Disclosures, Discrepancies And Nóirín

Former Garda Commissioner Nóirín O’Sullivan

The Disclosures Tribunal will continue this morning  at Dublin Castle, overseen by Supreme Court Judge Peter Charleton.

Again, the former Garda Commissioner Noirin O’Sullivan’s evidence to date – in particular that she had little or no specific knowledge of the details of what was unfolding at the commission in May 2015 – will come into sharp focus.

Readers will recall how the tribunal is currently hearing evidence pertaining to the 2015 O’Higgins Commission of Investigation which looked at allegations made by Sgt Maurice McCabe of poor policing in the Cavan/Monaghan area.

Specifically, under the current term of reference, Judge Charleton is attempting to decipher whether of not the former Garda Commissioner Noirin O’Sullivan inappropriately used unjustified grounds to discredit Sgt McCabe at that commission.

To that end, it is essentially trying to tease out what actions, by whom, were taken/not taken throughout that commission and, also, to find out who knew what, when.

Today, the tribunal will hear from Assistant Secretary at the Department of Justice Ken O’Leary, among others.

The tribunal has already heard that Mr O’Leary shared several phone calls with Ms O’Sullivan on the day the legal row broke out on May 15, 2015.

One took place in or around the time Ms O’Sullivan was being asked to reconfirm her instructions.

Ms O’Sullivan has already told the tribunal she can’t really recall what they discussed during a call at 4.16pm which lasted for 3 minutes and 35 seconds.

However, she did concede:

“…when I spoke to Assistant Secretary O’Leary my decision and my instructions had already been re-confirmed and I was just satisfying myself was there something going on in the background that I should be aware of.“

She also said:

“Chairman, the only — the only thing that I can offer is that, again, my decision and the instructs have been given earlier that day, the only thing I would have been aware of at the 16:16 phone call was the fact that the document — sorry, it was later, actually, it was at, I would say, 7:00 that the document was going to be worked up over the weekend and that that was a piece of work that was ongoing by the legal team.“

The document Ms O’Sullivan is referring to is the famous Chief State Solicitor letter, which contained several incorrect claims, and which was given to the commission on May 18, 2105.

In a statement already opened in the tribunal, Mr O’Leary claimed that, during this call with Ms O’Sullivan, she was also on the phone to her liaison officer at the commission Chief Supt Fergus Healy [see statement below].

But Ms O’Sullivan said this isn’t correct and doesn’t accord with her memory of events.

In his statement, Mr O’Leary stated that he told Ms O’Sullivan:

“at an early stage of our discussion that the Department could not become involved or attempt to influence in any way the approach of An Garda Síochána to the Commission which was entirely a matter for her as Garda Commissioner.”

The tribunal has also heard how Mr O’Leary was involved in communicating between the former Garda Commissioner Noirin O’Sullivan and the former Minister for Justice Frances Fitzgerald when RTE’s John Burke sent a press query to Ms O’Sullivan in July 2015 about the O’Higgins Commission of Investigation.

And Mr O’Leary was involved in communicating between Ms Fitzgerald and Ms O’Sullivan in May 2016 – when reports first emerged about the O’Higgins commission.

But just to return to May 2015 briefly…

And some discrepancies.

So far, we’ve heard…

Ms O’Sullivan did not meet her legal team – who was also representing other senior gardai – before a row broke out on the second day of the commission’s hearings, on May 15, 2015.

At this time, Ms O’Sullivan was communicating with her legal team via Chief Supt Fergus Healy.

On the afternoon of May 15, 2015, retired Chief Supt Colm Rooney was giving evidence when he was asked about a meeting with Sgt McCabe by Colm Smyth SC, for Ms O’Sullivan and Chief Supt Rooney.

As he gave evidence, Chief Supt Rooney claimed that “probably in late 2007”, Sgt McCabe had gone to his office, he “was in a 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”.

It was this single answer which kicked off the now famous legal row – as it prompted counsel for the tribunal Sean Gillane SC to raise concerns about the relevance of the line of questioning and Mr McDowel SC, for Sgt McCabe, to ask Mr Smyth if he was under instruction from Noirin O’Sullivan to challenge the motivation of Sgt McCabe.

Readers should note Mr Rooney has since sent a statement to the tribunal saying he wasn’t expecting this line of questioning from Mr Smyth.

Specifically, he said:

“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… I did not instruct the Garda Commissioner’s legal team to raise this issue on my behalf.”

Prior to the commission beginning on May 14, consultations took place between several senior gardai and Ms O’Sullivan’s legal team – which was also representing the senior gardai – on May 12 and May 13.

The gardai included Chief Supt Rooney and Supt Noel Cunningham.

But Ms O’Sullivan told the tribunal she had no knowledge of what was specifically said at these consultations.

She said:

“I don’t know what happened at the consultations with the other witnesses, and I’m not in a position to say what instructions were given or what factual input was made by other people.”

Ms O’Sullivan has also told the tribunal said had no involvement in a letter which was composed over the weekend of May 16/17, 2015, which was put forward as notice of what was going to be put to Sgt McCabe, on behalf of Ms O’Sullivan whom Mr Smyth described as his “primary client”.

This letter contained several claims that were incorrect – not least an allegation that Sgt McCabe had admitted to a ‘blackmail-like scenario’ at a meeting in August 2008, in Mullingar, attended by Supt Cunningham and Sgt Yvonne Martin.

This scenario was proven false by a tape recording taken of the meeting by Sgt McCabe.

Incidentally, Supt Cunningham’s notes and report of the 2008 meeting matched the tape but this didn’t emerge until June 24, 2015 – after the tape emerged [more about this below].

Ms O’Sullivan referred to the wrong claims in this letter as “factual inaccuracies” while Michael McDowell SC, for Sgt McCabe, has called them “gross falsehoods”.

Intriguingly, apart from the blackmail allegation, the letter also repeated the assertion seemingly made by Chief Supt Rooney on the afternoon of May 15, 2015, when he claimed Sgt McCabe wanted the DPP’s directions “challenged”.

Specifically, the letter stated:

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

“Sergeant McCabe sought as an appointment to see Chief Superintendent Colm Rooney and this was facilitated in June/July 2007. At the meeting Sergeant McCabe expressed anger and annoyance towards the Director of Public Prosecutions.”

“He demanded that Chief Superintendent Rooney communicate with the Director of Public Prosecutions to seek a declaration of his innocence from the Director of Public Prosecutions in relation to the allegation.”

This, on the face of it, is intriguing as the tribunal heard, in the summer, that Sgt McCabe had full knowledge of the DPP’s directions since April 2007 and they did exonerate him.

The events of May 15, 2015 caused Ms O’Sullivan’s solicitor Annemarie Ryan, of the Chief State Solicitor’s Office, to urgently seek – via CS Fergus Healy – a meeting with Ms O’Sullivan on the weekend of May 16/17.

Ms Ryan, who described the events as “political dynamite” in a note on May 15, 2015, has given evidence that CS Healy told her Ms O’Sullivan was too busy to met with her.

CS Healy has given evidence which matches that of Ms Ryan.

However, Ms O’Sullivan has told the tribunal she was never told that Ms Ryan was urgently seeking a meeting.

Another bizarre discrepancy centres on the morning of May 18, 2015.

The tribunal has heard evidence from Ms Ryan that she gave the commission and Sgt McCabe’s legal team the letter containing the “factual inaccuracies” or “gross falsehoods” and Supt Cunningham’s report of that meeting on the morning of May 18, 2015.

These two documents would have contradicted each other, yet Mr Smyth still put the ‘blackmail’ allegation to Sgt McCabe when Sgt McCabe gave evidence that afternoon.

When questioned, Sgt McCabe told Mr Smyth:

“That’s absolutely false.”

In addition, submissions were made to the commission, on June 11 – in which the blackmail allegation was actually elaborated on and it was suggested evidence would be given to support the claim.

But, as mentioned before, it wasn’t until the commission resumed on June 24, 2015, that it emerged Sgt McCabe’s tape matched the notes and report of Sutp Cunningham.

It was also only then that Mr Smyth also learned the documents were contradictory.

When Mr Smyth was asked about his becoming aware of these discrepancies of the May 18, 2015 letter until June 24, 2015, Mr Smyth told the tribunal that it would be remiss of him not to apologise to Sgt McCabe.

He also said:

“It was done on the explicit instructions of the client, who got it wrong.”

When asked about Ms Ryan’s evidence last week – that she gave in Supt Cunningham’s report with the CSS letter on May 18, 2015, Mr Smyth said he couldn’t recall that occurring.

He specifically said:

“I don’t recall seeing that document [Supt Cunningham’s report on morning of May 18, 2015]”

In addition, Michael McNamee BL, also for Ms O’Sullivan and the senior gardai, told the tribunal on Friday that he did not receive Supt Cunningham’s report on the morning of May 18, 2015.

The tribunal has heard of a note from a meeting in the Four Courts, on May 11, 2015 – between Chief Supt Healy, the legal team and Ms Ryan – in which it appears Mr Smyth was noted as saying he wanted that report.

The note said: “Gardaí to send on report by Noel. Counsel want this” with the initials CS next to it.

When asked about this note, Mr Smyth said: “I see there maybe I requested that report.”

Asked when he did get Supt Cunningham’s notes/report, Mr Smyth said:

“We certainly didn’t get until after the — I think leading up to this, where the letter was drafted, where matters kicked off at the Commission, we didn’t have any of the notes prepared at that meeting…Nor I don’t think — we certainly didn’t have the report.”

Although the errors were put forward on May 18, 2015 – which came to light on June 24, 2015, despite contradictory documents seemingly being available on the morning of May 18, 2015 – Mr Smyth said he did not speak to Ms O’Sullivan about the events of May 15 to May 18 when they met in her office on May 21.

Mr Smyth said this meeting came about after Ms Ryan told him that Ms O’Sullivan wanted to meet him on her own.

But, when Ms Ryan gave evidence, she was asked about her knowledge of this meeting and she appeared to claim that she was told of the meeting, as opposed to someone who told Mr Smyth about the meeting.

Ms Ryan told the tribunal:

“I became aware of it. When it was, I actually would have put it more July. I know it was summertime, but as I said, time — It was my awareness that I — it was — I suppose I wasn’t put out, but I would expect to be at a meeting. But, no, it was my understanding that the Commissioner did not know or had not met Mr. Smyth and it was a cup of tea type meeting is the way I think it was described to me.”

In any case.

Of this meeting, Mr Smyth said:

“It wasn’t a consultation, there was no instructions to be taken, there was no advice to be given. And on that basis and on those parameters, I agreed to meet the Commissioner.

“The meeting lasted, I think, in all, it couldn’t have lasted beyond 20 minutes. I was escorted to her office by Chief Superintendent Healy. There was an introduction. There was a general conversation with her about — I congratulated her, I do remember that, congratulating her on her — it was then her full appointment.

“I can’t remember the precise or full details of what we discussed. There was a general conversation. I think there was some mention of Kerry, I think she may be from Kerry, and I think there was also some mention about family.

“…that’s the tenor of the discussion. There was no consultation with the Commissioner. There was no mention as to what was happening vis-à-vis the 18th or the letter or anything else. Now, I did say to her, as I was leaving, or about to leave, that matters were proceeding and that we were working very hard and that we would hope that all matters would be dealt with expeditiously.

“…She never mentioned Sergeant McCabe’s name, she never mentioned any of my clients’ names. And I said to her, well, obviously I understood that the most serious allegation was corruption. And that’s all we discussed.”

Mr Smyth said they did not discuss anything about advices, instructions, the re-confirmation of her instructions, of the events of May 18, 2015.

But what of May 15, 2015 and Ms O’Sullivan’s contact with Mr O’Leary?

The aforementioned exchange between Mr Smyth and Chief Supt Rooney prompted the commission to rise, at 3.10pm.

Upon rising, a flurry of phone calls and communications kicked off before it resumed at 3.36pm.

It rose again at 4.10pm and later resumed again when Mr Smyth again told the commission his instructions were reconfirmed.

As mentioned above, the tribunal has already heard that Ms O’Sullivan called Ken O’Leary, of the Department of Justice, on the afternoon and night of May 15, 2015.

Mr O’Leary has already given a statement to the tribunal which stated:

“It will be appreciated that the discussion in question took place over two-and-a-half years ago and I do not have perfectly recall of every detail of it.

“However, I set out here my best recollection of what transpired. On the afternoon of the 15th May 2015 former Commissioner, Garda Commissioner O’Sullivan, contacted me in relation to a matter which had arisen at the O’Higgins Commission that day.

“I know it was on that date based on the sequence of events set out by counsel for the Disclosures Tribunal in its opening statement.

“My understanding of what the then Commissioner said was that counsel for Sergeant McCabe had reacted strongly to an issue which had arisen at the Commission, that somehow related to a previous criminal complaint made against Sergeant McCabe and that counsel for Sergeant McCabe had asked whether this issue was being raised on the instructions of the Commissioner.

“I had no prior knowledge of what evidence An Garda Síochána intended to or were in a position to present at the Commission or any case that they proposed making.

“I can recall being acutely conscious during the conversation of the proper position of the Department in relation to the O’Higgins Commission and I specifically remember mentioning to the then Garda Commissioner at an early stage of our discussion that the Department could not become involved in or attempt to influence in any way the approach of An Garda Síochána to the Commission, which was entirely a matter for her as Garda Commissioner, taking into account the legal advice available to her.

“The then Commissioner fully accepted this. It was against that background too that I did not seek any further clarification of what had arisen at the Commission, the conduct of which I was aware was confidential, or information as to what evidence it was intended to present to the Commission or the nature of any legal case to be made.

“The focus of our conversation related to the question of evidence, and I do not recall it touching on any overall legal strategy counsel for the Commissioner might indicate to the Tribunal as set out in the transcripts which subsequently entered the public domain and as referred to by counsel for the Tribunal in its opening statement where counsel for An Garda Síochána had made general comments in relation to their approach to Sergeant McCabe.

“While clearly accepting that the Department could have no role in determining the Garda position in relation to the Commission, the Commissioner asked me if based on my experience anything occurred to me which she might need to be mindful of in addressing this particular issue with her legal advisers.

“I suggested she would have to be guided by her legal advice in these matters, but against the background that the Department was not in a position to express any view on the position of An Garda Síochána at the Commission.

“There was a discussion of factors of which she might need to be mindful in the context of discussions with her legal advisers. To the best of my recollection, matters mentioned were the need for sensitivity in relation to protecting the position of Sergeant McCabe, the position of other people at the Commission against whom serious allegations had been made, the likely adverse reaction of the Commission to the introduction of matters which it might consider inappropriate and the overall duty on the Garda Commissioner to assist the Commission in whatever way possible to establish the facts of what the Commission had been asked to investigate.

“The Commissioner was then going to discuss these matters with her legal advisers and I think I reiterated the view that she would have to be guided by the legal advice available to her.

“I also believed I suggested that from her point of view, it might be helpful if it was possible to gain more time so she could consider the matter more fully with her legal advisers. To the best of my recollection I received a further call shortly afterwards from the then Garda Commissioner.

“I think that at least for some of that call she was also on the phone to the Garda HQ legal officer at the O’Higgins Commission. As I understood it, the Commissioner was being advised that her legal representatives at the Commission had to respond more or less immediately to the issue which had arisen earlier and that the view of her legal team was that in discharging her obligation to the Commission there was a legal duty on her to raise matters which had arisen.

“I believe that in the circumstances the Commissioner indicated to the effect that her legal team should maintain their position that afternoon but there would be further detailed consultation with her legal team subsequently about the matter.”

When the former Secretary General of the Department of Justice Noel Waters gave evidence, he said he had no recollection of being told that phone calls had taken place between Mr O’Leary and Ms O’Sullivan on May 15, 2015.

Readers will recall Mr Waters also couldn’t recollect the contents of a 14-minute phone call he had with Ms O’Sullivan on the afternoon of May 15, 2o15.

There are also no notes of that call.

Also scheduled to give evidence today is Michael Dreelan, of the Attorney General’s Office, whom solicitor Annemarie Ryan, of the Chief State Solicitor’s Office called on the afternoon of May 15, 2015.

Michael Flahive, of the Department of Justice, and the author of that email is also scheduled to give evidence.

Readers may also wish to note that, later in the week, John Barrett, head of HR, is to give evidence.

The tribunal has already heard a statement from Mr Barrett, in which he said:

“Prior to the commencement of the O’Higgins Commission hearings, at the conclusion of a meeting in the office of the Chief Administration Officer, Cyril Dunne, Mr Dunne asked me to remain in his office after the other attendees had left and with reference to Sergeant Maurice McCabe, said, ‘we are going after him in the commission’.”

Mr Barrett, the tribunal has been told, was involved in the HR processes that were under way in relation to Sgt McCabe at the time of the commission.

The tribunal has heard Ms O’Sullivan never informed her counsel about the behind-the-scenes HR processes that were taking place as a means to resolve the workplace issues Sgt McCabe was experiencing.

Chief Supt Healy, who was Ms O’Sullivan’s liaison officer at the O’Higgins Commission, also told the tribunal he was never told about the same.

Previously: Disclosures Tribunal on Broadsheet