Clockwise from top left: Lorraine and Maurice McCabe; Frances Fitzgerald, Noirin O’Sullivan, Ken O’Leary, Michael Flahive, Noel Waters
At the tail-end of former Tanaiste and Minister for Justice Frances Fitzgerald’s appearance at the Disclosures Tribunal.
Ms Fitzgerald said on two occasions that she made a “conscious decision” in respect of an email she received on May 15, 2015, about Sgt Maurice McCabe and the O’Higgins Commission of Investigation.
Readers will recall how the email – originally sent by the then assistant secretary at the Department of Justice Michael Flahive to Ms Fitzgerald’s private secretary Chris Quattrociocchi on May 15, 2015 and then forwarded on to Ms Fitzgerald and others – only emerged last November and largely led to her eventual resignation.
It was only disclosed to the tribunal after it emerged in November.
At the time, when calls were being made for her to resign, Ms Fitzgerald said, ad nauseam, that she couldn’t recall reading the email.
The Dail repeatedly heard from her, and Taoiseach Leo Varadkar, that she and/or the Department of Justice had “no hand, act or part” in forming the former Garda Commissioner Noirin O’Sullivan’s legal strategy at the O’Higgins Commission of Investigation.
Yet yesterday, in response to the suggestion from Diarmaid McGuinness SC, for the tribunal, that, once she got this email, she basically did nothing and consulted nobody – a suggestion repeatedly put to her last November – she responded to the claim somewhat differently.
She told the tribunal that she wouldn’t frame what happened in the manner Mr McGuinness suggested.
Instead, she said: “I made a conscious decision to obviously not interfere with the Commission of Investigation in anyway because I would have seen it as inappropriate.”
She also said: “I made a conscious decision that Judge O’Higgins would deal with whatever issues, as I expected he would, at the Commission.”
As mentioned above, Mr Flahive sent the email to Ms Fitzgerald’s private secretary Chris Quattrociocchi on May 15, 2015, at 4.57pm.
It was sent following a flurry of messages sent from solicitor Annemarie Ryan, of the Chief State Solicitor’s office to Michael Dreelan, of the Attorney General’s office, who in turned contacted his superior at the AG office, Richard Barrett, who in turn went on to contact Mr Flahive – who then wrote to Mr Quattrociocchi.
[Readers will recall how the tribunal has already heard that Ms Ryan wrote down “political dynamite” in a note about what she saw occurring at the O’Higgins Commission on May 15, 2015, and her knowledge of the situation].
But, going back to Mr Flahive’s email to Ms Fitzgerald’s private secretary.
It was sent after the following sequence of events…
From 3.10pm to 3.36pm: The O’Higgins Commission of Investigation adjourned to allow Colm Smyth SC, for Noirin O’Sullivan and other gardai, get instructions after a row broke out over a line of questioning being taken in relation to Sgt Maurice McCabe when evidence was being given by Chief Supt Colm Rooney.
From 3.26pm to 3.40pm: Noirin O’Sullivan spoke on the phone with the then Secretary General of the Department of Justice Noel Waters for around 14 minutes.
Neither Ms O’Sullivan nor Mr Waters kept notes of this call and neither have any real recollection of what was specifically discussed.
At 3.29pm: Noirin O’Sullivan’s counsel sent her a short “letter of comfort” or written advices to her, via her liaison officer at the commission Chief Supt Fergus Healy, saying: “In particular, we consider it necessary and in the interests of a fair and balanced examination of the subject matter of the investigation, that specific issues be put to Sgt. McCabe regarding his conduct and interactions with senior management following the completion of a formal garda investigation into a complaint against Sgt. McCabe which resulted in a direction by the DPP that no further action was to be taken against Sgt. McCabe.”
At 4.10pm: The O’Higgins Commission adjourned for a second time to allow Mr Smyth get his instructions reconfirmed.
At 4.16pm: The then Assistant Secretary to the Department of Justice Ken O’Leary spoke to Noirin O’Sullivan on the phone for around three minutes.
Mr O’Leary has given evidence that there were two “hurried phone calls” that afternoon but Ms O’Sullivan has told the tribunal that doesn’t accord with her memory or record of events.
There are no notes of these calls.
But Mr O’Leary’s evidence has been that during the first call Ms O’Sullivan told him an issue had arisen at the commission and asked him if there was anything that he believed she should be mindful of.
The tribunal has also heard that in his statement to the tribunal, Mr O’Leary said Ms O’Sullivan called him.
But this week, when he gave evidence, he said he was changing that stance.
He said: “I’m changing it to the extent that I think it may have been that I had been on the telephone to the Commissioner or the Commissioner had another phone, that isn’t included in the records.”
At 4.34pm: The O’Higgins Commission of Investigation resumed and Colm Smyth SC, for Ms O’Sullivan and other gardai, told Judge O’Higgins that his instructions were reconfirmed – which were to challenge the credibility and motivation of Sgt Maurice McCabe.
Mr Smyth also told the commission that afternoon that Ms O’Sullivan was challenging Sgt McCabe’s “integrity” but later, in late June 2015, Mr Smyth told the commission this was an error on his part.
In a nutshell.
The sequence of those communications shows Ms O’Sullivan spoke to officials from the Department of Justice before Mr Smyth’s instructions were reconfirmed..
Both Mr O’Leary and Mr Waters, although they have no notes and no specific recollection, say they would not have given advice to Ms O’Sullivan on how to instruct her legal counsel.
In addition, Ms O’Sullivan, despite also not having any specific recollection of these calls, also told the tribunal:
“At no time did I discuss or seek approval/advice from the Department in respect of my instructions or otherwise to counsel. In fact, instructions had already been given to counsel. An Garda Síochána was represented independently from the Department of Justice at the Commission, and as such, the Department have no involvement in any instructions given by me to counsel.”
So where does Ms Fitzgerald fit into this?
And what of the famous May 15 2015 email?
It should be noted that the two Department of Justice officials Ms O’Sullivan spoke to before her instructions were reconfirmed – namely Ken O’Leary and Noel Waters – also got the email.
And not only that, before the email was sent, Mr O’Leary had had a telephone conversation with Mr Flahive – who called Mr O’Leary after he had been contacted by Richard Barrett, of the Attorney General’s office, as previously mentioned.
During that phone call, Mr O’Leary disclosed to Mr Flahive that he had spoken to Ms O’Sullivan on the phone twice – but Mr Flahive didn’t disclose this detail in the email to the minister.
Mr O’Leary said that he himself had been thinking of drawing up an email for the minister but was happy for Mr Flahive to do so, as he felt it was more appropriate for Mr Flahive to contact Ms Fitzgerald.
Mr O’Leary told the tribunal:
“The Minister, in my view, could have had no role in relation to the Garda case at the Commission, and contacts between the Commissioner and the Minister about the Commission, once it was going on, I was a bit uneasy about. But while I was thinking of what I might say to the Minister, Michael Flahive was on to me. His information had come from the Attorney General’s office, and it seemed to me that was, for want of a better phrase, a legitimate route for the Minister to get the information. And we agreed that he’d write an email setting out the conversations that he had or conversation that he had with Richard Barrett in the Attorney’s office.”
Amid talk of inappropriate contacts, it should be noted, during Mr O’Leary’s evidence, Diarmaid McGuinness SC, for the tribunal, pointedly noted that:
“She [Ms O’Sullivan] discussed matters with you that had arisen at the O’Higgins Commission in private…On an informal basis, she [Ms O’Sullivan] was happy to discuss it with you…”
But back to the email…
In addition to sending the email to Mr Quattrociocchi, Mr Flahive also cc-ed the now famous 4.57pm email to Mr Waters, by way of a Sec Gen Office group email address, Mr O’Leary and the department’s principal officer for policing Martin Power.
After Mr Quattrociocchi got the email, he bounced it on, at 5.04pm, to, as mentioned above, Ms Fitzgerald, and also to her two special advisors Fine Gael councillor Willliam Lavelle and Marion Mannion.
The tribunal has heard that, in all, ten people received the email.
Of this ten, the following people have been asked if they could recall reading the email.
These were their responses:
Mr Waters said: “I have no recollection of that email, but my private secretary advises that he received that and that he brought it to my attention on the following Monday, the 18th, and that I — he subsequently sent back an email to the writer, to Michael Flahive, to say that I had noted it.”
Mr Quattrociocchi: “I don’t have specific recollection, no.”
Mr Waters’ private secretary Denis Griffin, who was on the Sec Gen Office email group: “No, I don’t actually receiving it” [sic].
Dale Sunderland, a former principal officer and Head of Communications and Corporate Secretariat at the Department of Justice, who also got the email as part of the Sec Gen Office email group, said: “I don’t specifically have a memory of reading it, but I’m quite sure I did read it because I always made it my business to read all my emails.”
Bernadette Phelan, assistant principal officer in the corporate secretariat office in the Department of Justice and Equality, who was also in the Sec Gen Office email group, said: “I don’t recall reading the email.”
Paula Monks, clerical officer in the Department of Justice, who was also in the Sec Gen Office group said: “I don’t, no.”
Mr Lavelle was the only person to recall reading it, saying: “I have a vague recollection of reading it, yes.”
He also said he felt it was a “unique” email and he felt it was “inappropriate” to receive it.
He said he couldn’t recall any other such email from Mr Flahive to the minister that made him feel uncomfortable.
However, he said he never raised it or discussed it with Ms Fitzgerald.
Ms Mannion hasn’t appeared before the tribunal. The tribunal has also heard that she hasn’t given a statement to the tribunal to date.
Interestingly, Ms Leader BL, for the tribunal, pointed out, while Mr Quattrociocchi was giving evidence that, after the Irish Examiner and RTE reported on the O’Higgins Commission of Investigation almost exactly a year later, on or around May 13, 2016 – Ms Fitzgerald had a meeting with Ms O’Sullivan about the O’Higgins commission of investigation.
There was a comprehensive briefing of the meeting prepared for Ms Fitzgerald but it failed to mention the May 15 email, prompting Ms Leader to suggest:
“It would appear, for one way or another, that the information which was transmitted to the Minister on the 15th May 2015 has been, if I can, wiped from history in relation to this particular briefing,”
But, again, why does this email matter?
Mr Flahive’s email was fundamentally wrong.
It claimed – and it was based on fourth-hand information – that the legal row at the O’Higgins Commission centred on counsel for An Garda Siochana raising Ms D’s IRM complaint about the 2006 investigation into her allegation against Sgt McCabe at the commission.
[The tribunal has already heard that Ms D felt the original investigation into her complaint of 2006 wasn’t investigated properly and thus, wanted it included in the IRM. Ms D also made a complaint to GSOC about the 2006/2007 investigation.]
This wasn’t the case. As mentioned above, the legal row at the commission centred on the line of questioning being taken by Mr Smyth when Chief Supt Colm Rooney was giving evidence at the commission and said Sgt McCabe wanted the DPP’s directions – which exonerated Sgt McCabe – challenged.
Even though the claim made about the row in the letter was wrong, many have been wondering why Ms Fitzgerald didn’t become concerned – or why alarm bells didn’t ring out – when she saw the claim about Ms D’s IRM complaint being raised at the commission, given the IRM counsel had ruled in November 2014 that the matter was not to be included in the O’Higgins Commission of Investigation.
Yesterday, the tribunal heard that GSOC sent a nine-page report to Martin Power, a principal officer in the Department of Justice, outlining that it found nothing wrong with the investigation into Ms D’s complaint on May 21, 2015 – six days after the famous May 15, 2015 email.
GSOC specifically asked for Ms Fitzgerald to be told of this.
When Mr Power gave evidence yesterday, Michael McDowell SC, for Sgt McCabe, asked Mr Power when he gave this to the minister.
Mr Power said he couldn’t recall.
Mr McDowell also asked him he would have made a link between the May 15 email and the May 21 GSOC report in respect of the Ms D matter and Sgt McCabe.
Again, like many witnesses before him, Mr Power said he couldn’t recall and state if he made the connection at the time.
The hearing was briefly adjourned when Kathleen Leader BL, for the tribunal interrupted to say Mr Power had signed an affidavit of discovery in May 2017 and that documents discovered to the tribunal related to this GSOC report.
After the brief adjournment, Ms Leader explained that these documents discovered showed the GSOC report was sent by Frank McDermott, assistant principal officer in the policing division at the Department of Justice, to Ms Fitzgerald’s private secretary Chris Quattrociocchi on the very same day it was received – May 21, 2015.
Suddenly Mr Power remembered.
The tribunal then heard the document that was sent to Mr Quattrociocchi had also been forwarded to Noel Waters, Ken O’Leary, Michael Flahive and Martin Power.
And, furthermore, it heard that an 11-page submission – written by a Mr English, also of the garda division within the department and containing the nine-page GSOC report – was sent to Minister Fitzgerald on May 27, 2015.
The tribunal hear Mr Power wrote a covering submission for that submission which was entitled “Complaint by Ms. D, alleged cover-up by Gardaí of assault allegation against Sergeant Maurice McCabe.”
The covering submission was for Michael Flahive whom, it appears, saw it on June 2, 2015 – based on a handwritten note on the document.
In the covering submission, Mr Power wrote: “I think the alleged sexual assault was referred to in a particular context during the recent, initial hearings of the O’Higgins Commission of Investigation”.
Ms Leader asked Mr Power what he thought that referred to.
Mr Power told the tribunal: “I think certainly it’s a reference to the email of the 15th May, wherein the initial reference was made to the issue that had arisen at the O’Higgins Commission that day, and I suspect that either on foot of that then at that time or when this report came in I inquired as to whether there was a link, and clearly — well, I say I think it refers to that”
In turn, Mr McDowell asked Mr Power if it was just “forgetfulness” that caused him to say he couldn’t recall making the link.
Mr Power said: “I simply didn’t recall this submission at that time. But I am happy to say that it’s clear that at the time I sought to make the link, if it was appropriate to make the link and bring it to Michael’s attention who would have certainly been able to make the link if it was an accurate link..”
[Incidentally, May 21, 2015 was the same day Ms O’Sullivan held a private consultation with Colm Smyth SC in her office – a meeting of which there are no notes and, despite taking place just six days after the legal row at the commission, Mr Smyth said they didn’t discuss instructions or the row. Ms O’Sullivan can’t recall any specifics about it.]
Ms Fitzgerald hasn’t been asked yet about her knowledge of the GSOC investigation’s conclusions in May 2015 – but it’s likely she’ll be asked the same question that Mr Power was asked: would she have linked the GSOC report with the May 15 email and would it not have caused her some concern or prompted her to take some action?
Yesterday, she gave about two hours of evidence.
Half of that involved counsel for the tribunal asking her about the email of May 15, 2015 and her lack of a response to it.
Mr McGuinness SC, for the tribunal, asked her, repeatedly, why it didn’t set off alarm bells for her?; why she didn’t ask herself ‘what is going on?’; why, if she didn’t feel she had precise details, did she not speak to Mr Flahive about the matter?; why, if she didn’t think it appropriate to ask questions, why she didn’t ask the Department of Justice’s counsel to speak to An Garda Siochana’s counsel?
Ms Fitzgerald responded in the same way as last November: she didn’t think it was appropriate and that she felt it was a matter for Judge O’Higgins.
She said she never consulted with Ms O’Sullivan, Mr Waters, Mr Power, Mr Flahive, any of her advisors, or anyone else copied into the email.
She said she wasn’t aware of the phonecalls between Ms O’Sullivan and Mr O’Leary and she also wasn’t aware of the solicitor Annemarie Ryan’s “political dynamite” concerns about a judicial review.
And then, at the end, she said she made a “conscious decision” not to do anything.
Ms Fitzgerald will resume questioning this morning at 10am.
Previously: Disclosures, Discrepancies And Noirin
Disclosures Tribunal on Broadsheet