Former Garda Commissioner Noirin O’Sullivan attends the tribunal on January 24
At the Disclosures Tribunal. Judge Peter Charleton has repeatedly made the point that transcripts of the O’Higgins Commission of Investigation show that nobody explicitly put to Sgt Maurice McCabe at the commission “did you sexually abuse a child?”.
Michael McDowell SC, for Sgt McCabe, has agreed with this as many times as Judge Charleton has raised it.
The context for this is that a woman, referred to as Ms D, made an allegation against Sgt McCabe in December 2006 which was found to have no foundation by the DPP in April 2007.
Judge Charleton described the DPP’s directions “as close to an exoneration as anyone could get”.
Ms D’s allegation of ‘dry humping’ was incorrectly conflated into a rape allegation after she went to see a counsellor in August 2013 in what the tribunal was told was a clerical error.
It was further conflated when it was sent to An Garda Siochana and the Garda Commissioner Noirin O’Sullivan in May 2014 – even though gardai involved in sending the false rape allegation up the chain of command knew the original 2006 allegation had nothing to do with rape.
Fast forward to the O’Higgins Commission of Investigation, between May and December 2015 – which was tasked with looking at complaints about policing in Cavan and Monaghan – and we know “gross falsehoods”, in the words of Mr McDowell, or “factual inaccuracies”, in the words of former Garda Commissioner Noirin O’Sullivan, were levelled against Sgt McCabe at the O’Higgins inquiry – which mainly centred on the DPP’s directions in respect of Ms D’s 2006 complaint.
The falsehoods/inaccuracies committed to paper followed Colm Smyth SC, for Ms O’Sullivan and other senior gardai, telling the commission that his instructions were “to challenge the integrity” of Sgt McCabe – something he would later, in November 2015, say was a “error”.
Judge O’Higgins put it to Mr Smyth on May 15, 2015: “One can suggest to a witness that his evidence shouldn’t be believed because of something, but an attack on somebody’s credibility, on his motivation or integrity, is something that really doesn’t form part of this inquiry. It would be necessary, I think, for you to go further and say that the complaints and the actions of Sergeant McCabe on your instructions were motivated by — his motivation was dishonest or wrong. In other words, that he made these allegations not in good faith but because he was motivated by malice or some such motive and that impinges on his integrity. If those are your instructions from the Commissioner, so be it. ”
Mr Smyth replied: “So be it. That is the position, Judge.”
The aforementioned 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 Eileen Creedon 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.
One of the falsehoods/inaccuracies was an allegation that Sgt McCabe was angry with the DPP and that he wanted the DPP’s directions challenged.
This was made before the O’Higgins Commission heard that Sgt McCabe had been briefed fully of the DPP’s directions and was very satisfied with them.
Another falsehood/inaccuracy was in the CSS letter which referred to a meeting Supt Noel Cunningham had with Sgt McCabe.
Supt Cunningham was accompanied at the meeting, in Mullingar in August 2008, by Sgt Yvonne Martin.
Of this meeting, the CSS letter – about which Sgt Martin was never consulted – 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.”
What actually happened was, the tribunal has heard, Sgt McCabe was asked, in February 2008, by Supt Michael Clancy, to write a report about matters pertaining to the D family after two public confrontations with Mrs D and Ms D in October 2007 and that Supt Clancy suggested he would try to get the DPP’s directions to the D family.
There was no complaint made against Supt Clancy and there was no threat of force either.
And, finally, the submissions – about which Sgt Martin was also never consulted – 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 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 submissions repeat the incorrect claim from the CSS letter and say Supt Cunningham will give evidence to that effect but this doesn’t occur.
It should be noted the CSS letter was delivered on May 18, the submissions were submitted on June 11 and Sgt McCabe’s transcript of the Mullingar meeting was circulated to the legal parties at O’Higgins on June 19.
Then, on June 24, the matter of any force being applied by Sgt McCabe was dropped.
In respect of these gross falsehoods/factual inaccuracies, Mr McDowell has been firm that Sgt McCabe believes that by raising the Ms D allegation – in terms of the DPP’s directions on the same – that this was a strategy deployed to discredit Sgt McCabe at the commission.
Specifically, Mr McDowell has told the tribunal: “..we believe and we say, and Sergeant McCabe is adamant on this, that it was dragged back in in a collateral way to embarrass him, to query his motives, to make him — to demean him in the eyes of the Commission…”
Ms O’Sullivan has maintained that what occurred with the three matters about the DPP directions referred to above were merely mistakes or errors – and that this was her understanding in 2015.
Further to this…
Judge Peter Charleton posed the question: “What are we here for?”.
He was speaking about the term of reference E which specifcally states:
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.
Yesterday, in the Sunday Business Post…
In respect of the question posed by Judge Charleton last week, Katie Hannon wrote:
“He [Charleton] had been hearing submissions from counsel for the former Garda commissioner’s legal team at the O’Higgins Commission, who made the case that this module had come about “entirely on the basis of leaks of false information” that fake allegations of sexual abuse were relied on to discredit Sergeant Maurice McCabe at the O’Higgins Commission.
“It would indeed be a major outrage if two months of a tribunal had been wasted in investigating an erroneous leak. But the reality is that the leaks that caused such public disquiet at the time never suggested that McCabe had been accused of child sexual abuse before the commission.
“Indeed when Frances Fitzgerald was in the witness box the chairman asked her, as the minister who had presided over the drafting of this term of reference, “Where did the notion that anybody had made false allegations of sexual abuse and put them to Sergeant McCabe at the O’Higgins Commission ever come from?”
“Fitzgerald responded: “Well, it’s very hard to say exactly where it arose. But it seemed to be . . . it seemed to be an innuendo that, you know, was around, and that . . . in terms of, I think there may have been, there may have been some media coverage in relation to it.”
“If such media reports exist, this correspondent has not been able to find them. At the time the leaks emerged from the O’Higgins Commission, it had never been publicly reported that McCabe had been the subject of a false child abuse allegation.
“That only came into the public domain nine months later [in February 2017] when the Tusla file and the unfounded Ms D allegation emerged.
“Until then, the leaks suggested that McCabe’s motivation had been challenged on the basis that he had admitted to making allegations of garda malpractice because he had a grievance against a senior officer.
“After the Tusla revelations, journalists were in a position to report that this alleged grievance was in relation to the handling of the DPP directions relating to the Ms D case by a senior officer.
“The question raised by the leaks was whether the Garda commissioner was stating that she fully supported McCabe in public while challenging his motives behind the closed doors of the O’Higgins inquiry.
“Justice Charleton’s question to the former minister is a pertinent one: why did the Department of Justice ask the tribunal to inquire into an allegation that had never been made?
“Counsel for McCabe, Michael McDowell, told the tribunal this week that his client had been accused by Nóirín O’Sullivan of being a “disaffected” sergeant on the basis of a number of false premises advanced by her legal team before Justice O’Higgins.
“He [Michael McDowell SC, for Sgt McCabe] contends that the D case was introduced at the commission in a peripheral way in a bid to discredit his client.
“That McCabe was accused of angrily demanding to have the DPP directions relating to this case changed to completely exonerate him, in circumstances where McCabe was “thrilled” with the DPP’s directions.
“That McCabe was accused of having admitted in a meeting to an improper motive for making his allegations of garda malpractice because he was trying to force the hand of a senior officer to have those directions given to the D family.
“That while a report and notes of this meeting were produced which didn’t mention this confession, it was only after McCabe produced a verbatim transcript of the entire meeting that this charge was dropped.“
The term of reference E hasn’t been the only matter blamed on media reports.
Readers will recall how when Ms O’Sullivan gave evidence at the tribunal she, similarly to Ms Fitzgerald, also blamed supposed false leaks or “distorted truths” in the media for deciding to refer both Supt Noel Cunningham and Sgt Yvonne Martin to the Garda Siochana Ombudsman Commission (GSOC) in May 2016.
And in the same way that Judge Charleton has asked why the Department of Justice asked him to inquire into an allegation that had never been made – it could be asked: why did Noirin O’Sullivan ask GSOC to inquire into an allegation that she believed was just a mistake?
The decision to refer Supt Cunningham and Sgt Martin to GSOC came very shortly after reports about the O’Higgins Commission of Investigation by Mick Clifford, of the Irish Examiner and Katie Hannon, of RTE, on Thursday, May 12 and Friday, May 13, 2016.
Readers will recall that, prior to the publication of his article in the Irish Examiner on May 13, Mr Clifford sent the following press query to An Garda Siochana:
“We at the paper understand that the counsel for the Commissioner, on instruction, told Mr. O’Higgins that it would be the Commissioner’s case in the inquiry that Maurice McCabe had acted out of malice. This submission took place in the early days of evidence hearing. We also understand that Mr. O’Higgins was told that evidence to that effect would be produced but ultimately never was. In relation to that, we are just asking if Commissioner O’Sullivan wished to comment on the above assertions.”
In response to his press query, Mr Clifford, the tribunal heard, was told that because of the provisions of the Commissions of Inquiry Act, Ms O’Sullivan couldn’t comment.
Of the May 13, 2016 article, Ms O’Sullivan told the tribunal it:
“.. published a particular line, and erroneous facts in terms of the O’Higgins Commission and proceedings at the O’Higgins Commission, which started what I can only describe as a vortex.”
Over the next two weeks there were swirling communications between Ms O’Sullivan, Tanaiste Frances Fitzgerald, Terry Prone, of the Communications Clinic, and Ken O’Leary, from the Department of Justice, about both the Commissioner and the Minister for Justice’s response to the matter – but Ms O’Sullivan was adamant in her evidence to the tribunal that this wasn’t a co-ordinated response.
In addition, on Monday, May 16, 2016, Ms Fitzgerald and Ms O’Sullivan met and, according to the agenda of the meeting, they specifically discussed what happened at the O’Higgins Commission of Investigation, and Mr Clifford’s articles about the same.
The tribunal heard Ms O’Sullivan said of this meeitng:
“I made it very clear to the Tánaiste at that meeting that what we were dealing with was a report in a newspaper which did not factually portray what had actually transpired at the O’Higgins Commission, and most certainly did not portray my position or my view.
“And on the basis of that, I felt very strongly, as I said earlier here, that it had become a very political issue, and that I, as a public servant and as Commissioner of An Garda Síochána was being put into a position where my role and the statutory position was being politicised in a way that was unacceptable to me. And I outlined to — insofar as I could, because even in my conversations with the Tánaiste, I was also very conscious of section 11 and the proceedings being private.
“But I outlined as broadly and as fully as I could within the constraints of that what the position was, and what had actually transpired at the proceedings and particularly my position in relation to Sergeant McCabe.”
The tribunal also heard that, two days later, on May 18, 2016, Ms O’Sullivan’s liaison officer at the O’Higgins Commission of Investigation Chief Supt Fergus Healy was called into Garda HQ for a meeting to discuss what happened at O’Higgins.
In his evidence, he referred to being “grilled”.
On the same day, CS Healy created a report on the matter for Garda HQ which was also to be part of a briefing for the minister.
In it, CS Healy wrote about the meeting in Mullingar Garda station on August 25, 2008 – and repeated the so-called “error”.
Mr Healy wrote:
“Inspector Cunningham was accompanied to this meeting by Sergeant Martin. Inspector Cunningham advised counsel that an ancillary but important issue arose at the meeting in that Sergeant McCabe advised Inspector Cunningham that the only reason he made the complaint against Superintendent Clancy was to force him to allow Sergeant McCabe to have the full DPP directions in respect of said investigation conveyed to him. Notes were taken.”
This was an initial draft and didn’t get sent.
In his final report, CS Healy wrote:
“In the course of consultations, it transpired that the then-Inspector Cunningham had conducted an investigation wherein Sergeant McCabe had been involved. A meeting was held in Mullingar Garda Station with Inspector Cunningham and Sergeant McCabe by appointment on the 25th August 2008. Inspector Cunningham was accompanied to the meeting by Sergeant Yvonne Martin.
“An ancillary but important issue arose at the meeting in Sergeant McCabe advised Inspector Cunningham that the only reason he made the complaint to Superintendent Cunningham was to force him to allow Sergeant McCabe to have full DPP directions in respect of the said investigation conveyed to him. 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 this regard and during the course of proceedings in pursuit of the truth and establishing the facts, while being fair and balanced to all witnesses, a submission was made by counsel for the Garda Commissioner to introduce to the Commission of Investigation the reasoning for Sergeant McCabe’s complaints in the first instance. Counsel for the Garda Commissioner was requested by the Commission of Investigation to set out a chronology of the issues pursued to assist the Commission of Investigation in establishing the facts.
“This request was complied with on 18th May 2015 when a document [CSS letter] was provided to the Commission of Investigation which included references to the meeting in Mullingar and ancillary matters recorded by Inspector Cunningham and agreed by Sergeant Martin arising at that meeting.
“The Commission of Investigation instructed counsel for the Garda Commissioner to provide to Sergeant McCabe’s counsel, Mr. McDowell, with a copy of the document. Following further discussions, the Commission of Investigation proceedings adjourned.
“It transpired that the Commission of Investigation had been provided with [as read] Sergeant McCabe with a tape recording of the meeting in Mullingar on 25th August 2008. The Commission of Investigation got a tape transcribed but declined to allow matters arising in relation to the ancillary issue concerning Sergeant McCabe to be discussed at the hearings.
“A discussion ensued as to what were the exact instructions of the Garda Commissioner. A heated exchange took place at the Commission of Investigation in this regard. Arising from the document provided to the Commission of Investigation, counsel for Sergeant McCabe argued that Sergeant McCabe’s character was under attack.
“The proceedings adjourned to confirm instructions. Counsel sought instructions as to tab B. Consequently, the Commissioner’s instructions were confirmed in line with those advised at the commencement of the Commission of Investigation and there the matter rested. However, on day 29, 4th November 2015, Judge O’Higgins sought clarification on the Commissioner’s instructions.
“Mr Colm Smyth, for the Garda Commissioner, clarified the position, which is contained in the transcript of day 29 of the hearings. It must be noted that counsel for the Garda Commissioner had no control of witnesses called to give evidence at the Commission of Investigation. That was a power that was laid solely within the remit of the Commission of Investigation. In addition, permission had to be obtained from the Commission of Investigation to cross-examine witnesses.”
Then the following day, May 19, 2016, it was decided that Supt Noel Cunningham and Sgt Yvonne Martin would be referred to GSOC.
This decision was made at a meeting of the same day which was attended by Frances Fitzgerald, Frances Fitzgerald’s advisor Marion Mannion, Secretary General at the Department of Justice Noel Waters, Ken O’Leary, Garda Commissioner Noirin O’Sullivan and Deputy Commissioner John Twomey.
In a note of the meeting – which was given to the tribunal the day before it discussed it – it’s noted:
“— said that the most appropriate place to allegation that two officers lied is GSOC“
The tribunal heard, from Ms O’Sullivan, that it was Deputy Commissioner John Twomey who said this.
On May 20, 2016 the Garda Press Office made Ms O’Sullivan aware of further press queries from The Sunday Times, The Irish Examiner and Irish Independent, in relation to her instructions at the O’Higgins Commission .
On May 21, 2016 Ken O’Leary, from the Department of Justice, was emailing Ms O’Sullivan a draft letter from Ms O’Sullivan which was to be sent to the Department of Justice.
Later on May 21, 2016, the tribunal heard that Supt Noel Cunningham wrote to Ms O’Sullivan about the press matters, however the letter wasn’t read out to the tribunal.
Asked about this letter, Ms O’Sullivan said:
“Superintendent Cunningham was quite understandably upset and distraught at some of the material that had appeared in the public domain, which was a misrepresentation of his position also.”
It’s not known if or how Ms O’Sullivan responded to this correspondence from Supt Cunningham.
On May 22 and May 23, 2016, there were further drafts sent from Mr O’Leary to Ms O’Sullivan in relation to the report which was to be sent to Tanaiste Frances Fitzgerald and to form the basis of her second public statement on the matter.
On May 24, 2016 Deputy Commissioner Twomey sent the draft again to Ms O”Sullivan with comments from Terry Prone. This time the draft was referred to as Last Chance Saloon.
Later that night, at 10.50pm, Mr Twomey sent what turned out to be the final version of the draft to Ms Prone, for her “comments and expertise”.
This letter – which eventually gave rise to Ms O’Sullivan second statement on the matter – was eventually sent to Tanaiste Frances Fitzgerald on May 25, 2016.
It contained the line:
“There has been a suggestion in recent reportage that two senior officers had sought to misrepresent before the Commission the contents of a meeting they had with a sergeant in Mullingar in 2008. In those circumstances and in order to resolve any public disquiet, misplaced or otherwise, which may arise, and in the interests of fairness to all involved we requested, pursuant to your powers within the Garda Síochána Act, that you refer that aspect to the Garda Síochána Ombudsman Commission for the purposes of investigating it in the public interest.”
Of this letter, Ms O’Sullivan said:
“This was a very important letter. I saw it probably as one of the most important letters that I had been required to write in my career, and I very much felt that my, my reputation, but also my position as Commissioner of An Garda Síochána, was very much dependent on it. It was very important that the Tánaiste would be as fully informed, as I said, as possible, and it was very important that we got the factual accuracy right.”
Ms O’Sullivan’s public statement – which was borne out of the letter to Ms Fitzgerald – was published on May 26, 2016.
It was through this statement that the public were told, for the first time, that Supt Cunningham and Sgt Martin – in respect of the the matter concerning the Mullingar meeting – were being referred to GSOC.
Given that Ms O’Sullivan told the tribunal that she understood the three matters pertaining to the DPPs directions to be simply errors, some might find it confusing that she went ahead and referred the two gardai to GSOC.
When questioned about the decision to refer both Supt Cunningham and Sgt Martin to GSOC, Kathleen Leader, BL for the tribunal, had the following exchange with Ms O’Sullivan, before Judge Charleton pressed Ms O’Sullivan further.
Leader: “Just finally, Ms O’Sullivan, in relation to the GSOC referral arising out of the O’Higgins Commission, did Chief Superintendent Healy not ever tell you that Sergeant Martin didn’t attend at the Commission, never gave evidence at the Commission, and he, in fact, had one telephone call whereupon he asked her was she available to give evidence?”
O’Sullivan: “I don’t believe that we ever discussed it in detail, but the purpose of the referral was in the public interest, to ensure — so the allegation that was in the public domain was the fact that two members of An Garda Síochána, and we now know that Sergeant Martin actually, I note that she has corresponded with the Tribunal, but two members of An Garda Síochána had intended to perjure themselves at the O’Higgins Commission of Investigation, and my understanding is, that was the issue that we were referring to GSOC, along with, separately, some other issues that had been raised to us by another party who was in attendance at the Commission.”
Leader: “But I think the issue was that people had perjured themselves, so do you not think maybe it was a bit severe to send Sergeant Martin to GSOC, via the Minister, when nobody had actually spoken to her about her evidence to the O’Higgins Commission?”
O’Sullivan: “Chairman, I am not aware that anybody was found to have perjured themselves at the O’Higgins Commission. That was certainly never brought to my attention.”
Leader: “The charge was in the public domain at that time?”
O’Sullivan: “Oh, yes, the charge in the public domain —
O’Sullivan: “– was that — well, Chairman, if I can explain it like this: GSOC were set up to have independent oversight of investigating serious issues in relation to members of An Garda Síochána. I think I have attempted to explain to the Tribunal the position I found myself in at this time, nobody was going to accept my word that this was the case, and that was the fact of what I was facing to deal with, the appropriate mechanism to have these matters dealt with, in fairness to both Superintendent Cunningham and Sergeant Martin, to have their names cleared, so to speak.”
Charleton: “I mean, how could she be committing perjury as she had never even given evidence? I mean, it seems — I know that’s been reported, but newspapers — sorry, I beg your pardon, the paper won’t refuse ink, but, I mean, why compound that, is the question by Ms Leader?”
O’Sullivan: “It was completely erroneous, Chairman, but this was what was in the public domain and this was what was causing the political and public disquiet and this was what had been erroneously reported in a number of media outlets and this was what was in the public and political mind, and, as I say, the position I found myself in, if I were to say that Sergeant Martin, for example, hadn’t done something, actually I don’t think anybody was within the frame of mind.”
Charleton: “If you had said she had never given evidence, I would imagine people might well have believed you.”
O’Sullivan: “Not necessarily, Chairman, the position that we found ourselves in —
Charleton: “Well, then the second thing was, if you actually read her statement, and this has come up a number of times, but, well, you know, she may well have her rights, but this statement which she gave, which could perhaps have been, to use the now very popular word, deployed at the O’Higgins Commission, was completely backing up Sergeant McCabe —
O’Sullivan: “Oh, completely.”
Charleton: ” — in relation to the Mullingar meeting, in the event that there was a misunderstanding about that.”
O’Sullivan: “Yes, completely, Chairman, and I think the unfortunate situation that everybody found themselves in, the erroneous facts and the distorted truths that were put into the public domain led to a situation which was completely unfair to everybody involved in this process from the outset…”
If it was Ms O’Sullivan’s belief that what the O’Higgins Commission was told about the Mullingar meeting was just an error, why did Ms O’Sullivan refer Supt Cunningham and Sgt Martin to GSOC?
Why didn’t she inform those present at the meeting on May 19 that, rather than a lie, it was simply a mistake?
Judge Charleton commented recently about the decision to refer the two gardai to GSOC, saying:
“That is something that I won’t understand until my dying day, particularly Sergeant Martin.”
Previously: Disclosure Tribunal: Anomalies