Tag Archives: Disclosures Tribunal


From top: Michael O’Toole; Lorraine and Maurice McCabe with Michael McDowell SC; since deleted tweets from Mr O’Toole last Summer

The assistant editor and crime correspondent of the Irish Daily Star Michael O’Toole gave evidence to the Disclosures Tribunal.

Mr O’Toole was named by Supt Dave Taylor as one of the journalists whom he negatively briefed as part of the alleged smear campaign against whistleblower Sgt Maurice McCabe between mid-2013 and the end of March 2014.

Mr O’Toole told the tribunal he was never “negatively briefed” by Supt Taylor and that no member of An Garda Síochána ever smeared Sgt McCabe to him.

He said he did hear a rumour about Sgt McCabe in 2010/2011 from “a very experienced journalist with significant access to the political world” – before Supt Dave Taylor started working in the Garda Press Office in the summer of 2012.

Mr O’Toole said he then checked out the rumour with a contact and satisfied himself there was nothing to the rumour as he learned of the DPP’s directions which included the line:

“Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault… there is no basis for prosecution.”

So categorical was Mr O’Toole’s testimony – and that of fellow crime and security correspondents John Mooney, of The Sunday Times, and Conor Lally, of The Irish Times – it was relied upon by Shane Murphy SC, for An Garda Síochána, when the Garda legal team made its final submission to Judge Peter Charleton to point out a weakness in Supt Taylor’s claim.

Their testimony was used to point out that some journalists knew of the Ms D allegation several years before Supt Taylor was allegedly briefing journalists about it in 2013/2014.

Mr Murphy said:

“… we say the task of the Tribunal is somewhat complicated by the fact that the Tribunal has heard extensive evidence of stories indicating the wider circulation of rumours about Sergeant McCabe in media, political and Garda circles in 2014 and 2013.

Knowledge of the fact that Sergeant McCabe had been the subject of a complaint of sexual assault was known to some journalists, specifically involved in covering policing and crime issues, from as early as 2011.

“And this has emerged also in the course of the evidence in this Tribunal. Chairman, you will remember the evidence of crime reporter Michael O’Toole of The Star newspaper, where he said he heard it some time around then and that he heard it from a non-Garda source.

Similar evidence was given by John Mooney, crime correspondent the Sunday times. Mr Conor Lally also gave evidence that he heard about this around 2010/2011.

“This of course was long before the period being considered by this Tribunal and indeed before the beginning of the alleged campaign which Superintendent Taylor alleged he was instructed and directed to begin, in the middle of 2013.”

Mr Murphy went on to quote directly from Mr O’Toole’s evidence, saying:

“It’s noteworthy that at that stage Mr O’Toole, having become aware from sources which were non-Garda sources, was moved to explore the allegation and he has told you that he promptly established from local Garda sources not only that no charges had been directed against Sergeant McCabe but that there was no substance to the allegations.

And Mr O’Toole when he spoke to you about that uttered the phrase, very memorable phrase, he said “the matter was dead to me from then on”.”

This memorable phrase was also used by Conor Lally, of The Irish Times, when he told the tribunal, a day after Mr O’Toole gave evidence:

“…it was a dead piece of information from the off.

Mr O’Toole said the matter was “dead” for him four times during the course of his evidence.

He said:

“I was lucky enough to have a contact who knows Sergeant McCabe – I can’t say who it is, but he spoke very highly of him, he called him Maurice, he said he had worked with him, said he was a very competent Sergeant, he had done files with him and he explained the background of the investigation and the outcome of the DPP’s file.

So once I heard that, the matter was dead for me, because there was absolutely no story for me in this.

I don’t think any journalist in their right mind, once they hear that the DPP has not only directed no charges, but said it’s – whatever the phrase is – it was very unlikely that any offence was disclosed,

I don’t think any journalist in their right mind would consider writing anything about this. The issue was dead for me.”

He later said:

“After I heard about the DPP’s directions. The issue was dead for me.”

And, again later, repeated:

The issue was dead for me…”

Despite this Mr O’Toole tweeted last summer about journalists’ coverage of the Tusla module of the Disclosures Tribunal and how they reported that the DPP had “dismissed” Ms D’s claim.

On July 13, 2017, Mr O’Toole tweeted:

“Hacks saying the DPP “dismissed” allegations. Really? I thought it either said enough evidence for a charge or not. #DisclosuresTribunal”

In a follow-up tweet, he asked:

“I mean what does ‘dismiss’ even mean?’

The idea of “enough evidence for a charge or not” chimes with some previous evidence the tribunal heard.

When Ms D, Mr D and Mrs D gave evidence, neither of them were specifically asked about what Supt Noel Cunningham – who carried out the initial investigation into Ms D’s claim in 2006 – told them of the DPP’s directions in 2007.

But, when Ms D gave evidence, while recalling her annoyance over RIAN counsellor Laura Brophy wanting to refer her claim to Tusla in the summer of 2013, Ms D told the tribunal, she told Ms Brophy:

I said that this case had already been investigated, the DPP came back to say that there was insufficient evidence…”

When Ms Brophy gave evidence to the tribunal she said, during her initial assessment of Ms D in which Ms D made her allegation against Sgt McCabe, Ms Brophy wrote down:

“DPP returned file due to lack of evidence.”

And while Supt Cunningham gave evidence to the tribunal, Michael McDowell, SC, for Sgt McCabe, said Sgt McCabe, in 2007, wasn’t given the real reasons for the DPP’s directions that there be no prosecution against Sgt McCabe.

Instead, Mr McDowell said, Sgt McCabe was told there was no prosecution due to “insufficient evidence”.

Indeed, Supt Cunningham told the tribunal:

“I told him [Sgt McCabe] there was no prosecution, I believe it was due to lack of evidence, I didn’t actually take a note of it…”

At the time Supt Cunningham told Sgt McCabe this – in 2007 –  Sgt McCabe already knew the DPP’s full instructions because the Cavan State Solicitor Rory Hayden, on April 5, 2007, read out the instructions to him.

Sgt McCabe kept his knowledge of the directions to himself, the tribunal heard.

In addition, the former Garda Commissioner Noirin O’Sullivan’s private secretary Frank Walsh also referred to there being “insufficient evidence” against Sgt McCabe when he gave evidence to the tribunal.

But the term “insufficient evidence” does not appear in the DPP’s directions.

Mr O’Toole also told the tribunal that, as far as he could recollect, no journalist ever went to him with any rumours about Sgt McCabe in 2012, 2013 or 2014.

And he said – in relation to the 11 journalists named by Supt Dave Taylor as having been negatively briefed by him – Mr O’Toole said:

“I can say the journalists that I would be close to, other journalists, you know, there are active crime correspondents that I would be particularly friendly with and we never, this never came up…I would be closer to some and not others. But yes, I would know them all….No, never [the matter never came up with these journalists] The issue was dead for me…”

When Mr O’Toole was giving evidence, it was put to him, by Patrick Marrinan SC, for the tribunal, that Mr O’Toole had recently come into “possession of some information that the tribunal is looking into” and that Mr O’Toole was to make a short statement to that effect.

However, the tribunal never heard any further details on this.

The tribunal heard that, from Supt Taylor’s billings records, it would seem that Mr O’Toole had approximately 240 telephone contacts with Supt Taylor between August 2013 and when the then Garda Commissioner Martin Callinan stood down, in March 2014.

Mr O’Toole wouldn’t confirm his phone number to the tribunal – saying that to do so might lead to the identification of sources:

“I refuse to engage with anybody in any State or official aspect about my mobile phone.”

As he wouldn’t confirm his phone number, Mr O’Toole also wouldn’t confirm to Judge Peter Charleton that he had around 10 telephone conversations with Supt Taylor every month during that timeframe.

John Ferry BL, for Supt Taylor, put to Mr O’Toole that, while he claimed the Ms D issue was “dead” for him – once he learned of the DPP’s directions – that that was separate to the idea that the Ms D matter was the motivation for Sgt McCabe making complaints about policing, which Supt Taylor claims he was telling journalists.

Mr O’Toole said:

“I’m going to claim privilege in that. But again to stress, I have no interest in anybody’s motivation in telling me anything. People tell me things. I talk to people who perhaps shouldn’t be talking to me and are afraid to talk to me. So I never question why, I question the accuracy of what they say.”

Mr O’Toole repeatedly told the tribunal nobody smeared Sgt McCabe to him and said Supt Taylor’s claim that he could have done so while they were at a crime scene was “preposterous” as such scenes are “chaotic”.

And he confirmed:

“Nobody in the Press Office maligned, smeared, negatively briefed, mentioned Maurice McCabe to me.”

Mr O’Toole also told the tribunal he had been “vexed” by some media coverage about crime reporters concerning Sgt McCabe.

He said:

“I have to admit I was vexed by the suggestion that crime reporters, including myself, were used in this smear. I was very disappointed by some of the reportage. I know, look, I’m sure they’re all lovely people, but I know there was evidence last week about the Sunday Times piece saying that crime reporters were at the centre of this briefing.

That story rankled with me at the time and it has rankled with me ever since. All she had to do was ring me and ask me or ring any other journalist and we would say ‘I wasn’t part of any campaign’. I was very, very disappointed, because that came into the public commentariat.”

It’s understood Mr O’Toole was referring to a piece in The Sunday Times by Justine McCarthy from February 2017.

When Noel Whelan BL, for An Garda Síochána, asked Mr O’Toole questions about the person who set him straight in terms of the DPP’s directions, Mr O’Toole said:

“I had someone with a knowledge of it, I’m not going to say if he was a Garda or a retired member, but I had someone who I trusted implicitly, I’ve known that person for a very, very, very long time, someone of the highest integrity – as I said, he called this person Maurice, so there’s obviously some sort of personal relationship there. And he gave me enough, more than enough detail for me to accept that this person knew what was happening. And that was the end of it for me.”

Mr O’Toole told the tribunal the Sgt McCabe story was more of a political story than a crime story. In respect of the journalists who went to the D house in early 2014 seemingly seeking a story from Ms D – Debbie McCann, of the Irish Mail on Sunday, Eavan Murray, of The Irish Sun, and Paul WIlliams, of the Irish Independent – Mr O’Toole said:

I had no interest in it. Sergeant McCabe was declared innocent by the DPP. I mean, what sort of journalist in their right mind would go after this story? Some journalists think, believe it or not some journalists [think] they’re Gardaí, some think that they’re solicitors. I’m a journalist, that’s my job.”

However, last summer, the tribunal heard from Ms D’s father Mr D that Mr O’Toole did try to contact him via Facebook in early 2014 – around the time other journalists were contacting him about Ms D’s allegation.

Mr D said they didn’t talk about the Ms D case.

Mr O’Toole wasn’t asked about this alleged attempt to contact Mr D.

Meanwhile…

Last Friday in the High Court, Cian Ferriter SC, for The Irish Times, read out an apology to Sgt Maurice McCabe for an article written by Conor Lally – about Sgt McCabe and Ms D – which was published on February 20, 2017.

The apology included the lines:

“The Director of Public Prosecutions determined, after a careful and professional investigation, that no offence of any kind had been disclosed against Sgt McCabe and that there was no basis in fact or law for any prosecution.

“Contrary to what was suggested in the articles, the Director of Public Prosecutions did not base his direction on “insufficient evidence”.

Tomorrow: Maurice McCabe And The Irish Mirror

Previously: Maurice McCabe And The Irish Sun

Maurice McCabe And The Irish Examiner: Part 2

Maurice McCabe And The irish Examiner: Part 1

Maurice McCabe And The Mail Newspapers

 Maurice McCabe And INM: Part 2

Maurice McCabe And INM: Part 1

Maurice McCabe And RTÉ

Maurice McCabe And The Irish Times

Maurice McCabe And The Irish Times: Part 2

Maurice McCabe And The Sunday Times

Top: Sgt Maurice McCabe and above, clockwise from top left: Conor O’Donnell, Debbie McCann, Robert Cox, Alison O’Reilly and Sebastian Hamilton.

Following  the completion of evidence from Fionnan Sheahan (full report on this here), chairman of the Disclosures Tribunal Justice Peter Charleton turned to the Irish Independent editor and asked:

“Mr Sheahan…Is there anything in the world of journalism that I’m unaware of that might help me in any way as to why these completely contradictory allegations are flung up?

The judge had, to this point, heard four direct conflicts of evidence between eight journalists, often working for the same news organisations.

Justice Charleton continued:

“…I have had reference to bitterness, to careers, to jobs, to people leaving their posts. I don’t know whether it’s down to sick buildings or what it is down to, but is there any way you can assist me on this?”

Mr Sheahan, having verbally trashed a former colleague during his session minutes earlier, was unable to help the judge.

The evidence taken by journalists from Associated Newspapers Ireland, which publishes the Irish Daily Mail and the Irish Mail on Sunday, was more of the same. Only more so.

Conor O’Donnell, editor of the Irish Mail on Sunday; Sebastian Hamilton, group editor at the Irish Daily Mail; Debbie McCann, crime correspondent at the Irish Mail on Sunday; Robert Cox, deputy editor of news at the Irish Mail on Sunday; and Alison O’Reilly, of the Irish Daily Mail and formerly of the Irish Mail on Sunday, all gave evidence.

Most of their questioning was taken up with a conflict between Ms O’Reilly and Ms McCann, who had not just been colleagues but good friends.

When Labour leader Brendan Howlin told the Dáil in February 2017 that he had been contacted by a journalist who said they had “direct knowledge” [sic] of the then Garda Commissioner Nóirín O’Sullivan telling journalists [sic] of “very serious allegations of sexual crimes having been committed by Sergeant Maurice McCabe”, he was referring to his contact with Ms O’Reilly.

She had told him that Ms McCann had told her that Ms O’Sullivan was a source of information for her about Ms D.

Ms McCann was the first journalist to call to the home of Ms D in early 2014.

This visit came about after she had first heard “murmurings” about Sgt McCabe and after she made inquiries, following the then Garda Commissioner Martin Callinan’s “disgusting” remark.

Ms McCann’s line editor, Robert Cox, told the tribunal when Mr Callinan made his “disgusting” remark at a meeting of the Public Accounts Committee on Thursday, January 23, 2014, everything changed.

He said:

“Commissioner Callinan, once he said ‘disgusting’ it became a whole different ball game in a certain respect because there was — any allegations or anything that was in the ether, was now, had kind of — it hadn’t surfaced but there was some reason behind that disgusting remark and anybody who was following the [penalty points] story kind of was wondering what was behind it.”

Mr Cox said, around this time, and as Ms McCann told him she had heard “murmurings” about Sgt McCabe, he told her to find out more details. He said:

She came back with, that there had been an allegation, the allegation was of child sex abuse, that the person was a minor at the time of the abuse, that it was historic, and that the DPP had chosen — had decided not to press charges.”

When Ms McCann gave evidence, she said:

“I knew she was a young girl at the time. I didn’t know her exact age…I knew that they [Mr D and Sgt McCabe] were colleagues. I don’t know if I knew at that point that they had fallen out, I don’t know...I had that it was an allegation of inappropriate touching. I think I knew at the time that there may have been tickling involved, but I think that’s all I knew.”

Despite knowing that the DPP ruled against a prosecution, Ms McCann subsequently called to the D house.

Ms D wasn’t at the house at the time and, instead, Mrs D answered the door.

It’s the evidence of Ms McCann and Mrs D that Ms McCann was turned away from the door pretty much immediately.

It’s not clear what date Ms McCann called to the D house but she initially told the tribunal she thought she visited the D family in or around February 14 or 21, 2014.

When Ms McCann’s editor Conor O’Donnell gave evidence, he said:

“What happened is we sent [Ms McCann to the D house]. Nothing came of it. We did nothing more on it and we never discussed it again.”

But Ms O’Reilly – who told Sgt McCabe there were rumours circulating about him to the effect that he had sexually abused a girl when she first met him on February 28, 2014 – claims Ms McCann told her there was much more to it.

Coincidentally, around the same time, Ms O’Reilly claims she had asked Mr Cox if she could write something “positive on the whistleblowers” and she said Mr Cox said “they didn’t want any negative stories because it would piss off the gardaí and they would stop giving Debbie [McCann] stories”.

Ms O’Reilly claims Ms McCann told her that, at some point, she had spent about an hour interviewing Ms D, and that Ms McCann was able to describe in detail how Ms D held her arms as they spoke to each other.

She claims Ms McCann called Sgt McCabe a paedo, child abuser and a dirty fucking bastard.

She claims Ms McCann told her she’d heard Ms D “was in a bad way” from the former head of the Garda Press office Supt Dave Taylor and that she seemed to have been very moved emotionally by Ms D’s story.

She claims Ms McCann said the then Garda Commissioner Nóirín O’Sullivan was a source of information for her about Ms D.

She claims Ms McCann said Sgt McCabe was hated within the gardaí.

She claims Ms McCann said she had written a story on Ms D but that it wasn’t published.

And she claims Ms McCann said Mr O’Donnell wanted to publish it as an anonymous story but that Mr Hamilton didn’t want the story published as he was too cautious.

In regards to the above claims, Ms McCann, Mr O’Donnell and Mr Hamilton categorically deny them all, while Ms O’Sullivan also utterly denies being a source of information for Ms McCann.

Ms McCann refused to be drawn on her communications or conversations with Supt Taylor – who waived his right to privilege – saying she had to protect her career as a journalist “going forward”.

At one point she said:

“I am the journalist and I believe that that decision lies with me. I have a career to think about going forward. I can’t go there. I would love to go there, but I honestly cannot do that.”

In his final submission, Ms McCann’s counsel Tom Murphy recalled Ms McCann saying the quote above and added:

“This is an archetypal Catch-22: answer the question and your career will be damaged, perhaps irrevocably; don’t answer the question and your failure to do so could lead to adverse inferences, including, most seriously, a potential finding of dishonesty. Further, and despite some suggestions to the contrary, the stance adopted by Ms McCann in relation to her journalistic privilege is mirrored by other journalists…”

Mr Murphy went on to list these other journalists as Conor Lally, of The Irish Times; Michael O’Toole, of the Irish Daily Star; and John Mooney, of The Sunday Times.

Mr Murphy also recalled what Ms McCann had said to Judge Charleton a few weeks previously when she said:

“He [Supt Taylor] has waived his privilege. It is — I am the journalist, and, going forward, if I start revealing the contents of conversations that I had with people, it’s going to really damage me going forward. And I think that I am not in a different position to other journalists who have come before this Tribunal.”

However.

The judge had replied to Ms McCann: “Well, you are [different], I’m afraid, very much, as from what I can see at the moment.”

It took Associated Newspapers five months to tell the tribunal that Ms McCann had called to the D house.

Neither Ms McCann nor Supt Taylor confirmed the fact until after the tribunal heard about it from elsewhere.

Kathleen Leader BL, for the tribunal, asked Sebastian Hamilton if there had been a conscious decision made at the Mail “to say, okay, we are going to claim journalistic privilege, we are not going to tell the tribunal anything about any of our journalists knowing anything about the D story until such time as we see what other information the Tribunal gets?”

Mr Hamilton said: “I’m certainly not aware of any decision in those terms having been taken at all.”

Throughout Mr Hamilton’s evidence, he repeatedly stated that Ms O’Reilly had a grievance with Associated Newspapers.

Mr Hamilton’s repeated claim followed the sending of a letter – on April 18, 2018 – from the Mail’s solicitor Michael Keeley to the tribunal, which stated:

“My client believes that the state of Ms O’Reilly’s relations with them at the time she spoke with Mr Howlin is a relevant issue and was a strong motivating factor in her actions and also, in their view, cast considerable doubt on the credibility of the witness.”

Judge Charleton pointed out that a person can have a grievance with another and still tell the truth.

The judge also pointed out that, regardless, several facts weren’t immediately disclosed to the tribunal by Associated Newspapers – which had nothing to do with Ms O’Reilly.

He said:

The fact that someone goes and knocks at somebody’s door, is a fact; the fact that they speak to somebody’s mother, is a fact; the fact that you know that, your newspaper knows that, is a fact; the fact that that is nothing to do with journalistic privilege, the fact of being at the door, but nonetheless you choose not to tell us and it takes you five months to get to the point, when we already know the information, I have to put it to you. So, I mean, it’s all very well to say journalistic privilege to journalistic privilege any number of times you wish, but at the moment that doesn’t look very impressive to me.”

[The alleged grievance which Mr Hamilton was referring to is an ongoing legal action Ms O’Reilly is taking against the Mail – following the fallout of a story by Ms O’Reilly which was published in the Irish Mail on Sunday on March 27, 2016, about the Buncrana pier tragedy in which Louise James lost five family members after the Audi jeep they were in slipped off the pier and into Lough Swilly in Co Donegal.

After the story was published, Ms James complained to the newspaper and the newspaper subsequently apologised – stating Ms James had not consented to being interviewed.

When Ms O’Reilly gave evidence, she said: “I made it clear to Ms James, Chairman, that I was a journalist with the Irish Mail on Sunday, that I was doing a story and that I taped it in line with what we normally do in The Mail on Sunday, we secretly tape things for our own protection in case you are accused of fake news or in case you are attacked.”

She also said: “I have a conversation with Conor O’Donnell, who told me that I did interview Louise James and that they only apologised to her because that is what she wanted, and he wanted to know if I was okay.”

The tribunal heard that, after the IMOS story about Buncrana, there had been an internal investigation within the IMOS, and a warning had been placed on Ms O’Reilly’s record for a year.

Ms O’Reilly also signed the following statement: “I note the sanction. Just to be absolutely clear, I fully accept my error of judgement. I want to put it behind me. I want to continue working for the Mail. I want the opportunity to prove myself. I look forward to working on features and welcome any training that would be given and I embrace it. The last few months have taught me a lot of us here need to look at how wework. On the basis of that, I accept the sanction and look forward to getting back to work.”

Of this statement, Ms O’Reilly told the tribunal: “I was very heavily medicated, Chairman, and to the point where Sebastian Hamilton had actually called my representative aside and said: Should we proceed with this? I have never seen her look so bad. And that was the advice I was given in those circumstances.”]

The tribunal also heard about a possible attempt to “block” the tribunal from obtaining information.

Ms O’Reilly said the following about a meeting she had with the company’s solicitor Michael Keeley before the the tribunal’s proceedings got under way.

She said:

“Chairman, I went to a meeting with Michael Keeley after receiving a letter from the Tribunal and he asked me a series of questions and he asked me did I ever hear the rumour about Maurice McCabe being a child abuser, and I said yes, I did. And I went to tell him who it was and he put his hand up and he said, I don’t want to know.

“And I thought, well, what are we doing here? I mean, do we tell the truth or do we not tell the truth? And then he went on, maybe question five or six he said: Did you meet Maurice McCabe? I said I did. I asked him to do an interview. I said, Michael, I actually feel very sorry for Maurice McCabe. And he said — he put his pen down and he looked at me, he was sitting there, and I was sitting here, and he said: You know, nobody comes out of a Tribunal looking okay, even if they’re trying to be the good guy.

“And I said, do you know what? I’m not telling you anything. I was terrified, absolutely terrified. I felt threatened and terrified. And I thought, what is this? I knew that Debbie had been up at the house, I knew that I had been up with Maurice McCabe, and by the time he got to his very last question, as we were standing up to leave, I said I’m not telling him anything, I’m too afraid.”

Hugh Mohan SC, for Associated Newspapers, repeatedly put to Ms O’Reilly that she had “lied” to Mr Keeley when she “denied” she was Mr Howlin’s source.

Ms O’Reilly said she accepted she didn’t tell Mr Keeley, but she also said:

“I accept that I tried to tell Michael Keeley everything, and he didn’t want to know.”

Judge Charleton stepped in around this point and asked Mr Mohan if Mr Keeley accepted what Ms O’Reilly claimed Mr Keeley said – “nobody comes out of a Tribunal looking okay”.

Mr Mohan and Judge Charleton then had this exchange while Ms O’Reilly also interjected intermittently:

Mohan: “He made it clear that he did not want to be put in a position where sources were told to him in that context. I think it’s a different version of events, but in that context that was the basis of what was said.”

O’Reilly: “Chairman, he said ‘I don’t want to know’.”

Mohan: “Sorry, he did not want to know — sorry, Chairman, he did not want to be put in the position of being told sources –”

O’Reilly: “But that was my whole point, Chairman; like, what were we doing there? Why — we are meeting to not tell the Tribunal anything. I mean –”

Charleton: “So the Tribunal is writing letters to people, and what’s the result? I mean, either we actually owe allegiance to this country or we don’t. So what is the result of the Tribunal writing letters to people?”

Mohan: “Well, sorry, Mr Chairman, this information was put before you by the witness, the current witness, and my client in this case, Ms McCann, has a different version of events in relation to this. It just so happens, for yet the second time, both the parties to it have a fundamentally different version of events than this witness has given. I am challenging her credibility –”

Charleton: “Well, if you want to put a different version of a conversation, of course you are perfectly entitled to, Mr. Mohan, and I would welcome that indeed.”

Mohan: “Well, what I want to do now if I may –”

Charleton: “No, but this is actually important, because we have been spending the last year-and-a-half trying to find out things that we have been charged by the Oireachtas to do, and it is, this is our country, we owe allegiance to it. We are tasked with trying to find this information out. Now, it’s appropriate, if you have a different version of the conversation, to please put it.”

Mohan: “Sorry, the different version I am putting is that, in fact, Ms McCann did not, because she was not in contact with Nóirín O’Sullivan, ever say that Nóirín O’Sullivan had told her anything whatsoever.”

Charleton: “No, no, and I appreciate that. But it is — the Tribunal went to a lot of trouble to write an awful lot of letters to an awful lot of people, and furthermore, there were back-up letters, there were follow-up letters, many people never replied, we had to follow up in the case of some people a large number of times, and then, apparently, if anything comes up, well then I’m given a submission on this, that and the other. But this is actually important, and it’s important from the point of view of the other person having the conversation. If there’s a different version of this conversation, it should be put.”

Mohan: “Well –”

Charleton: “I am not talking about Ms McCann; I am talking about the conversation with Michael Keeley. I mean, that’s what I am talking about, that. I mean, Mr Mohan, vis-à-vis Ms O’Reilly and what she was told, what is was saying was, well, I don’t know what was behind it, I don’t know whether it was the fisherman’s tale of getting the 50-pound salmon or whether it was the truth, but what I am telling you is that it was said. So that’s one thing, I appreciate that. But then the other thing is, okay, source or no source, the Tribunal had asked for information, and I am now being told that that was blocked. Now, that’s important. If there is a different version, I really ought to know.”

Mohan: “I have an account, which you don’t have, of that attendance that Mr Keeley prepared following his conversation with Alison O’Reilly, and I have checked it, for some reason that didn’t appear, although Ms O’Reilly would be familiar with it, and I have no difficulty with that being put in. It’s Mr Keeley’s account. I can read it, if I may.”

Charleton: “Well, yes, of course, but it’s not for me, it’s for the witness.”

Mohan: “Sorry, you did ask me, I have an account –”

Charleton: “Well, I don’t know why everyone is arguing with me and parsing and analysing everything I say. Look, it is a very fundamental principle of law. It’s from the point of view of fairness to Mr Keeley, from the point of view of fairness to the witness and also from the point of view of the functionability of a tribunal in this Republic, as to whether any such thing happened. Now, of course I had no notice, and neither did you perhaps have any notice, I don’t know, Mr Mohan, certainly it’s no blame, I am not sending any in your direction at all, that in answer to your question Ms O’Reilly would tell me what she’s just told me. But from the point of view of fairness, if there is a different version of the conversation, it should be put, out of fairness to her and out of fairness to Mr Keeley as well.”

Mohan: “I wonder, I’m going to — not to waste the court’s — the Tribunal’s time, I will go on to another and come back to this. But in the meantime I will have this photocopied and circulated so everybody has a copy of it, and I will return to that point. And this will be the version dealing with the point that you have made, if I may deal with it that way?”

Charleton: “Well, it’s not exactly as if I am making a point; it is pretty fundamental.”

Mohan: “Well, no, I am happy to deal with it, absolutely.”

Charleton: “Well, that’s fine. Grand.”

Mohan: “I can read the note, but I think it might be better if everybody has a copy.”

Charleton: “Well, I’m not trying to interfere. I think you should take your own course. And I appreciate the questions you’ve put. Look, Ms O’Reilly is saying: I had the conversation, it was such and such. You are saying you couldn’t possibly have, because you never had, for instance, the Commissioner’s number, there was no record of any communication between them. That’s perfectly and utterly fair. But in the event there is an allegation of obstruction on the Tribunal, well that should be dealt with today, if possible.”

Mohan: “I’m going to get copies of the note made and I will return to that, if I may. Ms. Leader is going to make copies of it.”

Charleton: “Yes, we will facilitate you every way we can.”

The tribunal never heard any more evidence on this alleged conversation.

When Alison O’Reilly gave evidence, the tribunal heard about a text exchange she and Ms McCann had on May 9, 2014 – several months after Ms McCann had been, the tribunal heard, turned away from the door of the D house by Mrs D.

In May 2014, Ms McCann was also on maternity leave which began within weeks of calling to the D house.

The text exchange followed the publication of a report by Sean Guerin SC, whose scoping exercise of Sgt McCabe’s complaints about Cavan/Monaghan led to the O’Higgins Commission of Investigation in 2015.

The tribunal was initally told the following was the sequence of texts:

O’Reilly to McCann:

“A highly respected officer held in ‘high regard’ is how judge Guerin describes McCabe.”

McCann to O’Reilly:

“I am fully aware and, to be honest, I think it’s gross. There is a very messed up girl at the heart of it and no one gives a fuck.”

McCann to O’Reilly:

“It’s a farce. Everyone knows, from politicians to cops to journos. It’s an fucking pantomime.”

McCann to O’Reilly:

“Sorry for Shatter? It’s just like a house of cards. Self-preservation is the name of the game. It’s one big sordid game. Nóirín should get the job, she’d be fab, and it’ll be the ultimate knee-jerk reaction if they go down the civilian route. I also feel for Callinan. What a way for his career to end. The tape thing is one big f-ing smokescreen designed to save political face, and at what cost? Justice will be the biggest loser if the government continues the way it’s going. It’s disgusting.”

When Ms McCann gave evidence, she told the tribunal that the sequence, as presented by Ms O’Reilly above, was incorrect and that another text was sent to her by Ms O’Reilly before her text about Ms D being a “very messed up girl”.

Ms McCann claimed this missing text had been deleted.

Ms McCann then read the missing text:

“‘Paul Williams and the Indo have an agenda against McCabe,’ says Micheál Martin to pals.”

Ms McCann told the tribunal she believes that missing text changed the whole context of the exchange.

She said: “…that “to be honest, I think it’s gross”, if you read the full context, that would suggest what I’m calling gross is the game-playing that’s happening in relation to it and not Sergeant McCabe.”

However.

When the various legal teams presented their final submissions to Judge Charleton, Fíonán Ó Muircheartaigh BL, for Ms O’Reilly, told the tribunal:

“Debbie McCann advised the Tribunal that a text in the sequence of messages furnished by Alison O’Reilly was deleted and that it was held back to show her in a bad light. The actual sequence… shows that this is not so. Alison O’Reilly did not delete any texts.”

Mr Ó Muircheartaigh said the sequence was as follows:

O’Reilly to McCann:

“A highly respected officer held in ‘high regard’ is how judge Guerin describes McCabe.”

McCann to O’Reilly:

“I am fully aware and, to be honest, I think it’s gross. There is a very messed up girl at the heart of it and no one gives a fuck.”

O’Reilly to McCann:

‘Paul Williams and the Indo have an agenda against McCabe’, says Micheál Martin to pals.’

McCann to O’Reilly:

“It’s a farce. Everyone knows, from politicians to cops to journos. It’s an fucking pantomime.”

When Tom Murphy BL, for Ms McCann, gave his final submission on behalf of Associated Newspapers, he did not challenge the sequence of texts as read out by Mr Ó Muircheartaigh.

Mr Ó Muircheartaigh said this about the text exchange when he gave his final submission:

“This exchange occurred after the Mail had apparently decided not to run with the story concerning Ms D. This is referred to in the evidence of Debbie McCann to the Tribunal on the 8th June.

“This suggests that even after the decision to drop the story by the Mail, Debbie McCann still had a very negative perception of Sergeant McCabe.

“The Tribunal heard in evidence on the 8th June that, despite being on maternity leave, Debbie McCann continued to work on stories for her employer.

“But the following points are pertinent in that regard: Debbie McCann was the crime correspondent with the Irish Mail on Sunday; she was in regular contact with David Taylor, the head of the Garda Press Office.

“Superintendent David Taylor says he negatively briefed journalists as the opportunity arose in relation to Sergeant Maurice McCabe’s agendas and his motivation for revenge against the gardaí.

“Superintendent David Taylor says he was in touch with and discussed Debbie McCann’s visit to Ms D’s house with her in or about the time of her visit. The Mail legal team did not challenge this evidence by cross-examination.

“Debbie McCann was the first journalist to visit Ms D’s house seeking an interview with Ms D. It is unlikely that Debbie McCann did not discuss Sergeant McCabe with David Taylor.

“Debbie McCann was refused to divulge the content of any discussion she had with Superintendent David Taylor about Maurice McCabe or Ms D.

“Debbie McCann’s father, Superintendent John McCann, was aware of the historic allegations against Sergeant McCabe.

“He told the Tribunal that he did not discuss it with his daughter, and Debbie McCann concurs with that account. It is submitted that these facts suggest that the origin of Debbie McCann’s concerns regarding Sergeant McCabe and Ms D were as a result of Superintendent David Taylor and other senior gardaí.

“This contact was indicated in Debbie McCann’s conversations with Alison O’Reilly. The contact is an identifiable factor in the escalation of her interest and her express views of Sergeant McCabe and her excursion to Ms D’s house.

“Debbie McCann’s refusal to answer any questions regarding her contacts with David Taylor, notwithstanding his waiver of privilege, suggests the inference that Superintendent Taylor did brief her negatively.

“If he did not, there could be no reason for not divulging the content of those conversations. It also suggests that, whatever contacts took place, they were not confined to the formula suggested by Superintendent David Taylor in his evidence.

“If Debbie McCann had not been persuaded that Sergeant McCabe was guilty of sexual misconduct with a minor, it is difficult to rationalise how she could have expressed the views she did about Sergeant McCabe.

“The texts suggest that she continued to hold those views for some time after her visit to the D household. It seems inescapable also that Debbie McCann learned the detail of the allegations from a Garda source.

“In her direct evidence to the Tribunal she stated she knew before her visit to Ms D’s house of the issue of tickling.

“The reference to tickling only appeared in the confidential Garda investigation of the complaint, and, as far as we are aware, this was never divulged to third parties or never mentioned prior to Debbie McCann’s evidence to this Tribunal.”

Ms McCann was asked about the level of sympathy she displayed for Ms D in her text to Ms O’Reilly on May 9, 2014, when she referred to Ms D as a “very messed up girl”.

Ms McCann put her sympathy down to her very brief exchange with Mrs D at the front door of the D house in early 2014.

She said:

“I had a degree of sympathy for the girl. I didn’t know her. I had met the mother, and, from meeting the mother, I found her to be upset, I found her — I felt that she believed something had happened with her daughter and, based on that, I found that was my opinion on the matter.”

She added:

“She [Mrs D] was very clearly distressed when I knocked on her door, in the sense that she told me that she had been listening to the news and something about hearing McCabe — Sergeant McCabe being referred to as a hero. It was quite clear that she was distressed and upset, and it immediately struck me and I found just from — I found her to be credible and I found her to — that conversation that I had with her, I found that she certainly believed something had happened.”

However, it’s the evidence of Mrs D that she wasn’t upset about Sgt McCabe when they met and didn’t mention anything about hearing a news item on the radio about Sgt McCabe.

The tribunal did hear Mrs D was “horrified” when Ms McCann had “turned up on her doorstep”.

Mrs D had told the tribunal:

She [McCann] said something to me like, I know you have been going through a hard time. There’s a bit of rumours. She said something about the whistleblower and I just looked. She wasn’t directly in front of me, she was almost to the side of me. I just looked to the side of her and that was all I said, we’re not speaking to anybody. And that was all the dealings I had with her.”

Michael McDowell SC, for Sgt McCabe, had this exchange with Ms McCann.

McDowell: “First of all, did you have any further information, other than the allegation that you had been told about, about your source or sources and your meeting with Mrs D and her being — her looking upset?”

McCann: “No.”

McDowell: “Well, then, how could you possibly say there is a very messed-up girl at the heart of it and nobody gives an eff, how could you possibly say that?”

McCann: “Because, again, I had — I had come to that opinion based on hearing the allegation and based on meeting a mother at the door.”

McDowell: “But listen, the DPP heard the allegation.”

McCann: “Mm-hmm.”

McDowell: “Superintendent Cunningham heard the allegation.”

McCann: “Yes.”

McDowell: “He investigated it.”

McCann: “Mm-hmm.”

McDowell: “And the DPP, we now know, said that there was no offence disclosed at all.”

McCann: “Mm-hmm.”

McDowell: “So how could you come to the view that this girl had been seriously effed up by abuse in these circumstances?”

McCann: “No, I didn’t come to the view that she had been abused in any way; I came to the view that she was messed up, yes, I came to that view.”

McDowell: “By what? By what?”

McCann: “Based on the fact that her — on meeting her mother, her mother clearly believed something had happened.”

In relation to her knowledge of tickling, it was suggested to Ms McCann that she had obtained the Garda file on Sgt McCabe.

Ms McCann said: “No, I don’t. And I have never had sight of any Garda file.”

Asked where she got the idea that “tickling” was involved, Ms McCann said: “I got it from a source.”

Ms McCann was asked if the only reference in the public domain to tickling was in the Garda file would it be fair to assume that her source had access to the garda file?

Ms McCann said she didn’t know.

As mentioned above, Ms O’Reilly and Ms McCann had been close.

Ms O’Reilly told the tribunal:

“We were good friends and she [McCann] is a good journalist and I just felt that she was being used, and I felt, by using her, they were trying to use our paper. Whoever was telling her this, she believed it. And I just shared with her what Maurice McCabe had told me and how I felt about it, but again, I had no proof of anything other than his word, and he seemed quite credible to me.”

The contradictions and bitterness which replaced Ms O’Reilly and Ms McCann’s friendship left Justice Charelton, and many at the tribunal, not only mystified by ‘the world of journalism’ but this time genuinely saddened.

Tomorrow: Maurice McCabe And The Irish Examiner

Previously: Maurice McCabe And INM

Maurice McCabe And INM: Part 1

Maurice McCabe And RTE

Maurice McCabe And The Irish Times

Maurice McCabe And The Irish Times: Part 2

Maurice McCabe And The Sunday Times

Pics: RollingNews

Clockwise from top left: Legal Affairs Correspondent at The Irish Times Colm Keena, Sgt Maurice McCabe, former Garda Commissioner Nóirín O’Sullivan and Brendan Howlin; Above: headline over Mr Keena’s Disclosures Tribunal round-up on June 30, 2018

As featured yesterday, Conor Lally, Security and Crime Editor of The Irish Times, covered the significant events in the Maurice McCabe story which led up to the Disclosures Tribunal and would eventually become a witness at the hearings.

Colm Keena, the Legal Affairs Correspondent of The Irish Times, reported from the the tribunal throughout its year-long sitting.

Last month, at the close of the tribunal, Mr Keena summed up his feelings and concerns about the past 12 months in Dublin Castle.

In an article under the headline ‘Charleton evidence raises questions about damaging claims made’ , Mr Keena asserted:

A number of serious allegations against former Garda commisssioner Nóirín O’Sullivan and others have been strongly challenged by the evidence heard over the past year at the Charleton Tribunal.

He later added:

“…it is possible to point to significant episodes in the controversy where damaging public claims were made on the basis of reasons the tribunal evidence has now shown to be questionable.”

Mr Keena’s article was broken up by six subheadings, outlining different incidents about which claims were made and evidence was given.

They were: Brendan Howlin; the RTÉ broadcasts; O’Higgins commission; text messages; the smear campaign and the Tusla files.

Brendan Howlin

Mr Keena recalled how Labour leader Brendan Howlin told the Dáil on February 8, 2017:

“This morning a journalist contacted me and told me they had direct knowledge of calls made by the Garda Commissioner to journalists during 2013 and 2014 in the course of which the Commissioner made very serious allegations of sexual crimes having been committed by Sergeant Maurice McCabe.”

Mr Keena went on to explain that what Mr Howlin said in the Dáil was based on a conversation he had had with former Irish Mail on Sunday journalist Alison O’Reilly in which she relayed to him what the Irish Mail on Sunday‘s crime correspondent Debbie McCann allegedly told her.

Ms O’Reilly claims Ms McCann told her in 2014 that the then Deputy Commissioner Nóirín O’Sullivan and then head of the Garda Press Office Supt David Taylor were sources for her information on Ms D – a woman who made an allegation against Sgt McCabe in 2006 which was categorically dismissed by the DPP in 2007.

Mr Keena reported that Ms McCann categorically denies Ms O’Reilly’s claim, that Ms McCann says she never spoke to Ms O’Sullivan about Sgt McCabe, and that Ms O’Sullivan also denies she ever spoke to Ms McCann about Sgt McCabe.

Mr Keena also reported that billing records before the tribunal show there were no telephone contacts between Ms O’Sullivan and Ms McCann during the time period of the alleged smear campaign against Sgt McCabe, as alleged by Supt Taylor, between mid-2013 to March 2014.

Mr Keena also reported that Mr Howlin didn’t check the veracity of what he was saying with either Ms McCann or Ms O’Sullivan.

Mr Keena then wrote:

His claim was the first the public ever heard of McCabe being linked to alleged sex abuse. In his short comment, Howlin referred to sexual crimes, plural, and journalists, plural. His intervention was hugely damaging to O’Sullivan and was reported extensively in the media.”

However, three years before this, Paul Williams, in the Irish Independent, wrote four articles about Ms D’s allegation against Sgt McCabe.

Mr Williams reported that the woman had come forward “as a result of the whistleblower controversy”.

Many witnesses who went before the tribunal said they knew Mr Williams was referring to Sgt McCabe when they read the articles.

Sgt McCabe himself said he received phone calls about them – from people who guessed Mr Williams was writing about him.

The tribunal also heard evidence from many journalists who said that in 2013 and early 2014, they were aware of the Ms D allegation against Sgt McCabe.

Mr Keena was technically correct to say that Mr Howlin’s claim “was the first the public ever heard of McCabe being linked to alleged sex abuse”, but the allegation was known in police and media circles.

In respect of Mr Howlin using the plural terms  “journalists”, the Labour leader conceded this was an error on his part when he gave evidence to the tribunal.

Mr Howlin clarified:

“There was two journalists in my mind, one was the journalist Alison O’Reilly who’d spoken to me and the second was Debbie McCann, who was the conduit for the information. They were the journalists, plural.”

He also clarified that the did not have “direct knowledge” – he only knew what Ms O’Reilly told him.

Although unreported by Mr Keena, when Mr Howlin made his claim in the Dáil in February 2017, he stated:

“I do not know whether the charges that have been made against the Garda Commissioner are true or not.”

Mr Howlin made his remark in the Dáil at a time when the Government was discussing and setting the terms of reference for a Commission of Investigation into Supt Taylor and Sgt McCabe’s protected disclosures.

The Children’s Minister Katherine Zappone was in possession of a letter from the chief operations officer of Tusla – since January 2017 – regarding a false rape allegation against Sgt McCabe from 2013/2014 which was created by a counsellor, unbeknownst to Ms D, following counselling sessions Ms D had with a HSE counsellor in July 2013.

[Sgt McCabe wasn’t told about this false rape referral until January 2016 – when Tusla wrote to him in December 2015 and told him it was investigating him for rape and, despite Sgt McCabe’s solicitor Sean Costello writing back to Tusla immediately to say the claim was entirely false, Tusla didn’t acknowledge it was false until the summer of 2016]

When Mr Howlin gave his contribution to the Dáil in February 2017, the Cabinet was not considering the Tusla matter for inclusion in the then pending commission of investigation.

RTÉ broadcasts

Mr Keena referred to the tribunal’s term of reference K which solely looked at the reports by Paul Reynolds on RTÉ about the O’Higgins Commission of Investigation and if Ms O’Sullivan influenced Mr Reynolds’ reports.

The term of reference specifically states the tribunal was to “investigate whether commissioner O’Sullivan, using briefing material prepared by Garda Headquarters, influenced or attempted to influence broadcasts on RTÉ on the 9th of May 2016, purporting to be a leaked account of the unpublished O’Higgins Commission Report, in which Sergeant McCabe was branded a liar and irresponsible.”

This term of reference came about because Sgt McCabe, in his protected disclosure, told the tribunal that John Barrett, head of HR in An Garda Siochana, told him that Mr Reynolds’ reports ‘came from Block One’ – which is another term for the Garda Commissioner’s office.

Mr Barrett denies saying this to Sgt McCabe.

Mr Keena wrote:

“This term of reference could be seen as the equivalent of a charge not only against O’Sullivan but also against the RTÉ crime correspondent, Paul Reynolds, who produced the broadcasts. He, and the colleagues who worked with him in producing the broadcasts, felt they were being accused of being Garda stooges or bad journalists.”

Mr Keena added:

In a protected disclosure (a supposedly highly-confidential disclosure made under the “whistleblower” law) in October 2016, McCabe said he was on stress-related leave and that the reports by Reynolds were part of the reason for this.

Citing three numbered reasons for his being out of work, McCabe said the first was O’Sullivan’s “treatment of me”.

Another was the production of “false evidence” in an attempt to “set me up” at the confidential hearings of the O’Higgins commission.

The third was the “disgraceful series of broadcasts” on RTÉ on May 9th, 2016, in which he had been “branded as a liar and irresponsible”.

“The disclosure then continued: “I am now satisfied, on impeccable authority, that those RTÉ broadcasts were planned and orchestrated by the commissioner, Nóirín O’Sullivan, personally using briefing material prepared at Garda Headquarters.”

Mr Keena then went on to say:

“The Oireachtas opted to reflect McCabe’s claim in the tribunal’s terms of reference, even though O’Sullivan had rejected the claim as untrue.”

However, many, if if not all, of the allegations which are before the tribunal are contested by those who are alleged to have done things or said things.

There would be no tribunal if contested allegations were not included in its terms of reference.

Mr Keena pointed out that Sgt McCabe included the claim about Paul Reynolds’ reports in his protected disclosure based on “one sentence he claims was made to him” by Mr Barrett.

It’s worth noting Judge Charleton told the tribunal even if Sgt McCabe did withdraw the claim he made on the basis of what he says he was told by Mr Barrett – given Mr Barrett denies it – he would still be obliged to look into the matter.

Of Mr Reynolds’s reports (dealt with in detail here) , Mr Keena wrote:

“The broadcasts by Reynolds led the news on RTÉ all day, on both radio and television [on May 9, 2016]. That they are based on the contents of the then-unpublished O’Higgins commission report can now be shown as the report has been published.

In them, Reynolds tells viewers and listeners what is in the report, which he had a copy of and no-one at the tribunal has suggested otherwise. If McCabe did not like the broadcasts, then his issue was with Mr Justice Kevin O’Higgins, Reynolds told the tribunal.

“The word “lie” is used in the broadcasts, but it does not appear in O’Higgins. However the report does state that McCabe told an “untruth” to a Garda inquiry knowing it to be untrue. There is no mention of McCabe being “irresponsible” in the broadcasts. The use of the word “lie” was discussed within RTÉ. The broadcasts included the fact that the word used in the report was “untruth”.

“Reynolds, when asked by the tribunal chairman, said he was resentful and angry about the charge made against him. The former chief news editor at RTÉ, Ray Burke, who worked for days with Reynolds on the broadcasts, said the criticisms of their work was an insult to him and his colleagues.”

Mr Keena didn’t detail the evidence heard from Mr Reynolds and Mr Burke in the run-up to his broadcasts on May 9, 2016.

Mr Keeena didn’t explain that notes which Mr Reynolds had shared with the tribunal showed that in April and May – in the run-up to his May 9 reports – he had notes of two conversations with a person or people about the Ms D matter and Sgt McCabe.

Mr Reynolds also told the tribunal he didn’t think to ask why he was being told about the Ms D allegation as he prepared to report on O’Higgins.

Mr Reynolds told the tribunal he had heard about the Ms D allegation in 2013 in the context of the penalty points controversy, and he knew the DPP’s categorical directions, therefore, he knew the Ms D allegation had nothing to do with the complaints Sgt McCabe was making about policing in Cavan/Monaghan.

Kathleen Leader BL, for the tribunal, put it to Mr Reynold that “that is exactly the point”.

In terms of the “untruth” Sgt McCabe made, Mr Keena also didn’t explain the details of this.

The “untruth” centred on a report from 2008 in which Sgt McCabe told Supt Michael Clancy that the victim of an assault and his wife had made a complaint to GSOC even though he knew this wasn’t the case.

The purpose of the “untruth” was that Sgt McCabe felt the couple had been badly treated by members of An Garda Síochána and he felt if he said they complained to GSOC, the matter would gain more attention.

The assault took place in a Cavan pub and the man suffered injuries to his head and face.

Judge O’Higgins, in his report, criticised the handling of the case by An Garda Siochana and found there was an “inordinate delay” in interviewing witnesses and compiling a file on the matter.

Ultimately, Judge O’Higgins said the following about this “untruth”:

“While this concern [of Sgt McCabe’s] was genuine and commendable it is unacceptable to furnish false information in a report.”

In terms of Mr Reynolds’ broadcasts not saying Sgt McCabe was “irresponsible” Mr Keena also didn’t mention that Ms Leader BL, for the tribunal – after the tribunal listened to all of his reports – put the following to Mr Reynolds:

“It could be said, Mr Reynolds, that in conveying to the public on the national broadcasting authority that a lot of complaints were made that nothing came of, and in particular in relation to very senior officers in An Garda Síochána, that Sergeant McCabe, in complaining as he did, was irresponsible in so doing…?”

Mr Reynolds said there was “no implication” from his broadcasts that Sgt McCabe was irresponsible.

Mr Keena’s article also didn’t point out that Michael McDowell SC, for Sgt McCabe, put it Mr Reynolds that he didn’t “mention the fact Sgt McCabe’s evidence had been preferred by the O’Higgins Commission on all of the areas where he was in conflict with other gardaí”.

Another omission in Mr Keena’s piece, in respect of Mr Reynolds is that, apart from Supt Taylor claiming he negatively briefed Mr Reynolds – which Mr Reynolds denies – Dublin City University professor Colm Kenny alleged to the tribunal that Mr Reynolds and Tom Brady, of the Irish Independent, told him, in early 2014, that Sgt McCabe was being investigated for child abuse.

Mr Kenny said he felt they were telling him to “cop himself on” and to “not take Sgt McCabe at face value”.

He also said they encouraged him to go and talk to gardai “up there” – which Mr Kenny took to mean gardai in Cavan/Monaghan.

Both Mr Reynolds and Mr Brady categorically deny the claim.

More can be read about Mr Reynolds’ evidence here.

O’Higgins commission

Mr Keena wrote the following about the O’Higgins Commission of Investigation – and claims made by Sgt McCabe concerning it – in his article:

The O’Higgins commission sat in private. In its report it found that while McCabe had made valid complaints about policing matters, serious allegations he had made against a number of senior officers were unfounded.

An allegation of corruption made against Callinan did not have a “scintilla of evidence” to support it, the report found. While the commission said McCabe had been truthful, it also noted that he was prone to exaggeration.

Rearding the use of the word “corruption” – it should be noted that Sgt McCabe’s complaint in relation to Mr Callinan was the placing of then Supt Michael Clancy on a promotions list, given his complaints about Supt Clancy, who is now Chief Supt Clancy.

It was referred to as a complaint of “corruption” because Sgt McCabe made the complaint under the Charter of the Garda Síochána (Confidential Reporting of Corruption or Malpractice) Regulations 2007.

While Judge O’Higgins did not uphold the complaint against Mr Callinan, he did say in his report:

“The commission is satisfied that Sergeant McCabe did hold genuine concerns that there was some impropriety in the promotion of Chief Superintendent Clancy.”

The tribunal also heard that, on day seven of the O’Higgins Commission of Investigation, Chief Supt Terry McGinn gave evidence to it about the nature of Sgt McCabe’s complaints.

Specifically, she said:

“In relation to Sergeant McCabe’s complaint, he particularly told me… that his complaints were not against Garda sergeants, his complaints were against Garda management and their failure to, and I summarise it here, I have other words, as I was exploring what Sergeant McCabe said to me. And he said: ‘In all of my statements and exhibits, my purpose was to highlight poor standards, poor work practices and failure by Garda management to address these issues. I am also concerned at the service provided by the Gardaí to the public. I am not alleging corruption or criminality by any members or nor have I any evidence to support this allegation‘.”

In relation to the reports by Katie Hannon, on Prime Time, and Mick Clifford, in the Irish Examiner, on events at the O’Higgins Commission of Investigation which weren’t recounted in the O’Higgins report, Mr Keena wrote:

“One aspect of the reports was that a serious claim against McCabe was to have been made by O’Sullivan’s legal team at the private commission hearings. ‘That was blown out of the water when McCabe produced a transcript’ of a secret recording he had made which disproved the claim, said the Examiner report.

“On May 26th, 2016, Mick Wallace, who has long championed McCabe, told the Dáil: “Two gardaí were planning to perjure themselves or provide false evidence to impugn Sgt McCabe’s motives [at the O’Higgins commission] until a recording was produced.”

“The recording referred to was one made secretly by McCabe of a meeting with a Garda colleague. The recording showed that the claim made against McCabe in a summary document produced by the legal team acting for O’Sullivan and other senior officers at the commission hearings was incorrect. The summary document was designed to justify the O’Sullivan legal team’s desire to attack McCabe’s motivation at the commission hearings.

“However, the evidence heard by the tribunal shows that another document handed in by the same legal team, at the same time or soon thereafter, disclosed that the claim against McCabe contained in the summary was incorrect. This document, a report of the meeting secretly taped by McCabe, gave a version of events that agreed with McCabe’s transcript. In other words, it also showed that the claim made in the summary was incorrect. In the witness box, McCabe was asked if he accepted this. He said at first that he did, and then immediately changed his answer.

“I’ll just tell you, and I have, you know, admitted a few things here, but I have to say, and it is in my heart, that I think if I hadn’t got the recording of the Mullingar meeting, I think it would have been serious for me.”

“The tribunal was told that the incorrect or mistaken claim arose following a consultation between lawyers and a Garda officer. In other words, someone misdescribed or misunderstood what was being said during a series of consultations that took place over a weekend in order to have the summary document ready for the Monday morning. There is no evidence that connects O’Sullivan directly in any way with what happened over the weekend. The legal team was acting for her but also for other officers. The legal team met these officers, but not O’Sullivan. The tribunal will in time report on the matter.”

“Prime Time and the Irish Examiner did not name the two gardaí. However, during his comments under Dáil privilege in 2016, Wallace named the two gardaí he said were “planning to perjure themselves” at the O’Higgins commission as Supt Noel Cunningham and Sgt Yvonne Martin.

“Sgt Maurice McCabe would be buried by now if he had not taped the conversation,” Wallace said.

“RTÉ has recently made a six-figure settlement with Cunningham arising out of the Prime Time report. A defamation case against the broadcaster taken by Martin continues. Both are also suing the Irish Examiner, as well as other media organisations. In a statement to the tribunal, Martin said she had never even attended the O’Higgins commission.

“Nor have I ever, to this day, been contacted by the garda commissioner, [O’Sullivan], her legal team, Gsoc [Garda Síochána Ombudsman], the media, to clarify my involvement in or recollection of the [taped] meeting.”

Mr Keena’s reference to an “incorrect or mistaken” claim [singular] in a “summary document” may be downplaying the matter.

The O’Higgins inquiry looked at allegations of poor policing in the Cavan/Monaghan area made by Sgt McCabe, with Judge Kevin O’Higgins overseeing 34 days of privately held hearings from May 14, 2015 until December 17, 2015.

At the outset of the commission, on May 15, 2015, Colm Smyth SC, representing Ms O’Sullivan [his chief client], retired Chief Supt Colm Rooney, Supt Michael Clancy and Supt Noel Cunningham told Judge O’Higgins that it was his instructions – as re-confirmed twice that afternoon by Ms O’Sullivan – to challenge the integrity, motivation and credibility of Sgt McCabe.

Mr Smyth would later – in November 2015 – tell the commission that in respect of him having stated it was his instructions to challenge Sgt McCabe’s “integrity” – this was an error on his part.

But he maintained it was his instructions to challenge Sgt McCabe’s motivation and credibility – as a means to “test the evidence” of Sgt McCabe.

[During the entire time of the commission, Sgt McCabe was never made aware that a wholly false allegation of child rape was sitting in a file in the then Garda Commissioner Noirin O’Sullivan’s office since May 2014]

The tribunal heard a lot about incidents and evidence given at O’Higgins on Day 1 (Thursday, May 14, 2015), Day 2 (Friday, May 15, 2015), Day 3 (Monday, May 18, 2015), Day 4 (Tuesday, May 19, 2015) and Day 5 (June 24, 2015).

Specifically, it also heard about “gross falsehoods”, in the words of Michael McDowell SC, for Sgt McCabe, or “factual inaccuracies”, in the words of Ms O’Sullivan, which were levelled against Sgt McCabe at the O’Higgins inquiry – and which mainly centred on the DPP’s directions in respect of Ms D’s 2006 complaint.

These falsehoods/inaccuracies were raised in evidence at the outset of the commission, committed to paper in the form of a 20-paragraph letter submitted on behalf of the Chief State Solicitor’s office to the commission on May 18, 2015, and, in some cases, committed to paper again when written submissions were later made to the commission on June 11, 2015.

This 20-paragraph document is what Mr Keena was referring to when he wrote “summary document”.

One of the falsehoods/inaccuracies in this document was an allegation that Sgt McCabe was angry with the DPP and that he wanted the DPP’s directions challenged.

Unbeknownst to An Garda Síochána at the time of the O’Higgins commission, Sgt McCabe was fully briefed of the DPP’s directions since April 2007, and was, in his own words to the tribunal, “absolutely thrilled” with them.

Judge Charleton described the DPP’s directions “as close to an exoneration as anyone could get”making the claim given in evidence that Sgt McCabe wanted them challenged bewildering.

And yet it happened.

Chief Supt Colm Rooney, who was in charge of the Cavan/Monaghan District in 2007 but who was retired by the time of the O’Higgins inquiry – in response to a question from Colm Smyth SC, for both CS Rooney and Noirin O’Sullivan – told the commission in evidence on May 15, 2015, the following about a meeting he had with Sgt McCabe in late 2007:

“Sergeant McCabe came to see me, sought an appointment to come and see me in my office in Monaghan. He contacted my office and made an appointment and I saw him. He came to me. He was very angry, he was very annoyed and he was very upset.

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.

It was these words which prompted a legal row that afternoon with, initially, counsel for the commission Sean Gillane SC, calling into question the line of questioning by Mr Smyth SC, followed by Mr McDowell.

As a consequence of the legal row, the hearing adjourned for Colm Smyth SC to seek confirmation of his instructions from Ms O’Sullivan – as she was his primary client.

This communication with Ms O’Sullivan went through her liaison officer Chief Supt Fergus Healy and, ultimately, Ms O’Sullivan did reconfirm her instructions – twice – that her legal team was to challenge the motivation and credibility of Sgt McCabe.

At the time, Mr Smyth also said his instructions were to challenge Sgt McCabe’s integrity but, as mentioned above, he later, in November 2015, told the commission this was an error on his part.

As a further consequence of the legal row, Judge O’Higgins said Mr McDowell was entitled to know what “adverse allegations” were being made against Sgt McCabe.

And so.

The letter from the Chief State Solicitor was composed over the following weekend and submitted on the Monday morning.

The letter, the tribunal heard, was a means to give notice to the commission and Sgt McCabe’s legal team of the “matters to be relied on” by Noirin O’Sullivan at the O’Higgins commission.

The letter – or summary document as labelled by Mr Keena – was headed:

“As directed by the Judge in the course of hearing on Friday, the 15th May 2015 we hereby provide the factual issues to be put to Sergeant Maurice McCabe”

Of the letter’s 20 paragraphs, at least 13 made reference to either Ms D, Mr D, or the DPP’s directions concerning Ms D’s 2006 allegation – without specifically stating the details of Ms D’s allegation.

And it was littered with the aforementioned falsehoods/inaccuracies.

The letter can be read in full here

It’s important to note the letter didn’t contain simply one error.

It alleged Sgt McCabe expressed anger and annoyance towards the DPP.

It alleged that Sgt McCabe “demanded” that Chief Supt Colm Rooney “communicate with the DPP to seek a declaration of innocence from the DPP in relation to the allegation” – echoing the evidence of Chief Rooney given just days before.

It alleged that Chief Supt Rooney told Sgt McCabe that it was not the policy of the gardaí to challenge the DPP.

It alleged Sgt McCabe was unhappy with the DPP’s decision and that the DPP’s decision “ought to have completely exonerated him rather than recording that there was not sufficient evidence to proceed against him”.

[When, during the tribunal, Mr McDowell pressed Mr Rooney on the idea that the DPP ruled there was merely “insufficient evidence” in terms of the Ms D allegation – which is entirely not the case – Mr Rooney said: “Well, he certainly didn’t say that he was absolutely exonerated, either.”]

The letter also suggested Sgt McCabe had attempted to blackmail Superintendent Michael Clancy and that Sgt McCabe had confessed this to Supt Noel Cunningham, in the company of Sgt Yvonne Martin, at a meeting in Mullingar in August 2008.

Paragraph 19 of 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.”

Counsel for An Garda Síochána told the tribunal that instead of saying ‘complaint against Supt Clancy’, the letter should have said ‘to’ and that this was an error.

The tribunal also heard that in notes of the legal consultation between Supt Cunningham and his legal team, Supt Cunningham said “to” and not “against”.

However, this doesn’t explain the alleged threat of force.

Even putting the ‘to’ versus ‘against’ alleged error aside, the paragraph also suggests that the meeting took place on foot of complaints made by Sgt McCabe.

But the tribunal heard that this really wasn’t the case.

The tribunal heard that, in February 2008, Supt Michael Clancy requested Sgt McCabe to draw up a report about his dealings with the D family and that Supt Clancy said he would see if he could get the DPP’s directions shown to the D family.

The request came some four months after Sgt McCabe had been confronted by members of the D family in public in October 2007.

Sgt McCabe obliged with the request and then Supt Clancy tasked Supt Noel Cunningham to investigate Sgt McCabe’s report – and this was what the purpose of the meeting in Mullingar in August 2008 was about.

But even if one was to put the “falsehoods” or “inaccuracies” in the CSS letter to the side, the false ‘blackmail’ error was put to Sgt McCabe – by Colm Smyth SC – when Sgt McCabe was in the witness box on Day 4 of the commission, Monday, May 18, 2015, the same day the CSS letter, littered with problems, was given into the commission.

Specifically, Mr Smyth and Sgt McCabe had this exchange:

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.”

Despite this being said in a room full of people the “error” wasn’t spotted.

It was also repeated when written submissions were submitted to the commission on June 11, 2015.

Paragraph 70 of 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 Superintendent Rooney appointed Superintendent Cunningham to investigate these complaints. Superintendent Cunningham attempted to meet Sergeant McCabe to discuss the complaints and finally did so on 25th August 2008. On this occasion, Superintendent Cunningham was accompanied by Sergeant Martin.

It is understood that Superintendent Cunningham will give evidence that Sergeant McCabe said at that meeting [in Mullingar in August 2008] that the complaint which he had made alleging lack of support, as referred to in the preceding paragraph, was a bid by him to have the full DPP directions conveyed to him and the complaining party. This is recorded in a report of the meeting prepared jointly by Sergeant Martin and Superintendent Cunningham.”

The idea that Sgt McCabe had attempted to engage in a blackmail situation with Supt Michael Clancy about the DPP’s directions was effectively dismissed on Day 5 of the commission (June 24, 2015) after Judge O’Higgins brought the commission’s attention to a transcript of this Mullingar meeting – after Sgt McCabe produced a tape of the meeting – which showed paragraph 19 of the CSS letter was incorrect.

Judge O’Higgins also drew attention to the fact that a report of the meeting, submitted to the commission by Supt Noel Cunningham also didn’t support paragraph 19 but, instead, matched Sgt McCabe’s tape.

This is the “another document” referred to by Mr Keena above.

It should be noted solicitor Annemarie Ryan, from the Chief State Solicitor’s Office told the tribunal she gave Supt Cunningham’s report into the commission and Mr McDowell on the morning of Monday, May 18, 2015, along with the CSS letter.

But Mr McDowell was adamant this didn’t happen.

it was also the evidence of the Garda legal team representing Ms O’Sullivan and other gardai at the O’Higgins commission that they didn’t see Supt Cunningham’s report until June 24, 2015.

Supt Cunningham also told the tribunal that he handed in a second copy of his report of the meeting on June 9, 2015 – ahead of the submissions on June 11, 2015 – and yet, still, the submissions were wrong.

Sgt Martin, the tribunal heard, had no input into the CSS letter and wasn’t party to the legal consultations which took place before the O’Higgins commission. The tribunal heard she didn’t even know about the letter.

But how did these falsehoods/inaccuracies end up featuring in the CSS letter?

And what was Noirin O’Sullivan’s knowledge of them before and after they were made?

Ms O’Sullivan told the tribunal that she saw the O’Higgins commission as an opportunity to get to “the truth”.

She also said she knew that legal consultations were taking place between gardai and her legal representatives in the run-up to the O’Higgins commission.

Mr O’Sullivan told the tribunal her liaison officer at the commission Chief Supt Fergus Healy told her about the consultations but, she said: “We didn’t go into the specific detail of the information that was imparted.”

However, Ms O’Sullivan did say she presumed Ms D’s allegation was discussed at the consultations because she was aware the DPP’s directions, in respect of the allegation, were discussed.

She also told the tribunal that it wouldn’t have surprised her to know the D allegation was being discussed at the consultation.

She said:

“It wouldn’t surprise me, but I think what is important to say is that there was always a sensitivity, and there remains a sensitivity, around anything to do with the matters that the DPP had adjudicated on and had found there was no basis for a prosecution.”

This comment about “sensitivity” is interesting when one considers Ms O’Sullivan, at this point, had known for several years that there was no basis for a prosecution in relation to the Ms D allegation since 2008 – when she first learned of the Ms D allegation from her time working in Human Resources – yet, the tribunal was told, Ms O’Sullivan didn’t respond to the entirely false allegation of rape supposedly made by Ms D against Sgt McCabe in a referral which was presented to her as real in May 2014, and she didn’t spot that the Ms D allegation had gone from “dry humping” to anal, digital and vaginal rape.

Ms O’Sullivan appeared to put distance between her and those who gave information to the legal team.

She said:

“Obviously I wasn’t present at the consultation, so I am not sure what questions counsel felt that they needed to explore to get the background that they needed to inform them…

“I hadn’t got possession or knowledge of the factual matters because obviously I had not, for appropriate reasons, been present at the consultations or interviewed any of the witnesses, so I didn’t know what the factual matters that they had were and that counsel had been exposed to that.”

The tribunal heard that Chief Supt Healy called Ms O’Sullivan on the night of May 14, 2015 to seek her instructions.

Ms O’Sullivan did not make any note of the call.

But Chief Supt Healy did.

The tribunal has seen that, in his note, Chief Supt Healy had the words:

“Permission/instructions to use Cunningham inve [investigation].”

and

“motivation”

Ms O’Sullivan said what she understood her counsel to be seeking was “an in-depth understanding of what were the reasons or what was the rationale, why Sergeant McCabe, or the basis, maybe that is a better way to put it, the basis on which Sergeant McCabe believed that these incidents, combined together, led to corruption and malpractice, and, most importantly, what evidence did he have.”

In May 15, 2015 – when the legal row erupted and CS Healy had to seek confirmation of Ms O’Sullivan’s instructions for Mr Smyth, Ms O’Sullivan said she initially told CS Healy that she’d rather an adjournment.

She was adamant that she wasn’t having second thoughts about her instructions but instead:

“I wanted to make sure that there were necessary supports in place for Sergeant McCabe.”

Asked who she would have spoken to if she had got an adjournment, Ms O’Sullivan said she would have spoken to CS Healy and her legal team.

She said:

“I didn’t want to discuss the advices or the instructions; I wanted to understand what was the issue, in more detail, that had arisen at the Commission.”

This is somewhat confusing.

If Ms O’Sullivan was keen to know what had arisen, she would have learned what Mr Rooney told the commission that afternoon – which was that Sgt McCabe wanted the DPP’s directions “challenged”.

If this occurred, it should have set off alarm bells for her – given Ms O’Sullivan knew, since 2008, that the DPP categorically ruled there should be no prosecution in respect of the Ms D allegation against Sgt McCabe.

Is it plausible that Ms O’Sullivan would have been told of the legal argument without being told what Mr Rooney told the commission – which sparked the legal row in the first place?

It was put to Ms O’Sullivan at the tribunal that it might have been useful for her to go down to the commission that day.

She responded:

“I would have very much welcomed the opportunity to go down to the Commission, because I think it would have — we may not even be here now.”

Solicitor at Chief State Solicitor’s Office Annemarie Ryan, in her evidence, said she actively sought to have a consultation with Ms O’Sullivan that weekend but Chief Supt Healy told her Ms O’Sullivan was unavailable.

Chief Supt Healy told the tribunal he did attempt to arrange a consultation between the two women but Ms O’Sullivan said she was too busy/otherwise engaged.

Ms O’Sullivan categorically stated she was never informed of such a request.

In respect of the CSS letter, Ms O’Sullivan said she had nothing to do with it.

Kathleen Leader BL, for the tribunal, pointed out to Ms O’Sullivan that this suggests Ms O’Sullivan gave the go-ahead to something that was being done in her name – without full knowledge of the facts.

In response, Ms O’Sullivan said:

“My opinion was at that time that the expertise that was there between the legal team and the people that had the best knowledge of it, there was such an urgency on presenting this document for Monday morning, that they were the best people to deal with it.”

After suggesting she could have just read over the CSS letter, Ms O’Sullivan said:

“I felt it was appropriate to leave it to the legal team.”

Ms O’Sullivan went on to say the following about the CSS letter:

I don’t believe that even in what was put forward, that there was anything improper or anything suggesting an improper motive on behalf of Sergeant McCabe in it.”

More on the O’Higgins module of the tribunal can be read here and here

Texts

Mr Keena referred to the discrepancy between Sgt McCabe and Supt Taylor’s evidence in regards to the use of texts in the alleged smear campaign.

Sgt McCabe says when he met Supt Taylor in September 2016, Supt Taylor told him he would have sent hundreds “if not thousands” of texts about Sgt McCabe and the Ms D allegation – which would have been composed by Mr Callinan and sent to journalists and other senior gardai.

Supt Taylor says he wasn’t talking about the texts in terms of the alleged smear campaign but about media updates concerning Sgt McCabe.

It was this meeting in September 2016 which gave rise to the two men making protected disclosures – with Sgt McCabe making his several days before Supt Taylor.

Mr Keena wrote:

On October 4th [2016], [Mick] Clifford, in the Examiner, reported that protected disclosures had been made by two (unidentified) members of the force, alleging a smear campaign and saying that O’Sullivan had known about it. The report was published around the same time as the disclosures were being received by the Department of Justice.

Speaking at the Charleton tribunal, Conor Dignam SC, for Garda Headquarters, said the editorial in the Irish Examiner that day included the following phrase: “Today’s revelations about an organised campaign driven by senior garda management to undermine a whistleblower”. This put the matter, Dignam said, as something that was being revealed, rather than alleged.

Mr Keena didn’t mention it but, the matter of the Irish Examiner’s editorial about the protected disclosures, which Mr Clifford said he didn’t write, was put to Mr Clifford when he gave evidence.

He told the tribunal:

“Revelation” was used, and I take your point. To me the revelation was that this disclosure had gone in rather than the content of the disclosure.”

Mr Clifford also said:

“In terms of publishing that and feeling justified in publishing it, there are a couple of things in that regard that I would say: First of all, this is — in publishing that, it’s a process whereby it goes through the editorial hierarchy inside in the Examiner, which backed up my decision that this was in the public interest and that this should have been published.

“Then you are talking about the substance of the issue. In the first instance, this was unprecedented. You had a superintendent in An Garda Síochána nominally of good standing, was making a protected disclosure about what was occurring within the force.

“That of itself was completely unprecedented. Equally so, who he was incriminating in there. In the first instance he was incriminating himself. I don’t know even since the protected disclosure or anything of that nature has come in, have we ever had a scenario whereby somebody making it was incriminating and incriminating himself to the extent
that he was admitting that he was involved in a smear campaign to effectively brand Sergeant McCabe as a paedophile and to do so for no other than to ingratiate himself to his boss or further his career. That is that element of it.

“The second element: The other person he incriminated was former Commissioner Callinan, somebody with whom he had a very good relationship, whom he looked up to and whom he regarded as something of a mentor.”

Asked by Mr Dignam what steps he took to verify the protected disclosures, Mr Clifford said:

“No, I wasn’t in a position to do so, Mr Dignam. It would have involved, for example, approaching Nóirín O’Sullivan and Martin Callinan and asking them were they involved in a campaign. I was reporting the lodgement of this protected disclosure.”

Mr Keena also wrote:

“In the Dáil, Sinn Féin’s Mary Lou McDonald called for O’Sullivan’s resignation. Clare Daly did the same, saying: “The tánaiste and minister for justice and equality [Frances Fitzgerald] has . . . the protected disclosures of two senior gardaí outlining systematic, organised, orchestrated campaigns not just to discredit a whistleblower but to annihilate him, with the full involvement of the current and former Garda commissioners.”

“It is worth noting that McCabe’s basis for making his claim was what he was told by Taylor, so there was in fact only one source for the serious allegations against O’Sullivan and Callinan, something which was known to Daly, who had met both men.”

For Ms Daly’s part, when Indepedents 4 Change TD Mick Wallace gave evidence, he said himself and Ms Daly were calling for Ms O’Sullivan’s resignation long before the protected disclosures were reported upon and they were calling for her resignation over a myriad of issues.

And in terms of the allegations concerning the circulation of the Ms D allegation, it’s worth noting that Mr Wallace told the tribunal his parliamentary assistant Chris Oonan answered an anonymous call in 2014 in which the caller told him about the Ms D allegation while, long before the protected disclosures, Paul Williams’ articles about Ms D and Sgt McCabe were published in April/May 2014 – again two years before the protected disclosures.

Ms Daly said she was aware of a whispering campaign against Sgt McCabe but her first firm knowledge of the Ms D allegation came about via Paul Williams’ articles.

Mr Keena also wrote:

In a radio interview on RTÉ that day, Daly said “inaccurate personal information was given out about him [McCabe] in the most horrific ways. Text messages sent to the gardaí, people in the media told ‘Oh, you don’t want to be talking to him, you know all about him’, hint, hint, hint, with some more graphic details with it. Politicians who I think need to come clear on this got the message about this as well.”

McCabe, Wallace, Clifford and Daly have all said they were told, or it was indicated to them by Taylor, that the alleged smear campaign involved texts. McCabe said he went back the day after he met Taylor to check that he had been told “hundreds” of texts may have been involved. He was, he said, told the number of texts may have been in the thousands.

Yet Taylor, in his sworn evidence, has said he never claimed to anyone that the alleged smear campaign involved texts.

This is just one of the many examples of the “diametrically opposed” positions that several people have taken at the tribunal.

For more on Supt Taylor’s conflicting evidence, see here.

The smear campaign:

Mr Keena also wrote:

“In his evidence Taylor said he had spoken with 12 named journalists as part of smear campaign. Conor Lally, crime and security editor with The Irish Times, was one of those named. On Thursday. Taylor’s counsel, Michael O’Higgins SC, said 10 of the journalists had denied Taylor’s claim, and two had asserted journalistic privilege. Lally is one of those who denied Taylor’s claim.”

Mr Keena failed to mention the evidence of former Irish Mirror journalist Cathal McMahon who told the tribunal that he had heard of the rumour about Ms D, went to Supt Taylor, Supt Taylor confirmed it to him and then encouraged him to travel to Cavan to meet Ms D.

Supt Taylor curiously claims he never told Mr McMahon to travel to Cavan but said he was someone he negatively briefed which, bizarrely, Mr McMahon disagrees with.

Mr Keena also didn’t recount the evidence of John Kierans, editor of the Irish Mirror, whom the tribunal heard told Mr McMahon not to pursue the story as he was suspicious of it.

Mr Kierans also told the tribunal that, after making his own inquiries, he learned that Supt was “peddling” the Ms D matter to several newsrooms in Dublin.

Mr Keena also wrote:

“Michael O’Higgins [senior counsel for Supt Taylor] acknowledged that no independent evidence had been produced to Charleton to support charges that O’Sullivan had known of the campaign his client said he was ordered by Callinan to conduct. He also acknowledged that Taylor’s credibility was a significant issue. His client’s claims were “capable” of being believed, he said. Whether they should be was a matter for the chairman, he said.”

In respect of this, it may be worth recalling the questioning of Ms O’Sullivan by Kathleen Leader BL, for the tribunal, when Ms O’Sullivan made her second appearance at the tribunal for the most recent module when Ms Leader suggested there was a “theme” emerging from Ms O’Sullivan’s evidence.

Specifically Ms Leader was referring to Ms O’Sullivan’s non-recollection of any mention of the Ms D allegation in her company between 2008 up to the O’Higgins Commission of Investigation in 2015.

Ms O’Sullivan was appointed Assistant Commissioner in Human Resources Management in October 2008 and, as a consequence, she learned of the Ms D allegation against Sgt McCabe the following month in a report from Chief Supt Terry McGinn.

The report stated:

“Ms D alleged that when she was six years old she was indecently assaulted on one occasion by Sergeant Maurice McCabe when he was visiting her house while off duty. An investigation file on the matter was prepared by Inspector Cunningham and submitted to the Law Officers for direction, who directed on 11th April 2007 that there was no basis for a prosecution. In May 2007 Sergeant McCabe was informed by Inspector Cunningham that there would be no prosecution in the matter.”

In 2009, she became Assistant Commissioner Crime and Security and in 2010, Ms O’Sullivan became Deputy Commissioner of Operations.

In 2011, Martin Callinan became Garda Commissioner so, from then, Ms O’Sullivan started reporting to Mr Callinan.

[Supt Dave Taylor was appointed head of the Garda Press Office in July 2012, after having been a Detective Inspector attached to Liaison Protection Section and in September 2013, Andrew McLindon was appointed Director of Communications]

Ms O’Sullivan told the tribunal she became aware of the penalty points controversy in 2012 and she was aware that Mr Callinan had appointed then Assistant Commissioner John O’Mahoney to carry out an internal investigation into the wiping of points – on foot of complaints made by Sgt McCabe and then Garda John Wilson.

She was also aware that Mr Callinan had sent a direction to Sgt McCabe and Garda Wilson to stop accessing Pulse in December 2012.

In late 2013/early 2014, Mr Callinan was preparing for his then forthcoming appearance – on Thursday, January  23 at the Public Accounts Committee in respect of the penalty points matter. Ms O’Sullivan sat next to Mr Callinan at that five-hour meeting. [This is the meeting where Mr Callinan made the “disgusting” remark]

Before the meeting, there had been correspondence between Mr Callinan and the chairman of the committee Fianna Fáil TD John McGuinness – in which Mr Callinan, after taking legal advice from the Attorney General, raised his concerns about documentation concerning the penalty points matter being given to Mr McGuinness and the PAC.

[Mr McGuinness wrote back to Mr Callinan and told him all sensitive information had been redacted and that the PAC had taken its own legal advice]

Ms O’Sullivan told the tribunal she was aware of all of this.

Ms O’Sullivan said she was also aware of correspondence between Mr Callinan and the then Data Commissioner Billy Hawkes about the same.

Around this time, there was talk of Sgt McCabe appearing before the PAC which was unprecedented and Mr Callinan was strenuously against this.

Asked if, around this time, she got the impression Mr Callinan was getting “frustrated” with Sgt McCabe, Ms O’Sullivan said:

I never believed that Commissioner Callinan was personalising it to Sergeant McCabe, but he was certainly concerned about the issues that were being raised and the manner in which they were being raised and the, as I say, the potential impact it would have on confidence in the organisation and the potential impact it could have on individual members of the public.”

As part of the preparations for Mr Callinan’s appearance at PAC, there were several meetings held which Ms O’Sullivan and Mr McLindon attended.

The pre-PAC meetings were held on January 6, 9, 14, 16, 21 and 22. Of these meetings, Ms O’Sullivan didn’t attend the meeting of January 6 as she was on annual leave.

The tribunal heard that, after Sgt McCabe and Supt Taylor made their protected disclosures, Ms O’Sullivan told Mr Justice Iarlaith O’Neill – who was carrying out a scoping exercise into the disclosures – that there was never any discussion about a campaign to undermine Sgt McCabe at the pre-PAC meetings.

Asked if there were discussions about Sgt McCabe and whistleblowers, Ms O’Sullivan said:

“..It wasn’t about Sergeant McCabe personally, it was more about the issues that Sergeant McCabe was bringing into the public domain, as opposed to Sergeant McCabe personally.”

In addition, Ms O’Sullivan had said to the tribunal’s investigators:

“…the matters referring to Sergeant McCabe related to his forthcoming appearance before the PAC and the appropriateness or otherwise of him appearing in uniform. In addition, other matters during conversations would be data protection concerns.”

Ms O’Sullivan also told the tribunal that she didn’t take any notes at these meetings.

Ms Leader referred to a note made by Assistant Commissioner Jack Nolan at one of the meetings – on January 9.

It mentioned ‘Wilson/McCabe issues’.

Ms O’Sullivan this would have referred to data protection issues and concerns over whether Sgt McCabe would have appeared at PAC wearing his uniform or not.

In a note by Mr Nolan – from the January 21 meeting, two days before Mr Callinan’s appearance – Mr Nolan noted:

“Start Sergeant McCabe 2006.”

Ms Leader suggested to Ms O’Sullivan this was a reference to the Ms D allegation.

Ms O’Sullivan says she’s no memory of the Ms D allegation ever having been referred to at the pre-PAC meetings.

Mr Nolan also made reference to “motivation of whistleblowers” and question mark over those words.

Ms O’Sullivan said she didn’t know what that referred to and suggested it might have been a question Mr Nolan was asking himself.

Ms Leader and Ms O’Sullivan then had this exchange:

Leader: “And on the next page we have the word “motivation”, which appears again in the O’Higgins Commission matter, the motivation of whistleblowers and Sergeant McCabe’s name listed underneath it. So in essence, according to Assistant Commissioner Nolan, we have matters relating to Sergeant McCabe from 2006 more or less topping and tailing that meeting, if you understand what I’m saying to you?”

O’Sullivan: “No, Chairman, I see the note, but I can only give you what my recollection of the meeting is, and I have no memory of it being introduced at the meeting.”

Ms Leader also raised the notes of Mr McLindon from the same meeting, on January 21, 2014.

He noted at the top of his notes:

“2006 first incident, sergeant serving”

[Mr McLindon accepted in his evidence that this was likely about the Ms D allegation. Mr Callinan also conceded this but says he couldn’t recall it being discussed.

[Mr McLindon also told the tribunal that, around this time: “...there was a general talk that that (the Ms D allegation) was part of Sergeant McCabe bringing forward the penalty points issues, but it was a… I wouldn’t be able to say officer X had that view or officer Y had that view. And it wasn’t necessarily, I would call it, a generally-held view. It was a view held by certain people. But I can’t, to be honest with you, recall the individuals

[Mr McLindon also said: “My impression was that it was relatively well-known at the upper echelons of the organisation, because that’s the way kind of the rumour mill works in Garda HQ, that it goes up the chain, if you like.]

Again, Ms O’Sullivan told the tribunal that she has no memory of the Ms D allegation being discussed at the pre-PAC meetings.

She added:

If it was discussed, sometimes I may be in and out of a meeting, sometimes I may be late to a meeting, I can’t say on 21st January at what stage of the meeting that I arrived or whether I was there for the entire meeting, but I certainly have no recollection of the matter being, the Ms. D matter being discussed.”

Ms Leader put to Ms O’Sullivan perhaps she forgot the Ms D matter was discussed or that it was discussed so much, that she “simply switched off”.

Ms O’Sullivan said she wouldn’t have forgotten such a thing and, as for the latter suggestions, Ms O’Sullivan was adamant when she said:

“No, Chairman, that isn’t the case. Because from the time I was in HRM in 2008 right up to the beginning of the O’Higgins Commission, I don’t ever remember those matters being discussed again in any detail anywhere.”

Ms Leader suggested this was “unrealistic” given the level of knowledge of the Ms D allegation in political and media circles – as told to the tribunal.

But Ms O’Sullivan repeated:

“And from my knowledge, I was aware of the matters in 2008 from the file that we have read and the synopsis I was provided with and the update from Chief Superintendent McGinn and again, I was not aware of those matters until such time as the O’Higgins Commission commenced.”

The tribunal also heard how, when Mr Callinan made his “disgusting” remark at the PAC on January 23, 2014, Ms O’Sullivan passed him a note.

Ms O’Sullivan said, in this note, she asked him to clarify the comment because the “sense in the room was palpable” as a consequence of the remark.

[This note hasn’t been found for the tribunal]

Ms O’Sullivan also said she told Mr Callinan, after the meeting, that he should clarify the remark.

In relation to the claims made by Fine Gael TD John Deasy, Fianna Fáil TD John McGuinness and the Comptroller and Auditor General Seamus McCarthy – and what they claim Mr Callinan said to them on the day of his appearance before PAC – Ms O’Sullivan said she did not hear these comments being made.

Ms Leader put it to Ms O’Sullivan that it’s Mr Callinan’s evidence that both Mr McGuinness and Mr McCarthy who raised the Ms D matter with him – and not the other way around.

Ms Leader said, one way or the other, there is an agreement between Mr Callinan and the two men that the Ms D matter was discussed.

Ms Leader again put it to Ms O’Sullivan that it was a bit “unrealistic” to think she never heard any talk about the Ms allegation from 2008 (when she first learned about it) until the O’Higgins Commission of Investigation.

But Ms O’Sullivan said: “I have no memory and no recollection of hearing anything about the Ms. D allegation from the time I was in HRM [2008] up to the preparation of the O’Higgins hearings [2015].”

Asked if it’s possible she was purposefully excluded from any conversations about Ms D, Ms O’Sullivan said she didn’t know but, again, she didn’t hear anything between 2008 and 2015.

Ms O’Sullivan said she was involved in an informal meeting with Mr Callinan after the PAC meeting finished on January 23, 2014, and at this meeting it was discussed that they would send a letter to Mr McGuinness proposing that Mr Callinan would appoint a superintendent of Sgt McCabe’s choosing to look into Sgt McCabe’s issues – as something of a means to avoid Sgt McCabe from appearing before PAC.

The letter stated: “I would formally request that the Committee of Public Accounts would postpone its decision to invite Sergeant McCabe to attend before you.”

The idea of appointing a Supt of Sgt McCabe’s choosing was Ms O’Sullivan’s idea, the tribunal heard.

And she said it was her understanding that Sgt McCabe would be going before PAC “one way or the other” and that it was about whether he would appear in public or private.

Ms Leader pointed out that the latter point [private V public] wasn’t in the letter at all.

But the letter was never sent and, instead, Mr Callinan met Mr McGuinness in a carpark off the Naas Road the following day.

In relation to the meeting between Mr McGuinness and Mr Callinan on Friday, January 24, 2014 – a day after Mr Callinan’s appearance before the PAC – Ms O’Sullivan said she never knew about this meeting until Mr McGuinness mentioned it in the Dáil in May 2016.

[It was Mr Callinan’s evidence that he also never mentioned the meeting to Ms O’Sullivan]

Ms Leader put it to Ms O’Sullivan that she spoke to Mr Callinan on the phone numerous times on the day of the carpark meeting:

Mr Callinan called Ms O’Sullivan at 3.30pm and they spoke for 7 minutes 12 seconds.

Mr Callinan called Ms O’Sullivan at 5.30pm and they spoke for 6 minutes – at this time, Mr Callinan would have probably left the carpark meeting.

Ms O’Sullivan called Mr Callinan at 6.30pm for a short call, she called again after 6.30pm and they spoke for 9 minutes and then she called him again at 9.55pm for a very short time.

Ms Leader put it to Ms O’Sullivan: “So former Commissioner Callinan has said these were to discuss security issues, but I’m suggesting to you that — where did you think that letter, the draft letter of the 23rd had disappeared to, if it was never actioned on or anything of that nature?

Ms O’Sullivan replied saying “..events often overtake letters or draft letters or draft proposals that would be on the table. And as it transpired, the meeting went ahead with Sergeant McCabe and I don’t know where the letters went to. But it wouldn’t be unusual that events would overtake proposals…”

Ms Leader suggested that, given her level of involvement in the PAC hearings and what happened thereafter it wasn’t really a “satisfactory” answer.

Ms O’Sullivan said:

“I wasn’t in Dundalk that day and I wasn’t informed of the fact that, or consulted in relation to Commissioner Callinan meeting Deputy McGuinness and I wasn’t told about it afterwards either.”

Moving on to February and March of 2014 – when journalists were calling to the D house – Ms Leader put the evidence of Alison O’Reilly to Ms O’Sullivan [Ms O’Reilly claims Debbie McCann, of the Irish Mail on Sunday, told her that Supt Taylor and Ms O’Sullivan confirmed the Ms D story to her].

Ms O’Sullivan, who said she does know Ms McCann’s father retired detective superintendent John McCann, was adamant that she did not give Ms McCann, or anyone else, any information about Ms D.

As for Paul Williams’ first article on Ms D in the Irish Independent – on April 12, 2014 – Ms O’Sullivan said she “vaguely” remembered reading it.

Asked if she knew they concerned Sgt McCabe – as he wasn’t named as the person being referred to – Ms O’Sullivan said: “Not necessarily at that time. But subsequently I would’ve become aware it was in relation to that issue, yes.”

She added: “I can’t remember the exact sequence, Chairman, but I would have been aware that that issue — shortly after that, it became evident that the person at the centre of that was going to meet with the leader of one of the parties..”

“…Also, I believe in or around that time I was aware, or subsequently became aware, that there had been a complaint made to GSOC.”

Following on from that, Ms O’Sullivan was asked if she could recall discussing the articles with anyone in An Garda Siochana and she said “no”.

She said: “…What I would do is, we would go through the press articles and I would read them and just distill them down for myself into what were the issues arising for us. There didn’t appear to me to be anything that needed to be done with that particular article because there wasn’t sufficient detail in relation to it.”

Paul Williams’ first article on Ms D, as mentioned above, was published on April 12, 2014.

The day before, April 11, 2014, was the day Ms O’Sullivan held her first management meeting as Garda Commissioner, following on from Mr Callinan’s stepping down in March 2014.

It was held in Waterford Garda Station and notes of the meeting recorded Ms O’Sullivan saying:

“Number of reports over next 12 months. None will be good. John Cooke report, Roma report. Agenda is racial profiling in the media. Seán Guerin’s report. Need to be ready for this. Manage bad news and build on good news”.

Sean Guerin’s report investigated complaints made by Sgt McCabe about policing in Baileboro.

Meanwhile, Ms Leader referred to texts between Ms O’Sullivan and Mr Williams – whose billing records show they weren’t in contact by phone from April 28, 2013 until February 21, 2014 – on the evening of April 12, 2014, the day of Mr Williams’ first article on Ms D was published.

The tribunal didn’t see the text and when asked if it was about his article, Ms O’Sullivan said “no”.

She said: “I can’t recall what the text was about, but I certainly didn’t text him about the article in the Independent.”

Ms O’Sullivan said it was most likely to be about personal security arrangements for Mr Williams.

Ms Leader then turned to another management meeting on May 9, 2014 in which Sgt McCabe and the then published Guerin report were being discussed – as well as the idea of “embracing whistleblowers”.

[May 2014 was also the month that Supt Taylor was moved out of the Garda Press Office]

And then five days after the May 9 management meeting, Ms O’Sullivan received the false rape allegation in her office – but she can’t recall reading it.

As part of the documentation on the referral, there was a letter from Chief Supt Jim Sheridan stating:

“The allegations have been the subject of a previous Garda investigation, that Ms. D has made a complaint based on the allegations set out in the attached referral form to Micheál Martin, that he has subsequently referred the matter to An Taoiseach, Mr. Enda Kenny, and the Ombudsman, and, in the circumstances, he is recommending that we await further communication from the parties listed above prior to commencing a review of the investigation.”

Ms Leader put the following to Ms O’Sullivan:

“…Did this not come, or why didn’t it, if it didn’t – you are, the week before, discussing reaching out to Sergeant McCabe, to managing the outcome of the Guerin investigation, you are looking ahead to a commission of investigation arising out of the Guerin investigation. Linked in with that is Superintendent Sheridan telling you that Ms. D had gone to Micheál Martin and who had referred the matter on to the Taoiseach, who has some control over the terms of a commission of investigation, and also a complaint to GSOC, so what was your reaction to receiving this at that particular time?

Ms O’Sullivan repeated that she couldn’t recall the matter being brought to her attention but accepts the evidence of her private secretary Supt Frank Walsh that he showed it to her and she did read it and, as a consequence, told him to write to Assistant Commissioner Kieran Kenny about it.

Judge Charleton stepped in and said to Ms O’Sullivan:

“In terms of — we are all familiar with, if you like, a ladder of sexual assaults, and when you are at the top of the ladder – I know it’s kind of wrong to classify these things, but there has to be some method of doing it – if you are at the top of the ladder, you — say you are on step 10.

The DPP decided vis-á-vis the D allegation that it wasn’t even at the ladder. Nothing happened that, if it happened at all, would have constituted even an assault or a sexual offence. But here, someone has taken off someone else’s clothing, there has been digital penetration and it is ascribed through the Commissioner of the Northern Region to Sergeant McCabe. Now, that moves us on to the ladder and it moves us up to maybe step 9 of the ladder in terms of sexual assault. That’s why this is important and that’s why Ms. Leader is asking you about your reaction to it.

Ms O’Sullivan said:

“As I said, I have no memory of seeing this document. I have read the superintendent’s evidence; I’m not in a position to dispute it, but I have no memory of seeing this document. And taking the Chairman’s point, it was something that I would have been very conscious of, if I had seen a document like this, I would have read it in its entirety and I would have been aware from my 2008 synopsis of events that there was a difference in the allegation that was made and then I would direct a different type of action.”

Ms Leader then read out correspondence from June and July 2014 between the Assistant Commissioner Kieran Kenny and Supt Frank Walsh – which Supt Walsh sent to Mr Kenny on behalf of Ms O’Sullivan about this false rape referral (which had been presented to her as a real allegation by Ms D – even though both Mr Kenny and Mr Sheridan knew this was not the case).

In a response to Supt Walsh, Mr Kenny said that it was decided that Supt Sheridan would contact the HSE about it and that Mr Kenny would contact the Head of Legal Affairs at An Garda Siochana Ken Ruane.

Supt Walsh responded to Mr Kenny saying the content of his letter had been noted by Ms O’Sullivan.

Either way Mr Kenny, the tribunal heard, did not contact Mr Ruane and Mr Sheridan did not contact the HSE.

[It should also be said that, at this time, Mr Kenny was attending management meetings about the Guerin report and An Garda Síochána’s preparation for the then pending O’Higgins Commission of Investigation. Mr Kenny was actually the first liaison officer appointed to the commission]

In addition, Mr Williams had three other articles published over April and May of 2014 with the May 3, 2014 article headlined: “[Enda]Kenny to set up probe into Garda sex abuse claim.”

On August 7, 2014, along with Asst Commissioner Kieran Kenny, Ms O’Sullivan met with Sgt McCabe to discuss his workplace issues – and the false rape allegation was never divulged to him.

And all this time, it’s Ms O’Sullivan’s evidence that she didn’t discuss the Ms D allegation with anyone.

Ms Leader then had this exchange with Ms O’Sullivan:

Leader: So did you make a decision just to park the Tusla notification?

O’Sullivan: No, Chairman. Absolutely not.

Leader: Well, another, maybe, reasoning for the matter being left as it was is, maybe you decided that too much attention had been given to the D allegation in or around the time of the Public Accounts Committee and you were happy just to leave it there, to give it no attention at all?

O’Sullivan: No, Chairman, that is not the case. My entire focus was on making sure that there were supports in place for Sergeant McCabe and that Sergeant McCabe, and not just Sergeant McCabe, and I think this is very important: in terms of what I was trying to change in the culture of An Garda Síochána was in terms of being able to make sure that people knew that they could be empowered to speak up and that they would be supported, and that, from the very top, that all of the assistant commissioners and the executive directors knew that that was the stance that we were going to take and that that would continue.”

Leader: All right. Well, maybe that supports the theory that perhaps you wanted the D matter to be left where it was in 2006 and 2007 and not deal with the matter again other than to leave it there?

O’Sullivan: No, Chairman, I am not sure how it supports that proposition.

Leader: Yes.

O’Sullivan: As far as I was concerned, from the knowledge I had in 2008, the D matter had been directed upon by the Director and — who said that there was no basis for a prosecution. So the matter did not arise again. As I say, in this correspondence, if I had seen it and read it in detail, I would have instructed or directed a different action, which was to contact the HSE and make sure that the matter was clarified immediately.

Leader: Well, I think the information you had was that there were consultations to happen with the HSE, that certainly would seem to be the case from the letter of the 28th July 2014?

O’Sullivan: Yes, but I wouldn’t have allowed it just to continue to be notified in the normal course, I would have directed that immediate contact be made and the matter be clarified immediately.

Leader: Yes. Well, I suppose another possibility is that you decided that the matter should be dealt with at the Commission of Investigation and you were leaving it until then to leave the Commission deal with all matters in relation to Sergeant McCabe and his motivation?

O’Sullivan: No, Chairman, that is not the case. My understanding of the Commission of Investigation was always as a result of the recommendations of the Guerin Report and the matters that would be dealt with by the Commission of Investigation would relate to the complaints that Sergeant McCabe made in relation to practices in Bailieboro.

Leader: So the matter was just left, in any event, in your office, in July 2014?

O’Sullivan: Yes, Chairman, the file only came to my attention when we were seeking to reply to a request from the Department in February 2017.

Leader: Yes. And that was as a result of Sergeant McCabe’s questions that he had put to the Minister, is that correct?

O’Sullivan: Yes, Chairman, that is correct.

Ms Leader, raising the point that Mr Kenny was the initial liaison officer for her at the O’Higgins Commission of Investigation, put it to Ms O’Sullivan:

So we again have the same personalities involved in the O’Higgins Commission involved in the management meetings dealing with the aftermath of the Guerin investigation, and the same person who was liaising with you and your office with regard to the Tusla notification and indeed meeting Sergeant McCabe in August 2014?

Ms Leader said it’s “really inconceivable that the two of you [Ms O’Sullivan and Mr Kenny] wouldn’t have had a conversation around the Tusla notification”.

But Ms O’Sullivan said: “Assistant Commissioner Kenny never mentioned it to me, Chairman, and it wasn’t discussed between us at all.”

Leader pressed on: “You see, it would suggest that people are dealing with things on different spheres, that for some reason the Tusla notification was totally taken out of everything got to do with Sergeant McCabe, Guerin and O’Higgins, and what I’m suggesting to you is, that cannot be credible?”

Ms O’Sullivan said when she located the Tusla file in 2017, it was “allocated a different file number so it wasn’t attaching to any file relating to Sergeant McCabe and it was a completely different file heading”.

It was at this point that Ms Leader put it to Ms O’Sullivan that a theme was emerging in her evidence.

Ms Leader said: “…From January of 2014 your evidence to the Tribunal has also been that you never heard mention of the D allegation, whether it be in the pre-PAC meetings or anything former Commissioner Callinan may or may not have said to you, do you understand what I’m saying? It seems to be just wiped from everything, bar the mention of it in 2008?

Ms O’Sullivan repeated the Ms D allegation was never discussed in her presence between 2008 and 2015.

The Tusla Files:

Mr Keena, in his Irish Times article, referred to the false Tusla referral and Katie Hannon’s reporting of the same on Prime Time the night after Mr Howlin made his comments in the Dáil.

Mr Keena reported:

The Oireachtas eventually charged the tribunal it established to examine whether the false Tusla file had been used by senior Garda officers to discredit McCabe.

As a result, it appears, of separate claims made by another Garda whistleblower, Keith Harrison, the tribunal was also charged with examining whether there was a “pattern” of false Tusla reports being created and their being used by senior gardaí to target whistleblowers.

No evidence to support either of these enormously serious suggestions has been produced at the tribunal, though there are continuing concerns expressed by McCabe about how the Garda dealt with the false reports it received in relation to him following the “clerical error” made by the counsellor and the creation of the false file. The tribunal may express a view on this matter in its final report.

Mr Justice Charleton has already dismissed Harrison’s claims against Tusla as being “without any validity”.

The issue of a pattern of Tusla files being used against Garda whistleblowers was not explored during the tribunal’s sittings and no one has argued at the tribunal that there is any evidence to support such a scenario.

It should be noted that Mr Keena didn’t mention – and it hasn’t been widely reported – that when Independents 4 Change TD Mick Wallace gave evidence to the tribunal, it was put to him by Conor Dignam SC, for An Garda Siochana, that he “championed the cause” of Mr Harrison.

Mr Wallace replied:

“We highlighted the fact that Garda Harrison was, when he also — when he got into difficulties with An Garda Síochána, the manner in which he was treated by them left a lot to be desired. And if you — if you check, you’ll find that at no stage did we say one word about how Tusla had handled him.

“And he came in here in the wrong module and paid a price for it, because Tusla were found, if they had behaved any different they would have been negligent and they were right to behave as they did. But it wasn’t our doing.

“And on the night that the terms of reference for this Tribunal were being set up, we actually went to the Minister for Justice for that night, Frances Fitzgerald, and we told her that it was a mistake to put Harrison in that module.

“Now, but did we — did we raise issues about his treatment in An Garda Síochána? Yes, we certainly did. And we would still insist that he was poorly treated by An Garda Síochána after he falling foul of them.”

Finally, Mr Keena’s summing up of the Disclosures Tribunal allowed for one final omission.

The fact that, over a February 2017 article, Sgt McCabe is suing The Irish Times for defamation.

Tomorrow: Maurice McCabe And The Sunday Times

Yesterday: Maurice McCabe And The Irish Times: Part 1

Tuesday: Maurice McCabe And RTÉ

Charleton evidence raises questions about damaging claims made (Colm Keena, The Irish Times)

Previously: How Did He Get Here?

Garda Nicky Keogh

This afternoon.

The Disclosures Tribunal has posted an update to say it is now considering term of reference P which is:

To consider any other complaints by a member of the Garda Síochána who has made a protected disclosure prior to 16th February, 2017 alleging wrong-doing within the Garda Síochána where, following the making of the Protected Disclosure, the Garda making the said Protected Disclosure was targeted or discredited with the knowledge or acquiescence of senior members of the Garda Síochána.

It’s understood this includes the complaints made by Garda Nicky Keogh.

Supreme Court judge Peter Charleton will not be overseeing this final term of reference.

The updates states:

Report on matters relating to Garda Keith Harrison pursuant to term of reference (n) and (o) issued in November 2017.

The tribunal has now completed all its evidence in respect of terms of reference (a) to (o).

The chairman is considering all submissions received on terms of reference (a) to (o), excluding matters already reported on, and the tribunal hopes to issue a final report in October 2018.

Papers are being gathered on a preliminary basis as to term of reference (p).

Hearing this matter is outside the responsibility of the current chairman and a further announcement may be made.

Disclosures Tribunal

Related: Ex-drug squad whistleblower seeks damages (John Mooney, The Sunday Times)

 

Former Garda Press Officer Supt Dave Taylor (above) and Michael McDowell (top), senior counsel for Sgt Maurice McCabe, at Dublin Castle during the Disclosures Tribunal

Last Thursday and Friday, the Disclosures Tribunal heard the final submissions from the various legal parties in which they summed up their client/clients’ case.

The tribunal, overseen by Supreme Court judge Peter Charleton, examined claims made by the former head of the Garda Press Office Supt Taylor that he was instructed by former Garda Commissioner Martin Callinan, with the knowledge of Deputy Commissioner Noirin O’Sullivan, to negatively brief journalists about Garda whistleblower Sgt Maurice McCabe.

He claimed that, at some point in the middle of 2013, he was instructed to convey to journalists that Sgt McCabe – who was raising concerns about poor policing in Cavan/Monaghan district at this time – was driven by maliciousness and motivated by revenge due to an allegation of sexual assault made against him in 2006.

This was the allegation made by a woman referred to as Ms D – the daughter of a former Garda colleague of Sgt McCabe’s – 11 months after the colleague (Mr D) was sanctioned after Sgt McCabe made a complaint on foot of him attending the scene of a suicide after drinking alcohol.

In April 2007, the DPP found Ms D’s allegation had no foundation.

Supt Taylor alleges that – as the penalty point controversy began to simmer in 2013/2014 – he was instructed to tell journalists about this allegation and to tell them that the DPP ruled against a prosecution, but that he was to convey that it was still the “root cause” of Sgt McCabe’s complaints about poor practices within An Garda Síochána.

Four journalists contacted the D family in early 2014 – Debbie McCann, of the Irish Mail on Sunday, Eavan Murray, of the Irish Sun, Paul Williams, of the Irish Independent, and Michael O’Toole, of the Irish Daily Star, via Facebook to Mr D – according to Mr D.

Mr O’Toole was never asked about this Facebook contact when he gave evidence.

[The only journalist to write about Ms D’s allegation against Sgt McCabe in 2014 was Mr Williams – in April and May 2014.]

The tribunal’s genesis was the submission of two protected disclosures in September 2016 by Sgt McCabe and Supt Taylor – following a meeting they had in Supt Taylor’s home.

When they met, Supt Taylor had just been through a very difficult family trauma and was very upset.

Supt Taylor’s wife Michelle Taylor told the tribunal what this family trauma was when she gave evidence but the judge immediately struck it from the record – presumably to protect those involved.

Sgt McCabe made his protected disclosure – based on what Supt Taylor told him – several days before Supt Taylor.

The main difference between Sgt McCabe and Supt Taylor’s accounts of their discussion, is that Sgt McCabe claims Supt Taylor told him that he sent “hundreds” of texts to journalists and other senior gardai as part of his alleged smear campaign.

Sgt McCabe says he returned to Supt Taylor the day after initially meeting with Supt Taylor, in order to double-check the matter of texts, and Supt Taylor said “thousands” of texts could have been sent.

Other witnesses – Fianna Fail TD John McGuinness, Independents 4 Change TD Clare Daly and Irish Examiner journalist Mick Clifford – have also told the tribunal that, at around the time of making his protected disclosure, Supt Taylor also led them to believe that texts were used as part of the alleged smear campaign.

Ms Daly spoke about this on radio in October 2014, while Mr Clifford wrote about this in his book The Maurice McCabe Story, A Force for Justice – after sending Supt Taylor the chapter containing this detail for the purpose of fact checking in May 2017 – and Supt Taylor never corrected either Ms Daly or Mr Clifford.

Furthermore, they told the tribunal they were led to believe that evidence of these texts were on phones seized as part of a criminal investigation into him (more on this below).

But Supt Taylor, when he gave evidence to the tribunal, was adamant that when he discussed the matter of texts with Sgt McCabe, he was referring to texts to Mr Callinan and Ms O’Sullivan concerning media updates.

[The tribunal heard that the Garda Press Office monitors the printed press daily while the tribunal saw radio transcripts concerning matters related to Ms O’Sullivan were emailed to Ms O’Sullivan from the Communications Clinic – which, the tribunal heard, is paid to work with the Garda Press Office]

At the time of their meeting, Supt Taylor was under criminal investigation for leaking material to the press.

This investigation first started out as an investigation into the leaking of details concerning Roma children in October 2013 – following on from a report by the Children’s Ombudsman Emily Logan into the matter.

Chief Supt Francis Clerkin was appointed by Assistant Commissioner John Twomey to carry out this investigation in July 2014 – a month after Supt Taylor was removed from the Garda Press Office and transferred to the Traffic Department, following the resignation of former Garda Commissioner Martin Callinan in March 2014.

Chief Supt Clerkin appointed Det Supt Jim McGowan – the husband of the then Garda Commissioner Noirin O’Sullivan – Insp Dave Gallagher, Sgt Thelma Waters, Sgt Brian Kavanagh and Garda Ross Rowan to assist in this investigation.

Chief Supt Clerkin said the decision to appoint these gardai was entirely his and that Ms O’Sullivan had no part in it.

In the midst of this investigation, during 2014 and 2015, and after seeing extensive contacts Supt Taylor had with journalists after he was moved out of the Garda Press Office in June 2014, the tribunal was told the investigation somewhat morphed into an investigation into Supt Taylor, during which phones were seized from Supt Taylor.

[It should be noted that the tribunal saw a text sent from Ms O’Sullivan to Terry Prone, of the Communications Clinic, in October 2016 – after the protected disclosures were submitted – in which she told Ms Prone: “I took up on 26th March 2014 and moved him [Supt Taylor] on the first available opportunity, which I believe was 9th June 2014.”]

Supt Taylor was found to have had almost 11,000 contacts with journalists between September 2014 and December 2014 alone – 2,800 of which were with Irish Sun journalist Eavan Murray alone.

It was said on a number of occasions in the tribunal that Supt Taylor was running his own Garda Press Office despite no longer being a part of it.

[Notwithstanding that, it should be noted anyone could pick up any newspaper on any given day of the week and find Garda leaks are a complete norm in Irish journalism]

Supt Taylor was arrested and suspended in May 2015.

Chief Supt Clerkin told the tribunal that after he was released from custody, Chief Supt Clerkin discussed Supt Taylor’s suspension with Assistant Commissioner John Twomey and, subsequent to that, Supt Taylor was “suspended on a three-monthly period from Garda Headquarters at Phoenix Park, a decision made by an assistant commissioner”.

Either way, in August 2015, Chief Supt Francis Clerkin – after investigating Supt Taylor – recommended that he be prosecuted for disclosing information to numerous journalists between October 21, 2013 and February 19, 2015, contrary to Section 62(2) of the Garda Síochána Act 2005:

Section 62 is:

“A person who is or was a member of the Garda Síochána or of its civilian staff or who is or was engaged under contract or other engagement to work with or for the Garda Síochána, shall not disclose, in or outside the State, any information obtained in the course of carrying out duties of that person’s office, employment, contract or other arrangement if the person knows the disclosure of that information is likely to have a harmful effect.”

Section 62 (2) is:

For the purpose of this section (above), the disclosure of information referred to in subsection

(1) does not have a harmful effect unless it—

(a) facilitates the commission of an offence,

(b) prejudices the safekeeping of a person in legal custody,

(c) impedes the prevention, detection or investigation of an offence,

(d) impedes the apprehension or prosecution of a suspected offender,

(e) prejudices the security of any system of communication of the Garda Síochána,

(f) results in the identification of a person—

(i) who is a witness in a criminal proceeding or who has given information in confidence to a member of the Garda Síochána, and

(ii) whose identity is not at the time of the disclosure a matter of public knowledge,

(g) results in the publication of information that—

(i) relates to a person who is a witness to or a victim of an offence, and

(ii) is of such a nature that its publication would be likely to discourage the person to whom the information relates or any other person from giving evidence or reporting an offence,

(h) results in the publication of personal information and constitutes an unwarranted and serious infringement of a person’s right to privacy,

(i) reveals information provided in confidence by another state, an international organisation, another police service or an intelligence service, or

(j) affects adversely the international relations or interests abroad of the State, including those with Northern Ireland.

During this investigation, in early 2016 – and crucially before Supt Taylor spoke to Sgt McCabe in September 2016 – Supt Taylor made an application to the High Court to have the investigation into him stopped.

He claimed, in a sworn affidavit, that he was arrested only for the purpose of embarrassing and inflicting pain on him and holding him up to ridicule and contempt. He also claimed that, during his detention, investigators were tactless, oppressive, heavy handed, and unnecessarily autocratic.

His senior counsel Breiffne Gordon even told the court there was “a certain element of skullduggery taking place”.

On February 17, 2016, the DPP directed there be no prosecution.

A letter from the directing officer in the office of the DPP said:

“The problems are two-fold. In most cases it is not possible to prove that information was disclosed to the press by the suspect.

“Even in cases where there is an electronic trail of information being disclosed, it is impossible to establish the harm requirement of Section 62 of the Garda Síochána Act 2005.

“While highly suspicious, I do not think that it is possible to prove beyond reasonable doubt that the suspect disclosed confidential information. Therefore, I direct no prosecution.”

The gardai then wrote back to the DPP on February 22, 2016, and asked if the DPP would reconsider a prosecution against Supt Taylor in relation to disclosing personal data without the prior authority of the Data Controller.

The tribunal heard this letter of response to the DPP – requesting a prosecution under over personal data – was signed and submitted by Noirin O’Sullivan’s husband Det Supt McGowan as Chief Supt Clerkin was on holiday at that time.

Fast forward a year later to February 8, 2017 and Labour leader Brendan Howlin got up in the Dail during Leaders’ Questions, and told the Oireachtas:

“This morning a journalist contacted me and told me they had direct knowledge of calls made by the Garda Commissioner to journalists during 2013 and 2014 in the course of which the Commissioner made very serious allegations of sexual crimes having been committed by Sergeant Maurice McCabe. “

Mr Howlin was referring to what Irish Mail on Sunday journalist Alison O’Reilly told him her colleague Debbie McCann told her.

Mr Howlin did later clarify that he did not have “direct evidence” – he only knew what Ms O’Reilly told him and that Ms O’Reilly never told him she had “direct knowledge”.

He also clarified that he was mistaken when he said ‘journalists’ (plural).

[The tribunal has been told there are no phone records to show Ms McCann and Ms O’Sullivan were in phone contact during the relevant period. Ms O’Reilly claims that Ms McCann told her that she had Ms O’Sullivan’s phone number in 2014]

It should also be noted that in the same Dáil contribution, Mr Howlin specifically said:

“I do not know whether the charges that have been made against the Garda Commissioner are true or not.”

Seven days later, on February 13, 2017, the DPP ruled against prosecuting Supt Taylor for a second time.

In a letter from the directing officer in the office of the DPP to Chief Supt Clerkin, he was told:

“I refer to the above matter and, in particular, to my direction of the 17th February 2016 wherein the question of a prosecution for offences contrary to Section 62 of the Garda Síochána Act 2005 was already considered.

“The question of a prosecution for breaches of the Data Protection Act 1988, as amended, has been considered.

“The advices of senior counsel were sought and I enclose herewith opinion from (redacted) in relation to the matter.

“The Director agrees with the advices of counsel, and accordingly, for the reasons set out in counsel’s advices, there should be no prosecution.”

Supt Taylor went back to work in the Traffic Department in Dublin Castle the following day, February 14, 2017.

The tribunal heard that, during the criminal investigation, Supt Taylor replied ‘no comment’ over Garda interviews amounting to 18 hours.

Yet, within minutes on his first day of giving evidence to the tribunal, Supt Taylor told Judge Charleton that he wasn’t contesting the claim that he did make all of the communications to journalists as outlined in the Clerkin report.

He later told the judge:

“I fully accept that I accept my culpability and I regret that immensely.”

He also, when giving evidence, fully accepted the bona fides of the Clerkin investigation, accepted Ms O’Sullivan had nothing to do with it and said there was nothing on his seized phones worth destroying in terms of the alleged smear campaign against Sgt McCabe – not least of all because the phone which was relevant to the period of the alleged smear campaign (mid-2013 to March/April 2014) was not seized.

Prior to Supt Taylor giving evidence, Chief Supt Clerkin told the tribunal that, as part of his criminal investigation into Supt Taylor, three of his phones were seized – on December 18, 2014, on Februrary 19, 2015 and May 2015.

Chief Supt Clerkin told the tribunal when he seized Supt Taylor’s phone on December 18, 2014, he sealed it and gave it to Det Supt McGowan with a view to examining it later.

Chief Supt Clerkin said the investigating team had hoped to see texts going back to October 2013 – when Supt Taylor was in the Garda Press Office and when the incident with the Roma children occurred – but no such information was on the phone as it had only been issued to Supt Taylor in September 2014 and Supt Taylor had taken the old 2013/3014 phone away with him at that time (in September 2014).

Essentially, Supt Taylor’s 2013/2014 phone is one of the 12 phones belong to Supt Taylor, Mr Callinan and Ms O’Sullivan which the tribunal never recovered.

And it was phones pertaining to a later period of time than when he was in the Garda Press Office which were seized from Supt Taylor and Supt Taylor accepted this when he gave evidence.

As for Supt Taylor’s previous claim that texts from the period relevant to the tribunal (July 2012 to June 2014) had been put to him during the Clerkin investigation – and should, he had previously argued, therefore be made available to the tribunal – Supt Taylor’s counsel told the tribunal that Supt Taylor had been mistaken and that it was billing records from that time which were put to him, not texts.

In addition, between the time of his protected disclosure in September 2016 and his evidence to the tribunal, disciplinary proceedings against Supt Taylor were also dropped.

Chief Supt Clerkin said he was told in February of this year [2018] by the Assistant Commissioner for Dublin [Pat Leahy] that he was to discontinue all discipline matters.

He also added that he suspects a second, separate disciplinary investigation – carried out by another chief superintendent – “met with [a] similar fate” but he couldn’t be sure.

On Friday, June 22, Judge Charleton specifically asked what happened to the disciplinary proceedings against Supt Taylor.

When Shane Murphy SC, for An Garda Siochana, made his submission last week, he answered this question by saying the following:

“In our view, Chairman, having regard to the terms of reference, we respectfully say it’s not necessary for the Tribunal to determine this question, and our clients would have a concern that anything that might be said as to why disciplinary proceedings have been discontinued may impact or compromise any steps An Garda Síochána wish to take in relation to the matter in the future. So I would prefer not to elaborate on that issue at this time, with the permission of the Chair.”

Following on from that…

At the outset of his submission Michael McDowell SC, for Sgt Maurice McCabe, pointed out two letters detailing the discontinuing of the disciplinary proceedings in respect of the Roma children and the other matters against Supt Taylor were both dated January 12, 2017.

Mr McDowell wondered if this was a misprint – because the tribunal was told the disciplinary proceedings were dropped in February 2018.

Diarmaid McGuinness SC, for the tribunal, pointed out that the date under the signature on one of the letters said ‘February 2018’.

Mr McDowell said it was important discrepancy and he recalled the evidence of former Garda Commissioner Noirin O’Sullivan when she asked why the disciplinary proceedings were dropped – and, Mr McDowell said, she said “it happened on somebody else’s watch and she couldn’t assist you [Judge Charleton] with it”.

Mr McDowell also raised questions as to why Supt Taylor’s evidence to the tribunal was “so milk and watery in so many respects”.

[Supt Taylor couldn’t recall any details – time or place – of any alleged briefing]

Mr McDowell also recounted how Supt Taylor backtracked on certain claims, as mentioned above, but also that when one journalist Cathal McMahon, formerly of the Irish Daily Mirror, finally told the tribunal that Supt Taylor confirmed the Ms D allegation to him, Supt Taylor curiously didn’t agree with everything Mr McMahon said – even though he was the only journalist to corroborate Supt Taylor’s claim.

It’s worth noting that the tribunal also heard that when he was interviewed by the tribunal’s investigators, Supt Taylor said he told journalists about the Ms D allegation to the effect there was ‘no smoke without fire’.

But when he gave evidence to the tribunal, he also backtracked on this claim.

In addition, Supt Taylor only actually attended the tribunal a handful of days – in contrast to Sgt McCabe who attended every single day.

Mr McDowell said:

“Cathal McMahon gave evidence here that he went to Superintendent Taylor to ask him to confirm the details of a story he had heard from a non-Garda source. And he says two things happened: Superintendent Taylor confirmed the fact that there had been an investigation, etcetera, etcetera, and directed him — sorry, pointed him in the direction of Cavan to look at the matter further.

“Superintendent Taylor, in his statements to this Tribunal’s investigators, told the investigators that he encouraged Ms [Debbie] McCann [of the Irish Mail on Sunday] and Ms [Eavan] Murray [of the Irish Sun] to go — to follow up the matter by going to Cavan to the Ds. That is negative briefing and that is participating in a story which is — participating in the dissemination of a story in circumstances which are wholly inappropriate.

“So you have four journalists – [Paul] Williams [of the Irish Independent], Murray, McCann and McMahon – two of whom admit that they were effectively negatively briefed, in the sense that they were given suggestions to go there or to — given a false account of the DPP’s direction in the matter and misled as to the nature of the DPP’s direction on the one hand, and two of whom have pleaded privilege in respect of these matters before you, Ms McCann and Ms Murray.

They have said that they were never negatively briefed, but they have invoked privilege as to whether they ever had a conversation with Superintendent Taylor. Now, when I made a submission to you, Chairman, about what implications can be drawn from a wrongful invocation of privilege, I did make the point, and I was careful to do so, that it depended on the circumstances that you could draw such inference as it was appropriate in the circumstance…”

“…in respect of Ms. Murray and Ms. McCann, whether or not they were right or wrong legally, and I say they were utterly wrong in the circumstances and in view of the waivers, to refuse to confirm to the Tribunal what had been said to them on or off the record, or off the record in particular, by Superintendent Taylor, whether or not they were legally entitled to do that, having regard to Article 10 of the ECHR, in the circumstance that they did travel to the D household, that they did make an attempt to interview Ms. D, and that they had, on Superintendent Taylor’s account given to the Tribunal’s investigators, discussions with them in which he would have encouraged them to follow up on the matter with the D family, that the inference that you should draw, in my respectful submission, is that they were so encouraged and that they were directed towards the D family in precisely the same way as Cathal McMahon was, and that it is quite likely in the circumstances that they were given the same background information in relation to the whole question of the D allegation, its investigation and the like, as Paul Williams claims he was given just for the asking by Superintendent Taylor.

“So those four journalists, Judge, are there. And I do agree with a number of the submissions that have been made here, but it is strange indeed that those four journalists are clear examples where there was a briefing, in my respectful submission, but that there were a number of other people in respect of whom there was no evidence that they were so briefed.

“And then on the same day as Cathal McMahon gives his evidence, you have the evidence of his editor, John Kierans, and he tells you that he was satisfied in early 2014 that this story was being hawked around the newsrooms of Dublin by Sergeant McCabe — sorry, by Superintendent Taylor.

“And if you wanted to find that, Judge, it’s page 203 to 206 on Day 94, it’s all set out there. So I’m asking the Tribunal, before it comes to the view that nothing Superintendent Taylor said could be true, not to leap into a simple binary choice of saying he’s either credible or he’s incredible. Clearly in respect of a number of issues he’s not credible.

“Clearly in respect of a number of issues he’s a witness whose evidence must be taken with circumspection. But those four instances that I referred the Tribunal to just now are clear instances of where the Press Officer of An Garda Síochána appears to have engaged in briefing of journalists, and it would be entirely reasonable to believe that this was designed to damage Sergeant McCabe in the circumstances.

“…I made a submission to you earlier, and I’m not going to repeat it at length, on an earlier occasion, that the Tribunal should look very clearly at the formulaic denial of negative briefing by a number of journalists here.

In respect of two of them at least [RTE’s] Paul Reynolds and Debbie McCann [of the Irish Mail on Sunday], when I inquired of them what they meant by ‘negative briefing’, under cross-examination they accepted that being told the truth about Sergeant McCabe, i.e. receiving detraction about him, was not negative briefing, but that negative briefing involved effectively some element of calumny, as long as they were being told the truth it wasn’t negative briefing.

“And as I submitted to you earlier, Chairman, ‘negative briefing’ is not a term of art, but it is a phrase which has clearly been used on a number of occasions by different witnesses here to mean quite different things, and I will put it no further than that.

“…I would have to say, Judge, that the attitude exhibited in the witness box here by Superintendent Taylor seems to have had about it an acquiescence and a willingness not to fight his corner but to rely on entirely formulaic statements of evidence in circumstances that must attract some degree of suspicion.

“And I instance the case of Cathal McMahon, Judge. He came in here and said I rang him up, I asked him for confirmation of the D allegation and the investigation, and he directed me or encouraged me to go up to Cavan and find out for myself.

“Now that should have suited his case, but he put it to the witness, through his counsel, that that was untrue, for some strange reason, and that all he had ever done was engage in this mantra of saying that he was motivated by revenge, blah-blah-blah, the usual thing.

“And there seems to be something very, very strange indeed about — and you will see that interaction, Mr. Ferry [counsel for Supt Taylor] was putting the questions, I have no doubt on close instructions from his client, putting questions to Mr McMahon suggesting that his testimony here was false, when in fact it tended to corroborate the underlying truth of what Superintendent Taylor had disclosed in his protected disclosure, and that was that he was engaged in the business of subverting Sergeant McCabe on the instructions of and with the acquiescence of the Commissioner.

“…In relation to Sergeant McCabe’s status as the maker of a protected disclosure, I think Mr [Shane] Murphy [SC for An Garda Siochana] has fairly conceded that Sergeant McCabe has acknowledged that in recounting what he was told by Superintendent Taylor that he was doing his best to be truthful and to be accurate in what he has said.

“And I think that it has been, it is certainly the case here that his version of what he was told, particularly in relation to the use of texts, has been corroborated, as the tribunal well
knows, by a number of things; two members of the Dáil [Mick Wallace and Clare Daly] who got the same impression from Superintendent Taylor and most importantly in terms of certainty is that what he said was put by Superintendent Taylor, by Michael Clifford [of the Irish Examiner] and that he was asked to check the correctness of the facts as stated and he failed to demure in any way from the version given by Sergeant McCabe and the version given to the two Dáil deputies.

“There are other aspects of it, Judge, I just want to remind the Tribunal there are other aspects which there are significant matters, one of which was Sergeant McCabe was told about the Oisin file, that is corroborated; another of which is that there was a file on him in Crime and Security, that has been established to be true – Crime and Security were involved in sending people to check out the infamous uncle Bernie McCabe’s groundless allegations against Sergeant McCabe; there is also the issue that he was, he gave evidence that the Taylors had said to him that they had been offered a way out.

“And Chairman, it is of significance that he was offered this way out by way of resignation.

“Sergeant McCabe duly recorded that in his protected disclosure. Interestingly, and strangely, Mrs Taylor confirmed that that offer had been made through lawyers by the relevant officer, senior officer of An Garda Síochána, but for some reason you find that Superintendent Taylor denied that.

“And that’s on day 76, Judge. Mrs Taylor agrees that the Commissioner, Deputy Commissioner Twomey had through lawyers made this offer to Superintendent Taylor, but strangely Superintendent Taylor himself denied this and contradicted Sergeant McCabe.

“Why is that Judge?

“And why is it that he has come here dissembling as to his dealings with An Garda Síochána? I raise this significant issue and I ask the tribunal to consider it: Has he come here as an entirely free man or has his reinstatement put him under an obligation to dilute his evidence and is it a good explanation as to why he was so milk and watery in so many respects?

“…I am just making the point that it is strange indeed that he comes to this tribunal and contradicts both his wife and Sergeant McCabe about Deputy Commissioner Twomey acting as kind of a peacemaker and offering him a way out of his dilemma by way of resignation, and at the same time we then hear later that we get this letter indicating that the disciplinary proceedings had been dropped against him.

“…There is one extraordinary feature though too, Judge. I mean, if you look at [director of communications] Mr [Andrew] McLindon’s evidence and former Commissioner [Noirin] O’Sullivan’s evidence, there was a remarkable unwillingness to explain to you at first hand, from both of them, why Superintendent Taylor was shifted in the first place. You will recall you had to stop former Commissioner O’Sullivan from speaking PR speak about his great promotional opportunities and his new talents down in the traffic department, which was manifestly plámás and evidence which was designed to conceal what really happened.

“And that was, as it emerged from a text [to Terry Prone] that Commissioner O’Sullivan was far from interested in developing his career but determined to get him out of the Press Office at the earliest available opportunity.

“I go back to the point that I made earlier: Why was his suspension lifted? Why was his suspicion lifted if he was so obviously leaking and behaving in a manner which would get any rank and file member of An Garda Síochána, if they were caught doing it, the door almost immediately?

“They would probably be lucky even to have an inquiry if the facts were proven against them to
that extent, they’d be shown the door for gross misbehaviour and yet this man is back in the force.”

Later.

Conor Dignam, for An Garda Siochana – in response to Mr McDowell – moved to address his point about Supt Taylor’s disciplinary investigation.

But he was interrupted by Judge Charleton, who laughed when he said:

“Yes, it may help you to know that I don’t think there is anything from which I can say, for instance, that seems to be the inference that was kind of floated out there, that the Gardaí did some kind of a deal with Superintendent Taylor. It’s just not there. As to whether you’re wise in relation to how you run your disciplinary process, well, that is another matter…”

Previously: Dave Taylor’s Disclosures

Rollingnews

Supreme Court Judge Peter Charleton

Today.

At the Disclosures Tribunal in Dublin Castle.

It heard from three witnesses – Tom Brady, former security editor of the Irish Independent; Fergus O’Shea, former deputy news editor of the Irish Sun; and Robert Cox, deputy editor of the Irish Mail on Sunday.

It’s understood, as things stand, these were the tribunal’s final witnesses.

However, Diarmaid McGuinness SC, for the tribunal, did say the tribunal’s legal counsel will have to review things and see if there is any other evidence they feel should be put before Judge Charleton and if there is any possible need to recall any witnesses to give further evidence.

The tribunal heard that, as of this afternoon, there has been no call by any legal team for anyone to be recalled.

Supreme Court Judge Peter Charleton also heard submissions from various legal parties in relation to journalistic privilege (see more below).

Before finishing today’s hearing, Judge Charleton listed 20 questions that he said the legal teams may wish to consider ahead of making submissions in relation to the final module.

Judge Charleton said he will meet with the tribunal’s legal team in the Four Courts on Monday morning and then may hear these submissions on Wednesday.

Judge Charleton’s questions were…

1. What kind of talk, communication or innuendo can fairly be said to come within the terms of reference? What is the full extent of any calumny or detraction against Maurice McCabe that should be regarded as proven as a matter of probability?

2. To what extent are political, journalistic and Garda rumours or talk necessarily to be considered?

3. Is there any truth in the protected disclosure of Superintendent Taylor? Is he a witness whose evidence in any respect can be accepted? Should it, as a matter of prudence, be subject to a corroboration/caution warning?

4. Is it possible to tell from a false denial, for instance, but not limited to Superintendent Taylor or to any journalist, that the opposite to an assertion is in fact the truth?

5. Is what Superintendent Taylor claims to have been done on behalf of Commissioner Callinan an understatement of the reality of what he in fact did? Did he do whatever he did at the behest of Commissioner Callinan or did he do it with the acquiescence or any knowledge by Deputy Commissioner O’Sullivan?

6. To what extent, if at all, is the account of Maurice McCabe as to what he was told by Superintendent Taylor reliable and accurate despite any contradiction by Michelle Taylor and Superintendent Taylor?

7. To what extent do Maurice McCabe’s reports of Superintendent Taylor in relation to phones or electronic devices influence Superintendent Taylor’s creditworthiness? Should a preference be made or what might be the effect of making a preference for Maurice McCabe’s protected disclosure?

8. Of what relevance are the allegations of Superintendent Taylor as to his phones and the seizures thereof? That includes all electronic devices.

9. Of what relevance are the allegations of Superintendent Taylor as to Commissioner O’Sullivan, Detective Superintendent McGowan, Chief Superintendent Clerkin and his false High Court application?

10. Why were the disciplinary proceedings against Superintendent Taylor withdrawn and what are the terms of that withdrawal and the termination of the High Court proceedings?

11. Is there any inference to be drawn from changes of phones, loss of computers or phones, or failures to remember pin numbers by Commissioner Callinan, Commissioner O’Sullivan or Superintendent Taylor? Is there any other phone or computer evidence of relevance?

12. To what extent, if any, can the allegations of John McGuinness TD, Philip Boucher-Hayes, Seamus McCarthy, Comptroller and Auditor General, and John Deasy TD be relied on, and even though merely guided by the rules of evidence and not bound by them, is this Tribunal in a position to say that they corroborate or support each other?

13. If these are to be believed or accepted as probable, what is the full extent of the allegation of calumny against Maurice McCabe? Is Superintendent Taylor reducing his role and if so, does this factor lessen or completely dissolve his credibility?

14. What led to the visits of Debbie McCann, Eavan Murray and Paul Williams to the home of Ms. D? In that regard, has journalistic privilege been properly and honestly relied on and is there any evidence proffered by these parties that is reliable? What in truth happened? Did the visits have any Garda inspiration?

15. To what extent, if any, does the evidence of the D family members remain relevant?

16. To what extent is any incorrect invocation of journalistic privilege such as to give rise to any inference, and if so, what inference does any incorrect invocation of journalistic privilege give rise to?

17. What is the relevance of question 5 as to any incorrect or dishonest invocation of journalistic privilege?

18. To what extent do journalistic clashes, seven of them now today, apart from that between Alison O’Reilly and Debbie McCann, require to be resolved or even recorded in a report to the Houses of the Oireachtas? And if so, Why?

19. To what extent does the Tribunal have to report on or comment on political involvement or the actions of any individual public representative?

20. Going through the terms of reference, the parties might be so kind as to precisely and concisely give an answer to what each party regards as having been supported by probable evidence.

After reading out his questions, Judge Charleton said:

“So, that is just an indication of thinking, it is no more than that. It may help, it may not.”

From today’s hearing…

UPDATE:

The George Bernard Shaw line, quoted by Judge Charleton was that “the altar upon which Irish martyrs are consecrated is the gallows“.

Judge Charleton also included RTÉ’s crime correspondent Paul Reynolds and Tim Vaughan, former editor of the Irish Examiner, in respect of this point about martyrdom.

From top: RTÉ’s Crime Correspondent Paul Reynolds covering the Jastine Valdez search in May; with Ray Burke, RTÉ producer; leaving the tribunal last week

Paul Reynolds has been employed by RTÉ for the past 27 years and has been the State broadcaster’s crime correspondent since Veronica Guerin’s death in 1996.

He gave evidence to the Disclosures Tribunal over three days last week.

The tribunal is examining allegations by the former head of the Garda Press Office Supt Dave Taylor that he was instructed, in mid-2013, by the former Garda Commissioner Martin Callinan – with the knowledge of Mr Callinan’s successor Nóirín O’Sullivan – to convey to journalists that Sgt McCabe was driven by maliciousness and motivated by revenge due to an allegation of sexual assault made against him in 2006.

This was the allegation made by a Ms D – the daughter of a former Garda colleague of Sgt McCabe who was sanctioned after Sgt McCabe made a complaint on foot of the colleague attending the scene of a suicide after drinking alcohol.

In April 2007, the DPP found Ms D’s allegation had no foundation.

Supt Taylor alleges that he was instructed to tell journalists about this allegation and to tell them that the DPP ruled against a prosecution, but that he was to convey that it was the “root cause” of Sgt McCabe’s complaints about malpractice within An Garda Siochana.

Following on from this, the reasons Mr Reynolds was giving evidence to the tribunal were three-fold:

– The former head of the Garda Press Office Supt Dave Taylor claims Mr Reynolds is one of the 11 journalists he claims to have negatively briefed against Sgt McCabe in 2013/2014. Mr Reynolds denies this.

– Dublin City University professor and journalist Colm Kenny claims Mr Reynolds was one of two security correspondents – the other being Tom Brady, of the Irish Independent – who told him in early 2014 that Sgt McCabe was being investigated for child abuse at the time. Mr Reynolds also denies this and the tribunal has heard Mr Brady denies the allegation too.

– The tribunal was tasked with looking at reports by Mr Reynolds on a leaked report of the O’Higgins Commission of Investigation on May 9, 2016 – ahead of the report’s official publication – in which he reported Sgt McCabe “lied”. The report said Sgt McCabe told an “untruth”.

In relation to the allegation that Supt Taylor briefed Mr Reynolds about Sgt McCabe, Supt Taylor claimed he would have done this at crime scenes or press conferences.

Mr Reynolds – who said he became aware of a child sex abuse allegation against Sgt McCabe in 2013 in the context of the penalty points controversy – gave a lengthy, and somewhat breathless, account as to why this would never happen.

He said:

“Well, that didn’t happen. And anybody who knows how reporters work in the field, knows that that, you know, couldn’t happen the way it is explained there. If I can give you an example, Chairman.

“For example, I go to a lot of murder scenes. They’re busy places. I arrive with a camera crew or a satellite van. I get at the scene. I have to find out what is going on, what happened, what are the details. I’m moving around, I’m trying to identify if there are any eyewitnesss. I’m trying to — we’re trying to, you know, for everything, to try and find parking for the satellite van and trying to find location for a live view.

“You’re trying to find out what happened, who the victim is, what the situation is, what the circumstances are. You’re waiting for the guards to arrive, you’re waiting for, is there going to be a press briefing, there may be a press briefing and whether it’s at the scene or whether it’s at the Garda station, and the senior officer will arrive and that is usually when the press officer will arrive.

“So the press officer will be in the company of the senior investigating officer. But when Dave Taylor was the Press Officer, more often than not he would do it himself. I would be just one of a number of journalists there. There’s a thing called the huddle, where the microphones are set up, we’re in a group, and in many cases I tend to be asking all the questions because I have responsibility both to television and radio, so we tend to try and put an elongated interview on the radio, and you’re asking questions about the murder and the circumstances, you’re getting as much information as you can so you can broadcast it.

“Once you have that information, you’re gone to the satellite van, you’re trying to get the stuff together. The idea that someone would come in, or, you know, that a press officer would sidle over to you and — in the middle of a particular story and try and talk to you about something completely innocuous, completely different, you know, it doesn’t make sense, really, and it’s not — it wouldn’t happen.

“And how was I separated, you know, the goat, how was I separated from the sheep within the huddle, that we’re all there, we’re all trying to work on this story, so how was I separated
for this particular negative briefing, how were journalists separated, how were other journalists not separated? It just doesn’t make sense to me. I can’t see how it is possible.”

Supt Taylor’s counsel John Ferry BL later put it to Mr Reynolds that he is the “newsman in this country” and suggested it was “completely unrealistic” that he would learn about the past allegation against Sgt McCabe and simply dismiss it.

Mr Ferry said:

“So you have a situation where the journalist that is normally in front of Garda Headquarters, normally in front of the Department of Justice or normally standing in front of a murder scene tent on the six o’clock news, he is told that the actual sergeant who is raising the penalty points issue that the Garda Commissioner is held answerable to has been accused of child sexual abuse in the past… and the journalist says that is the end, no further inquiries?”

It’s a bit like, I don’t know if you ever saw the Naked Gun movies and Lieutenant Drebin is standing in front of the fireworks factory that has just gone on fire and he is giving a press conference to the media and saying move along folks, nothing to see here while the entire fireworks factory is exploding in the sky behind them.”

Mr Reynolds, after saying he knew Sgt McCabe had been exonerated, told Mr Ferry he should work in television.

In relation to Mr Kenny’s claim, Mr Reynolds said this conversation never took place.

When giving evidence Mr Kenny told the tribunal that in early 2014, two security correspondents – whom he didn’t name but whose names he gave to the tribunal – told him Sgt McCabe was being investigated for child sex abuse.

He didn’t appear to be sure of the date during which this alleged conversation took place.

But he said he felt the two journalists were telling him to “cop himself on” and to “not take Sgt McCabe at face value”.

He also said they encouraged him to go and talk to gardai “up there” – which Mr Kenny took to mean gardai in Cavan/Monaghan.

Mr Kenny said they didn’t name any specific people with whom he should discuss the matter.

Mr Kenny said he subsequently went to Sgt McCabe and learned of the DPP’s directions.

He mentioned Sgt McCabe and the DPP’s directions in an article on March 2, 2014 in the Sunday Independentalmost a week before the Irish Independent’s Paul Williams, who was the only journalist to write an article about Ms D in 2014, interviewed Ms D on March 8, 2014. [Mr Williams has since told the tribunal that he doesn’t believe he saw Mr Kenny’s article at the time].

Mr Kenny said the two journalists – whom he said he took very seriously – definitely did not indicate that the child sex abuse allegation was something from the past which had been dismissed by the DPP.

Mr Reynolds categorically denied Mr Kenny’s claim and the tribunal has heard Mr Brady also disputes the claim.

It was put to Mr Reynolds that Mr Kenny believed the conversation may have taken place sometime around a Dáil committee meeting in February 2014 and, in particular, one on February 19, 2014.

Mr Reynolds said he wasn’t at that committee meeting that day, he wasn’t working that day and he was ill that afternoon.

Mr Reynolds told the tribunal:

“The conversation that he alleges didn’t happen…I never spoke to him about Sgt McCabe…The man is mistaken…For the last five years, Mr Kenny has been writing disparagingly and factually incorrectly about me.”

Separate to his reports on the leaked O’Higgins Commission of Investigation report in May 2016, Mr Reynolds was also asked about reports he did two years before that – on February 24, 2014 – in relation to the internal penalty points investigation by Asst Commissioner John O’Mahoney.

Apart from allegedly telling journalists about the Ms D allegation, Supt Taylor claims, in his protected disclosure, that he was also to convey to journalists that Sgt McCabe didn’t cooperate with an internal Garda investigation called Operation Squeeze into the quashing of penalty points led by Assistant Commissioner John O’Mahony – which began in October 2012 and reported in May 2013.

Specifically, Supt Taylor said:

I was instructed by the Commissioner to brief the media that Sergeant McCabe had refused to cooperate with Assistant Commissioner O’Mahony. I later found out that this was untrue.”

[It should be noted that this was a claim made by celebrity solicitor Gerald Kean on RTE’s Marian Finucane Show on Sunday, January 26, 2014 – after Mr Callinan appeared before the Public Accounts Committee on Thursday, January 23, 2014, and before Sgt Maurice McCabe appeared before the same on Tuesday, January 28.

Mr Kean had received a briefing from Mr Callinan before the show and has told the tribunal that Mr Callinan instructed him not to reveal him [Callinan] as his source of information – a claim Mr Callinan denies.

In addition, Supt Taylor told the tribunal that the only journalist who pushed back at him in relation to this was Conor Lally, of The Irish Times and that Mr Lally told Supt Taylor he didn’t believe the claim.

When Mr Lally gave evidence, he initially said he couldn’t recall ever having such a conversation with Supt Taylor but then said: “I really can’t get into, for reasons of source protection I really can’t get into specific conversations that I had with individual Garda members.”

He then said: “I don’t remember any conversation with him about that issue, and I’m not sure that conversation took place, actually.”]

Mr Reynolds reported on the O’Mahony investigation on February 24, 2014 – about a month after the then Garda Commissioner Martin Callinan made his “disgusting” remark at the Public Accounts Committee.

Mr Reynolds reported:

The Garda Commissioner wrote to the whistleblower, Sergeant Maurice McCabe, 14 months ago and told him to cooperate with the investigation into allegations that penalty points had been cancelled.

Martin Callinan issued a direction to the sergeant on the 14th December 2012 to cooperate with the investigation being carried out by the Assistant Commissioner John O’Mahony and directing him to bring any information or concerns he had to the inquiry.

The Garda Síochána is a disciplined force and members are required to comply with directions issued by the Commissioner. It is understood that Sergeant McCabe may have been on sick leave for a number of months from December 2012 and did not contact the assistant commissioner until April 2013, by which time the investigation had been completed.”

Mr Reynolds explained to the the tribunal how he came to write this report.

His first report about the matter went on the RTE website at 14.28pm – after he got sight of a letter which was read out to Sgt McCabe in December 2014 by Chief Supt Mark Curran. This letter can be read here.

Mr Reynolds said he didn’t get it from Supt Taylor and that he got it from someone else.

Mr Reynolds said after this story went up online, he sought an on-the-record response from Garda Headquarters and Sgt McCabe.

He said, within about 90 minutes, he received an on-the-record response from Supt Taylor which stated that the then Garda Commissioner Martin Callinan told Sgt McCabe to cooperate with the O’Mahony investigation.

Mr Reynolds then updated his story at around 4pm.

Later that day, Sgt McCabe gave a response to Katie Hannon of RTÉ’s Prime Time and Mr Reynolds said he then incorporated Sgt McCabe’s response into his reports later that evening and the following morning.

The tribunal saw that, a few days after Mr Reynolds’ report on the O’Mahony investigation, John Burke, of RTÉs This Week radio show, wrote to the Garda Press Office:

“In light of statements given in the Dáil during the week and the statement by Garda Sergeant Maurice McCabe with regard to whether Sergeant McCabe cooperated with the O’Mahony inquiry into penalty points, can you please inform RTÉ’s This Week programme whether the Garda Commissioner wishes to add or amend any remarks he has put into the public domain or which have been attributed to him with regard to this matter.”

In response, Tony Connaughton, of the Garda Press Office, wrote back to Mr Burke saying:

The Garda Commissioner wishes to confirm that he did not put any remarks into the public domain. Any comments that the Garda Commissioner wishes to put on the public record will be by way of official statement issued by the Garda Press Office or face-to-face
interviews quoting what the Garda Commissioner wishes to convey.

The Garda Síochána Ombudsman Commission have been appointed to investigate this matter, and therefore it is inappropriate to comment.”

To recap.

Mr Reynolds says he did a report for RTE based on an on-the-record statement from Garda HQ – via Supt Taylor – but Mr Callinan, via the Garda Press Office, later told a separate RTE reporter that he did not put any remarks into the public domain and that the matter was being investigated by GSOC.

Mr Reynolds told the tribunal he only saw Mr Burke’s email exchange while sitting in the witness box.

He also told the tribunal:

“Well, I mean, I spoke to the Garda Press Officer, I wrote up the story, it went on-line at four o’clock, there were no complaints from the Garda Press Officer, and I had spoken to him a number of times later on that evening and there were no complaints from the Garda Commissioner or the Garda Press Office in relation to the inaccuracy of the story.”

He added:

“I know I got an official statement from the Garda Press Office. I put it on the record and I attributed it…So if there was any problems with it, I would have heard.”

Kathleen Leader then had this exchange with Mr Reynolds:

Leader: “…what I am suggesting to you is, it would seem to be that at least Superintendent Taylor was making it clear to you, as I understand it, that Sergeant McCabe had not cooperated with the O’Mahony inquiry.”

Reynolds: “First of all, I was never briefed by Superintendent Taylor that Sergeant McCabe refused to cooperate.”

Leader: “Yes.”

Reynolds: “I never reported that he refused to cooperate. I was given a statement from Garda Headquarters that said the Garda Commissioner said he didn’t cooperate.”

Leader: “Okay.”

Reynolds: “And that is what I published.”

It should be noted that Asst Commissioner John O’Mahony – when he gave evidence on June 6 last – was shown Mr Reynolds’ report and said he was not Mr Reynolds’ source and never spoke to Mr Reynolds about it.

He also says that what Mr Reynolds reported “wouldn’t be my view either in relation to what
had actually happened”.

Asst Comm O’Mahony – when he gave his evidence – also made it known publicly for the first time that he purposefully didn’t engage with Sgt McCabe when he was carrying out his investigation as he felt “precluded” from doing so, due to regulations.

He also said Mr Callinan would “been aware of the process” he was undertaking.

Meanwhile, in regards to Mr Reynolds’ reports on the leaked O’Higgins Commission of Investigation report on May 9, 2016…

In Sgt McCabe’s protected disclosure of September 2016, Sgt McCabe said he was on work-related stress and:

“One of the reasons for this is to a disgraceful series of broadcasts on RTÉ on 9th May 2016 purporting to leak an account of the unpublished O’Higgins Commission report in which I was branded a liar and irresponsible.

“I am now satisfied on impeccable authority that those RTÉ broadcasts were planned and orchestrated by the Commissioner Nóirín O’Sullivan personally using briefing material prepared at Garda Headquarters.”

The tribunal has already heard that Sgt McCabe’s “impeccable authority” for this claim is John Barrett, the head of HR at An Garda Síochána. Sgt McCabe told the tribunal that Mr Barrett told Sgt McCabe and his wife Lorraine during a visit to their home.

But Mr Barrett, the tribunal has heard, says this conversation did not take place.

Michael McDowell SC, for Sgt McCabe, told the tribunal last Friday that Sgt McCabe would not be withdrawing the allegation. He said:

“Sergeant McCabe isn’t in a position to withdraw anything; he has faithfully reported to the Tribunal what he was told by Mr Barrett and it’s up to this Tribunal to ascertain whether his account of what Mr Barrett told him is correct or whether it’s not, but he is not withdrawing his testimony as to what he was told by Mr Barrett.”

Mr Barrett will resume giving evidence on this on Thursday.

Mr Reynolds, who told the tribunal he would have risen “through the ranks” with Ms O’Sullivan, said he only became aware of Sgt McCabe in 2013 due to the penalty point controversies that arose that year.

In December 2012, People Before Profit TD Joan Collins named Irish Independentjournalist Paul Williams as having had points quashed while, in April 2013, Gemma O’Doherty, in the Irish Independent, reported that points pertaining to the then Garda Commissioner Martin Callinan had been quashed.

[The tribunal has repeatedly heard Sgt McCabe wasn’t the source of Ms O’Doherty’s story].

Mr Reynolds said, also in 2013 and in the context of the penalty points controversies, he became aware of a child sex abuse allegation which had been made in the past about Sgt McCabe.

Similar to other journalists – such as Conor Lally, of The Irish Times, Michael O’Toole, of the Irish Daily Star, and John Mooney, of The Sunday Times – Mr Reynolds said the matter never concerned him because of his knowledge of the DPP’s directions in relation to it.

He said:

“I think I first heard that there had been an allegation some time around 2013, but I heard it all together, if you know what I mean, I heard there had been an allegation but that there was nothing to do it, and then I heard four facts in relation to it: I heard the fact that there was an allegation, I heard the fact that there was an investigation, I heard the fact that a file had been sent to the DPP and I heard the fact that there was no prosecution. And that’s it…once I heard that the DPP had decided there was no prosecution, it was… as far as I was concerned, it was nothing to do with me as a reporter.”

In his statement to the tribunal, Mr Reynolds said: “I do know that the allegation was circulating for a time in media, Garda and political circles.”

He also told the tribunal:

“I knew politicians knew about it, I knew journalists knew about it, I knew Gardaí knew about it, but I also knew myself about it and I knew there was nothing in it.”

Mr Reynolds was asked if he ever thought that when he heard about the allegation, did he feel it was being linked to Sgt McCabe’s motivation for making complaints about poor policing in Cavan/Monaghan.

Mr Reynolds was categorical that this wasn’t the case.

He said:

“No, I’ve never heard that, and that didn’t make sense to me…Because he was exonerated.”

And yet, reference to the Ms D allegation came up twice in notes that Mr Reynolds took in April and May of 2016 – ahead of his reports on his leaked copies of the O’Higgins report.

Mr Reynolds referred to his notes as “bits and bobs”, he said some things he jotted down were his own reflections while others were notes of conversations he had with others.

In his April notes, Mr Reynolds wrote down:

Sgt in charge
– Complain against him
– Investigation locally (mistake)
(Wrong) – Supt Clancy

Mr Reynolds said that this note was born out of a conversation he had with a person who was talking to him about the 2006 Ms D allegation.

He said:

“The person I was talking to told me that the — in the — the allegation in 2006 was investigated locally and that was a mistake, it shouldn’t have been investigated by the local inspector. It was kept in that division, it should have been — an officer from outside the district or the division should have been appointed to look after that. That was what the person told me.”

When asked by Kathleen Leader what the D allegation had to do with the O’Higgins Commission of Investigation, Mr Reynolds said:

“Well, nothing really, yeah. This is the sort of thing that comes up in conversation, when you are talking about policing in Bailieboro, the problems of the division, you know, and it would have been a conversation like that, you know, that would have been wide-ranging, where I would have heard, first of all, about — the allegation would have come up and somebody would have said, oh, there was a complaint made in 2006 but sure there was nothing in it. And I’d say, oh, what do you mean a complaint? Well, there was a complaint made, it was abuse of a minor, it was investigated, there was a file sent to the DPP and there was no prosecution. Oh, right, okay.”

Asked if he believed this information was being relayed to him by means of explaining Sgt McCabe’s complaints thereafter, Mr Reynolds said:

“No I don’t believe so.”

Asked if that information came from Ms O’Sullivan, Mr Reynolds said: No.

Ms Leader later referred to the second time the Ms D allegation cropped up in his notes -this time in May 2016.

The note said:

“Initial complaint, 2 [guards] working in the same station. Boss down the corridor asked to investigate it.”

Again, Ms Leader asked Mr Reynolds what the Ms D allegation had to do with the O’Higgins Commission of Investigation.

Mr Reynolds said:

I don’t know where it came from. It could have come from a conversation.

Mr Reynolds repeated that he never believed that the Ms D allegation was the source of Sgt McCabe’s complaints.

He then had this exchange with Ms Leader:

Leader: “Why did you think you were being told about it?”

Reynolds: “I didn’t think about that.”

Leader:You’re a journalist; surely, Mr Reynolds, you would put — ask a question, why am I being told about this?”

Reynolds:No, well, you see, I already knew at that stage that there was no prosecution.”

Leader: “Well, that is exactly the point.”

Reynolds: “Yeah.”

Leader: “So why are you being told about it? Did you ever ask yourself that?”

Reynolds:No.

Tomorrow we will publish a comprehensive report on Mr Reynolds’s RTE reports of May 9, 2014.

The tribunal resumes on Thursday.

Yesterday: A New Disclosure

Rollingnews

Supreme Court judge Peter Charleton

The Disclosures Tribunal will resume on Thursday.

It’s examining allegations of a smear campaign against Sgt Maurice McCabe, as alleged by the former head of the Garda Press Office Supt Dave Taylor.

The tribunal will sit from 10am to 4pm on Thursday with the following witnesses scheduled:

John Barrett, head of human resources at An Garda Síochána; Niamh O’Connor, RTE; Tom Donnelly, RTE; editor of the Irish Mirror, John Kierans; retired superintendent John McCann; Fergus O’Shea, formerly of the Irish Sun; Independents 4 Change TD Clare Daly; Independents 4 Change TD; Mick Wallace, Cathal McMahon, formerly of the Irish Mirror; and Tom Brady, of security correspondent at the Irish Independent.

On Friday, the tribunal will sit from 9am until 12.45pm when it is scheduled to hear from witnesses not heard on Thursday and Robert Cox, news editor at the Irish Mail on Sunday.

According to the tribunal’s website, Judge Peter Charleton will hear submissions on journalistic privilege after the aforementioned witnesses give evidence so they will be heard on Friday and Saturday, from 10am.

The website states:

Submissions on journalistic privilege will commence directly after the completion of evidence. The Sole member in exercising his powers of case management as a High Court judge, has directed that no oral submission is to exceed 30 minutes. No written submissions are sought, but a short speaking note, not exceeding 5,000 words, that may be used or handed in on the day.

The website adds that any remaining witnesses may be heard next Monday, Wednesday, Thursday and Friday between 10am and 4pm.

It says:

If a referral to the High Court is made, the tribunal will adjourn appropriately with no known recommencement date. If a referral is not made, final submissions will be taken during this week in accordance with the time sought by parties, with flexibility allowed as reasonable. Submissions if desired are to the tribunal and can be a speaking note used or handed in on the day, as in the taking of submissions previously.”

Previously: A New Disclosure

Disclosures Tribunal

Rollingnews

INM’s Paul Williams and Dearbhail McDonald at the Dublin Castle this week

Independent News and Media Group Business Editor Dearbhail McDonald gave evidence on Tuesday at the Disclosures Tribunal in Dublin Castle.

Ms McDonald was asked about her involvement in the editorial process ahead of the publication of Irish Independent journalist Paul Williams’s first article about Ms D and Sgt Maurice McCabe which was published on April 12, 2014.

Ms McDonald, who would have been Legal Editor at INM at the time, was tasked with “stress-testing” and “fact-checking” Mr Williams’ first article about Sgt McCabe and Ms D.

Ultimately, she told the tribunal, she advised against Mr Williams’ first draft being published.

She also told Micheál Ó Higgins SC, for An Garda Síochána, that her advice led to Sgt McCabe’s reputation being “protected”, saying:

“I believe that the advices that I gave and the role that I played actually went to ensure that Mr McCabe’s reputation was protected. I gave advices, I’m not going to go into the specific advices that I gave. But the ultimate decision of an editor is final. And perhaps I wouldn’t — well, I know I advised against publication.”

Ms McDonald told Judge Peter Charleton:

“For reasons of confidentiality and privilege, I don’t want to go into the specific advices that I gave, but certainly there were material changes between the draft I saw and the article that was ultimately published.”

The tribunal has since asked Mr Williams if he can furnish the tribunal with the first draft of his first story on Ms D.

Both Ms McDonald and Mr Williams have both told the tribunal that they never spoke to each other about her “stress-testing” of his article – with Mr Williams saying he only learned last month of what she did through statements given to the tribunal.

The tribunal is examining a claim by the former head of the Garda Press Office Supt Dave Taylor that he was instructed by former Garda Commissioner Martin Callinan – with the knowledge of Mr Callinan’s successor Nóirín O’Sullivan – to negatively brief journalists about Sgt McCabe by telling them about the Ms D allegation made against Sgt McCabe in 2006.

In December 2006, the daughter of a Garda colleague of Sgt McCabe’s, referred to as Ms D, made an allegation of ‘dry humping’ against Sgt McCabe to gardai.

The matter was investigated by then Inspector Noel Cunningham, his investigation went to the DPP and, in April 2007, the DPP unequivocally ruled there was no basis for a prosecution.

Supt Taylor alleges that he was instructed to tell journalists about Ms D’s 2006 allegation and to tell them that, while the DPP ruled against a prosecution, the investigation was still the “root cause” of Sgt McCabe’s complaints about malpractice within An Garda Siochana.

The tribunal has already heard that three journalists called to the D family home in early 2014 – Debbie McCann, of the Irish Mail on Sunday; Eavan Murray, of The Irish Sun; and Mr Williams.

However, only Mr Williams – who interviewed Ms D and part-videoed an interview with Ms D on March 8, 2014 – wrote about Ms D in 2014.

He wrote four articles about Ms D which were published April and May 2014.

Mr Williams has told the tribunal he was not negatively briefed by either Supt Taylor, Ms O’Sullivan or Mr Callinan.

Ms O’Sullivan and Mr Callinan both deny Supt Taylor’s claims.

Ms McDonald explained to the tribunal that in March 2014 – at a time when she was covering the Anglo trial of Pat Whelan, Willie McAteer and Sean FitzPatrick in the Criminal Courts of Justice – she was asked by then INM Group Editor Stephen Rae to “stress-test” Mr Williams’ first article about Ms D.

Ms McDonald said she was asked to:

“…essentially stress-test a story that had been written by a colleague that they were considering for a publication, and I was tasked with that by my editor and asked to go off and make my own inquiries and to come back and see was it fit for publication, in my view, in terms of both being legally and factually robust…”

She further explained that she did know the article was about Sgt McCabe, saying:

“Yeah, at that stage it was fairly evident that it was, and I undertook my own inquiries and
reported back to my editor, Stephen Rae, to our group head of news, Ian Mallon, and, as the Tribunal is aware from my statement, I did compose a memo over which I’ve raised confidentiality and privilege, outlining some of my observations, concerns and the risks as I perceived them, and that was the end of the matter for me.”

Ms McDonald told the tribunal that she was given both the article and the video interview to consider before she made her own “inquiries”.

She also said that in/or around March 14 she would have watched the video in the company of Mr Rae and Mr Mallon.

[Mr Mallon can’t recall any meeting about the article or seeing the video]

Ms McDonald said she wrote up a memo, with her notes, as part of her inquiries and:

“It was quite a discrete function, task that I had been assigned. I did that. I had no — I wasn’t apprised of anything that happened before that, or how it came about, and I had no interaction thereafter with it. I went back to the CCJ [Criminal Courts of Justice] after that.”

Ms McDonald was asked by the counsel for An Garda Síochána if she was aware of the criticism that has been levelled against Mr Williams for him not contacting Sgt McCabe ahead of the publication of his series of articles.

[Mr Williams has already told the tribunal that he didn’t feel he needed to contact Sgt McCabe because Sgt McCabe wasn’t identified in the articles – though Sgt McCabe, and many witnesses have already told the tribunal they believed the articles were about him when they read them]

In response to this, Ms McDonald said:

“I have no knowledge of that because I was brought in specifically to assess or give my views or opinions, I have no absolutely no carriage or knowledge of what the company otherwise did in terms of liaising with Mr. McCabe or any of the relevant parties.”

However.

Yesterday, Mr Ó Higgins SC, for An Garda Síochána, asked Mr Williams if he was aware that Ms McDonald, as part of her fact-checking exercise, contacted Michael McDowell SC, for Sgt McCabe, in March 2014.

Mr Williams said he wasn’t aware of this until April of this year – via the tirbunal.

Judge Charleton said there was nothing wrong with this contact between Ms McDonald and Mr McDowell, saying it was “a perfectly legitimate exercise as opposed to taking sides” while Mr Ó Higgins SC, for the gardaí, saying he wasn’t suggesting otherwise.

Separately.

The tribunal has heard intermittently about a ‘poison pen’ letter, dated February 26, 2014, about Sgt McCabe which was sent to RTÉ and INM.

On Tuesday, Ms McDonald was asked about this letter and her knowledge, if any, of it.

She told Kathleen Leader SC, for the tribunal:

“It was the Tribunal through — or my lawyer, our lawyers, through the Tribunal, that brought attention to it, and I have no knowledge of it, no receipt of it, haven’t had it in my possession, did not see it until it was provided by the Tribunal.

And just even in terms of my own general practice, I do maintain a readers’ correspondence file where it’s suitable to hold on to material, and, if I had received that, I would have brought it to the attention of the relevant news editor or person that was working on it.

But I certainly, if it had been in possession, would not have given it away. I have a practice of retaining important correspondence when I receive it, including unsolicited and anonymous correspondence.”

Later, it was put to Ms McDonald by Mr Ó Higgins SC, for the gardaí, that, according to a statement of Sgt McCabe, Ms McDonald had “a role in relation to the issuance or the production of that letter and it coming to the attention of Sergeant McCabe’s side of the house?

Ms McDonald said this was incorrect.

She said:

“And I just have to take issue and disagree with that because I am quite emphatic about my knowledge. The first time I saw or received the letter, had knowledge of the so-called foxtrot bravo letter, when it was brought to my attention courtesy of the Tribunal.”

She added:

He [Sgt McCabe] says, “it was my understanding”, namely Mr McCabe’s understanding at the time, that the document had been given to a person. That was — that is not the case.”

Diarmaid McGuinness SC, for the tribunal, yesterday asked Mr Williams about this letter.

They had the following exchange:

McGuinness: “…just one final matter. The investigators asked you about this and you were shown a document… This is a letter dated — purported to be dated the 26th February of 2014, and Sergeant McCabe, when being interviewed by Mr [Sean] Guerin, read a fragment of it to Mr Guerin in connection with an allegation of sexual assault of a minor.”

Williams: “I’m aware of this, yeah.”

McGuinness: “So that was on the 1st April. And he told Mr. Guerin that his counsel had got it from the Irish Independent…”

Williams: “I read the statement…”

McGuinness: “…a couple of weeks earlier than that?”

Williams:He told Mr Guerin that he got it — that his counsel, Mr McDowell, got it from Dearbhail McDonald in the Irish Independent. I read that. In 2014, this was?”

McGuinness:Yes.”

Williams: “I saw that, yeah.”

McGuinness: “And Sergeant McCabe then made a statement explaining his understanding of it…We’ve also been informed that Prime Time received this at the end of February. And we belatedly received a copy of that, a version of that letter from them since.”

Williams: “Prime Time received it when?”

McGuinness: “In February 2014.”

Williams: “Is this the same document?”

McGuinness: “Yes.”

Williams: “Oh, right, okay.”

McGuinness: “But just in the context of this issue as to whether it came to the Independent, did you ever see this letter before?”

Williams: “The first time I ever heard about this document was in April when the Tribunal contacted my solicitor, and I saw it then the next day. I had no knowledge of it, never saw it before in my life.”

McGuinness: “And you heard no talk of it, about having been received or…”

Williams: “Never heard of it.”

McGuinness: “…going the rounds…”

Williams: “No.”

McGuinness: “… or going to any other news organisations…”

Williams: “No.”

McGuinness: “… or chitchat. Ms [Katie] Hannon referred to it in a broadcast in July 2016 on a Prime Time programme.”

Williams: “No.”

McGuinness: “Did you pick up the reference from that at any stage?”

Williams: “No.”

McGuinness: “In any event, this played no part in your knowledge or
information or decision-making?”

Williams: “No, and I also am very cognisant that my colleague Dearbhail McDonald made a very unambiguous statement stating that she never saw this document and never gave it to Mr McDowell.”

McGuinness: “No, I understand that, but I am just…”

Williams: “So I don’t know the provenance of it, I don’t know where it came from.”

McGuinness: “I’m just anxious to get your evidence on the matter to advance matters. Thank you very much, Mr Williams.”

Sgt McCabe’s legal team didn’t ask any questions of either Ms McDonald or Mr Williams – who gave evidence about his articles last summer.

The tribunal resumes.

Rollingnews

From top: Eavan Murray ; Daniel McConnell; Juno McEnroe (left) and Cormac O’Keefe at Dublin Castle today

This morning/afternoon

At the Disclosures Tribunal, in Dublin Castle.

John Mooney, of The Sunday Times and Eavan Murray, of the Irish Sun, have given evidence today into the alleged smearing of Garda whistleblower Sgt Maurice McCabe.

Olga Cronin is live tweeting from the castle and can be followed here.

Also scheduled today are Cormac O’Keeffe, of the Irish Examiner, Daniel McConnell, of the Irish Examiner, Juno McEnroe, of the Irish Examiner and Eavan Murray, of the Irish Sun.

The tribunal has already heard that these four journalists are claiming journalistic privilege.

Mr Mooney was the first journalist to name Sgt Maurice McCabe in relation to his complaints about policing in Cavan/Monaghan back in November 2010.

His article was headlined ‘Internal inquiry clears gardai’ – and it was about an inquiry carried out by the then assistant Garda Commissioner Derek Byrne.

The tribunal is examining allegations by former head of the Garda Press Office Supt Dave Taylor that he negatively briefed journalists against Sgt McCabe – by telling journalists that the “root cause” of his complaints about policing was an allegation made by the daughter (Ms D) of a Garda colleague in 2006.

Supt Taylor alleges he did this between mid-2013 and March 2014 – on the instruction of the former Garda Commissioner Martin Callinan and with the knowledge of the then deputy Garda Commissioner Noirin O’Sullivan.

The allegation made by 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 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.

Ms Murray, of the Irish Sun, the tribunal has already heard, was the second journalist to call to the home of Ms D in February/March 2014, after Debbie McCann, of the Irish Mail on Sunday.

It’s been the evidence of Ms McCann and the D family that Ms McCann was turned away from the door when she called.

In contrast, Mrs D said when Ms Murray called to the house, she was brought into the house and Ms Murray, Mrs D and Mr D had a cup of tea and a chat. Ms D wasn’t at the house at this time.

Mrs D told the tribunal last summer:

I suppose, we probably would have said that our daughter was after going through a couple of years of a very, very hard time and that all this Maurice McCabe stuff back in the papers again wasn’t helping her. Probably something along those lines.

Neither Ms Murray nor Ms McCann wrote articles about Ms D at the time.

The only journalist to write about Ms D in early 2014 – when the penalty points controversy was at its most intense after the then Garda Commissioner Martin Callinan called the actions of Sgt Maurice McCabe and Garda John Wilson “disgusting” at a meeting of the Public Accounts Committee in January 2014 – was Paul Williams, of the Irish Independent.

Mr Williams was the third journalist who called to the D house, on March 8, 2014, with Mr Williams writing four articles based on this interview in April and May 2014 – with the first published on April 12, 2014. Mr Williams is scheduled to give evidence this week.

Mr D also told the tribunal last summer that, around the time Ms McCann and Ms Murray called to the D home, Michael O’Toole, of the Irish Daily Star, also contacted him via Facebook.

When Mr O’Toole gave evidence last week, he wasn’t asked about this alleged attempt to contact Mr D but he said that the allegation pertaining to Ms D was “dead” to him after he first heard about the DPP’s unequivocal directions in respect of the allegation back in 2010/2011.

Mr O’Toole said no journalist “in their right mind” would have sought to write about Ms D once they knew the DPP directions.

Indeed.

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.

Despite this, last summer – just four days before Ms D, Mr D and Mrs D gave evidence to the tribunal – Mr O’Toole tweeted: “Hacks saying the DPP “dismissed” allegations. Really? I thought it either said enough evidence for a charge or not”. This tweet was ‘liked’ by Ms McCann.

Earlier: ‘An Awful Lot Of People Haven’t Told Me The Truth’

Non-Fiction Book Corner

Rollingnews

UPDATE: