Tag Archives: Judge Peter Charleton

Top: Maurice and Lorraine McCabe arrive to the Disclosures Tribunal last week; Above from left: Head of HR at An Garda Siochana John Barrett, former Chief Administration Officer Cyril Dunne, Michael McDowell SC, for Sgt Maurice McCabe and Supreme Court Judge Peter Charleton

Yesterday.

At the Disclosures Tribunal.

Head of HR at An Garda Siochana John Barrett resumed giving evidence, before Supt Noel Cunningham was questioned (more about Supt Cunningham’s evidence later).

Mr Barrett claims that, following a meeting involving former Garda Commissioner Noirin O’Sullivan and former Chief Administration Officer Cyril Dunne, he was asked to stay back and Mr Dunne made a comment to him in relation to Sgt Maurice McCabe and the O’Higgins Commission of Investigation which took place in 2015.

He says that he was told by Mr Dunne “we’re going to go after him in the Commission”.

Mr Barrett said he believes the “we” was a reference to the executive of An Garda Siochana.

Mr Dunne – who is scheduled to give evidence tomorrow afternoon – denies this ever happened.

Mr Barrett didn’t take a note of this alleged remark and can’t specifically recall when this meeting took place.

But, based on looking at emails, he believes it was on May 13, 2015 – the night before the hearings of the O’Higgins Commission of Investigation began.

On Friday, the tribunal heard Conor Dignam SC, for Ms O’Sullivan, say she was in the UK on May 13, 2015 and left the UK at 5.35pm.

Yesterday Mr Dignam told the tribunal Mr Dunne has said he wasn’t in Garda HQ – where the alleged meeting took place – from 6pm on May 13, 2015 as he had “important” meeting related to a sports club in Wicklow of which he is honorary secretary.

In any case.

Mr Barrett maintains the remark was made to him and Mr Dunne maintains it wasn’t.

Yesterday, Judge Peter Charleton, who is overseeing the tribunal, put specific questions to Mr Barrett.

He asked Mr Barrett about his view of Noirin O’Sullivan as a Garda Commissioner in 2015 and why he didn’t contact her immediately after this comment was made to him.

He asked why it took him two years to tell Sgt McCabe about the alleged remark.

And he then asked him about his relationship with Mr Dunne – drawing attention to the fact there had been newspaper reports that suggested there was some conflict between them.

The questioning prompted Michael McDowell SC, for Sgt McCabe, to say that if questions put to Mr Barrett might infer that Mr Barrett had some kind of grudge against Mr Dunne then either the judge, or some counsel, should ask Mr Barrett out straight if that was the case.

Some tetchy exchanges then followed between Mr McDowell and Judge Charleton.

This is how it unfolded…

Judge Peter Charleton: “When we go back to this time, you are in Human Resources, it’s 2015, it’s early 2015, and you are in the job quite a short time, I think. You joined, what, the end of 2014?

John Barrett: “Yes, 3 October ’14.”

Charleton: “Yes. So you had got to know the Garda Commissioner by then?

Barrett: She was — I met her before I accepted the job. She hadn’t interviewed me, but I went to meet her in her office before I joined the job.

Charleton: And you made what offer?

Barrett:I felt that she was going to try and bring about change in the organisation.

Charleton: Did you feel she was a genuine person?

Barrett: At that point I had absolutely no difficulty with the mission that she set out to me.

Charleton: That is not the question I am asking you, Mr. Barrett.

Barrett: Yes, I did feel she was genuine.

Charleton: Did you feel she was a truthful person?

Barrett: I did, I did, absolutely.

Charleton: All right. And did you feel, in terms of the engagement with Maurice McCabe and the whole idea of whistleblowers perhaps not being right, not always necessarily being saints, but the necessity to listen to them and try to learn from what they were saying —

Barrett: Absolutely.

Charleton: — did you feel she was genuine about that?

Barrett: Yes, I believed that.

Charleton: And did you feel the efforts that you were putting in place, including the lengthy efforts that are detailed in the minute where you were driving along in your car, did you feel that they were actually engaged in, not from the point of view of public relations but from the point of view of setting things to right?

Barrett: I absolutely believed that, and at the end of that journey, Judge, I was quite pleased with the day’s work, yes.

Charleton: You were personally investing heavily in this as well?

Barrett: Yes, my credibility, my time, my energy.

Charleton: In the event that this turned into a success, clearly it would be a success that you would have led as Head of Human Resources?

Barrett: It would have been a collective effort. And I am not driven by individual accolades, but I would have taken some considerable personal pride had it been successful.

Charleton: So there you are, you are in May, you are in the job seven months.

Barrett:Yes.

Charleton: And your boss turns to you, having asked you to remain behind after a meeting with the Commissioner, who is genuinely attempting to move the Gardaí forward and to engage with those who make protected disclosures, and your boss tells you: by the way, we are going to ruin it all before the O’Higgins Commission?

Barrett: He didn’t say that.

Charleton: Well, I am finding it hard to construe it any other way. We are going after Maurice McCabe before the O’Higgins Commission. How do I construe that, Mr Barrett?

Barrett: I am alarmed by it, but I don’t understand it fully, Judge, that is the reality. I didn’t understand.

Charleton: You told me, Mr Barrett, that you had a visceral reaction to it. Visceral, of course, refers to your stomach, your intestines.

Barrett: Yes.

Charleton: Why did you have a visceral reaction to it?

Barrett: I have genuinely invested, time, energy, commitment in trying to move this thing to a point away from conflict. Maybe it’s naivete on my part, but I thought, simply, Judge O’Higgins was going to review all of the facts of the matters that were arising on the terms of reference and make a judgment on those facts, that it wasn’t going to be adversarial in its — that was my view. And clearly, what I had — just the shot fired across my bows was, this is something different. And I was conscious in hearing it, and it’s easy to be wise after the fact, of Maurice — of Sergeant McCabe’s doubts about the bona fides of the organisation when we first met in February. And I hadn’t won Sergeant McCabe over to suddenly believe that the organisation was, you know, after changing its perspective entirely. So this was a work in progress.

Charleton: And your visceral reaction, is what I asked you about.

Barrett: I felt my stomach tighten.

Charleton: Why?

Barrett: I have — it’s just a feature of who I am, sir. I respond to things physically if they either shock or surprise.

Charleton: Did you feel that the process you had started was going to be ruined in consequence of what Mr Dunne revealed to you?

Barrett:  I didn’t know that, but what I did know was, the process I was embarked upon was bearing fruit and I was protective of it.

Charleton: Well, what interpretation did you put on the remark you say that Mr Dunne made to you?

Barrett: The only thing that I, as I said in the transcript, the only thing that I did was, I took a further look at the terms of reference and left the —

Charleton: That is not what I am asking you. I am not interested in the terms of reference. I know the terms of reference. Right. You looked at them. What interpretation did you put on the remark that Mr Dunne made to you?

Barrett: That there would be conflict at O’Higgins of some sort.

Charleton: And how would that impact on the work that you embarked on?

Barrett: I felt that it would damage it. I felt it could possibly damage it.

Charleton: Do you mean possibly, or were you more definite about that, given your visceral reaction?

Barrett: Possibly. It could possibly damage it.

Charleton: Was it not appropriate, therefore, for you to ring the Garda Commissioner, a person whose genuineness you believed in and a person you trusted, and said, look, there may be a problem in relation to the O’Higgins Commission and the way it’s being approached, could we have a word about it?

Barrett: I very much regret not doing that, Judge.

Charleton: I am wondering why you didn’t do it? I am not wondering about your regrets, Mr. Barrett. I am wondering why you didn’t do it?

Barrett: I think that I was probably swept forward into all of the other things that were going on and didn’t do it and let the matter unfold. To a degree, I vested trust in the process. I perhaps shouldn’t have.

Charleton: Maurice McCabe trusted you?

Barrett: He did.

Charleton: And by not doing this, you were prepared to see somebody else, on your account of things, undermine his trust in the organisation, of which, by the way, you are a part.

Barrett: It weighs heavily on me.

Charleton: Whether it weighs heavily on you now or not, is neither here nor there. I am asking, why did you not react by ringing the Garda Commissioner and asking her what was the explanation for this and pointing out to her, look, there may be issues ahead in the event that this particular strategy is followed through, which conflicts with the strategy that we had already agreed and settled upon in numerous meetings?

Barrett: I don’t have a good answer to that, Judge. I don’t. I should have, and I didn’t. I was troubled by it. And then the matters unfolded over the coming weeks. I sought to continue to build a bridge with Maurice. The record shows that it’s sustained. Many of the initiatives that were spoken of, as far back as February, did not continue.

Charleton: It took you two years to tell him about this remark that you say happened.

Barrett: Yes.

Charleton: Why did it take you two years?

Barrett: Because the nature of my engagement — I am representing the organisation in my dealings with him. There are very specific issues arising in that relationship, as I saw it. I was, as I said yesterday — or Friday, in seeking to try and maintain Chinese walls, I wanted to represent the organisation.

Charleton: I really don’t understand this phrase about Chinese walls. I really don’t know what you are talking about when you say “Chinese walls”. It’s a phrase, by the way, that is used in relation to large firms of solicitors that seem to be representing opposite sides of Government agencies through the same firm. Now, I don’t know what it means, but let’s move on. Yourself and Mr Dunne, have you stayed in contact since he left the organisation?

Barrett: I shook his hand when I met him here on the 8th.

Charleton: That’s not what I asked you.

Barrett: We meet periodically.

Charleton: Mr Barrett, that’s not what I asked you.

Barrett: No, we are not socially engaged.

Charleton: Why not?

Barrett: I have no good answer for that. I mean, we had a professional relationship. There are many people for whom I have had — who have been working colleagues that I am not professionally engaged with, and there are people I have long, long engagements with.

Charleton: That is fair enough. For those perhaps who read the newspapers, it may appear that the two of you have been in conflict in relation to the interpretation of certain issues over the course of the last year or so. Would that be correct or incorrect?

Barrett: The issue is the —

Charleton: Forget about the issue. Just please answer the question.

Barrett: On one specific case, yes.

Charleton: On what?

Barrett: The financial irregularities at the Garda College.

Charleton: And you are saying what and he is saying what?

Barrett: Well, this matter was played out in front of the Public Accounts Committee.

Charleton: Just tell me, if you wouldn’t mind, please.

Barrett: The issue of how those matters were investigated and dealt with.

Charleton: And your view on the matter is directly contrary to his?

Barrett: Partly contrary to his. Partly. At the very beginning of that process, which was May of 2015, Cyril and I were in lockstep as to what needed to be done.

Charleton: It’s made headlines, hasn’t it?

Barrett: I haven’t studied the headlines in the last number of days, but I have followed it as it played out in the PAC.

Charleton: Thank you very much.

Barrett: Thank you, sir.

Michael McDowell: Judge, I think if it is going to be found in relation to this witness that he was motivated by a grudge against Mr. Dunne, somebody, yourself or your counsel, should put that —

Charleton: Now, Mr McDowell, that is going too far.

McDowell: Sorry, it’s not.

Charleton: No, it is going too far.

McDowell: Otherwise your questions seem to be irrelevant, Judge.

Charleton: What exactly is the point you are making, Mr. McDowell?

McDowell: Precisely the point I made; that if it is going to be inferred, from the matters that you have just raised with the witness, that he fabricated this remark on the part of Mr. Dunne as part of settling some grudge, that should be put to him fair and square by somebody.

Charleton: And you suggest it should be done by me?

McDowell: You asked the questions about his relationship with Mr. Dunne. Your counsel didn’t. If that is — if it is relevant, I think you should go the whole way with him, Judge.

Charleton: And all the remarks you have made during the course of this Tribunal about this being an inquiry, Mr. McDowell, do they not apply to me as well? Am I not entitled to inquire?

McDowell: Well, I think, Judge —

Charleton: And do you think —

McDowell: May I make this point, Judge?

Charleton: And do you think — well, I need to make a point too, Mr. McDowell, because you are very free with your language.

McDowell: I am not free with my language.

Charleton: Do you think, Mr. McDowell, that all the warnings about the judge entering into the arena are lost or do they not apply in these circumstances?

McDowell: You are not a judge; you are an inquisitor here. And if you have — if it was relevant to make those points to the witness, I think the — that the inference that appears to be blatant in them should be put to him.

Charleton: Mr Dignam asked the questions as well, didn’t he?

McDowell: And Mr Dignam has his instructions. I am just saying that somebody should put this to him. Chairman, can I make this point to you —

Charleton: Well, Mr. McDowell, it very often happens — it seriously very often happens that two people meet, they discuss matters, one comes out saying the following happened and the other comes out saying no, that didn’t happen at all. Now, it could happen, as well, that those people don’t exactly get along. Perhaps it’s because of a lack of an emotional connection that misunderstandings occur, but Mr. McGuinness has cleared it up. There is no misunderstanding here. It’s not a question of, for instance, we are adopting our strategy and it’s not going to be easy for Maurice McCabe. It’s a question of the ‘remark’, in inverted commas, being absolutely correct. Now, I really have to inquire, in circumstances where a person who allegedly made the remark says he didn’t make it and where the person to whom that remark was repeated within weeks, it seems, says, well, that never happened, as to precisely what is going on, and I think I am entitled to do that, Mr. McDowell. And I feel if I didn’t do that, I’d be failing in my duty to make an inquiry.

McDowell: Well, Judge, maybe perhaps I can put the question to the witness then.

Charleton: If you wish to put the question, you are certainly entitled to do so. But please don’t ascribe to me anything that you don’t know is in my mind.

McDowell: Judge, you asked the questions. I queried its relevance other than in this context.

Mr McDowell then went on to question Mr Barrett…

McDowell: Anyway, Mr Barrett, in case anybody would draw the inference from your evidence that you have fabricated this remark by Mr Dunne and that you have done so in part to settle some score with him or because you have a very poor relationship with him or you fell out with him, what have you got to say about that?

Barrett: “None of those assertions are true. Mr Dunne hired me into the organisation. I respect his background, I respect his integrity. We have a difference of view on one significant matter, which related to how we should proceed in relation to the investigation of financial irregularities at the Garda College. That is a matter of public record. I shook his hand here on the 8th January. I feel no animosity whatsoever from Mr Dunne, and that is a matter of fact.

Yesterday’s transcript can be read in full here

Previously: Diametrically Opposed


 Garda Keith Harrison and Judge Peter Charleton

Yesterday evening.

The Disclosures Tribunal released its second interim report.

This report focused solely on matters pertaining to Garda Keith Harrison and his claims regarding Tusla and An Garda Siochana.

Garda Harrison has claimed his working life was difficult since he raised concerns about a garda being involved in the distribution of drugs in Athlone in 2008, and subsequently arrested the same garda for drink-driving in 2009.

It was his contention that the gardai manipulated domestic incidents involving him and his partner Marissa Simms and this resulted in a referral being made to Tusla in February 2014.

The tribunal, overseen by Supreme Court Judge Peter Charleton, did not investigate anything in relation to the matters of 2008 and 2009. It was solely tasked with examining his claims about Tusla and contacts between Tusla and the gardai in respect of Garda Harrison.

In his report, Judge Charleton found that, during the hearings in which their allegations were examined, their claims “simply collapsed” and he rejected all of them in their entirety.

Judge Charleton, who worked as a tribunal counsel during the Morris Tribunal, was unequivocal in his summation:

All of the allegations of Garda Keith Harrison and Marisa Simms examined by the tribunal are entirely without any validity. They have claimed to have been the victims of a malicious procession of events. That is not so.

“They claimed to have been the victims of a malicious procession of events. That is not so.

“They claimed to have been the victims of others. There is another side to this.

“The allegations which they made must have taken a considerable emotional toll on several of the multiple persons accused by them of very serious misconduct.

It is appropriate here to exonerate everyone in social services and in policing accused by them of discreditable conduct.

“That is the only possible conclusion to the tribunal’s enquiry. It is also amply corroborated by the supporting evidence analysed in this report.”

For anyone attending or following the hearings of the Garda Harrison module, Judge Charleton’s findings should come as no surprise – especially after Ms Simms’ evidence on September 27.

During the hearing that day Ms Simms said she had no issues with Tusla or the HSE or with the social worker who visited their home whom, she said, acted professionally and appropriately on foot of receiving a referral from the gardai.

It was also put to Ms Simms by Desmond Dockery SC, representing the gardai who took a statement from Ms Simms about Garda Harrison in October 2013 but which Ms Simms subsequently withdrew in January 2014 – that she had no basis for believing that gardai manipulated the HSE in relation to the Tusla referral.

Ms Simms said: “That’s correct.”

On foot of this, Mr Dockery asked Ms Simms, if that was her position, on what grounds did she make a complaint to GSOC last year in which she alleged the gardai abused their authority and made a referral in relation to Ms Simms’ children.

Ms Simms said she based it on her thinking that it wasn’t a coincidence that soon after she withdrew her statement on January 11, 2014, she received a letter from Tusla on February 2, 2014.

At one point, Judge Charleton directly asked Ms Simms: “What are you actually saying about the Garda and the HSE?”

Ms Simms replied: “I’m not inferring anything.”

At another point, Paul Anthony McDermott SC, for Tusla, stated:

“…there is a letter written on behalf of Marisa Simms and Garda Harrison by their solicitors to Dr [Katherine] Zappone, who is the Minister for Children and Youth Affairs; in other words, my client’s Minister…it says: “The manner of intervention of Tusla in our client’s family life is a cause of concern and is by any measure an inexcusable abuse of their position.”

It was my understanding that the reason we’re here in this module was to investigate that allegation. It appears as though it is no longer being pursued.”

In addition.

The couple’s claim that Ms Simms’ 38-page statement of October 6, 2013, contained words and allegations not used by her – specifically that Garda Harrison threatened to burn her and the children, which ultimately gave rise to the Tusla referral – fell apart during the hearings.

This occurred when the tribunal saw texts Ms Simms sent to Garda Harrison, on September 29 and 30, crucially before she made her Garda statement, in which she referred to a threat made by him to burn her during an argument.

Separate to Judge Charleton’s findings in relation to his investigation of contacts between Tusla and members of An Garda Siochana in respect of Garda Harrison…

Readers may wish to note that during the final days of the module concerning Garda Harrison, it emerged that documents, which should have been sent to the tribunal by An Garda Siochana earlier, came to light.

These included a note written by Chief Superintendent Terry McGinn – which appeared to link the retired Assistant Commissioner Kieran Kenny to a Garda strategy meeting where it was decided that matters pertaining to the domestic incident between Garda Harrison and Ms Simms would be referred to Tusla and GSOC.

The tribunal had heard that Chief Supt McGinn, who was the liaison officer for the gardai to the Morris Tribunal, had sent this document to Garda HQ but that Garda HQ hadn’t sent it on to the tribunal as it got separated in the process of sending categorised pieces of information to the tribunal.

The emergence of this note and other documents prompted Judge Charleton to make a lengthy speech in which he called for co-operation from the parties involved, saying the tribunal was blowing a bugle “as loud as it possibly can to ask people to just wake up and start helping us, and, in blowing that bugle, I am not saying that there has been any concealment, any deviousness, any conspiracy, but what I am saying is that things could have been done a lot better and they ought to be done now.”

Judge Charleton subsequently found nothing untoward in these documents.

In fact, it should be said, in his report, he said of Chief Supt McGinn:

“Having heard Chief Superintendent Terry McGinn giving evidence over three days it is obvious that she is a woman of nurturing character, highly proud of the organisation which she serves, and determined to do the best for it and for the people which it polices. Her intelligence, diligence and application to duty are admirable.”

But, on the subject of the seeking of documents.

Broadsheet understands that Garda Harrison is awaiting two sets of documents.

One set is in relation to a June 2016 Freedom of Information request for documents from the Department of Justice.

The other is in relation to a court order, made by Mr Justice Kevin Cross in the High Court in May 2017, for the Garda Commissioner to hand over documents related to Garda Harrison pertaining to the timeframe of November 2008 to December 2014.

At that time, Judge Cross gave An Garda Siochana ten weeks to give Harrison the documents.

But this didn’t happen.

On November 20 last, back in the High Court, An Garda Siochana were given another four weeks after they requested time to put the documents in chronological order.

Garda Harrison will be back in the High Court in relation to this on December 18.

Judge Charleton’s 97-page report can be read in full here

Previously: Meanwhile, At The Disclosures Tribunal

UPDATE:

Further to Judge Charleton’s report.

A statement issued by Kilfeather & Company Solicitors, on behalf of Garda Harrison, this afternoon.

1838 Tribunals_90503800 27/2/2017 Opening Statements of the Disclosures Tribunals. Justice Peter Charleton on the opening day of the Disclosures Tribunal in Dublin Castle. This tribunal has begun over the controversy of the Garda Whistleblowers scandals. Photo: RollingNews.ie Screen Shot 2017-02-27 at 09.37.49

This morning.

In Dublin Castle.

Mr Justice Peter Charleton, of the Supreme Court, reads his opening statement at the beginning of the Disclosures Tribunal – which will investigate allegations of a smear campaign against Sgt Maurice McCabe.

Watch live here

Rollingnews

UPDATE:

Mr Charleton said:

By instrument under the Tribunals of Inquiry (Evidence) Act 1921, as amended, the Minister for Justice and Equality on the 17th day of February 2017 appointed this Tribunal, following resolutions of Dáil Éireann and Seanad Éireann of the previous day. The Tribunal is tasked by that resolution with urgently inquiring into a range of matters all of which hinge on how the top officers within our national police force react when concerns are aired as to the performance of the gardaí. The central concern is whether such reaction has, possibly, and this is now unknown, not only been one of distaste, but of active and thought-through malice whereby media briefings take place against individuals who rock the boat.

As if that were not enough, there is an additional question as to whether those who air concerns about poor policing may also be targeted and attacked as to their family life and as to their adherence to basic standards of human decency. Certain disclosures are protected through procedures and safeguards laid down in the Protected Disclosures Act 2014 and this legislation had its origin in the six reports of the Morris Tribunal which worked between 2002 and 2008 on corruption and deceit within An Garda Síochána. As much of the focus of that tribunal was on the Donegal division, and was reported on as such, it may have been possible to regard the findings and recommendations of that tribunal as somehow isolated from Ireland and its police force by some feature of geographical remoteness.

The tribunal has been working since the day of its establishment and orders were made, letters sent and evidence gathered, as appropriate. There is more work to do and the purpose of this statement is to give necessary assurance as to how this tribunal will go about its work and what the general plan of work is.

The terms of reference of the Morris Tribunal covered an apparent homicide investigation, the police interrogation of 12 people, the planting of apparent explosive devices around Donegal for recovery and a false show of good police work, putting a bomb on a television mast to further an agenda, planting an aged and very dangerous firearm in an encampment of the Irish Travelling Community to enable arrest, the improper use of police agents, making threats through a ‘silver bullet’ ruse, alleged corruption at high level, disclosure by politicians, and the effectiveness of police structures to deal with such failings. These events spanned over a decade of police activity.

The Morris Tribunal completed 10 modules in 6 years. Here there are 2 modules and responsibility rests here for the completion of the first of these; terms of reference (a) to (o). The second, and catch-all module, module (p), generally and non-specifically concerns whether gardaí who have made protected disclosures were mistreated.

The first module concerns the response of Commissioner Nóirín O’Sullivan, ex-Commissioner Martin Callinan and others at the highest command level to disclosures made by Sergeant Maurice McCabe. In particular, this is focused on the manner in which the character of a person may possibly have been undermined by calumny or detraction. Both Sergeant Maurice McCabe and another officer, Garda Keith Harrison, may have had dealings with, or have been the subject of discussions at, the Child and Family Agency and some aspect of those discussions may also have involved the Health Service Executive. This needs to be explored.

All are aware that this tribunal was preceded by a commission of investigation under the Hon Mr Justice Kevin O’Higgins, former judge of the High Court and of the European General Court, a person for whom it is impossible not to feel the highest regard. His commission sat long hours for 34 days and produced a report of model clarity and characteristic restraint. Prior to that, in consequence of the uncovering of work that did not meet the standards that a modern police force would adhere to, and that a business would tolerate only in the sure knowledge of its early demise, there were internal enquiries, disciplinary proceedings and an investigation by Chief Superintendent McGinn and Commissioner Byrne. Those went on for years. The commission was the final step, established on the 3rd of February 2015 and issuing its final report on the 25th of April 2016. One of the issues before this tribunal is how counsel for the commissioner treated Sergeant Maurice McCabe when he was testifying.

The central witness in this tribunal as to the aspect of this affair involving media briefings was Superintendent David Taylor who, it is understood, was Garda press officer from the 1st of July 2012 to the 31st of May 2014. Superintendent Taylor had a meeting with Sergeant McCabe on the 20th of September 2016. There, essentially, what Superintendent Taylor said in his protected disclosure of the 30th of September 2016 was relayed to Sergeant McCabe, echoing those matters in his own, but earlier, protected disclosure of the 26th of September 2016.

Already, there have been several tribunals. Many were scrutinised and informed as to the appropriate procedures by litigation in the High Court and on appeal. In consequence of multiple court applications, the law as to how tribunals should go about their work is clear. The basic is touchstone is fairness and balance of application of procedures. There should be no need for yet further judicial reviews. If a person has a problem, that person should, first of all, apply to the tribunal in a genuine manner. Of course, there is a right of access to the courts. But, nevertheless, we cannot be naïve. This tribunal intends to focus on the existing law and to abide by its full strictures.

The entitlement to be represented will be afforded to everyone whose reputation is in any reasonable sense likely to be adversely affected by the report of the tribunal. It should be noted that the tribunal has the task of seeing through the business of the investigation from beginning to end and that, consequently, legal representation should be tailored with regard to the level of representation and as to attendance, based on how central the person represented is reasonably thought to be. The tribunal intends to afford represented persons either with copies of, or the entitlement to inspect, witness statements or any other documents relevant to their reputation. The tribunal intends to afford cross examination rights to all represented parties. It is expected, however, that the bulk of examination will be done by tribunal counsel. Since this is not a civil case, there are no adversarial parties. That does not obviate the need for focus. Counsel for the tribunal are entitled to cross examine witnesses called by the tribunal because the tribunal is not a party. Examination by other parties should take that into account and focus on matters of particular relevance to the issues which impact on them. Each party is entitled to make a written or oral submission, or both, at the conclusion of evidence.

There has been some question as to whether the tribunal should prepare a written report in draft form and then circulate it to the parties prior to the publication of the final report. Any draft report can be misinterpreted and, after all, is only a communication designed to seek comment; see term of reference (k). Circulation of a draft judgment does not happen following a civil trial. The judge hears the parties and considers the result. Then there is a judgment. It should also be borne in mind that a judge is entitled to disbelieve a witness, to say that an expert witness is not truly an expert or to disagree with an expert opinion without those people having representation. Witnesses, in any criminal or in any civil case, of whatever kind, are open to acceptance by the court, or to rejection, partial acceptance or partial rejection without any of their rights being affected. Just because you are a witness who may be disbelieved does not entitle you to representation. Were the court system to operate otherwise, every case would have multiple parties. All courtrooms would have to be enlarged. This tribunal will abide by the existing court rules. That is implied, in any event, by the relevant legislation in the several references to the tribunal having the powers and functions of the High Court.

The rules of evidence do not apply. The rules of logic and good sense do. Documentary evidence is to be considered for what it is worth, even though it may be hearsay. Where someone relays what another individual said, that is admissible. The value of such evidence depends on the scepticism which the absence of that witness may invoke and the inability to test statements relayed by another as to their sureness in fact. Such evidence may have little or no weight. One rule of evidence says that people cannot corroborate themselves. An exception to this is where a person is alleged to be fabricating the truth, then what he or she said long before can be repeated by another witness. As a matter of ordinary sense, however, the fact, for instance, that a person claims something and repeats that claim to five people and those five people give evidence of what was said to them, does not necessarily turn what the original person relayed into the truth. Any such circumstance will be looked at closely.

Any examination by counsel of what a witness says is subject to the rule that it should be based on instructions and directed towards what a represented party wishes to assert as an explanation as to what happened, or to present a contrary point of view. Where focus is kept, cross-examination of witnesses is concise. Any party examining a witness is expected to come to the point, with reasonable latitude, and to be polite, with no latitude. Examination should converge on what is important. While cross-examination is an instrument for finding the truth, it can also be used to obfuscate and to divert attention away from the central issues. It is expected that represented parties will provide their legal representative with clear instructions; that they will tell them what facts they will later testify to. Cross examination as to credit can be legitimate. That may, or may not, be in the discretion of counsel. It may depend on the client or it may be within counsel’s hands. The credit of a witness may be important, apart from their opportunity of observation, sureness of memory or possible motive. Where is a witness coming from may be germane to some cases.

If, for instance, a prisoner sharing a cell with an accused person on remand on a charge of murder claims that the accused confessed his motive to him for killing the victim, then the fact that the prisoner as a witness himself has a previous fraud convictions, is important. It would be less important if he had been unfaithful to his girlfriend, or perhaps had done something discreditable while under strain or while young. The law of evidence allows the control of cross examination as to the credit of a witness based on its usefulness to the determination of the facts at issue and its length. That is a rule of commonsense.

This rule is worth mentioning because term of reference (e) asks for a determination as to whether “false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe” when he was being examined before the O’Higgins Commission. Is there a privilege against disclosing instructions given by a client to their lawyer as to what is to be pursued in cross examination? Submissions will be heard on that matter since it is now a matter of conjecture as to what happened. The original transcript is in the possession of the tribunal and is being read in full. The matter will be further explored.

The tribunal is tasked with examining relationships between the gardaí and “media and broadcasting personnel”, term of reference (h), a broadcast on RTÉ television on the 9th of May 2016, term of reference (k), and contacts with the media “to brief them negatively that Sergeant McCabe was motivated by malice and revenge” in order to encourage negative comment and to point out his supposedly criminal conduct, terms of reference (a), (b), and (c). Is there a privilege against giving evidence, including relevant records, where someone communicates in confidence, or off the record, as the phrase goes to a journalist?

If that privilege exists, does it exist because of the public interest in protecting investigations by the media? Does journalistic privilege attach to communications to a journalist where that communication by the source may not be in the public interest but, instead, where the source is perhaps solely motivated by detraction or calumny? Submissions will be heard on this issue and a ruling may be necessary. For that ruling to be made, facts will need to be established. A primary source of such facts would appear to be the journalists to whom such allegations were allegedly made. This, according to the terms of reference, looks as if it may need to be pursued. The tribunal has been specifically tasked in the public interest to find out whether the media was used as an instrument for the dissemination of lies. That, however, may not be the only avenue of investigation.

In informer privilege, because of the danger to the life of those who confidentially help the police, the privilege is that of the informer and even lasts beyond death, according to some cases from abroad. The only person, in our law, who can waive the privilege, is the informer. In legal professional privilege, similarly, the client holds the privilege, and not the lawyer who gives legal advice on the basis of confidential instructions. Only the client can waive the privilege and reveal the confidential instructions: not the lawyer. Here, the privilege, if there is one, may attach to a communication to a journalist in the interests of providing truthful information to the public, but is it possible that such a privilege does not apply to using the media as an instrument of naked deceit? That may or may not have happened. Either way, the existing law suggests that the privilege is that of the confidential informant and not that of the journalist. However, the tribunal has no settled view on the matter and careful consideration will have to be given to the issue after submissions are heard.

On privilege and kindred issues, lastly, certain safeguards are provided by legislation, and certain safeguards inure under the Constitution, to those who find it difficult or impossible to access the system of justice, by reason of the subject matter of what they may need to testify to. Restricted hearings may take place, in terms of attendance and reporting, under section 2 of the 1921 Act, as amended. Submissions may need also to be heard on this as it will have to be carefully considered as to if there may be such a situation here; see terms of reference (d), (h), (n) and (o). Before we reach that stage, preliminary work will need to be done. The tribunal will approach this task with appropriate circumspection.

It is not now appropriate to ask for applications for representation. The reason is that matters are still unclear as to exactly whose reputation may be put in jeopardy in a manner beyond that of the tribunal’s analysis of their witness testimony. But, we must make progress.

The terms of reference make it crystal clear as to what is at issue. Here are the terms of reference:

[a] To investigate the allegation made in a Protected Disclosure under the Protected Disclosures Act 2014, on the 30th of September, 2016, by Superintendent David Taylor, wherein he alleges that he was instructed or directed by former Commissioner Martin Callinan and/or Deputy Commissioner Nóirín O’Sullivan, to contact the media to brief them negatively against Sergeant Maurice McCabe and in particular to brief the media that Sergeant McCabe was motivated by malice and revenge, that he was to encourage the media to write negatively about Sergeant McCabe, to the effect that his complaints had no substance, that the Gardaí had fully investigated his complaints and found no substance to his allegations and that he was driven by agendas.

[b] To investigate the allegation of Superintendent Taylor in his Protected Disclosure, that he was directed to draw journalists’ attention to an allegation of criminal misconduct made against Sergeant McCabe and that this was the root cause of his agenda, namely revenge against the Gardaí.

[c] To investigate what knowledge former Commissioner Callinan and/or Commissioner O’Sullivan and/or other senior members of the Garda Síochána had concerning this allegation of criminal misconduct made against Sergeant McCabe and whether they acted upon same in a manner intended to discredit Sergeant McCabe.

[d] To investigate the creation, distribution and use by TUSLA of a file containing false allegations of sexual abuse against Sergeant Maurice McCabe that was allegedly sent to Gardaí in 2013, and whether these false allegations and/or the file were knowingly used by senior members of An Garda Síochána to discredit Sergeant McCabe.

[e] To investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe at the Commission of Investigation into Certain Matters in the Cavan/Monaghan district under the Chairmanship of Mr. Justice Kevin O’Higgins.

[f] To investigate whether senior members of An Garda Síochána attempted to entrap or falsely accuse Sergeant McCabe of criminal misconduct.

[g] To investigate such knowledge which former Commissioner Callinan and Commissioner O’Sullivan had concerning the matters set out in [a], [b], [c], [d], [e] and [f] above.

[h] To investigate contacts between members of An Garda Síochána and:

Media and broadcasting personnel,
members of the Government,
TUSLA,
Health Service Executive,
any other State entities,
or any relevant person as the Sole Member may deem necessary to carry out his work

relevant to the matters set out in [a], [b], [c], [d], [e] and [f] above.

[i] To examine all records relating to the telecommunications interactions used by Superintendent Taylor, former Commissioner Callinan and Commissioner O’Sullivan, in the period from the 1st of July, 2012, to the 31st of May, 2014, to ascertain whether there are any records of text messages or other telecommunication interactions relating to the matters set out at [a], [b], [c], [d], [e] and [f] above and to examine and consider the content of any such text messages or other telecommunication interactions.

[j] To examine all electronic and paper files, relating to Sergeant Maurice McCabe held by An Garda Síochána and to consider any material therein relevant to [a], [b], [c], [d], [e] and [f] above.

[k] To investigate whether Commissioner O’Sullivan, using briefing material prepared in 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.

[l] To investigate whether a meeting took place between former Commissioner Callinan and Deputy John McGuinness on the 24th of January, 2014 in the carpark of Bewley’s Hotel, Newlands Cross, Co. Dublin and to examine and consider the circumstances which led to any such meeting, the purpose of such meeting and matters discussed at such meeting.

[m] To investigate such knowledge which Commissioner O’Sullivan had of the meeting referred to in [l] above.

[n] To investigate contacts between members of An Garda Síochána and TUSLA in relation to Garda Keith Harrison.

[o] To investigate any pattern of the creation, distribution and use by TUSLA of files containing allegations of criminal misconduct against members of An Garda Síochána who had made allegations of wrongdoing within An Garda Síochána and of the use knowingly by senior members of the Garda Síochána of these files to discredit members who had made such allegations.

[p] 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.

Tá cónaí orainn i dtír agus táimid mar sliocht de daoine a luachálann an oideachais chomh mór leis an fhírinne. Ach, is í an fhírinne atá uachtaracha. Ghlac ár sinsear leis an mana a d’fhoghlaim gach páiste Éireannach: glaine ár gcroí, neart ár ngéag, agus beart de réir ár mbriathar. Ba é sin ár bród, uair amháin. Tá an binse fiosrúcháin anseo chun an fhírinne a shocrú: ní féidir an dubh a chur ina gheal, ach seal.

Is draein é an binse fiosrúcháin seo ar acmhainní muintir na hÉireann, agus beidh an costais íoctha tré géilleadh na ndaoine do na struchtúir dhaonlathacha, ina bhfuil an cánachas mar chuid shuntasach, in ár dtraidisiún. Beidh gach bréag a chuirfear in iúl don binse fiosrúcháin seo ag cur amú an méid a bhfuil íoctha ag gnáth fir agus gháth mná tríd a n-iarrachtaí gan staonadh. Is mar gheall ar sin nach bhfuil fáilte roimh aon neamh-chomhoibriú, aon atreorú na fócais nó aon dorchaim. Tá an pobal ag súil orainn ár obair a dheanamh faoi luas, agus conclúidí a bhaint amach go tapa. Agus muid ag tabhairt faoi ar an obair seo, ní féidir ach chuimhnigh ar laige an duine; agus an dóchas a bheith againn: is mór í an fhírinne agus bufaidh sí: the truth is powerful and will be victorious. Níl aon noisin réamh-cumadh sa binse fiosrúcháin seo i dtaobh cé a bhfuil ina bithiúnach, más é, agus cé a bhfuil ina íospartach, más é. D’fhéadfadh nach taitneoidh cinntí an binse fiosrúcháin seo le gach duine: bíonn an fhírinne searbh ach ní fhaigheann sí náire go deo, the truth is bitter though not shameful.

Is tréith úsáideach é den aigne dlí go bhfuil sé coinníollaithe chun fianaise a lorg, chun fianaise thacaíoctha a lorg, chun patrúin a léiríonn an fhírinne a lorg, agus gan léimeadh go dtí cinneadh, agus gan dearbhú go bhfuil rud míchlúiteach déanta ag duine gan chruthúnas leordhóthanach. Is é sin ar gcaighdeán agus beidh muid ag cloí go deimhin leis.

We live in a country as the descendants of a people who value education as almost as high a virtue as the truth. But, the truth is supreme. Our ancestors adopted the motto once learned by every Irish child: Glaine ár gcroí, neart ár ngéag, agus beart de réir ár mbriathar; purity of heart, strength and adherence to our word. That was once our pride. This tribunal is here to establish the truth: Ní féidir an dubh a chur ina gheal, ach seal; black can be made white but not convincingly. This tribunal is a drain on the resources of the Irish people, and it is paid for by their submission to the democratic structures of which taxation has been a central part in our tradition. Every lie told before this tribunal will be a waste of what ordinary men and women have paid for through their unremitting efforts. Every action of obfuscation, of diversion of focus, and of non-cooperation is unwelcome for that reason. We are expected to get on with our work with dispatch and to reach conclusions rapidly.

In embarking on this task, one can only be reminded of human frailty and can only hope: is mór í an fhirrine agus bufaidh sí, the truth is powerful and will be victorious. There are no pre-conceived notions in this tribunal as to who is a villain and who is a victim, if there are such. And it may be that what the tribunal finds will not be to everyone’s taste: Bíonn an fhírinne searbh ach ní fhaigheann sí náire go deo, the truth is bitter though not shameful.

One useful aspect of the legal mind is that it is conditioned to look for evidence, to seek supporting evidence, to look for patterns indicative of truth, to not leap to conclusions and to not declare that someone has done something discreditable without sufficient proof. That is our standard and we will abide by it.

Are you a witness to this matter? Then, the tribunal needs your help and needs it urgently. Many have already indicated publicly and in various circumstances that they have some knowledge. Now the opportunity has arrived to cooperate in this inquiry. The tribunal wants to know the detail of that; who did what, who said what, when, in what terms, who communicated with whom, by whatever means, and in what terms. What evidence have you of this beyond what you are saying? The details are central. The tribunal needs the detail.

Today, the tribunal is calling for all those people with knowledge of the matters in the terms of reference (a) to (o) inclusive to provide a written statement and to forward this to Elizabeth Mullan, solicitor to the tribunal at Dublin Castle, Dublin D02 Y337. That statement should be detailed and should be received by close of business on this day fortnight, the 13th of March 2017. In that statement, every person should indicate whether they wish to assert any form of ostensible legal professional privilege against disclosure of evidence or documents or any form of ostensible journalistic privilege. If there is any such assertion against giving a complete account of events, then that’s not ruled out, but at least we know what needs to be further explored.

While the tribunal has already made a range of orders preserving or requiring the handing over of documents, if any person has a phone, computer, electronic records or paper records, relevant to the terms of reference, then these should be brought to the tribunal within the same timeframe.

The tribunal has witnesses it needs to interview, and that will be done professionally; it has documents that it needs to examine. With the furnishing of witness statements, what is important to who will become clearer. Those whose reputation is impacted upon will be circulated with the relevant material. Then the tribunal will be in a better position to hear applications for representation. That is why there are no such applications and no other applications today. Any application, in any event, should be preceded by a letter to Elizabeth Mullan, solicitor to the tribunal at Dublin Castle, Dublin D02 Y337.

Thereafter, once the volunteered statements that have now been clearly called for are read, and further documents are examined, and circulated counsel for the tribunal will make an opening statement. There will then be a short pause, following which the tribunal will begin public hearings, subject to the need that may arise to hear some evidence in restricted circumstances.

Let me finally say, term of reference (p) is not now being considered unless there is some extraordinary striking similarity that someone wishes to bring in unambiguous terms to the tribunal’s attention. For the moment, p stands for parked.

Transcript via Disclosures Tribunal

Previously: ‘Nóirín Decided To Ring Him And Have A Good Chat About It’