About the Chief State Solicitor’s letter which was presented to the O’Higgins Commission of Investigation in 2015.
And about questions surrounding how claims about a meeting in Mullingar in August 2008 – attributed to Supt Noel Cunningham who was present at the meeting – ended up in a document sent to the commission from the then Chief State Solicitor Eileen Creedon’s office, only to be proven false by a taped recording of that meeting produced by Sgt Maurice McCabe and, later, Supt Cunningham’s own notes and report on that same meeting…
And how, during the commission, when asked if he had seen the Chief State Solicitor’s letter before it was sent to the commission on the morning of Monday, May 18, 2015, Mr Cunningham said “no”; then “I don’t remember seeing it, possibly”; and then “I don’t want to catch anybody short by saying something that I — I have so many documents given to me, Judge, with respect, so many documents in a short period of time.”
Michael McDowell SC, for Sgt McCabe, has just told the tribunal that Supt Cunningham WAS shown the five-page 20-point letter and signed a copy of it prior to it being given to the commission.
Mr McDowell told the tribunal Mr Cunningham was shown it again by Annemarie Ryan, solicitor with the Chief Solicitor’s Office and asked him for his agreement to it – which he gave– when submissions, repeating the contents of the letter, were made to the commission in June 2015.
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.
From top: Michael McDowell; Keara McGlone and Carmel McAuley arriving at the Disclosures Tribunal on Thursday
You may recall how allegations against Sgt McCabe were not made known to him for nine years.
Rian counsellor Laura Brophy sent the contaminated retrospective abuse report to Tusla – which is central to the Disclosures Tribunal – following two counselling sessions with Ms D in 2013, on August 9, 2013.
It contained an allegation of rape against another person, referred to as Ms Y – an allegation which had nothing to do with Sgt McCabe.
Ms Brophy said that if she had known that a referral to Tusla had previously been made in relation to Ms D’s 2006 allegation, she wouldn’t have sent the referral.
Earlier this week, at the Disclosures Tribunal, counsel for Sgt McCabe, Michael McDowell argued that as it was known that Ms D’s allegation of 2006 had gone to the DPP – who decided that no charges be brought and observed that it was doubtful the allegations should constitute a crime at all – and that gardai at the time would have been obliged to inform the HSE of all such incidents, this referral should never have been made.
Readers will also recall how earlier this week the tribunal heard that a “private and confidential” letter had been sent by social work team leader Keara McGlone to Superintendent Noel Cunningham on August 15, 2013.
The letter states:
“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.”
On Wednesday, Mr McDowell highlighted this letter to point out the inconsistency with Ms Brophy’s decision to send the referral – which turned out to be contaminated with an unrelated allegation.
“I am just wondering, how could it be that you [Laura Brophy] were told that there was no evidence of a social work file on the 8th or 9th of August in the course of a phone conversation, when, a week later, people are examining its contents and relying on its contents to contact Superintendent Cunningham?”
Further to this.
This morning, at the tribunal…
Keara McGlone is giving evidence and is being asked about this letter.
She was asked if she received a response from Supt Cunningham to this letter.
She said no.
She was asked if she received a response from anyone on his behalf.
She said no.
She was asked if she made any further inquiries.
She said no. She said she was awaiting allocation for the case and she had no more involvement with it.
She was asked if she was not anxious about the fact that Sgt McCabe had not been met with someone from the HSE.
She said she was working on some 230 cases at that point and the matter wasn’t one of high priority.
Readers will recall how Sgt McCabe first learned of the circulated allegations made against him on December 29, 2015.
The tribunal continues.
During the continuing questioning of social work team leader Keara McGlone.
Judge Charleton asked Mícheál O’Higgins SC, for the Garda Commissioner, why Supt Noel Cunningham didn’t respond to Ms McGlone’s letter.
Mr O’Higgins explained that, in his statement, Supt Cunningham said he was on leave until September, at which point he returned and opened the letter, and then his father died in October.
Mr Charleton said he couldn’t understand why the death of Supt Cunningham’s father would be relevant saying: “We all have dead relatives”.
Mr O’Higgins said that Supt Cunningham “divined from the letter correctly” that the subject of the letter related to the 2006 allegation and while “that doesn’t excuse the non-answering of the letter and he acknowledges that”, he married up the letter with the remainder of a file he had.