be untrue by a tape recording of the meeting made by Sgt Maurice McCabe and, later, Supt Cunningham’s own notes.

But, he said in the statement, he didn’t spot the mistake as he was looking at the document on his phone and he has poor eyesight.

Diarmaid McGuinness SC, for the tribunal, said:

“The position is that he [Supt Noel Cunningham] recites in his statement that he received the letter, he didn’t have an opportunity to print it, and read it from his phone, but he wasn’t able to read it from his own phone and he said he had bad eyesight and he said that he didn’t see the mistake in paragraph 19, and that, had he seen the error, it would have been clear to him.”

Supt Cunningham is currently the president of the Association of Garda Superintendents.

The tribunal has also heard that the letter from the Chief State Solicitor’s office may never have been circulated to Sgt Yvonne Martin, whose name was also on this letter and was associated with this claim, for her approval.

A solicitor at the CSSO, Annemarie Ryan yesterday told the tribunal:

“I had no dealings with Sergeant Martin. She was named in that letter arising out of Garda documentation, a report prepared by Superintendent Cunningham and Garda Martin had signed her signature to handwritten notes prepared during that conversation where Sergeant McCabe had recorded.

“And that was Sergeant Martin’s role, I understood it. And as I said, I had no dealings with Sergeant Martin during this entire investigation, Commission, and nor had I dealings with any solicitor on her behalf and nor do I know even if she was down there or called...”

She added:

I would be very surprised if she was aware of the content of that letter prepared on 18th of May 2015, because that letter was prepared for the Commission and on direction by Judge O’Higgins it was only given to Sergeant McCabe’s legal team…

The tribunal has already heard that, in a statement to the tribunal, Sgt Martin has said:

“In May 2015… 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 [Mullingar 2008] 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. “

That Sgt Martin was apparently not contacted about the Chief State Solicitor’s letter would, on the face of it, appear to be startling.

In so much as the tribunal has heard that Michael McNamee BL, for the Garda Commissioner and other gardai at the O’Higgins commission, wrote an email with a draft of the CSSO letter to Ms Ryan and Chief Supt Fergus Healy – who was the then Garda Commissioner’s liaison officer at the commission – urging factual accuracy on the night of Saturday, May 16, 2015.

Mr McNamee, in his letter, explicitly stated:

It is of the utmost importance that the content be as factually accurate as possible, such that there are no misstatements and nothing that cannot be rectified in oral or documentary evidence (with the exception of the facts alleged, recited or admitted by McCabe himself).”

The word “utmost” was capitalised in the email.

This email was also cc-ed to Colm Smyth SC – for former Garda Commission Noirin O’Sullivan and other gardai, including Supt Noel Cunningham – and Garret Byrne BL, for the same.

The tribunal heard that Ms Ryan had a handwritten note on the email saying:

Spoke to Fergus Healy at 9:30pm. I pointed out my two concerns. I asked him to speak with Michael Clancy and get his views before we send it to Noel and Colm. He will come back to me in the morning.”

Ms Ryan told the commission she had not met Supt Michael Clancy at that stage, nor spoken to him, as he was not involved in module one of the commission – which had begun on May 14, 2015.

But she said:

“But I do recall asking Fergus to look at the Michael Clancy parts before I circulated to two others because there’s sort of three authors compiling the material.”

Ms Ryan went on to say that she was circulating the draft letter to Chief Supt Colm Rooney, Supt Noel Cunningham and Chief Supt Fergus Healy at 1am/2am that morning of Monday, May 18, 2015.

Ms Ryan told the tribunal that the mistake was not picked up by any of the three men.

The tribunal heard this exchange:

Marrinan: “…obviously the draft that had been provided by counsel had been circulated to a number of officers?”

Ryan: “Yes.”

Marrinan: “And it would appear that none of them had picked up on that, as such?”

Ryan: “Well, I have, obviously there’s privilege in relation to these matters –”

Marrinan: “Yes.”

Ryan: ” — but, no, I have double-checked what has come back to me and, no, that matter — there is no reference whatsoever to “against”.

The tribunal also heard yesterday how submissions made to the commission on June 11, 2015, reiterated the claim – despite those also having been circulated.

This, the tribunal heard, was before the matter of the recording and the transcript had been sorted. [The transcript matter was dealt with on June 24, 2015]

The tribunal also heard that these submissions were sent to Chief Supt Fergus Healy for him to come back to her with any potential corrections.

Under questioning from Michael McDowell SC, for Sgt McCabe, put it to her that the submissions revisited the matter of Sgt McCabe’s motivation, even though Judge O’Higgins had already ruled that the issue of motivation was “peripheral” – a description made by Judge Charleton.

Mr McDowell and Ms Ryan had this exchange:

McDowell: “But in case it might be thought that somebody with poor eyesight and looking at it in hurried circumstances wouldn’t pick up the difference between complaints made to Superintendent Clancy and complaints about Superintendent Clancy, in case that excusing circumstances is being proposed by any witness as to what happened, could I bring you then to page 1439, and these are submissions which you tendered to the Commission on the 11th June. And we know that Mr. Justice O’Higgins had made it quite clear that he believed that Ms D’s complaint was outside the terms of reference of his Commission, isn’t that right?

McDowell: “…And notwithstanding that [Judge O’Higgins’ decision], on the 11th June you put in this lengthy submission re-opening this issue again?

Ryan: “As I said, Judge, it was drafted by counsel, circulated, signed off by the client and submitted by myself.”

Ms Ryan told the tribunal the submissions would not have been submitted had they not been approved. She said:

“Counsel advised that they want — they would want all clients to ensure that they are happy with the content of same, and arising out of that it would have been circulated to all witnesses until final confirmation came that submissions were ready to be lodged, well, not lodged but submitted to the Commission.”

Readers will recall the five-page, 20-point Chief State Solicitor’s letter which was given to the O’Higgins Commission of Investigation – and Sgt Maurice McCabe’s legal team – on Monday, May 18, 2015, outlining exactly what counsel for the then Garda Commissioner Noirin O’Sullivan was going to put to Sgt McCabe at the commission.

It came after a legal row broke out on Friday, May 15, 2015, when Colm Smyth SC, for Ms O’Sullivan, told the commission he was under instructions, from Ms O’Sullivan, to challenge Sgt McCabe’s motivation, credibility – and integrity at this stage – at the commission.

Readers will recall that it was a claim in paragraph 19 of this letter – about a meeting in Mullingar on August 28, 2008 – which was contradicted by Sgt McCabe’s tape.

This was the specific claim:

“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.”

As Kathleen Leader BL, for the tribunal, said last week, in relation to how this meeting in Mullingar in 2008 was portrayed in the Chief State Solicitor’s letter, it “got this wrong”.

She said the tape showed: “What he [Sgt McCabe] was doing was simply asking that the DPP letter be circulated. This was not accompanied by any threat.

Ms Leader also said: “…no one at the O’Higgins Commission could have decided that Sergeant McCabe could be challenged as to his credibility in the classic way: vis, where a witness is asked a question to the effect that evidence given by him implicating someone else is not correct because that witness has an animus against that person because of a completely unrelated issue between them.”

In a statement to the tribunal from Colm Smyth SC to the tribunal, he went some way to explain how the error occurred in the Chief State Solicitor’s letter stating:

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.”

But does this explain the entirety of what was wrong with paragraph 19?

It appears to solely address the ‘to’ versus ‘against’ matter in respect of Supt Clancy.

Readers will recall the purpose of the meeting on August 28, 2008, was for Sgt McCabe and Supt Cunningham, accompanied by Sgt Yvonne Martin, 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 given to the D family.

Ms Leader BL, for the tribunal, said last week:

This report, it would appear, had been compiled by Sergeant McCabe, so as he could present a case to Superintendent Clancy in relation to the circulation of the directions of the DPP. The entire point of this report was to chronicle how Sergeant McCabe felt about the issues he had with the D family and to make a case that in light of all of that, surely the letter from the DPP ought to be circulated. He made a reasonable case.”

The transcript of the tape recording shows that, at one point, Sgt McCabe told Supt Cunningham:

“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.”

So.

Paragraph 19 of the Chief State Solicitor’s letter would appear to have three specific errors.

There was no complaint per se to Supt Clancy but, rather, a report.

There was no complaint against Supt Michael Clancy, but rather, a report to Supt Clancy.

And there doesn’t appear to have been any “force” applied.

At the O’Higgins Commission of Investigation, on June 24, 2015 – when evidence was given after Sgt McCabe’s tape was produced and after Sgt McCabe said the claim about the Mullingar was “absolutely false” – Supt Cunningham admitted as much when he had the following exchange with Sean Gillane SC, for the commission…

It came after the transcript was show to match Supt Cunningham’s notes.

Gillane: “… 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.”

But does that explain how did the term ‘force’ get there in the first place?

Readers should note that that the tribunal has already heard of a consultation meeting which took place between Supt Noel Cunningham and a solicitor at the Chief State Solicitor’s office Annemarie Ryan on May 12, 2015.

Ms Ryan’s notes refer to what Supt Cunnigham told her in relation to the meeting between Supt Cunningham, Sgt Yvonne Martin and Sgt Maurice McCabe in Mullingar in August 2008.

Inspector Michael McNamara was also present at this consultation meeting in Garda HQ.

Ms Ryan’s notes say:

“Up to 2008 above and over 26 years’ service, Noel never had one single complaint against him by anyone. Since then, there has been numerous complaints from public about him. Question over whether McCabe behind D’s allegations that Noel didn’t carry out proper investigations.

“No adverse findings to date, but some still ongoing.”

Noel met with McCabe in Mullingar with Yvonne Martin in 2008 about complaints to Mike Clancy. McCabe wanted his DPP file. Noel made report of this meeting in the next day.”

The tribunal heard that, in Ms Ryan’s notes, she had an ‘arrow’ pointing down from the word ‘McCabe’ saying:

“This was his reason for making complaint to Mike Clancy.”

The tribunal also heard Inspector McNamara’s notes record:

“Letter of demand from Sergeant McCabe for file of superintendent to DPP in 2008 report. Allegedly got no support. Meeting in Mullingar. Sergeant Yvonne present. Reason making complaints to Superintendent Clancy was to force his hand to get a copy of the file.“

Patrick Marrinan SC, for the tribunal, asked Ms Ryan if she believed her notes were consistent to those of Inspector McNamara, Ms Ryan said: “It would appear to be.”

In order to appreciate the context of this consultation on May 12, 2015 – together with Ms Ryan and Inspector McNamara’s notes – it’s worth noting evidence from earlier in the week given by Ken Ruane, Head of Legal Affairs at An Garda Siochana.

Mr Ruane has already told the tribunal that there was no indication that the former Garda Commissioner Noirin O’Sullivan was going to “impugn Sgt McCabe’s motivation” in January, February, March or April 2015 in the run-up to the O’Higgins Commission of Investigation beginning mid-May of 2015.

And he said that, although notes of the very first consultation meeting between counsel and gardai in the Four Courts on May 11, 2015, show that claims concerning Sgt McCabe and the Ms D allegation – and fallout of the same in respect of the DPP’s directions – were discussed by Chief Supt Fergus Healy, Ms O’Sullivan’s then liaison officer, Mr Ruane was adamant there were “no instructions given or directions given to counsel that these matters were to be raised” at that meeting.

[It should be noted the tribunal was told that the purpose of Mr Ruane’s presence at this May 11 meeting was to ensure that the legal  team, for the gardai, was up and running.

It was also at this meeting that Chief Supt Fergus Healy was taking over as liaison officer from Superintendent Sean Ward. Prior to Supt Ward, former Assistant Commissioner Kieran Kenny was the liaison officer.]

Further to this consultation meeting of May 11, 2015, earlier this week, Michael McDowell SC, for Sgt McCabe, had this exchange with Mr Ruane:

McDowell: “So, when do you think the actual change of heart took place and a decision was made to impugn Sergeant McCabe’s motivation?”

Ruane: “Well, obviously something happened in between the 11th and the 14th and 15th, so I can only surmise there were consultation — there were consultations with witnesses where certain information was raised.”

Mr Ruane later said: “Certainly in the context of the position that the Commissioner had adopted prior to the O’Higgins Commission getting up and running, it must have been significant, I would imagine, for her to give those instructions.”

Mr Ruane also conceded that the strategy flew in the face of her public statements about Sgt McCabe.

In light of this, it might be worth recalling the initial “letter of comfort” sent to the former Garda Commissioner Noirin O’Sullivan on the afternoon of May 15, 2015 – after the legal row broke out.

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.

Yours sincerely….

It would seem, from this letter, that the matter of questioning Sgt McCabe’s motivation centred on the fallout of the Ms D allegation.

Mr McDowell, for Sgt McCabe, has already suggested to the tribunal that neither Sgt McCabe, nor his legal team, have ever suggested that they expected anyone to ask Sgt McCabe at the O’Higgins Commission of Investigation but that, instead, they believe there was a more subtle stategy at play.

Mr McDowell told the tribunal:

“…we say that there was consideration, God knows by whom, given to the question of putting Ms D’s allegation firmly in the middle of the table at the O’Higgins Commission.
“It was firmly rejected and would have been an outrageous thing to do. But we believe and we say, and Sergeant McCabe is adamant on this, that it was dragged back in in a collateral way to embarrass him, to query his motives, to make him — to demean him in the eyes of the Commission and to make it appear that none of his complaints about poor policing in his area were genuine, but that they were all concocted with a view to getting back at An Garda Síochána.”

Ms Ryan is continuing to give evidence this morning.

Chief Supt Fergus Healy is scheduled to follow and then Inspector Michael MacNamara.

UPDATE:

The tribunal has heard this morning, from Ms Ryan, that Supt Cunningham’s report was given to Sgt McCabe’s legal counsel with the Chief State Solicitor’s letter on the morning of May 18, 2015.

However.

When Sgt McCabe gave evidence to the commission, on the afternoon of May 18, 2015, he gave evidence he had not seen Supt Cunningham’s report.

In addition.

Mr Smyth SC, for Supt Cunningham, appears to have put the wrong allegation to Sgt McCabe.

Sgt McCabe had this exchange with Mr Smyth:

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?

McCabe: Yeah

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.”

Previously: Maurice McCabe And The Chief State Solicitor’s Letter

Superintendent Noel Cunningham And The Chief State Solicitor’s Letter

Rollingnews

UPDATE:

9 thoughts on ““Drafted By Counsel, Circulated And Signed Off By The Client”

    1. Martco

      why? so you can see the her smiley schmart brassneck gob in action again? the only consequence is up the ladder for that wan, bigger better jobs and plenty of cash, I imagine she has impressed a lot of potential employers with her moral compass.

  1. Catherine costelloe

    Its extremely serious that a missing paedophiles computer went missing as well. Some corrupt officer FORGED Maurice’s signature as officer signing that computer out.
    The sooner Charlie Flanagan funds GSOC as requested for Garda whistleblowers the better. May I remind him Michael Noonan plucked 9 million euro to run a giant dummy through the street of Limerick a couple of years ago? A waste of bloody money when we look at levels of deprivation. Quit waffling Charlie and do your job.

  2. LeopoldGloom

    And it’s all only a tribunal in which none of these will go to prison or face any sort of consequence for.

  3. Martco

    poor eyesight

    thanks. I was enjoying one of those rare 110% perfect mugs of tea & toast and now I’ve just had to clean a load of it up due to an involuntary snort.

    jesus who are these clowns who can even make these stories up…oh wait I know..people who KNOW there’s no consequences anyway. fupping fupp

  4. GiggidyGoo

    “Garda Martin had signed her signature”
    My oh my. It’s either. Wrote her name or forged her signature. You don’t sign someone else’s signature

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