Nóirín’s Disclosures: A Primer

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Former Garda Commissioner Noirin O’Sullivan arriving at Dublin Castle this morning

This morning.

At the Disclosures Tribunal.

Former Garda Commissioner Noirin O’Sullivan is expected to begin giving evidence as soon as Chief Superintendent Fergus Healy finishes giving evidence.

Ms O’Sullivan will be asked about her involvement in the O’Higgins Commission of Investigation as Judge Charleton seeks to establish if “unjustified grounds were inappropriately relied upon” by her “to discredit Sgt Maurice McCabe” during the commission when it heard evidence over 34 days between May and December 2015.

Judge Charleton already said last Friday week that he is no longer investigating whether “false allegations of sexual abuse were inappropriately relied upon” by Ms O’Sullivan to discredit Sgt McCabe during the commission.

This came after Michael McDowell SC, for Sgt McCabe, confirmed to the judge what Sgt McCabe believes happened. Mr McDowell explained that Sgt McCabe does not believe that anyone intended to ask him out straight if he abused a child.

Instead, Mr McMcDowell said:

“…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.”

Readers will recall how Sgt McCabe has been, at best, an extremely unlucky man.

A false allegation of rape ended up being levelled against Sgt McCabe in official documents after a 2006 retrospective allegation of inappropriate touching by a Ms D – the daughter of a Garda colleague of Sgt McCabe’s – was conflated with an allegation of rape by a RIAN counsellor in August 2013 and then, again, by a Tusla social worker in May 2014.

Ms D made her original complaint against Sgt McCabe after Mr D “lost his position and was reverted to other duties” after Sgt McCabe “caused the institution of serious disciplinary procedure against” Mr D in January 2006.

The Garda investigation into Ms D’s complaint in 2006 was carried out by then Inspector Noel Cunningham and the DPP found there was no basis for a prosecution.

However, the matter came back to life as a much worse claim on paper and unbeknownst to Ms D, after Ms D had a counselling session in August 2013 and RIAN counsellor Laura Brophy unnecessarily – in so much as it had been previously referred and investigated – re-referred the matter to Tusla with a wholly incorrect allegation of rape.

When the rape allegation was found to be a catastrophic mistake, it still ended up travelling officially all the way up to the then Garda Commissioner Noirin O’Sullivan’s office in May 2014 – 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.

The false rape allegation was still on file in the commissioner’s office until the tribunal began early in 2017.

Sgt McCabe didn’t become aware of the false rape allegation until a Tusla employee wrote to him on December 29, 2015 – at which time the O’Higgins Commission of Investigation was over.

Readers will also recall how the tribunal has heard Sgt McCabe was wrongly accused of having been involved in some type of “blackmail-like scenario” in a five-page, 20-point letter from the Chief State Solicitor’s office to the O’Higgins Commission of Investigation on Monday, May 18, 2015.

The progeny of this letter is still being teased out by the tribunal.

But the most serious claim in the letter – that in the course of a meeting in Mullingar in August 2008, Sgt McCabe told Supt Noel 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” – was proven false by a tape recording of the meeting which was produced by Sgt McCabe.

What had actually happened was that Ms D and Mrs D had confronted Sgt McCabe in public in October 2007 and, as a consequence, Sgt McCabe requested that Supt Michael Clancy show the D family the DPP’s full directions – which completely exonerated Sgt McCabe.

This was against protocol however Supt Clancy requested Sgt McCabe to write up a report about his concerns and Supt Clancy said he’d looked into it. Sgt McCabe duly obliged and there was no threat involved at all.

After Sgt McCabe gave the tape to the commission – which proved the above – Supt Cunnigham’s report and notes of the meeting showed that they matched the tape recording.

Curiously, the tribunal heard Ellen Gleeson BL, for Colm Smyth SC, put it to Ms Ryan that she gave Sgt McCabe’s legal counsel Supt Cunningham’s report of the Mullingar meeting to Sgt McCabe’s legal team on the morning of May 18, 2015 – along with the CCS letter. Ms Ryan agreed.

But the tribunal has also heard that, according to the transcript of the O’Higgins Commission of Investigation, on May 19, 2015, Supt Noel Cunningham was stood down from giving evidence that day as his report wasn’t given to Sgt McCabe’s counsel at that point.

Ahead of Ms O’Sullivan’s evidence…

Here are just some matters the tribunal has already heard about in respect of the run-up to the O’Higgins Commission of Investigation and what happened in the months of May and June of 2015…

May 2014 – December 2014: The Independent Review Mechanism was established during this time and was set up by the then Minister for Justice Frances Fitzgerald as a parallel response to the Guerin Report, along with the O’Higgins Commission of Investigation.

The so-called IRM involved a group of barristers doing a paper examination of some 300-plus complaints about Garda investigations, while the O’Higgins Commission was to look at specific Garda investigations in the Cavan/Monaghan area which had been flagged by Sgt McCabe as having been inadequate.

November, 2014: Ms O’Sullivan and some senior gardai would have known that a Commission of Investigation was to be set up to look at the matters examined by Sean Guerin SC.

December 19, 2014: The then Minister for Justice Frances Fitzgerald published a draft order proposing the establishment of the O’Higgins Commission of Investigation. This includes the terms of reference for the commission.

The draft order calls on the commission:

“to investigate and report upon matters of significant public concern, namely those complaints made by Sergeant McCabe relative to the Cavan-Monaghan division of the Garda Síochána which were examined in the report to the Taoiseach by Séan Guerin of the 6th May 2014 and which are set out in the proposed terms of reference of the Commission.”

December 22, 2014: GSOC reported that its investigation into Supt Noel Cunningham’s investigation of the Ms D allegation – following a complaint by Ms D – found there was nothing wrong with the original investigation.

February 3, 2015: The then Taoiseach Enda Kenny signed an instrument which formally established the O’Higgins Commission of Investigation. Mr Kenny later told the Dail that the commission had adopted the terms of reference set by Sean Guerin, SC.

February 12, 2015: Assistant Commissioner Kieran Kenny – who forwarded on the false rape allegation to Ms O’Sullivan in May 2014 and didn’t forward on the amended referral – was appointed liaison officer to Ms O’Sullivan for the O’Higgins Commission of Investigation.

February 2015: John Barrett, Head of HR at An Garda Siochana, is briefed by a number of senior gardai about Sgt Maurice McCabe in relation to workplace issues.

The senior gardai present at the briefing include the then acting Garda Commissioner Noirin O’Sullivan, Chief Adminstrative Officer Cyril Dunne, Chief Superintendent Barry O’Brien, Chief Superintendent Tony McLoughlin and Ken Ruane, Head of Legal Affairs.

In an intriguing statement to the tribunal, Mr Barrett told the tribunal:

“The briefing given to me may be of assistance to the Tribunal in seeking to gain an insight into the manner in which Sergeant McCabe and the issues that had been raised by him were perceived in Garda Headquarters at that time.”

In addition, Mr Barrett has told the tribunal:

“Prior to the commencement of the O’Higgins Commission hearings, at the conclusion of a meeting in the office of the Chief Administrative Officer, Cyril Dunne, Mr. Dunne asked me to remain in his office after the other attendees had left and with reference to Sergeant McCabe said ‘we’re going after him in the Commission’. My role as interlocutor principal point of contact with Sergeant McCabe was well established at this stage. I indicated my shock and dismay that such an approach would be taken in the O’Higgins Commission.”

February 26, 2015: O’Higgins Commission gives An Garda Siochana directions and states the statutory basis for those directions. The Commission also furnishes a model form of affidavit verification in the copy of its rules and procedures accompanying the directions. An Garda Siochana are given until March 27, 2015 to comply.

March 27, 2015: O’Higgins Commission writes to Ms O’Sullivan advising her that the commission’s hearings would begin mid-May.

April 8, 2015: An Garda Siochana writes to the commission to tell it that it needs to arrange for legal advice in relation to representation and in relation to the review of documents the gardai are obliged to disclose.

April 15, 2015: At this point, Chief Superintendent Sean Ward is Ms O’Sullivan’s new liaison officer.

The change came after the O’Higgins Commission had identified a “possible conflict” in relation to Assistant Commissioner Kieran Kenny being Ms O’Sullivan’s liaison officer – as he may have been a potential witness in one of the commission’s modules.

On this date, April 15, 2015, at 11.23am, solicitor for the commission David O’Hagan writes to Chief Supt Ward and tells him the commission is “shocked, disappointed and extremely concerned to read” the email of April 8.

Mr O’Hagan wrote: “The continuing delay by An Garda Síochána in fully complying with the Commission’s directions is impacting greatly on the work of the Commission and its preparations for the hearing. This cannot be allowed continue. Accordingly, I have been directed to advise you that unless An Garda Síochána makes full disclosure of all documents covered by the direction of 26th February 2015, by 4:00pm on Thursday, 16th April 2015, the Commission will be requesting you to attend a meeting here with an appropriate officer from the office of the Attorney General to explain the reasons for the delay.”

April 27, 2015: Solicitor Annemarie Ryan, of the Chief State Solicitor’s office, is assigned by An Garda Siochana to work for them in relation to the O’Higgins Commission of Investigation.

April 28, 2015: Ms Ryan seeks nomination of counsel.

May 1/3, 2015: Attorney General’s Office nominates Colm Smyth SC, along with Michael MacNamee BL and Gareth Byrne BL to represent then Garda Commissioner Noirin O’Sullivan and gardai from superintendent level upwards.

May 6, 2015: Mr Smyth, Mr MacNamee and Mr Byrne receive papers, following their nomination.

May 6, 2015: Solicitor for the commission David O’Hagan telephone Ken Ruane, Head of Legal Affairs at An Garda Siochana, to say he was happy with the progress in relation to discovery.

May 6, 2015, at 4.55pm: Ken Ruane, Head of Legal Affairs at An Garda Siochana, writes to solicitor Annemarie Ryan, of the Chief State Solicitor’s office:

“Thank you, Annmarie, for your email. I have requested the documentation from Module 1 and await same and note that you are not in a position to brief counsel without same. I am informed these documents will be delivered to you tomorrow. I am currently preparing a submission to the Commissioner on the basis that the Chief State Solicitor’s Office would provide representation for members at the rank of a superintendent and higher and also retired officers. If a member below the rank of superintendent wishes to come under representation being afforded to the Commissioner, that can be considered on a case-by-case basis.

I should also point out that should any conflict of interest arise regarding the representation of any member or retired member during the course of evidence, then the continued representation of that member or retired member by counsel appointed on behalf of the Commissioner may need to be reviewed. I will revert formally with instructions upon receipt of same by the Commissioner. I would suggest a consultation between An Garda Síochána and your office/counsel early next week and suggest Garda HQ as a venue for same.”

May 11, 2015: The first meeting between gardai and counsel, ahead of the commission, takes place in the Four Courts. This is also where Chief Supt Ward effectively hands over his role as liaison officer to Chief Supt Fergus Healy.

Giving evidence of this meeting, Head of Legal Affairs Ken Ruane told the tribunal: “Up to that point it had never been indicated to me that there was a link between Sergeant McCabe’s motivation and the making of the complaints.”

When asked by Michael McDowell SC, for Sgt McCabe, when he thought “the actual change of
heart took place and a decision was made to impugn Sergeant McCabe’s motivation?”, Mr Ruane said: “… 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.”

The tribunal has seen notes of this meeting on May 11, 2015, in which solicitor Annemarie Ryan, of the Chief State Solicitor’s office noted that many matters discussed at this meeting had nothing to do with the upcoming module of the O’Higgins Commission of Investigation – including Supt Cunningham’s investigation of the Ms D allegation against Sgt McCabe.

The meeting also involved discussions about Garda John Wilson who left the gardai a few years previous.

Ken Ruane, Head of Legal Affairs at An Garda Siochana, agreed with counsel for the tribunal that the matters being discussed with counsel didn’t involve background information in relation to the first module of the O’Higgins Commission of Investigation but, rather, involved background information on Sgt McCabe.

May 12 and May 13, 2015: Consultations took place between counsel and a number of gardai ahead of the beginning of the O’Higgins Commission of Investigation hearings on May 14.

At these consultations, Chief Supt Healy has told the tribunal that counsel for Ms O’Sullivan and gardai had been asking what “what was the triggering factor with respect to the issues and how all of this started” – in terms of the complaints Sgt McCabe about Garda investigations in Cavan/Monaghan.

Chief Supt Healy said: “I think it was a case that what had come out of the consultations and what the understanding of counsel was at that particular time, and based — they had sought the instructions to pursue the motive and the credibility issue and they were recommending that to the Commissioner, based on what they had — I suppose the information that they had obtained from the various consultations that had taken place, and that they were recommending this.”

Chief Supt Healy told Judge Charleton that Ms O’Sullivan knew what he told her:

“Which was that, based on what the — what had come out of the consultations, which was when the trigger question was asked here by counsel, the replies that they got vis-á-vis the refusal to give the DPP’s directions, was at that stage deemed to be the linchpin that started all of these issues and that all the issues arose after that matter I explained to the Commissioner that the refusals had been — had taken place at superintendent level and at chief superintendent level and that the sequence of
complaints followed on from that, and that counsel were of the view that they had to explore the whole area of motive and the credibility of what Sergeant McCabe was saying, and they were advising that, and on the basis of that, the Commissioner was inclined to instruct counsel to go ahead along those lines
.”

May 15, 2015: Chief Supt Colm Rooney was giving evidence at the O’Higgins Commission of Investigation when a legal row broke out.

The row broke out immediately after Colm Smyth SC, for Ms O’Sullivan and Chief Supt Rooney, started to ask him about a meeting he had with Sgt McCabe.

Chief Supt Rooney said: “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.”

At that point, Sean Gillane SC, for the commission, questioned the relevance of the matter and Michael McDowell SC, for Sgt McCabe, asked if Mr Smyth was under instruction from Noirin O’Sullivan to challenge the motivation of Sgt McCabe.

Readers should note that Mr Rooney has since sent a statement to the tribunal saying:

On day 2 [May 15, 2015] I was called to give evidence. I was led in my evidence by the Commission’s legal team. At the conclusion of my direct evidence I was cross-examined by the Garda Commissioner’s legal team. I was not expecting to be cross-examined on behalf of the Garda Commissioner. I had no prior knowledge that my meeting with Sergeant McCabe at Monaghan in 2007 was going to be raised. When the question was put to me, I couldn’t readily comprehend what was being asked. I was not prepared for the question and endeavoured to answer as best I could. I did not instruct the Garda Commissioner’s legal team to raise this issue on my behalf.”

At 3.10pm: The O’Higgins Commission of Investigation rose to allow Colm Smyth SC, for the then Garda Commissioner Noirin O’Sullivan and other gardai, to take instructions from Ms O’Sullivan.

At 3.23pm: Chief Supt Fergus Healy calls Noirin O’Sullivan about five times and three were successful. This call at 3.23pm was less than two minutes (1.59).

Some of the following calls went unanswered.

But, the tribunal has heard that in a note about these call, Chief Supt Healy wrote:

“Made several telephone conversations with — telephone conversations with Commissioner O’Sullivan to get instructions on the question of Sergeant Maurice McCabe at the Commission. The requirement was made to question ‘the motive of member for making the various complaints’.”

“Commissioner sought time to speak to DoJ.”

When asked if he thought Ms O’Sullivan said to Chief Supt Healy during that call ‘I need to speak to the DoJ on this’, Chief Supt Healy told the tribunal: “No, I can’t remember, you know what I mean, I made so many phone calls…”

At 3.26pm: Noirin O’Sullivan uses her official landline to call Noel Waters, the then General Secretary at the Department of Justice.

They are on the phone for more than 14 minutes.

The tribunal has heard neither Ms O’Sullivan nor Mr Waters can recall the contents of this call.

At 3.37pm: Chief Supt Fergus Healy calls Noirin O’Sullivan.

Tribunal has heard that, in his diary notes, Chief Supt Healy explained the “current developments of Colm Rooney’s evidence” to Ms O’Sullivan during this call.

At 3.29pm: Garret Byrne BL, for Ms O’Sullivan, sends an email – which the tribunal has heard has been referred to as a “letter of comfort” – to Ms O’Sullivan, via her liaison officer Chief Supt Fergus Healy.

The letter is signed off by Mr Byrne, Colm Smyth SC and Michael MacNamee BL.

It reads:

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….

In the tribunal, Chief Supt Healy was asked if it was likely that, during his 3.29pm call with Ms O’Sullivan, did he inform her at that point that counsel’s written advices above (or “letter of comfort”) would be coming soon, Chief Supt Healy said he couldn’t recall what he said in each phone call.

At 3.36pm: The O’Higgins Commission of Investigation resumes.

At 3.39pm: Chief Supt Fergus Healy calls Noirin O’Sullivan.

At around 3.40pm: Ms O’Sullivan and Mr Waters finish their call.

At 3.41pm: Chief Supt Fergus Healy calls Noirin O’Sullivan.

Patrick McCann SC, for the Department of Justice, put it to Chief Supt Healy that this 3.41pm call is likely to be the call in which Ms O’Sullivan said she would speak with the Department of Justice but Chief Supt Healy could not recall.

Around 4pm: Ms Ryan telephoned Michael Dreelan, advisory counsel with the Attorney General.

Of this call, Ms Ryan said: “I had already got the Commissioner’s instructions but we were awaiting reconfirmation of them and I had sensed this could end up in the High Court and my second telephone call — my first telephone call was putting him on notice…”

At 3.52pm: There’s another call between Chief Supt Healy and Noirin O’Sullivan

At 4.08pm: Colm Smyth SC, for Noirin O’Sullivan, seeks time.

At 4.10pm: O’Higgins Commission of Investigation rises again for the second time.

At 4.13pm: Chief Healy has fifth call with Noirin O’Sullivan which lasts around three minutes.

At 4.34pm: Mr Smyth tells the commission his instructions are re-confirmed.

The tribunal has heard that Ms Ryan was seeking an immediate consultation with Ms O’Sullivan this afternoon.

Tribunal has heard this morning that Ms O’Sullivan’s evidence will be that she was unaware of this request.

Chief Supt Healy has told the tribunal that he “definitely” spoke to Ms O’Sullivan about that.

At 4.57pm: Michael Flahive, the Department of Justice assistant secretary, sent an email to Christopher Quattrociocchi, the then Minister for Justice Frances Fitzgerald’s private secretary.

Mr Flahive also sent it to three other people: the Secretary General of the Department of Justice Noel Waters, the Department of Justice Secretary General Office Assistant Secretary Ken O’Leary and principal officer (policing) Martin Power.

In the email, Mr Flahive said he received a call from Richard Barrett, Deputy Secretary General in the Office of the Attorney General, and that, according to Mr Barrett, a disagreement had taken place at the O’Higgins Commission of Investigation between the legal counsel for Sgt Maurice McCabe and the former Garda Commissioner Noirin O’Sullivan.

Mr Flahive claims Mr Barrett told him this occurred because the counsel for Ms O’Sullivan wanted to introduce Ms D’s complaint that the 2006 investigation into her ‘dry humping’ allegation against Sgt McCabe wasn’t investigated properly.

Mr Flahive outlined that Michael McDowell, SC for Sgt McCabe, objected to this being raised and asked if Ms O’Sullivan had authorised the argument that this claim was relevant to Sgt McCabe’s motivation.

Mr Flahive explained that Mr Barrett said Ms O’Sullivan had authorised this approach.

This was incorrect in so much as this was not what triggered the legal row at the commission.

However, although Ms D’s IRM complaint wasn’t raised at the commission on the afternoon of Friday, May 15, 2015, the tribunal has now heard that there was a “consideration” – at some unknown point – to include Ms D’s complaint about the 2006 investigation in the O’Higgins Commission of Investigation which would have radically changed the commission’s terms of reference.

Many questions about this “consideration” were put to Mr Waters but he couldn’t recollect any detail, save to say there was consideration and that it was his understanding that this “consideration” emanated from the barrister/s looking at Ms D’s complaint about the investigation.

Neither Ms Fitzgerald nor Mr Waters have any recollection of receiving this email but they have both said that, looking at it today, they probably concluded quickly that they didn’t have to do anything by way of follow-up as they email includes the line:

“Richard and I agreed that this is a matter for the Garda Commissioner, who is being legally advised, and that neither the Attorney nor the minister has a function relating to the evidence a party to a Commission of Investigation may adduce.”

In a statement to the tribunal, Mr Flahive said he mentioned the IRM in his email to Ms Fitzgerald’s private secretary as a “coded reference” to Ms D’s allegation – so that he could circumvent having to repeat Ms D’s allegation.

He said:

“Richard told me that at the O’Higgins Commission, the issue was raised of the allegation of sexual assault that had previously been made against Sergeant McCabe. Richard also told me that counsel for Sergeant McCabe had objected to this being raised, and had asked whether the Garda Commissioner had authorised this which was confirmed….However, while I felt that I had to inform the Minister, and senior colleagues, of this development, I was extremely reluctant to overtly refer to an allegation of sexual assault in the email.

“While I knew that the Director of Public Prosecutions had directed no prosecution, and the matter was closed, even the fact that such an allegation had been made was obviously highly sensitive, and I didn’t want to directly link Sergeant McCabe’s name with such an allegation. It is true that my email was purely internal, and at a very high level, but with emails there is always the risk that they can, through inadvertence or mistake, be forwarded or copied more widely than they ought to be, and I was concerned at the potential risk that such highly sensitive information might spread beyond the initial small circulation.

“Equally, I could not of course make my email so bland that the message got lost. That is why I referred to a serious criminal complaint and linked it to a case that had been referred to the Independent Review Mechanism, a link that was intended to be a coded reference to the underlying issue which would be understood by those with a knowledge of the IRM.”

Given the coded reference, Michael McDowell asked Mr Waters if it was common knowledge in the Department of Justice at that time that an allegation of sexual assault had been made by Ms D against Sgt McCabe.

Mr Waters said: “My sense is that it probably was” and added that the then Minister for Justice Frances Fitzgerald would also have known at this time.

Within around seven minutes of receiving Mr Flahive’s email, Mr Quattrociocchi forwarded it to three people, including the then Minister for Justice Frances Fitzgerald.

The other two people were Ms Fitzgerald’s special advisors William Lavelle, a Fine Gael councillor, and Marion Mannion.

At 5.05pm, Mr Quattrociocchi replied to Mr Flahive and said he would “flag” the issue with the Minister.

That evening, Ms Ryan had a phonecall with Chief Supt Fergus Healy. Her notes of this phonecall say:

“I telephoned Fergus hearing and informed him AGO’s comments

– not directing

– Commissioner’s decision

– line of question may have been validity.

political dynamite!!

He’ll brief Commissioner.

I’ll circulate draft letter once I get it from counsel.”

At 7.17pm: Chief Supt Fergus Healy forwards Garret Bryne’s email re: instructions for the O’Higgins Commission of Investigation to Noirin O’Sullivan.

In his email, he wrote:

“Commissioner,

Further to our telephone conversations of even date please see the attached letter from counsel appointed to represent your interests and those members of the organisation at Supt rank and higher, serving and retired, that have sought and been granted representation at the Commission. I trust this leter grants comfort for the decisions that have now been taken.”

Chief Supt Healy has told the tribunal this was the first time he had the chance to send Mr Byrne’s letter to Ms O’Sullivan.

At 7.28pm: Chief Supt Healy had a telephone conversation with Ms O’Sullivan who called him from her mobile phone – after he had made an attempt to call her.

The call lasted just under five minutes.

Chief Supt Healy told the tribunal:

“I had just briefly advised her as to how the remainder of the day had finished up, which was almost over at that stage anyway…and I had advised her about the requests, that we had agreed to do this letter, and I then said to her that counsel was available for a consultation over the weekend…And she advised me that she was otherwise engaged.

“And then I remember finishing up the telephone conversation, basically relaying to her that the Attorney’s office were keeping a watching brief, from a distance, on this. That is, in a nutshell, what I had kind of said to her. I had told her that there was a watching brief being kept on this, from a distance, by the Attorney’s office, words to that effect.”

May 16, 2015: Michael McNamee BL, for the Garda Commissioner Noirin O’Sullivan 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 – Ms O’Sullivan’s liaison officer at the commission – urging factual accuracy from the contributors to the CSSO letter.

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.

At 9.30pm: In a handwritten note on Mr McNamee’s email, Ms Ryan wrote: “Spoke to Fergus Healy at 9:30pm. I pointed out my two concerns. I asked him to speak with [Supt] Michael Clancy and get his views before we send it to Noel [Cunningham] and Colm [Rooney]. He will come back to me in the morning.”

The tribunal has heard that Ms Ryan had not met, nor spoken to, Supt Michael Clancy at that stage.

She told the tribunal: “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.”

At 11pm: Solicitor Annemarie Ryan, of the Chief State Solicitor’s office, calls Ken Ruane, Head of Legal Affairs at An Garda Siochana.

Mr Ruane said the purpose of the call was for information, not instruction.

In his evidence to the tribunal, Mr Ruane agreed that it was clear from the phone call that – following events on May 15, 2015, Ms Ryan “was concerned that this issue had blown up at the commission”.

Mr Ruane said:

“Ms Ryan had said that a contentious issue had arisen and she explained effectively what had happened, where an issue had come up and that Chief Superintendent Healy had to take instructions directly from the Commissioner and that counsel had advised full background issues were necessary to explore. And that was in relation to the file to the DPP and the directions that had issued and where Mr. McDowell had asked are these the instructions of the Commissioner and Colm Smyth had advised they were relevant matters. And Ms. Ryan effectively, even at that stage, was conscious I think of the confidentiality of the Commission, so that is why she had asked me to ring Chief Superintendent Healy, who could fill me in as to what had happened.”

Mr Ruane went on to call Chief Supt Healy.

Recalling that phone call, Chief Supt Healy said:

“…he [Healy] effectively used that phrase, “counsel had wanted to know how did this begin and what started all of this.” And that the issue, the issue was in relation to Sergeant McCabe wanting to see a copy of the full DPP directions that had issued. So at that point in time, it was the — Chief Superintendent Healy had confirmed to me that he had spoken directly to the Commissioner and that counsel had provided written advices in relation to the matter.

At 1am/2am: Ms Ryan told the tribunal she was circulating the draft letter to Chief Supt Colm Rooney, Supt Noel Cunningham and Chief Supt Fergus Healy at this time.

Ms Ryan told the tribunal that the mistake/s were not picked up by any of the three men at this time.

A statement from Supt Noel Cunningham to the tribunal says he received the letter via his phone and, due to bad eyesight, didn’t spot the error/s.

May 18, 2015: The O’Higgins Commission of Investigation resumed and Judge Kevin O’Higgins and Michael McDowell SC, for Sgt McCabe, received the CSS letter.

Before the CSS letter was handed over, the tribunal heard it was signed by Supt Noel Cunningham.

The tribunal has heard that he alleges Ms Ryan didn’t give him enough time to sign it.

In a statement to the tribunal, Supt Cunningham said:

“…as the Commission was about to commence she hurriedly asked me to sign the document without the opportunity for me to read it. This is reflected in my evidence on day 5 of the O’Higgins Commission when being cross-examined by Mr. McDowell on the document, when I stated it was the first time I had seen it…

But, when she gave evidence, Ms Ryan said:

I don’t believe I would agree with that interpretation and I doubt very much I will get any member at that level and upwards in An Garda Síochána to sign a document, I don’t have that power.

May 18, 2015: Email back to Michael Flahive from Noel Waters’ private secretary to see Mr Waters noted the email sent on Friday, May 15.

May 25, 2015: Mr Quattrociocchi replies to Mr Flahive telling him that that Ms Fitzgerald had “noted” his email of May 15.

June 11, 2015: Submissions are made to the commission by counsel for Ms O’Sullivan, reiterating wrong claims made in the CSSO letter.

Incidentally, the submission went further than the CSS letter in so much that it claimed “evidence” would be given to the commission to support the most serious allegation from the CSS letter which was found to be incorrect.

The submissions stated:

“Sergeant McCabe then made a series of complaints against other officers in Bailieboro station, including Superintendent Clancy, against whom he alleged a lack of support.

“Chief Supt Rooney appointed Supt Cunningham to investigate these complaints. Supt Cunningham attempted to meet Sgt McCabe to discuss the complaints and finally did so on the 25th August 2008. On this occasion, Supt Cunningham was accompanied by Sgt Martin.

It is understood that Superintendent Cunningham and Sergeant Martin will give evidence that Sergeant McCabe said at this meeting that the complaint which he had made was a bid by him to have the full DPP directions conveyed to him and to complaining party.

“This is recorded in a report of the meeting prepared jointly by Sergeant Martin and Superintendent Cunningham.”

When Chief Supt Healy gave evidence, he was asked if the submissions were “signed off on, on behalf of the Commissioner and the various parties”, he said yes.

Previously: Disclosures Tribunal on Broadsheet

Rollingnews

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6 thoughts on “Nóirín’s Disclosures: A Primer

  1. anne

    It were all the lawyer’s fault, according to Noirin… nothing to do with her.

    Her lawyers, who specifically double checked with her if she was happy to go ahead with their strategy to question McCabe’s motives.. but yeah, nothing to do with her.

    Is anyone accountable at all? She was saying one thing in public and acting in another manner in private. You can’t hide behind lawyers. They act on your instruction. They get their information from you.

    Quite disgusting again.

  2. michael walsh

    Chief Inspector Healeys reply when questioned on tel call with Noirin
    ”I could have had the conversation. I can’t recollect with clarity or detail that I did.
    I can,t remember.”
    – and this man was her liaison officer?
    Fawlty Towers

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