From top: Former Garda Commissioner Noirin O’Sullivan; former Minister for Justice Frances Fitzgerald; and Sgt Maurice McCabe
In The Sunday Times.
John Mooney reported:
“The Disclosures tribunal has been given official notes of conversations between Nóirín O’Sullivan, the former garda commissioner, and senior gardai. They outline the strategy she adopted when dealing with whistleblower Maurice McCabe at the O’Higgins Commission.”
“The contemporaneous records show O’Sullivan did not instruct lawyers to question McCabe’s integrity. Instead she asked them to question the motivation and credibility of allegations he was making about garda colleagues.”
“Claims that O’Sullivan had instructed lawyers to question McCabe’s integrity were based on selected transcripts from the commission, which were leaked to newspapers.
“It was suggested she was telling lawyers to challenge McCabe’s integrity in private while publicly commending him for speaking out against wrongdoing.
“O’Sullivan’s legal team subsequently clarified that they had been asked to challenge the whistleblower’s “motivation and credibility”.
“It is understood O’Sullivan was interviewed in private session by Charleton’s investigators last week.”
Former Garda Commissioner Noirin O’Sullivan and former Minister for Justice and current Tanaiste France Fitzgerald
Further to questions remaining over what former Minister for Justice Frances Fitzgerald and the Department of Justice knew of the legal strategy which was employed against Sgt Maurice McCabe during the O’Higgins Commission of Investigation in 2015…
Because, readers will recall, the legal strategy of the then Garda Commissioner Noirin O’Sullivan was outlined at the commission but later dropped after Sgt McCabe proved claims made by the legal counsel for Ms O’Sullivan, and claims outlined in a five-page letter by the Chief State Solicitor Eileen Creedon, now a High Court judge, were untrue…
And how nothing of this abandoned strategy was recorded in the commission’s final report…
And how the Secretary General of the Department of Justice Noel Waters announced he’s stepping down in February – within hours of the Dail hearing of reports of a phone call from Ms O’Sullivan’s office to Mr Waters on May 15, 2015 – the same day Sgt McCabe delivered his first blow to Ms O’Sullivan’s legal strategy…
Daniel McConnell, in the Irish Examiner, writes:
Dáil chairman, Ceann Comhairle Seán Ó Fearghail, is “considering” a fresh complaint from Labour TD Alan Kelly over information he sought over the treatment of Garda whistleblower Maurice McCabe.
Mr Ó Fearghail yesterday received new correspondence from Mr Kelly and he is now taking the matter under consideration for adjudication, a spokeswoman for the Oireachtas said.
From top: Secretary General of the Department of Justice Noel Waters; former Garda Commissioner Noirin O’Sullivan and former Minister for Justice, now Tanaiste, Frances Fitzgerald; Labour leader Brendan Howlin; Ceann Comhairle Sean O’Fheargail; Taoiseach Leo Varadkar; Minister for Justice Charlie Flanagan
During Leaders’ Questions.
In the middle of an exchange about the treatment of Sgt Maurice McCabe during the O’Higgins Commission of Investigation in 2015.
Taoiseach Leo Varadkar said:
“I’ve heard one briefing suggesting an allegation so explosive that it might bring down the Government.”
“.., if the Labour party has an allegation to make, they should either make it here and make it very clearly so that we can respond to it or if they’re not willing to do that, well then they should give any evidence they have to the [Disclosures] tribunal.”
You may recall previous posts about questions being recently asked by Labour TD Alan Kelly about the Department of Justice’s knowledge of the legal strategy employed against whistleblower Sgt Maurice McCabe during the O’Higgins Commission of Investigation in 2015.
The legal counsel for the then Garda Commissioner Noirin O’Sullivan told the commission it would argue that Sgt McCabe was making complaints about Garda malpractice because of a grudge that he had and that evidence of this would be based on a meeting Sgt McCabe had with two gardai, Supt Noel Cunningham and Sgt Yvonne Martin, in Mullingar in August 2008.
This legal strategy fell apart after Sgt McCabe proved that the reason for this so-called grudge couldn’t be true – while he gave evidence on May 15, 2015 – and when he later produced a recording of the Mullingar meeting which contradicted what the Chief State Solicitor Eileen Creedon, now a High Court judge, told the commission in a letter on May 18, 2015.
Readers should note the commission heard evidence over 34 days between May 14, 2015 and December 17, 2015.
This legal strategy – and the subsequent abandonment of the strategy – was never included in Judge Kevin O’Higgins’ final report when it was finally published on May 11, 2016.
Michael Clifford, of The Irish Examiner, and Katie Hannon, of RTE’s Prime Time, subsequently reported, in May 2016, how Sgt McCabe produced a recording of the Mullingar meeting during the commission and how this ensured the strategy had to be dropped.
Yesterday, Taoiseach Leo Varadkar said the former Justice Minister Frances Fitzgerald had “no hand, act or part” in forming Ms O’Sullivan’s legal strategy.
Mr Varadkar also told the Dail:
“She did find out about it after the fact, but around the time it was in the public domain when everyone else knew about it aswell.
…In terms of the Department of Justice, and I appreciate the Department of Justice is a big place with lots of different people in it but, as things stand, the Department of Justice hasn’t been able to find any record of being prior informed or being informed before the fact about the legal strategy the commissioner was going to pursue.
“They were told, the Department was told about the approach taken by the commissioner’s senior counsel but that was after the cross-examination had taken place.
“So they obviously were not in a position, after the fact, to express concerns about it or to counsel against it.”
In addition, Mr Varadkar referred to a phone call that was reportedly made by Ms O’Sullivan to the Department of Justice on May 15, 2015 – the same daySgt McCabe made it clear to the commission that the reason for his supposed grudge couldn’t possibly be true – and questions that Mr Kelly asked about that.
Mr Varadkar said:
“I know you’ve claimed that it was a call on the day of the cross-examination to the secretary general [Noel Waters], we haven’t been able to confirm if that’s the case or not.
“I think perhaps it was not. So I think that assertion may be false, but I don’t want to swear to that today until I can find out for certain but I think that assertion is probably incorrect.
“There may well have been a phonecall from the commissioner’s office to the Department of Justice on the day but it’s not unusual for the commissioner’s office to contact the Department of Justice.”
Within an hour or so of Mr Varadkar’s remarks yesterday, it was announced that the Secretary General of the Department of Justice Noel Waters will be retiring in February as he is approaching 40 years of service.
Mr Waters was the acting Secretary General of the Department of Justice in May 2015.
Further to this.
During Leaders’ Questions.
Labour leader Brendan Howlin raised the matter of Mr Kelly’s questions again – pointing out that Mr Varadkar’s answers of yesterday indicated that there was a year-long window in which Ms Fitzgerald could have been informed of the legal strategy.
Mr Howlin said he wanted clarification on this.
He also asked if Mr Varadkar had spoken directly to Noel Waters about the matter.
Mr Varadkar said he hasn’t.
During the exchanges between Mr Varadkar and Mr Howlin, Justice Minister Charlie Flanagan stood up and accused Mr Kelly of engaging in a smear campaign against him.
In addition, Mr Varadkar referred to claims that there was an “explosive” allegation that could “bring down the Government”.
He said if an allegation is to be made, then it should be made in the Dail so that it can be addressed.
From Leaders’ Questions:
Brendan Howlin: “We’re still unclear as to the level of involvement or knowledge of the Department of Justice in this strategy. You said in this house yesterday, Taoiseach, that the Department of Justice and Equality is a big place. That many different people are in it but as things stand, the Department has not been able to find any record of being informed before the fact of the legal strategy that the former commissioner [Noirin O’Sullivan] was going to pursue.
“I’d like you to confirm today whether you’ve spoken directly to the Secretary General of the Department [of Justice Noel Waters] on this matter. And are you satisfied that the absence of sufficient reassurance for you to confirm to the house that the department was not aware of the strategy to, quote, “go after” Maurice McCabe.
“Yesterday, you said, that the Tanaiste found out about it after the fact but around the same time, it was in the public domain when everybody else knew about it, end quote. Now, this matter only came into the public domain when it was reported on by Mick Clifford and Katie Hannon after the commission itself had reported in May 2016 – a full year after the strategy to go after Maurice McCabe was set out by the commission.
“For it to be true, that the Tanaiste did not become aware of this until the time when it was in the public domain, we must believe two things:
“Either this house is expected to believe that the Department of Justice didn’t receive any contact from Garda management about this, even long after the strategy had been dropped or we’re expected to believe that the department actually had this information but sat on it without incoming the minister, the Tanaiste for an entire year. Which is it, Taoiseach?”
Ceann Comhairle Sean O Fheargail: “Before I call the Taoiseach to respond to that particular matter. Can I just say that Standing Orders are fairly explicit on these matters, wherein we’re dealing with a subject matter that is a subject of court consideration or a judicial tribunal.
“The Standing Order, effectively, says that matters shall not be raised in such a manner that it appears to be an attempt by the Dail to encroach on the functions of the court or the judicial tribunal. Now my predecessors have ruled on this issue in the past and in certain circumstances have allowed questions on a particular matter, matters which were being examined by judicial tribunals.
“And these were allowed in a context where there was considered to be a public interest in having a limited engagement on certain matters whilst having regard to the fact that we should not encroach on the activities and work of the tribunal. So we need to be exceedingly careful here that we do not undermine a tribunal that we, ourselves, have established. Taoiseach?”
Leo Varadkar: “Thanks very much Ceann Comhairle and I’ll bear in mind your comments in my remarks. I have spoken to the Tanaiste, I have spoken to the Minister for Justice [Charlie Flanagan], I haven’t spoken directly to the Secretary General of the Department of Justice [Noel Waters].
“The information I have, and I believe it, is that the Tanaiste had no hand, act, or part in determining the legal strategy of the former commissioner and she had no prior knowledge of the legal strategy pursued by the formed commissioner.
“I’m also informed by the Department of Justice that the Department of Justice was only told about the approach taken by the commissioner’s senior counsel after the cross examination had already taken place.
“And as they were only informed after the fact, they certainly weren’t in a position to express any reservations about the legal strategy taking place.
“Now, this issue is being going back and forth now for a couple of days. I’ve seen articles in the paper, letters have been exchanged, there have been PQs put down and answered.
“And there have been a lot of briefings going around as well to the effect that there is some, some allegation here. That is explosive. I’ve heard one briefing suggesting an allegation so explosive that it might bring down the Government.
“I think, at this stage, if the Labour party has an allegation to make, they should either make it here and make it very clearly so that we can respond to it or if they’re not willing to do that, well then they should give any evidence they have to the tribunal.”
Charlie Flanagan: “On a point of order, Ceann Comhairle.”
Ceann Comhairle: “It’s unusual, but I’ll hear it, yes.”
Flanagan: “On a point of order, regarding the fact that the person asking the question made a specific reference to me – I would ask you Ceann Comhairle for protection in this house. I will not have my good name, or my progressional reputation traduced by Deputy Alan Kelly, both inside this house and outside.
“If there are matters for the tribunal, and I make this with regard to a point of order, if there are matters germane to the tribunal, that’s the place for it. But I will ask Deputy Kelly now to desist from engaging in a smear campaign against me personally and professionally.”
Ceann Comhairle: “Deputy Kelly hasn’t said anything here, in my hearing…Deputy Howlin please.”
Talk over each other
Howlin: “Ceann Comhairle, I’m here some time. And I recall tribunals of inquiry where the findings were, if people answered questions in this house, they’d have saved the State millions at times. It’s our job to ask the State questions and hold ministers to account. That’s our job.
“And I’ve no accusation to make, against anybody. I just want the truth. And my questions are very simple…”
Flanangan: “It’s quite clear that I had no hand, act or part…”
Howlin: “And I…
Talk over each other
Howlin: “No, no, no, quite the reverse. I fully accepted the statement made finally by the Taoiseach yesterday. That neither the current minister or the former minister, I accepted that, I said, now we have clarity on that fact…
Alan Kelly: “How long are you going to allow this Ceann Comhairle?”
Flanagan: “…suit Deputy Kelly’s agenda.”
Ceann Comhairle: “You can’t continuously interrupt, minister, please.”
Howlin: “The question I’m trying to pursue, Ceann Comhairle, is the state of knowledge of the Department of Justice. The Taoiseach has told the house that the Department of Justice were aware of the strategy after the cross-examination of Sgt McCabe.
“That took place in May of 2015.
“He told the house yesterday that the Tanaiste wasn’t aware of this until it became into the public domain which was a full year later in May of 2016. So just for clarity, is the Taoiseach telling the house that the strategy was kept from the Tanaiste and the Minister for Justice for a full year by her officials?”
Ceann Comhairle: “Thank you deputy. Taoiseach?”
Varadkar: “I welcome the fact that Deputy Howlin has clarified that he’s not making any allegations against anyone in this house and I accept the Labour Party’s, I’m very pleased to hear that clarification that Deputy Howlin, the leader of the Labour Party, on behalf of the Labour Party is saying that neither he nor the Labour Party is making any allegation against anyone in this house or outside this house.
“I think that at least puts into perspective this story. No allegation is being made against anyone.
“The answer I’ve given you is the answer that was given to me. I spoke to the Tanaiste, she told me that she had no hand, act or part in this decision, that she was not aware of it until after the fact, until around the time that it entered the public domain.
“The Department of Justice has said that to me, that they were not made aware of it until after the fact. But the Department of Justice is a big place. It’s not a person, it’s a body that had hundreds of staff and can I put hand on my heart here and say that there isn’t one person somewhere who might have been told something by someone. I can’t give you that answer.
“But what I have been told is that, is that the Department was not made aware of it, until after the fact and the Tanaiste did not become aware of it herself until around the time it entered the public domain.”
“…it’s very hard to answer questions for third parties, or unnamed third parties.”
Leo Varadkar during Leaders’ Questions this afternoon
In the past 30 minutes.
Taoiseach Leo Varadkar responded to questions from Fianna Fail leader Micheal Martin about the O’Higgins Commission of Investigation.
Readers will recall questions have been asked about what knowledge, if any, the former Minister for Justice Frances Fitzgerald – who is currently in the United Arab Emirates on a trade mission – had of the legal strategy employed by An Garda Siochana against whistleblower Sgt Maurice McCabe during the O’Higgins commission.
The legal strategy set out to argue Sgt McCabe had made complaints about Gardai because of a grudge and that evidence of this was based on a meeting Sgt McCabe had with two gardai.
But the strategy was dropped when Sgt McCabe produced a recording of the meeting.
Mr Varadkar said:
“I spoke to the Tanaiste yesterday, who’s currently in the United Arab Emirates on a trade mission. She confirmed to me that she had no hand, act or part in forming the former commissioner’s [Noirin O’Sullivan] legal strategy.
“Nor did she have any prior knowledge of the legal strategy that the former commissioner’s team pursued. She did find out about it after the fact, but around the time it was in the public domain when everyone else knew about it aswell.”
“Needless to say, the current minister for justice was not the minister for justice at the time and also had no hand, act, or part, or prior knowledge of the legal strategy being pursued by the former commissioner’s legal team.
“In terms of the Department of Justice, and I appreciate the Department of Justice is a big place with lots of different people in it but, as things stand, the Department of Justice hasn’t been able to find any record of being prior informed or being informed before the fact about the legal strategy the commissioner was going to pursue.
“They were told, the Department was told about the approach taken by the commissioner’s senior counsel but that was after the cross-examination had taken place.
“So they obviously were not in a position, after the fact, to express concerns about it or to counsel against it.
Readers will recall that, at the outset of the O’Higgins Commission in 2015 – which was looking at complaints of Garda malpractice made by Sgt McCabe, legal counsel for the then Garda Commissioner Noirin O’Sullivan and An Garda Siochana said it would argue that Sgt McCabe was making these complaints because of a grudge.
It was told evidence of this would be based on a meeting Sgt McCabe had with two gardai, Supt Noel Cunningham and Sgt Yvonne Martin, in Mullingar in August 2008.
Broadsheet has previously reported how it was also claimed at the O’Higgins Commission of Investigation that the reason Sgt McCabe had a so-called grudge was because he wanted directions made by the DPP in 2007 – in respect of an “dry humping” allegation made by the daughter of a guard previously disciplined by Sgt McCabe in 2006 – overturned.
But the DPP’s directions were categorically in Sgt McCabe’s favour.
They included the line: “Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault… there is no basis for prosecution.”
An Garda Siochana weren’t aware that Sgt McCabe had been fully briefed of the DPP’s directions until he told the commission this on May 15, 2015 and explained how he was totally satisfied with the directions and no desire for them to be overturned.
In addition, Sgt McCabe produced a recording of the meeting in Mullingar to the commission – which turned out to completely contradict the claims made about the meeting.
An Garda Siochana later dropped both claims in the commission and they were never reported in the commission’s final report.
Further to this…
In response to a question from Mr Martin to Mr Varadkar about reports of a phone call, on May 15, 2015 – from Ms O’Sullivan to the Secretary General of the Department of Justice – in relation to the legal strategy adopted…
Mr Varadkar said:
“Whether it was on, I know you’ve claimed that it was a call on the day of the cross-examination to the secretary general, we haven’t been able to confirm if that’s the case or not.
“I think perhaps it was not. So I think that assertion may be false, but I don’t want to swear to that today until I can find out for certain but I think that assertion is probably incorrect.
“There may well have been a phonecall from the commissioner’s office to the Department of Justice on the day but it’s not unusual for the commissioner’s office to contact the Department of Justice.
“So to answer your questions, the former Justice Minister Frances Fitzgerald had no hand, act or part in the legal strategy, had no prior knowledge of it and she and the department only found out about it after the cross examination had already taken place.”
Sec Gen of Dept of Justice, Noel Waters, to step down in February… Govt says he’ll have fulfilled his 40 pensionable years. Only appointed last October. His own role in possible knowledge of Maurice McCabe smear only discussed in Dail today
From top: RTE’s Katie Hannon on Prime Time; Labour TD Alan Kelly; Sgt Maurice McCabe arriving at Dublin Castle for the Disclosures Tribunal; former Garda Commissioner Noirin O’Sullivan and former Justice Minister Frances Fitzgerald
On RTÉ’s Prime Time.
Katie Hannon had a report on Sgt Maurice McCabe and how he was treated during the O’Higgins Commission of Investigation, overseen by Justice Kevin O’Higgins.
Readers will recall how, on May 6, 2014, Sean Guerin SC, after examining allegations of Garda misconduct made by Sgt McCabe, Mr Guerin recommended that a Commission of Investigation be held into the complaints.
This would eventually lead to the setting up of the privately held O’Higgins Commission of Investigation in 2015.
At the outset of the O’Higgins Commission, counsel for the then Garda Commissioner Noirin O’Sullivan and An Garda Siochana said it would argue that Sgt McCabe acted out of malice and that evidence of this would be based on a meeting Sgt McCabe had with two gardai, Supt Noel Cunningham and Sgt Yvonne Martin, in Mullingar in August 2008.
Broadsheet has previously reported how it was also claimed at the O’Higgins Commission of Investigation that the reason Sgt McCabe was acting in such a way was because he wanted directions made by the DPP in 2007 – in respect of an “dry humping” allegation made by the daughter of a guard previously disciplined by Sgt McCabe in 2006 – overturned.
But the DPP’s directions were categorically in Sgt McCabe’s favour. They included the line: “Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault… there is no basis for prosecution.”
An Garda Siochana weren’t aware that Sgt McCabe had been fully briefed of the DPP’s directions on the same day they were issued in April 2007.
An Garda Siochana were forced to drop both claims at the O’Higgins Commission of Investigation, when Sgt McCabe produced a recording of the meeting in Mullingar and told Judge O’Higgins he had been fully briefed of the DPP’s directions, was very satisfied with them and, therefore, had no reason to want them overturned.
Further to this…
On RTE’s Prime Time, RTE’s political correspondent Katie Hannon reported on the O’Higgins Commission of Investigation.
She recalled the efforts by Ms O’Sullivan’s senior counsel to claim that Sgt McCabe had been making complaints about Garda malpractice because a grievance with a guard.
(It wasn’t reported about how the DPP’s directions were said to be the reason behind Sgt McCabe’s so-called grievance in the O’Higgins Commission of Investigation)
She also recalled how when this was first reported – by Michael Clifford in The Irish Examiner and Ms Hannon – after the commission’s report was published in May 2016, the then Garda Commissioner Noirin O’Sullivan faced down calls to resign.
And the Justice Minister Frances Fitzgerald insisted she retained confidence in Ms O’Sullivan.
Ms Hannon also recalled how Ms Fitzgerald was asked twice on Prime Time if she was taken aback by what happened in the O’Higgins Commission.
Ms Hannon reported that Ms Fitzgerald insisted she couldn’t comment on “selected leaks of a transcript”; that “they may not tell the full story”; and “they should not legally be in the public domain”.
Ms Hannon then explained there are now questions over what Ms Fitzgerald and the Department of Justice knew about the legal strategy at the O’Higgins Commission of Investigation.
And she told how Labour TD Alan Kelly has been asking questions about the same.
Ms Hannon reported:
“It goes without saying: if justice officials, or any political figures were aware of this strategy in advance, that would be a very serious matter.”
“…one of them [questions asked by Mr Kelly] asked the minister to outline, fully, the extent of meetings and communications that the former Garda Commissioner had with the Department of Justice prior to her giving those instructions to the legal team.
“Another asked specifically about a phone call that occurred, that is said occurred, on May 15, 2015, and that is in fact the day this legal strategy was launched at the Commission of Investigation.”
During the report, Mr Kelly, in a pre-recorded interview, said:
“I’ve been given information, I’ve had conversations, I’ve met with people and they’ve told me of their concerns, their concerns about who knew what in the Department of Justice regarding the legal strategy employed by the former Commissioner at the O’Higgins Commission.
“And they raised such concerns that I felt it necessary to put down the parliamentary questions that I did, to get to the bottom of what was known about the Department of Justice, when they knew it and, most importantly, were they privy to the legal strategy that was adopted by the legal team of the previous commissioner.
“Because if they were, that is absolutely very, very serious.”
“The responses are absolutely outrageous, they do not answer the questions. They’re an affront to democracy, they’re an affront to Dail Eireann. And I have asked the Ceann Comhairle to investigate these and he has told me today that he will.
“I’ve also written to the Minister for Justice, I’ve written to An Taoiseach to intervene and I’ve also rang the secretary general yesterday but, you know what, of course he never rang me back.”
Ms Hannon added that she has asked the Department of Justice if it was aware of the legal strategy employed at the O’Higgins Commission of Investigation in advance of its proceedings and was the Minister for Justice briefed of the same.
“This evening, a spokesperson for the department replied that they couldn’t directly answer that question because of the limitations on what can be said when matters may come under the remit of the Disclosures Tribunal.
“…It begs the question, if the department was completely and totally out of the loop in relation to this legal strategy, how could it become a matter for the Disclosures Tribunal?“
Further to this…
Readers should note that the day of the phone call mentioned by Ms Hannon – May 15, 2015 – was also the day Sgt McCabe told the O’Higgins Commission that he had been fully briefed of the DPP’s instructions.
This was the letter Chief State Solicitor Eileen Creedon, now a High Court judge, gave to the commission on Monday, May 18, 2015.
Ms Creedon’s letter stated:
“Sergeant McCabe was unhappy with the outcome of the decision of the Director of Public Prosecutions, as he believed that the decision ought to completely exonerated him rather than recording that there was not sufficient evidence to proceed against him.”
“Sergeant McCabe sought as an appointment to see Chief Superintendent Colm Rooney and this was facilitated in June/July 2007. At the meeting Sergeant McCabe expressed anger and annoyance towards the Director of Public Prosecutions. He demanded that Chief Superintendent Rooney communicate with the Director of Public Prosecutions to seek a declaration of his innocence from the Director of Public Prosecutions in relation to the allegation.
“Chief Superintendent Rooney advised Sergeant McCabe of the policy of the Director of Public Prosecutions in dealing with such issues, a policy which Sergeant McCabe was himself professionally aware of. Chief Superintendent Rooney told Sergeant McCabe that he could not seek such a declaration on Sergeant McCabe’s behalf from the Director of Public Prosecutions.”
“Chief Superintendent Rooney pointed out to Sergeant McCabe that from his own experience of dealing with criminal files to the Director of Public Prosecutions he was aware of the Director of Public Prosecutions role to determine if sufficient evidence was available on a file to direct a prosecution”
“Chief Superintendent Rooney pointed out to Sergeant McCabe that it was not the Garda Commissioner’s policy that An Garda Siochana challenge the Director of Public Prosecutions on his decisions.”
“Chief Superintendent Rooney further pointed out to Sergeant McCabe that, as a private citizen, it was open to him to write to the Director of Public Prosecutions if he so wished to ask the declaration he required.”
[In relation to the 2008 meeting in Mullingar] … “Superintendent [Noel] 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 [Colm] Rooney.”
“In the course of this meeting Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaint against Superintendent [Michael] Clancy was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him.”
It was after this letter was issued that Sgt McCabe told his legal team that he had a recording of the meeting in Mullingar.
This recording was later given to Judge O’Higgins who told the commission it was in direct conflict with Ms Creedon’s letter.
It heard how significant documents that should have been in a social work file concerning Sgt Maurice McCabe – when it was given to a specific social work review team – were not in the file.
This team was given the file to review as it was tasked with assisting Tusla’s legal team in responding to Sgt McCabe’s solicitor, after he became aware of the false rape allegation levelled against him.
The significant documents were in the file when it was given to the tribunal’s investigators.
At the tribunal yesterday, Tusla social worker Lisa O’Loghlen, who was unable to give evidence in respect of Sgt Maurice McCabe earlier this year, gave evidence.
Readers will recall how, in the summer of 2016, the Sexual Assault Response Team was set up in response to the number of retrospective allegations which were unallocated and on waiting lists, awaiting an allocated social worker.
Readers will recall Sgt McCabe’s flawed case was such a case.
The tribunal has already heard how a complaint by a Ms D in December 2006 came 11 months after her father, a guard, Mr D “lost his position and was reverted to other duties” after Sgt McCabe “caused the institution of serious disciplinary procedure against” Mr D in January 2006.
After the DPP investigated Ms D’s complaint, a letter from the DPP’s office was sent to the State solicitor for Cavan Rory Hayden on April 5, 2007, which stated: “Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault… there is no basis for prosecution.”
Readers will recall how Ms D’s 2006 allegation resurfaced during a counselling session seven years later in the summer 2013, in Cavan, with RIAN counsellor Laura Brophy.
An erroneous allegation of rape against Sgt McCabe ended up being attributed to Ms D when Ms Brophy sent a botched referral to Tusla in August 2013.
Then, readers will recall, on April 30, 2014, Laura Connolly plucked Sgt McCabe’s file randomly from a cabinet which contained unallocated cases and sent a notification of Sgt McCabe’s file to the gardai even though she was aware the 2006 allegation had already been sent to the gardai and DPP had ordered for no charges to be brought.
Ms Connolly made a monumental error by combining both the 2006 allegation, which was found to have no foundation by the DPP, and the 2013 allegation of rape pertaining to a Ms Y which had nothing to do with Ms D but was wrongly recorded by counsellor Laura Brophy as an allegation Ms D was making against Sgt McCabe.
The tribunal has already heard that social worker Clair Tobin was allocated Sgt McCabe’s case in August 2016 – some eight months after Kay McLoughlin, of Tusla, sent Sgt McCabe a Barr letter (a letter which notifies an alleged abuser of the allegation made against them) in December 2015 which stated Tusla was investigating Sgt McCabe in relation to the false allegation of rape.
This Barr letter was sent after Ms McLoughlin’s superior Gerry Lowry – who knew this allegation was incorrect – failed to open an email attachment which contained Ms Loughlin’s draft letter containing the false allegation in May 2015.
Readers will recall that Sean Costello, SC, for Sgt McCabe, wrote back to Ms McLoughlin to say the allegation was wholly untrue in January 2016 but Tusla did not respond to Mr Costello until June 20, 2016.
In July of this year, Ms Tobin told the tribunal that, on June 27, 2016 – seven days after Tusla finally responded to Mr Costello – she and her co-worker, Lisa O’Loghlen, met with Michael Cunningham, who was the then duty social work team leader in Cavan, and he gave them a number of files and a synopsis of the files.
Ms Tobin told the tribunal that the file did not contained the Garda notification which was made in respect of Sgt McCabe by Laura Connolly in 2014.
Readers will recall Ms Tobin told the tribunal she didn’t know of the Garda notification until RTE’s Prime Time aired the matter in February 9, 2017.
In addition, Ms Tobin said the files she was given didn’t make clear that the DPP had instructed no prosecution on the basis that no criminal offence had taken place.
After Ms Tobin’s evidence about the file’s missing documents, Kay McLoughlin, who had “custody” of the file before it was sent to SART, made an additional statement to the tribunal, stating:
“I wish to state under oath, I did not remove any document from the file. I did not try to sanitise the file. I did not try to pretend things weren’t as bad as they were. I did not cover up anything in relation to the Maurice McCabe file. I have no knowledge of anyone else removing documents from this file and returning them at a later date.”
Further to this…
Ms O’Loghlen confirmed that there was no Garda notification on the file that she and Ms Tobin reviewed for SART.
Because of this, her review of the file does not mention the 2014 referrall at all.
Patrick Marrinan SC, for the tribunal had the following exchange with Ms O’Loghlen:
Marrinan: “Do you believe that there had been an interference with the file and that these documents had been revolved so that you wouldn’t have sight of them?”
O’Loghlen: “I don’t see why it would have made — I think it’s more that they weren’t put on the file in the first place. That would be my — but I can’t say for sure.”
Marrinan: “Well, these are the only documents that appear to have been removed from the file, you understand?”
Marrinan: “So it would appear to have been something that was done deliberately, because they’re all focused on the Garda referral?”
Later, Judge Peter Charleton, the tribunal’s chairman, had the following exchange with Ms O’Loghlen:
Charleton: “…every bit on the file that you’re reviewing when it comes to the SART team historical child allegations, every bit that records the error going to the Gardaí; in other words the digital anal and vaginal penetration is somehow removed.
Charleton: “Then it comes back sealed, the Tribunal gets it and lo and behold the documents you haven’t seen, which are the worst red flag of all the red flags you could come across…”
Charleton: “…are back on the file.”
Charleton: “So, what conclusion is one to reach? I mean it is a very, very stark set of facts confronting you. I suppose you don’t have to take the fence if you don’t want to take the fence, but I may have to take the fence and that’s why Mr. Marrinan asked you the question. I mean, it’s really… weird, is not the word.”
O’Loghlen: “Yeah. No, I can see how it looks that way and it was very poorly managed in my opinion, from the start in 2006 right through.”
Charleton: “I know, but, you know, there’s the chaos theory and there’s a conspiracy theory.
Charleton: “Let’s say there’s a chaos theory, there’s a conspiracy theory and there’s the cover-up theory.”
Charleton: “The cover-up theory, you know, it has to be supported by something before you reach that conclusion. But in the event that the worst thing that happened is not on the file when you’re reviewing it in your professional capacity.”
Charleton: “And reviewing it competently, I think everybody accepts, that suddenly when the file is sealed, it reappears on the file.”
Charleton: “It’s kind of hard to reach the conclusion isn’t it…”
O’Loghlen: “Yes, yes, I accept that.”
Charleton: “..that somehow these documents were lost, all about the same thing, and suddenly come back in the right order in the file. That’s the problem. I don’t know whether you would like to comment on that. That was the whole purpose of Mr. Marrinan’s questions.”
Charleton: “Would you like to?”
O’Loghlen: “I can absolutely see how it looks that that is the way that it happened, yes. I just can’t point a finger at any individuals in particular.”
Charleton: “So, I mean, so your view is it looks like a cover-up but you can’t say who was doing the cover-up.”
O’Loghlen: “Yeah, because if they’d been on the file I absolutely would have reported on them, and that’s why I’m so sure that they weren’t on the file.”
Charleton: “And do you think it was a cover-up?”
O’Loghlen: “I don’t think that there is a — between Tusla and the guards no. I do think it was poor management and incompetence.”
Charleton: “Well, I mean, if anybody makes a mistake, I mean it’s hard to own up to it, but sometimes one also can cover oneself in paper or remove the paper…”
Charleton: “…that shows the mistake.”
Charleton: “In administration we all realise that that kind of thing happens. Does it look as if this has happened here? Without having to point the finger at anybody, does it look as if that’s what happened.”
O’Loghlen: “That there was a cover-up?”
O’Loghlen: “It looks that way to me, yes.”
Charleton: “But you can’t say who may have…”
O’Loghlen: “I can’t say, yeah. I can’t.”
Charleton: “Fair enough.”
Under cross examination from Paul McGarry SC, for Sgt McCabe, Ms O’Loghlen said that had she learned of the file’s missing documents before she drew up her report on the file, she might have inquired why they weren’t on the file and asked who had been responsible for the missing documents at the time.
She said team leaders and principals normally hold Garda notifications, not social workers.
The public sittings of the tribunal are not expected to resume until mid/late November.
The Disclosures Tribunal will resume in two weeks’ time on Monday, September 18 – two days before the Dáil resumes.
The tribunal is investigating claims of an orchestrated smear campaign against Garda whistleblower Sgt Maurice McCabe, by former Garda Commissioner Martin Callinan and with the knowledge of the current Garda Commissioner Noirin O’Sullivan, as alleged by the former Head of the Garda Press Office Supt Dave Taylor.
The tribunal released an opening statement in February in which it stated that, there were 15 phones which were of interest to the tribunal’s investigators but only four had been located at that point.
Further to this…
John Mooney, in yesterday’s Sunday Times, reported:
Garda Headquarters has so far been unable to account for what happened to certain phones, which the tribunal wants to have forensically examined to extract data, emails and internet browsing histories.
Charleton’s team has taken possession of at least two of the six phones once used by Callinan, who retired from his position amid controversy in 2014.
The tribunal team has yet to recover mobile phones used by O’Sullivan, who succeeded Callinan.
She used at least six mobile phones during the period under investigation. A smartphone she used while deputy commissioner in charge of operations, and which is of particular significance to the tribunal, is said to be lost.
Of 15 mobile phones the tribunal has sought, fewer than six have been located so far by gardai. Other pieces of IT hardware, including iPads used by O’Sullivan and laptop computers, have been surrendered.
In addition, Mr Mooney reported:
“The tribunal recently interviewed both civilian staff and gardai who worked at the garda press office at relevant times to ascertain if they had knowledge of any media strategy against McCabe. The witnesses have denied knowledge of any conspiracy. It is understood their evidence has been accepted by investigators working for Charleton.”
From left: Lorraine McCabe, Sgt Maurice McCabe, Supt Noel Cunningham and Garda Commissioner Noirin O’Sullivan
Readers will recall the Commission of Investigation into allegations of Garda misconduct by Garda whistleblower Sgt Maurice McCabe, overseen by Judge Kevin O’Higgins, in 2015.
In the wake of the publication of the commission’s report, in May 2016, it emerged that it failed to report certain matters that happened during the commission.
Michael Clifford, in the Irish Examiner, reported that, at the beginning of the proceedings, Colm Smyth SC, for the Garda Commissioner Noirin O’Sullivan, said that evidence would be produced to show that Sgt McCabe had told two other gardai that he made the complaints out of malice at a meeting in Mullingar in August 2008.
This claim of intention on the part of An Garda Siochana was later dropped as Sgt McCabe went on to produce a recording of the meeting which proved this was untrue.
However, what hasn’t been reported is what the gardai alleged motivated Sgt McCabe to act out of malice. Today, we can reveal what this is.
Judge O’Higgins was told that Sgt McCabe acted out of malice because he wanted the DPP’s directions made in respect of Ms D’s 2006 “humping” allegation overturned.
However, these are the DPP’s directions:
I acknowledge receipt of your letter dated 1st March 2007 together with copy Garda investigation file.
I agree with you and the Guards, that the evidence does not warrant a prosecution. There was no admission. The incident as described by the injured party is vague. It appears that it was only when she was eleven/twelve that she decided that whatever occurred was sexual in nature.
Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault.
Further, the account given to her cousin [redacted] differs in a number of respects to that given to her parents and the Guards.
There is no basis for a prosecution.
An Garda Síochána made this claim to Judge O’Higgins on the basis that it didn’t know Sgt McCabe was fully aware of the DPP’s full, seemingly unequivocal directions.
And when he made this known at the O’Higgins investigation, this claim by An Garda Siochana was also dropped – and was also never mentioned in the report.
It now seems clear that knowledge of both the O’Higgins Commission of Investigation, which was carried out in private, and the Disclosures Tribunal, which is being carried out in public, are needed to understand what happened to Sgt McCabe.
Gerard Lowry, the Cavan-Monaghan area manager with Tusla
Further to this morning’s earlier post in relation to the Disclosures Tribunal currently under way in Dublin Castle…
Readers may recall how Sgt McCabe wasn’t told of the false allegation of rape until a letter was sent to him on December 29, 2015.
The rape allegation pertained to a Ms Y and had nothing to do with him but ended up being associated with him on Tusla and Garda files from August 2013, following a series of communications between Rian counselling, Tusla and the gardaí.
The letter informing Sgt McCabe of the allegation – without acknowledging it was a mistake even though Tusla had been informed it was a mistake in 2014 – was sent to him in a letter by Kay McLoughlin, of Tusla, on December 29, 2015.
Kay McLoughlin’s letter stated:
“Dear Mr McCabe,
I am a child protection social worker employed by the Child and Family Agency, and I am investigating allegations made by Ms. D. The CFA has responsibility for the protection of children under the Childcare Act of 1991. The CFA is obliged to investigate allegations of abuse and to reach a determination as to whether there are sufficient grounds for believing that you may potentially pose a risk to children. The allegations made by Ms. D are as follows:
That on one occasion between 1998 and 1999 at the home of Maurice McCabe, Ms. D alleged that Maurice McCabe sexually abused her. The abuse allegedly involved digital penetration, and the victim was aged six to seven years old. It is reported that this allegation was investigated by An Garda Síochána some years later. A file was sent to the Director of Public Prosecutions, who directed that no prosecution take place. I would like to meet with you to discuss the allegations and allow you an opportunity to respond. A decision has not yet been reached with regard to the allegations and the purpose of this proposed meeting is to give you an opportunity to respond. On this basis, I would like to meet with you on –”
[there is no date]
“– in the CFA office [named venue]. If you intend to be accompanied by a supporting person for the meeting, please notify me. If you do not wish to attend or provide a response in writing, a determination will have to be made as to whether you may pose a risk to children without the benefit of your views. It may be necessary to carry out further investigations in light of information you provide. I will inform you of any proposed further investigations.
“I will provide you with the outcome of the Social Work Department’s assessment and give you an opportunity to respond to it, either by way of a further meeting or in writing. If the assessment outcome is that you may pose a risk to children, I will have to bring this view to the attention of any relevant third party. This may include your employer or your family. You will be notified prior to this being done. Please note that for the purpose of confidentiality the details of any allegations will not be discussed over the phone, should you choose to phone prior to your appointment.”
Mr McLoughlin’s superior Gerard Lowry has told the tribunal he did not notify Ms McLoughlin that this letter was wrong.
Yesterday, the tribunal heard Ms McLoughlin had emailed a copy of the letter to Mr Lowry for review, prior to it being finalised, but Mr Lowry did not open the draft letter which was attached to the email.
In response to this letter, two letters were sent by Sean Costello, on behalf of Sgt McCabe.
On January 20, 2016, the first letter stated:
“Dear Ms. McLoughlin Please note that we have been consulted by Mr. McCabe concerning your letter of the 29th December 2015. We are to take our client’s further instructions and shall respond to you within seven days. In those circumstances our client will not be attending the meeting with you tomorrow.”
Further to this…
The tribunal has heard about the second letter sent by Sean Costello to Tusla, on January 28, 2016.
The second letter refers to the DPP’s order not to prosecute Sgt McCabe in relation to Ms D’s 2006 allegation pertaining to an incident in relation to a game of hide and seek in 1998.
In his letter, Mr Costello outlined that not only did the DPP say that “no criminal offence had been described or disclosed”, the DPP also queried how the parents of Ms D could reach the conclusion that a sexual assault had occurred as described.
In the same letter, Mr Costello outlined that Mr D – the father of Ms D – “lost his position” after Sgt McCabe, who was the sergeant in charge at Baileboro Garda Station, implemented serious disciplinary procedures against Mr D, who was also a sergeant.
Also in the letter, Mr Costello said, it was only after the disciplinary procedure was taken against Mr D, that Ms D made the the original complaint in 2006.
Readers will note that Judge Charleton told the tribunal that Sgt McCabe denies there was a game of hide and seek in their home in 1998 – as alleged by Ms D in her 2006 allegation – and that it was “highly unlikely there was ever” a game of hide and seek as one of his children has serious special needs.
Yesterday, the tribunal also heard Mr Lowry say:
My memory then and now is that I have never actually been at a meeting with Sergeant McCabe about any matter.
The tribunal then heard a list of dates in which Mr Lowry chaired child protection conferences which were were attended by Sgt McCabe.
Mr Lowry accepted the record.
This morning, Mr Lowry was asked about this again.
He said he chaired approximately 100 such conferences a year for approximately 10 years and while he still couldn’t remember Sgt McCabe being at any of those meetings, he “fully accepted he was there” based on the records of the meetings.
In addition, the tribunal heard of an email Ms McLoughlin sent to Gerry Lowry and Seamus Deeney, Kay’s direct manager at the time, in May 2015 – some seven months before Ms McLoughlin sent her letter to Sgt McCabe.
“Dear Gerry and Seamus,
I, along with Gail [Penders], have been reviewing files on the MTP today. One relates to Maurice McCabe and I would like to discuss this case with you both before taking any action as it appears that this concern was referred to us in 2007 and Mr. McCabe was never met. It has come back in again due to media coverage of Mr. McCabe.”
Asked about this email this morning and the comment “It has come back in again due to media coverage of Mr McCabe”, Mr Lowry said:
“The media coverage didn’t influence our response.“
The tribunal also heard this morning hat the the number of referrals to Tusla amounted to 440 in Cavan and 263 in Monaghan in 2006, with these figures rising to 1,261 and 908 respectively in 2013.
Mr Lowry provided the tribunal with a report he compiled in 2014 in which Mr Lowry highlighted staffing level concerns in respect of the number of referrals.
The second letter sent from Sean Costello to Ms McLoughlin, on January 28, 2016, said:
Dear Ms McLoughlin
Please note that we act on behalf of Mr. Maurice McCabe. Your letter dated 29th December 2015 is to hand and we have our client’s instructions concerning same. At the outset, we might ask you to state on what authority or remit you are considering this complaint and proposing to engage in a process which may ultimately result in some determination as to whether or not our client may (pose a risk) to children. You might, therefore, provide us with the statutory authority or other legal basis on which you are dealing with this matter. We await an urgent reply to this letter.
For your own information, and entirely without prejudice to the foregoing request, our client has instructed us to address this wholly false and malicious allegation to which you refer. The allegation is wholly untrue. The incident alleged to have occurred in 1998 and a complaint which was made in December 2006 were subject to a full investigation by An Garda Síochána.
The file, as you are aware, was sent to the Director of Public Prosecutions. What you may not know is that our client, when originally informed of the complaint, insisted that Ms. D be interviewed again in the presence of an independent social worker and that her allegation be carefully recorded. Both her accounts were sent to the DPP in the file.
The DPP not merely directed that no prosecution take place, but you should know that the DPP clearly stated that no criminal offence had been described or disclosed in the complaint. Our client is accordingly astonished to read the allegation now being made. This allegation of digital penetration was never made before and is in fact a new and entirely false allegation.
It can be easily demonstrated that this claim of digital penetration was never made to the Gardaí or to the independent social worker and our client has never heard any such suggestion until now. The DPP could never have found that the complaint disclosed or described no criminal offence if the allegation of digital penetration had been made to the Gardaí or social worker.
Our client had been sergeant in charge of Bailieboro Garda Station at the time of the making of the complaint. In 2006 he became aware of serious misbehaviours on the part of Ms. D’s father, who was also a sergeant in the station.
Our client caused the institution of serious disciplinary procedure against the complainant’s father in January 2006. The result being that her father lost his position and was reverted to other duties. It was only in the aftermath of Sergeant McCabe initiating the disciplinary procedure and other matters that Ms. D, in the company of her parents, made the original complaint, but in totally different terms against our client. In respect of the original complaint, which Sergeant McCabe knew to be wholly false, when this complaint was made our client insisted on being interviewed.
Our client also insisted that the complainant be interviewed by the Gardaí and a social worker without the presence of her parents. Our client, when interviewed, insisted on knowing the exact allegation being made. He was informed the allegation being made by Ms. D was that sometime when she was aged six, during a game of hide and seek with our client’s children in our client’s house, in the course of that game she alleged that he lent over her in a humping fashion.
This is and was utterly denied by our client. As we stated above, the original allegation was considered and decided on by the Director of Public Prosecutions, who not only found that no criminal offence whatsoever had been described or disclosed, but also queried how the complainant’s parents could have reached the conclusion that a sexual assault had occurred even as described.
We would also wish to inform you that our client’s family and employer, the Commissioner of An Garda Síochána, are now and have always been fully aware of the allegation made by Ms. D. If the purpose of the inquiry which you have made in your letter was, as your letter suggests, to enable consideration to be given as to whether his family and employer should be informed, that purpose is long since spent. We await hearing from you by return and pending receipt of a satisfactory reply to our request concerning your authority or remit, we will be in a position to take our client’s instructions if necessary.
Sgt Maurice McCabe and, clockwise from top left: Rhona Murphy, of Tusla; Mary O’Reilly, of Tusla; Fiona Ward, of Rian counselling; Keara McGlone, of Tusla; Laura Connolly, of Tusla; and Laura Brophy, of Rian counselling, at the Disclosures Tribunal
At the Disclosures Tribunal in Dublin Castle.
The tribunal is currently examining how a 2006 allegation of inappropriate touching by a Ms D against Sgt Maurice McCabe became conflated with a 2013 allegation of rape concerning a Ms Y against somebody else entirely, and how this false allegation of rape against Sgt McCabe came to be circulated between the counselling service Rian, Tusla and An Garda Siochana.
This module is part of a wider examination of claims by the former head of the Garda Press Office Supt Dave Taylor that former Garda Commissioner Martin Callinan, with the knowledge of the current commissioner Noirin O’Sullivan, orchestrated a smear campaign to discredit whistleblower Sgt McCabe’s character.
Since last week, the tribunal has heard from several witnesses.
A common refrain from most, if not all, witnesses has been that they have little recollection of certain matters; that they don’t pay close attention to the news; and that while some protocols were followed, others were not.
In relation to the widespread lack of knowledge regarding the position of Sgt McCabe within An Garda Siochana – given the stories about him in the press in relation to Garda whistleblowing – yesterday Supreme Court judge Peter Charleton even asked one witness, Laura Connolly, if she knew Leo Varadkar was Taoiseach and if Enda Kenny was the previous taoiseach.
She said she did.
The tribunal has heard from child protection social worker Rhona Murphy.
Ms Murphy told the tribunal she was phoned by Ms D’s mother, Mrs D, in December 2006, and that Mrs D said Ms D had alleged that, in 1998, during a game of hide and seek in a man’s house, the man held Ms D over a sofa – while they were fully clothed – and touched her inappropriately. The word ‘humping’ was used to describe the motion.
Ms Murphy subsequently visited the D family home, on December 12, 2006 – the same day a meeting of the Child Protection Strategy Risk Management Committee in Monaghan, attended by Ms Murphy, discussed Ms D’s allegation – and she was informed, she believes by Mr D, that Ms D’s allegation pertained to Sgt Maurice McCabe.
Ms Murphy recorded the name of Sgt McCabe, his wife, details pertaining to their children, including their ages, and the McCabes’ address.
It was agreed at a meeting of social workers – including Eileen Argue – that, on April 24, 2007, Sgt McCabe would be met by social workers. However this never occurred.
Ms Murphy later closed the case pertaining to Ms D and her allegation against Sgt Maurice McCabe in October 2007. This was after the DPP had ordered that no charges be made against Sgt McCabe.
The tribunal heard a credibility assessment was never carried out on Ms D. Ms Murphy said it would have been unfair on Ms D, an adolescent, “to go through the allegation time and time again”.
After Ms Murphy closed the case, she wrote a letter to her superior, acting principal social work manager Mary O’Reilly, concerning Sgt McCabe, noting that Sgt McCabe had not yet been met by a social work team member.
She told the tribunal Sgt McCabe was supposed to have been met by a social worker from Meath as, it was her understanding, Sgt McCabe was the garda liaison officer for the HSE in Cavan/Monaghan and the go-to person for matters concerning child protection in the area.
However, Sgt McCabe was not notified of the false allegation of rape against him until a letter, written by Tusla’s Kay McLaughlin, was sent to him on December 29, 2015 – nine years after the 2006 allegation was made – despite protocol stating he should have been contacted by a social worker immediately after the allegation, although false, became known.
The tribunal also heard from Mary O’Reilly.
Ms O’Reilly told the tribunal she had “no memory of receiving” the October 2007 letter from Ms Murphy, in relation to Ms Murphy’s concerns that Sgt McCabe hadn’t been seen by a social worker.
The tribunal also heard from Rian counsellor Laura Brophy.
Ms Brophy was the counsellor who made the original mistake of reporting the two unrelated allegations pertaining to Ms D and Ms Y in a retrospective abuse form against Sgt McCabe to Briege Tinnelly, of Tusla, on Friday, August 9, 2013.
Ms Brophy would also have sent this to her superior Fiona Ward on the same date.
Ms Brophy told the tribunal she sent this form without realising the form contained the unrelated allegation of rape and without spotting that Ms Y’s surname was in the report.
She said she made what she thought was a referral solely relating to the 2006 allegation on the basis of a phone call she had had with MsTinnelly, of Tusla, who, Ms Brophy claims, told her the matter had not been previously referred.
In light of this, Ms Brophy submitted a retrospective disclosure of abuse report to Ms Tinnelly. However, Ms Brophy knew the matter had already been referred to the DPP back in 2006. In 2006, gardai were duty bound to notify the HSE of such matters.
Yesterday, the tribunal heard that, in regards to their surnames, Ms D and Ms Y shared the first, fifth and sixth letters in their names, while the second, third and fourth letters were different.
The tribunal also heard from Tusla social work team leader Keara McGlone.
Ms McGlone – who married a garda based in Monaghan Garda Station in 2015 and who told the tribunal she was liaising with members of An Garda Síochána from 2010 – wrote a letter to Superintendent Noel Cunningham on August 15, 2013.
The letter stated:
“Dear Superintendent Cunningham, Health Service Executive Child and Family Services have recently received a referral from Rian, a therapeutic counselling service for adult survivors of child sexual abuse. The referral states that Ms. D, now aged 21, has discussed during counselling sessions that she was sexually abused during her childhood by an adult male, M. McC.”
“I note from the social work file that you conducted a criminal investigation into these allegations in 2007. However, it appears the alleged perpetrator was not met with by Health Service Executive at that time.”
“I would like to meet with you to discuss the case prior to making any contact with the alleged perpetrator.”
The tribunal heard Supt Cunningham never responded to this letter – though he did open it in September, 2013 after returning from leave – while Ms McGlone didn’t make any follow-up inquiries with Supt Cunningham.
At this time, Sgt McCabe was still not informed of the entirely false allegation of rape levelled against him.
In addition, on August 13, 2013, the tribunal heard Ms McGlone opened Tusla’s first file on Sgt McCabe.
In her statement to the tribunal, Ms McGlone said:
“As I had identified that there was an outstanding assessment to be completed in relation to Mr. McCabe’s response to the allegations and an assessment of any future risk, if any, that he may pose, a file was opened in his name and the case was placed on the Measuring the Pressure [MPS] system, a list of cases on a database awaiting allocation to a social worker for assessment.”
Ms McGlone said this file she created was based on the verbal report given by Ms Brophy to Ms Tinnelly over the phone which referred solely to Ms D’s 2006 allegation – not the rape allegation pertaining to Ms Y.
Ms McGlone also told the tribunal she never saw Ms Brophy’s written report which contained the false allegation of rape and which was sent to Tusla on August 9, 2013.
Yet, on Friday, August 9, 2013, Ms McGlone wrote the comment ‘Duty to guard notify and await assessment or allocation’ on a form added to Sgt McCabe’s file. She was asked by Sgt McCabe’s legal counsel Michael McDowell why she wrote this.
She told the tribunal:
“I can’t be a hundred percent certain on this, I don’t recall even completing that form…”
However, Ms McGlone said she likely wrote it as a means to clarify the allegation relayed by Ms Brophy over the phone to Ms Tinnelly was the same from 2006.
The tribunal also heard she made the decision to write the handwritten comment “Duty to guard notify” without speaking to Briege Tinnelly.
The following Monday, the tribunal heard that Ms McGlone learned that, on January 2, 2007, the gardaí had already notified Tusla of Ms D’s 2006 allegation.
Despite this, Ms McGlone still sought to seek clarification from the gardaí and went on to request a meeting with Supt Noel Cunningham in a “private and confidential” email. Ms McGlone agreed that sending a “private and confidential” email to Supt Cunningham wasn’t the standard form notification procedure.
Ms McGlone never amended the file to take out the comment “Duty to guard notify”.
She admitted to the tribunal:
“Perhaps I should have amended that note to ‘Await contact from Superintendent Cunningham’, but I didn’t do that.”
The tribunal was told Ms McGlone’s file on Sgt McCabe sat in a filing cabinet from August 2013 until April 30, 2014.
The tribunal also heard from director of counselling with RIAN – and Ms Brophy’s superior – Fiona Ward.
Under cross-examination by Michael McDowell SC, for Sgt McCabe, Ms Ward was asked about what action was taken in respect of Sgt McCabe once it became known that Ms Brophy had made such a catastrophic mistake in May 2014. He asked:
“Can I ask you, at any stage within your service was there any discussion about informing Sergeant McCabe about all of this?
“From what I can recall, I think I would have maybe discussed it with the counsellor at the time in relation to that, but my memory is that because we had had no contact with Mr. McCabe that we would have felt that if that information — if that was to be done, that that might be more appropriate within the Social Work Department. That is my vague recollection. I have no specific record.“
He then asked:
“Did you discuss it with the Social Work Department that, between the pair of you, the pair of institutions, somebody owed Sergeant McCabe the small civility of telling him that his reputation was being shredded in private as a result of gross incompetence?”
“No, unfortunately not.”
Further to this.
The tribunal heard evidence from Tusla duty social worker in Cavan town Laura Connolly last Friday and yesterday.
It also heard from Tusla’s area duty manager Gerard Lowry yesterday.
Laura Connolly was the next person to deal with the file on Sgt McCabe after Ms McGlone – some eight months later – on April 30, 2014.
And she was the person who sent a notification of Sgt McCabe’s file to the gardaí, containing a combination of both the 2006 allegation, that was found to have no foundation by the DPP, and the 2013 allegation of rape pertaining to Ms Y which had nothing to do with Ms D but was wrongly recorded by counsellor Laura Brophy.
The Garda notification therefore appeared to say that Ms D was accusing Sgt McCabe of raping Ms D during a game of hide and seek.
Interestingly, Ms Connolly consistently used Ms D’s name and not Ms Y’s name, even though Ms Brophy’s report contained Ms Y’s name twice and Ms D’s name twice.
Ms Connolly’s Garda notification stated:
“Ms. D is attending counselling with Rian. During the course of counselling she alleged that she experienced sexual abuse in childhood. This abuse involved digital penetration, both vaginal and anal. This abuse is alleged to have occurred on one occasion in 1998 to 1999. Ms. D reports being aged six or seven years old at the time of this alleged abuse. Ms. D alleges that the alleged perpetrator of this abuse threatened her father if she said anything. Ms. D alleges that this incident of alleged abuse occurred while she and her parents were visiting the home of the alleged perpetrator. Ms. D alleges that her parents and the alleged perpetrator’s wife were in another part of the house and she was playing hide and seek with the alleged perpetrator and his two daughters, who were then aged approximately three years and five years of age.”
In addition, it stated:
“Ms. D informed her parents of this alleged abuse when she was aged 11 or 12 years of age. Ms. D made a statement to An Garda Síochána at the time. A file was sent to the DPP. However, no prosecution was directed.”
The tribunal has heard that this Garda notification set in train the following sequence of events: the notification was sent to the Gardaí; someone in the Gardaí notified Ms D’s father of the false allegation; Mr D told Ms D and, in May 2014, Ms D told counsellor Laura Brophy that there was an allegation of rape against Sgt McCabe attributed to her but that she had never made such an allegation.
Though the tribunal heard Ms Connolly had “very little actual memory” of plucking the file from a four-drawered cabinet in the “duty room”, it also heard she was working as duty social worker on that day, April 30, 2014, when she pulled what “happened to be” Sgt McCabe’s file.
Being a duty social worker meant she had to complete outstanding tasks on cases awaiting allocation.
The files in the cabinet were not in any chronological order, with regard to month or year of acceptance, but were maintained on a so-called Measuring the Pressure (MTP) system which, the tribunal was told, was to assist team leaders in recording cases that were open and awaiting allocation.
Ms Connolly told the tribunal:
“I am categorical in my position that my working on Mr McCabe’s file on the 30th April 2014 is nothing more than a coincidence with everything else that I am now aware of was going on in the media surrounding Mr. McCabe and An Garda Síochána.”
It was put to Ms Connolly that, in February 2014, the Government had appointed a senior counsel to review claims made by Sgt McCabe.
It was also put to her that, on April 12 and 15, 2014, there had been articles written by Irish Independent journalist Paul Williams and that, while nobody was named in the articles, they pertained to Ms D.
Readers may wish to note that the April 12 article reported that Ms D felt “the investigation into her complaint was flawed” .
The tribunal also heard that the day before Ms Connolly picked out Sgt McCabe’s file, Ms D had made a complaint to GSOC in relate to the Garda investigation into her 2006 allegation.
Ms Connolly told the tribunal:
“Mr McCabe was of no significance to me, nor An Garda Síochána and all of the events that were surrounding that.”
“Why I am certain that Mr McCabe had no significance or interest to me, was that I was taken by surprise when my area manager, Mr Gerry Lowry, contacted me in February of this year to advise me that, potentially, I may have a role in the Tribunal, and it was only at that point I became aware of my involvement on the particular case.”
Ms Connolly told the tribunal she notified the gardai because of the handwritten comment left by Ms McGlone on a form, containing just the 2006 allegation, which said “Duty to guard notify”.
Ms Connolly was asked about her memory of sending the Garda notification form.
“…from review of the paper I’m aware that a Garda notification form was created and an e-mail sent from my account with the Garda notification, so I have no reason to suggest that it was anyone other than me that created that Garda notification.”
Ms Connolly was repeatedly asked why she would have notified gardai given the allegations had been previously referred to the gardai and that the DPP decided no charges be brought against Sgt McCabe.
“This was now a retrospective allegation of sexual abuse which Tusla had received, and our practice has been, and continues to be, that when we receive retrospective allegations of sexual abuse, we notify An Garda Síochána.”
Asked by Kathleen Leader BL, for the tribunal:
“Is there anything else you can tell the Tribunal as to the purpose of Garda notification in 2014?”
Ms Connolly replied:
“No, I have nothing further to add.”
As mentioned above, in her Garda notification, Ms Connolly combined both the written report from Ms Brophy – which contained the wholly unrelated allegation of rape pertaining to Ms Y – and the verbal referral Ms Brophy made to Ms Timmelly, which only pertained to Ms D’s 2006 allegation.
Explaining her actions, Ms Connolly said:
“My practice where I noticed that a telephone call from a professional is followed up within a number of days with a written report from the professional, I would follow the content of the written report from the professional.”
Ms Connolly also failed to spot that Ms Y’s name was in the report – a name inconsistent with that of Ms D – and didn’t even become aware of this discrepancy until during an interview with the tribunal’s investigators on June 23, 2017.
“The first that I became aware that Ms. Y’s name was located in two places in this form was at my interview with the [tribunal] investigators on the 23rd June this year. Up until then, I had assumed that the description of the abuse — I wasn’t aware that another person’s surname was located in two places in the form.”
“I am of the belief that in the busyness of the office environment and in scanning this report to elicit the detail to put in to the Garda notification, that I overlooked that in the body of that report there was the reference to another person.”
Ms Connolly later told the tribunal that she was never informed of her mistake by anyone – neither her colleagues not solicitors.
Supreme Court judge Peter Charleton asked if the mistaken ever even came up during a tea break with her colleagues. She said it didn’t.
In addition, Ms Connolly, from the file, was aware the 2006 allegation had already been sent to the gardai and DPP had ordered for no charges to be brought. Asked if this made her question whether or not it was necessary to send a Garda notification, Ms Connolly said: No.
Also, given that the cabinet file contained Ms McGlone’s report of August 9, 2013, which had the added comment ‘Duty to garda notify’ and Ms McGlone’s letter to Supt Noel Cunningham, from of August 15, 2013, seeking a meeting to clarify matters, Ms Connolly was asked if these documents didn’t prompt her to seek more information before notifying the gardai.
“I would expect if the team leader had wanted that the Garda notification be held off on it being sent until an outcome of this was known, it would have been amended on the file.”
She added that she didn’t consider contacting Supt Cunningham.
Last Friday, the tribunal also heard about an undated post-it note, which didn’t state which file it related to, stating “Duty to notify allegations on to Garda Síochána and filing cabinet, Eileen.”
Eileen is Eileen Argue, who was the acting social work team leader at the time. She had taken over Keara McGlone’s job at this point.
Ms Connolly was asked if it was this post-it note that prompted her to choose Sgt McCabe’s file from the cabinet and carry out the garda notification. She said “it’s a possibility”, adding that the first she heard of the post-it note was when she was interviewed by the tribunal’s investigators earlier this year.
Under cross-examination from Mr McDowell yesterday, Ms Connolly’s attention was brought to intake record for Sgt McCabe’s file in which, Mr McDowell said, there is a line through a box marked “Notified to An Garda Síochána”.
Mr McDowell what the tick through the box conveyed to Ms Connolly. She said:
“For any, if you want, lay person reading that, you would assume that that means it has already been notified to An Garda Síochána. Unfortunately, the action box doesn’t give us scope to indicate the task has yet to be done. So that box would be ticked to indicate that the duty social worker is to Garda notify. That does not indicate to me that the notification has already been completed.”
Mr McDowell replied:
“So it’s in the past tense and it’s ticked, but you say that it conveys to you that it was something which yet required to be done?
The tribunal heard Ms Connolly and Ms Argue’s offices are on the same corridor. Ms Connolly said she has no recollection of discussing Sgt McCabe’s file with Ms Argue on that day.
In addition to sending a Garda notification, Ms Connolly also sent a note to Ms Argue in respect of Sgt McCabe’s two children at the time of Ms D’s allegation, then aged two and three, which stated:
“Eileen, I have checked system and we have no record of file on Maurice McCabe’s two children at the time.”
Ms Connolly named the two daughters, who would have been 18 at this point, in the note.
The same note stated:
“Maurice has two other children now who weren’t born at the time of the alleged incident.”
These two children, at this point under the age of 18, were also named.
The note further stated:
“How do you want to proceed regarding the McCabe children? Case direction from Eileen: Complete intake records x4 on children.”
The tribunal was told Ms Connolly must have looked back at Rhona Murphy’s report in Ms D’s file, from December 2006 in relation to Ms Murphy’s contact with Ms D’s family, in order to obtain the names and ages of Sgt McCabe’s children. This was because Ms Murphy’s note of these details was the only time the details of Sgt McCabe’s children appeared on file.
It was put to Ms Connolly that, if she had looked at Ms Murphy’s report, she would have seen the 2006 allegation had nothing to do with any allegation of rape.
Ms Connolly was asked if she could recall reading Rhona Murphy’s report. She said: “I can’t specifically recall.”
However she did say “It’s very likely, yes” that she got the details of Sgt McCabe’s children from Ms Murphy’s report.
Asked if she could could “in any way explain” why she didn’t realise the allegation as recorded by Ms Murphy differed to Ms Brophy’s written report – which contained Ms Y’s rape allegation wholly unrelated to Sgt McCabe – Ms Connolly said:
“I can’t explain further, no.”
Asked if she could have gotten the details from elsewhere, she said:
“No, I don’t believe I did.”
Ms Connolly was also asked why, while creating intake records on Sgt McCabe’s children, she created intake records for two of his children given they were over 18 years of age at the time.
On Friday, Ms Connolly was asked what she did with Sgt McCabe’s file once she had completed the intake records.
She said her “routine practice at that time was to leave the intake records and any relevant files in what was called a referrals tray”.
The tray would hold all new intake records created during a week and were left for the team leader. They would then be brought to a weekly referrals meeting the following Monday.
The tribunal heard these weren’t discussed the following Monday and that there was no action recorded by the team leader. They also weren’t signed off by the team leader at that time, Eileen Argue.
Asked if she could explain to the tribunal why the case wasn’t discussed, Ms Connolly said: “I can’t.”
Yesterday, under cross-examination from Mr McDowell, Ms Connolly spoke about leaving files on the referrals tray for Ms Argue.
Mr McDowell said to Ms Connolly that she must have discussed the matter with Ms Argue, given that Ms Connolly notes a response from Ms Argue in her note:
“How do you want to proceed regarding the McCabe children? Case direction from Eileen: Complete intake records x4 on children.”
Ms Connolly agreed but said she couldn’t recall that discussion.
Mr McDowell asked:
“Are you telling the Tribunal that you didn’t have a discussion with Ms Argue before you started carefully going through this file, looking for details of the McCabe children?”
“I have no recollection of any involvement in this case.”
Mr McDowell suggested to Ms Connolly that she must have spent the most of April 30, 2014 working on this case file – between reading it carefully, preparing a Garda notification form, interacting with Ms Argue and then proceeding to prepare separate children notification forms at a later stage.
Ms Connolly agreed but added:
“I can’t proportion what length of time I spent on the file.”
Mr McDowell asked Ms Connolly if she ever discussed the file and her note with Eileen Argue. She said: No.
Asked if she would have expected Ms Argue to have looked at the file before giving Ms Connolly the direction to open the files on Sgt McCabe’s children, Ms Connolly said:
“I can’t state if Ms. Argue reviewed the files or not, and perhaps that is something she will be able to assist with in her evidence to the Tribunal.”
Mr McDowell went on to ask Ms Connolly:
“Are you trying to cover for her at this stage?”
Mr McDowell asked about the referral meetings and the fact that, after Ms Connolly’s serious error on April 30, 2014, and the fact that Ms Brophy subsequently notified Tusla of the error, the case was not discussed at the following week’s meeting where Ms Connolly and Ms Argue would have been present.
She said: No.
Mr McDowell put it to Ms Connolly that it seemed wholly exceptional that the file was not considered for the immediate referral meeting after Ms Brophy made Tusla aware.
He then asked who decides which files are discussed. Ms Connolly said:
“Well, all new intake records are left in the referrals tray in the duty room and they are all taken in a bundle by the duty social worker that week, and the referrals meeting is led by the social work team leader.”
Mr McDowell asked if that’s Eileen Argue and Ms Connolly agreed.
Mr McDowell then asked:
“So the files would have been taken in a bundle for consideration at the next referrals meeting the following week, but for some reason this file was never so considered, is that right?… That must have been Ms. Argue’s decision, mustn’t it? It wasn’t your decision?”
Ms Connolly said:
“No, it wasn’t my decision, no.”
Yesterday, area manager Gerry Lowry also gave evidence and he will be further questioned and then cross examined this morning from 10am.
Just before the tribunal’s proceedings ended yesterday, Patrick Marrinan SC, put it to Mr Lowry the following:
“There isn’t an error in his [Sgt McCabe’s] favour. Nobody made a mistake by which he benefited, do you understand?”
Mr Lowry agreed that he did understand.
Mr Marrinan added:
“And there are those who may say that this litany of grave errors can’t just simply be coincidence after coincidence after coincidence that is being suggested, do you understand?”
Mr Lowry agreed that he did understand but told the tribunal:
“I think they are terrible errors consistently, but they were absolutely coincidences. Bad file management.”
The other witness scheduled to appear tomorrow is Kay McLoughlin.
Transcripts of each day’s proceedings can be read here