The Disclosures Tribunal – which is examining allegations of a smear campaign against whistleblower Sgt Maurice McCabe – is to resume next Monday, April 30.
The evidence set to be given over the following couple of months is understood to largely involve journalists and media outlets.
Last June, the tribunal released a statement outlining some details of what certain people had told it at that point.
At the time, the tribunal said the former editor of the Sunday Independent Anne Harris told its investigators:
“In the years 2013 and 2014, matters raised by whistleblower Sergeant Maurice McCabe, such as the termination by senior gardaí of fixed penalty points, as well as allegations of murder and abductions not properly investigated, came to prominence.
From the first instance that the Sunday Independent began to report on these matters, certain journalists came to my office to warn me off Sergeant McCabe.
“I was given varying accounts of an alleged case of child sex abuse by him, which was apparently being investigated.
“This was repeated several times by a very reputable journalist, one who had shown great courage in exposing incidents of corruption and terrorism. I made enquiries and was satisfied that the matter had been investigated by the DPP, and the complaint found to be without grounds.
“The Sunday Independent continued to report on Sergeant McCabe’s concerns and the consequent treatment of him.
“In 2013, the allegation that Sergeant McCabe as a “paedophile” was stated in my office by senior executive from the wider “Group” editorial hierarchy of Independent Newspapers.
“I am certain that a whispering smear campaign was being conducted and that the media were being used.
“The pressure on me was less about publishing the sex abuse allegation – it would have been difficult within the laws of libel – but had the clear purpose of discrediting him, and therefore censoring the issues he was raising.”
Further to this…
In yesterday’s Sunday Times and in relation to Ms Harris’s statement to the tribunal…
Mark Tighe and John Mooney reported:
The INM editorial executive, who still works at one of the group’s newspapers, has told the tribunal that he does not recall making such a comment. He has attacked Harris’s motivation and accused her of being a disgruntled former editor.
…Harris told The Sunday Times she decided to name the editorial executive to Peter Charleton’s inquiry because its investigators had asked her to identify those who had passed on information about McCabe.
“When I subsequently considered the timing of the remark, I actually thought the editorial executive himself might be willing to provide useful information to the tribunal. He made this comment in late 2014. I have never shown any animosity towards this editorial executive. I genuinely thought he might have been willing to help the tribunal,” said Harris.
“I believe the protection of journalistic sources is paramount, except when they are being used to detract from a good man’s character. I believe that abuse of journalist privilege inspires no confidence in journalism.”
Former Garda press Officer Dave Taylor (left) with former Garda Commissioner Nóirin O’Sullivan in 2014
In yesterday’s Sunday Business Post…
Francesca Comyn reported:
“Former Garda Commissioner Martin Callinan claims whistleblower David Taylor blamed Nóirín O’Sullivan for having him arrested and said he would “bring her down” because of what she had done to him.
“Callinan has made the claim in a statement to the Disclosures Tribunal. He alleges that after he retired as head of the force in May 2014, Supt Taylor visited him at home on several occasions and expressed anger and disappointment that O’Sullivan, who was commissioner at the time, transferred him from the Garda press office to the traffic division.
“…Billing records from her [former Garda Commissioner Noirin O’Sullivan’s] mobile phone will show numerous contacts between her and well-known crime and security journalists between July 2012 and May 2014 when she was deputy commissioner.
“She made 33 phone calls to well-known reporter Paul Williams including conversations lasting up to 20 minutes. The tribunal is expected to ask her to explain ten contacts made with Williams in February, March and April 2014.
“…The former commissioner’s phone records for the same time period show further media contacts. Over the 23-month period, she called RTÉ’s crime correspondentPaul Reynolds 20 times and Tom Brady, security editor with the Irish Independent,74 times.”
Sgt Maurice McCabe (foreground) on the third day of the Disclosures Tribunal on January 24.
From 10am in Dublin Castle.
The legal teams for the various witnesses to the Disclosures Tribunal will give their submissions to chairman of the tribunal Supreme Court Judge Peter Charleton in respect of the evidence heard since January.
The evidence has primarily focussed on the O’Higgins Commission of Inquiry.
This is because Judge Charleton is tasked with deciding whether the former Garda Commissioner Noirin O’Sullivan inappropriately relied upon false allegations of sexual abuse or any other unjustified grounds to discredit Sergeant Maurice McCabe at the O’Higgins commission.
Readers will recall the O’Higgins inquiry looked at allegations of poor policing in the Cavan/Monaghan area made by Sgt McCabe, with Judge Kevin O’Higgins overseeing 34 days of privately held hearings from May 14, 2015 until December 17, 2015.
At the outset of the commission, on May 15, 2015, Colm Smyth SC, for Ms O’Sullivan, retired Chief Supt Colm Rooney, Supt Michael Clancy and Supt Noel Cunningham told Judge O’Higgins that it was his instructions – as re-confirmed twice that afternoon by Ms O’Sullivan – to challenge the integrity, motivation and credibility of Sgt McCabe.
Mr Smyth would later – in November 2015 – tell the commission that in respect of him having previously stated it was his instructions to challenge Sgt McCabe’s “integrity” – this was an error on his part.
But he maintained it was his instructions to challenge Sgt McCabe’s motivation and credibility – as a means to “test the evidence” of Sgt McCabe.
It should be noted that, during the entire time of the commission, Sgt McCabe was never made aware that a wholly false allegation of child rape was sitting in a file in the then Garda Commissioner Noirin O’Sullivan’s office.
This false allegation of rape came about in August 2013, after a woman referred to as Ms D – who made an allegation against Sgt McCabe in 2006 which was found to have no foundation by the DPP – spoke to a HSE counsellor in 2013 about the matter.
The 2006 complaint referred to an allegation of ‘dry humping’ which she told gardai happened in 1998, when she was around six, during a game of hide and seek.
When the complaint was made, in December 2006, it was 11 months after Ms D’s father, a Garda colleague of Sgt McCabe, was disciplined for arriving at the scene of a suicide drunk and whom Sgt McCabe told to leave the scene.
After Ms D spoke to the counsellor in August 2013, the matter was erroneously sent to Tusla – erroneous because the matter had already been investigated by the gardai and was found to have no foundation – but it was conflated with a rape allegation wholly unrelated to either Ms D or Sgt McCabe and it sat there until May 2014, when it was further conflated and sent to An Garda Siochana shortly after articles appeared in the Irish Independent about Ms D and her 2006 allegation against Sgt McCabe.
The articles didn’t contain the names of those involved or the geography but when Sgt McCabe gave evidence to the tribunal he said he knew the articles written by Paul Williams were about him and he said he got texts and calls from people who also knew they were about him.
After the false allegation was sent from Tusla to the gardai and travelled up to Ms O’Sullivan in May 2014, it sat in a file in Ms O’Sullivan’s office up until the start of the tribunal last year.
During the closing submissions of the Tusla module at the tribunal last month, Judge Peter Charleton referred to the false allegation as “horrible” and he posed the following to the counsel for An Garda Siochana:
“I’m told, on the one hand, that the Commissioner simply read through it making absolutely no comment and not in any way reacting to it, and secondly, I am expected to accept that she has absolutely no recollection of reading it.”
In his response to Judge Charleton, Mícheál O’Higgins SC, for Ms O’Sullivan, said:
“…the relevance of the letter was not evident to her when it was brought to her attention…”
It should be noted that Ms O’Sullivan has told the tribunal that, although she can’t recall reading the false rape allegation, she was never corrected on it and that she was never told that the material sent to her contained a major error.
And yet, she also told the tribunal that back in 2008/2009 – when she was an assistant commissioner in Human Resource Management – she knew of Ms D’s allegation against Sgt McCabe. Continue reading →
The Disclosures Tribunal heard claims that Supt Dave Taylor (above) told Sgt Maurcie McCabe (top) that a ‘spiritual person’ had told him to confess his role smearing the whistleblower
At the Disclosures Tribunal…
Which is examining allegations of a smear campaign being orchestrated by former Garda Commissioner Martin Callinan, with the knowledge of fellow former Garda Commissioner Noirin O’Sullivan, against Sgt Maurice McCabe…
Sgt Maurice McCabe told the tribunal details of information relayed to him during a meeting Fianna Fail TD John McGuinness in Dublin’s Merrion Hotel in May 2016 and, separately, Supt Dave Taylor on September 20 2016, at Supt Taylor’s home.
While giving evidence about both of these meetings, Sgt McCabe became very upset.
Readers should note, the tribunal has heard Mr McGuinness agrees with everything Sgt McCabe has told the tribunal about their meeting, save for one minor detail.
In contrast, it’s heard Supt Taylor’s account of his meeting with Sgt McCabe differs greatly.
However, the tribunal has also heard that Supt Taylor’s own evidence to the tribunal has also changed over time with chairman Judge Peter Charleton noting:
“…there has been perhaps a somewhat, look, one could say a softening or a vagueness in relation to the three statements made by David Taylor, particularly to our investigators, in relation to Nóirín O’Sullivan and what she knew…”
In any event.
Of his meeting with Mr McGuinness – the date of which is unclear other than it was May 2016 – Sgt McCabe told the tribunal on Monday that Mr McGuinness, who was then chair of the Public Accounts Committee (PAC), told him that he had met Martin Callinan in a car park on the Naas Road on January 24.
This would have been a day after Mr Callinan made his “disgusting” remark to PAC about Garda whistleblowers and days before Sgt McCabe was due to appear before the committee to talk about the quashing of penalty points.
Sgt McCabe told the tribunal:
“He told me that he met the former Commissioner Martin Callinan at the Red Cow Inn, or that pub, and he said that I wasn’t to be trusted and he said that I had sexually abused all my children and my nieces. He said to me, I didn’t like to tell you before — you know, up to this point.
“At times I’m glad that he actually didn’t. But I asked him what was the circumstances about it, and he said he was asked to meet him at the Red Cow and he said this is what he said. And he also said that he grabbed his arm as he was getting out of the car and said, ‘it’s very serious, it’s very serious’.
Yesterday, JohnMcGuinness’ legal representative Daren Lehane BL said his client’s evidence will be the same as Sgt McCabe – except he will say he told Sgt McCabe Mr Callinan told him that Sgt McCabe had abused “your children” and nieces, as opposed to “all” your children and nieces.
Readers should note on May 26, 2016, during a speech in the Dail about the death of Shane O’Farrell in Monaghan, Mr McGuinness mentioned this meeting with Mr Callinan in the Dail.
He told the Dáil
Every effort was made by those within the Garda Síochána at senior level to discredit Garda Maurice McCabe.
The Garda Commissioner confided in me in a car park on the Naas Road that Garda McCabe was not to be trusted and there were serious issues about him.
The vile stories that circulated about Garda McCabe, which were promoted by senior officers in the Garda, were absolutely appalling. Because they attempted to discredit him, he had to bring forward various pieces of strong evidence to protect his integrity.
Last September, Noirin O’Sullivan stood down as commissioner amid pressure over the slow rate of Garda reform and her own role in the Sgt Maurice McCabe saga.
In October, Ms O’Sullivan was appointed as director of strategic partnerships for Europe with the International Association of Chiefs of Police (IACP).
The IACP is based in Virginia, United States, and has among its executive committee…head of the Commission on Future Policing in Ireland, Kathleen O’Toole.
Could I be accused of being a conspiracy theorist for wondering is there any connection between Kathleen O’Toole being on the board of directors of @TheIACP and the fact that NOS landed a cushy number with it? pic.twitter.com/9A4SwzZKFF
Clockwise from top left: Lorraine and Maurice McCabe; Frances Fitzgerald, Noirin O’Sullivan, Ken O’Leary, Michael Flahive, Noel Waters
At the tail-end of former Tanaiste and Minister for Justice Frances Fitzgerald’s appearance at the Disclosures Tribunal.
Ms Fitzgerald said on two occasions that she made a “conscious decision” in respect of an email she received on May 15, 2015, about Sgt Maurice McCabe and the O’Higgins Commission of Investigation.
Readers will recall how the email – originally sent by the then assistant secretary at the Department of Justice Michael Flahive to Ms Fitzgerald’s private secretary Chris Quattrociocchi on May 15, 2015 and then forwarded on to Ms Fitzgerald and others – only emerged last November and largely led to her eventual resignation.
It was only disclosed to the tribunal after it emerged in November.
At the time, when calls were being made for her to resign, Ms Fitzgerald said, ad nauseam, that she couldn’t recall reading the email.
The Dail repeatedly heard from her, and Taoiseach Leo Varadkar, that she and/or the Department of Justice had “no hand, act or part” in forming the former Garda Commissioner Noirin O’Sullivan’s legal strategy at the O’Higgins Commission of Investigation.
Yet yesterday, in response to the suggestion from Diarmaid McGuinness SC, for the tribunal, that, once she got this email, she basically did nothing and consulted nobody – a suggestion repeatedly put to her last November – she responded to the claim somewhat differently.
She told the tribunal that she wouldn’t frame what happened in the manner Mr McGuinness suggested.
Instead, she said: “I made a conscious decision to obviously not interfere with the Commission of Investigation in anyway because I would have seen it as inappropriate.”
She also said: “I made a conscious decision that Judge O’Higgins would deal with whatever issues, as I expected he would, at the Commission.”
As mentioned above, Mr Flahive sent the email to Ms Fitzgerald’s private secretary Chris Quattrociocchi on May 15, 2015, at 4.57pm.
It was sent following a flurry of messages sent from solicitor Annemarie Ryan, of the Chief State Solicitor’s office to Michael Dreelan, of the Attorney General’s office, who in turned contacted his superior at the AG office, Richard Barrett, who in turn went on to contact Mr Flahive – who then wrote to Mr Quattrociocchi.
[Readers will recall how the tribunal has already heard that Ms Ryan wrote down “political dynamite” in a note about what she saw occurring at the O’Higgins Commission on May 15, 2015, and her knowledge of the situation].
But, going back to Mr Flahive’s email to Ms Fitzgerald’s private secretary.
It was sent after the following sequence of events…
From 3.10pm to 3.36pm: The O’Higgins Commission of Investigation adjourned to allow Colm Smyth SC, for Noirin O’Sullivan and other gardai, get instructions after a row broke out over a line of questioning being taken in relation to Sgt Maurice McCabe when evidence was being given by Chief Supt Colm Rooney.
From 3.26pm to 3.40pm: Noirin O’Sullivan spoke on the phone with the then Secretary General of the Department of Justice Noel Waters for around 14 minutes.
Neither Ms O’Sullivan nor Mr Waters kept notes of this call and neither have any real recollection of what was specifically discussed.
At 3.29pm: Noirin O’Sullivan’s counsel sent her a short “letter of comfort” or written advices to her, via her liaison officer at the commission Chief Supt Fergus Healy, saying: “In particular, we consider it necessary and in the interests of a fair and balanced examination of the subject matter of the investigation, that specific issues be put to Sgt. McCabe regarding his conduct and interactions with senior management following the completion of a formal garda investigation into a complaint against Sgt. McCabe which resulted in a direction by the DPP that no further action was to be taken against Sgt. McCabe.”
At 4.10pm: The O’Higgins Commission adjourned for a second time to allow Mr Smyth get his instructions reconfirmed.
At 4.16pm: The then Assistant Secretary to the Department of Justice Ken O’Leary spoke to Noirin O’Sullivan on the phone for around three minutes.
Mr O’Leary has given evidence that there were two “hurried phone calls” that afternoon but Ms O’Sullivan has told the tribunal that doesn’t accord with her memory or record of events.
There are no notes of these calls.
But Mr O’Leary’s evidence has been that during the first call Ms O’Sullivan told him an issue had arisen at the commission and asked him if there was anything that he believed she should be mindful of.
The tribunal has also heard that in his statement to the tribunal, Mr O’Leary said Ms O’Sullivan called him.
But this week, when he gave evidence, he said he was changing that stance.
He said: “I’m changing it to the extent that I think it may have been that I had been on the telephone to the Commissioner or the Commissioner had another phone, that isn’t included in the records.”
At 4.34pm: The O’Higgins Commission of Investigation resumed and Colm Smyth SC, for Ms O’Sullivan and other gardai, told Judge O’Higgins that his instructions were reconfirmed – which were to challenge the credibility and motivation of Sgt Maurice McCabe.
Mr Smyth also told the commission that afternoon that Ms O’Sullivan was challenging Sgt McCabe’s “integrity” but later, in late June 2015, Mr Smyth told the commission this was an error on his part.
In a nutshell.
The sequence of those communications shows Ms O’Sullivan spoke to officials from the Department of Justice before Mr Smyth’s instructions were reconfirmed..
Both Mr O’Leary and Mr Waters, although they have no notes and no specific recollection, say they would not have given advice to Ms O’Sullivan on how to instruct her legal counsel.
In addition, Ms O’Sullivan, despite also not having any specific recollection of these calls, also told the tribunal:
“At no time did I discuss or seek approval/advice from the Department in respect of my instructions or otherwise to counsel. In fact, instructions had already been given to counsel. An Garda Síochána was represented independently from the Department of Justice at the Commission, and as such, the Department have no involvement in any instructions given by me to counsel.”
So where does Ms Fitzgerald fit into this?
And what of the famous May 15 2015 email?
It should be noted that the two Department of Justice officials Ms O’Sullivan spoke to before her instructions were reconfirmed – namely Ken O’Leary and Noel Waters – also got the email.
And not only that, before the email was sent, Mr O’Leary had had a telephone conversation with Mr Flahive – who called Mr O’Leary after he had been contacted by Richard Barrett, of the Attorney General’s office, as previously mentioned.
During that phone call, Mr O’Leary disclosed to Mr Flahive that he had spoken to Ms O’Sullivan on the phone twice – but Mr Flahive didn’t disclose this detail in the email to the minister.
Mr O’Leary said that he himself had been thinking of drawing up an email for the minister but was happy for Mr Flahive to do so, as he felt it was more appropriate for Mr Flahive to contact Ms Fitzgerald.
Mr O’Leary told the tribunal:
“The Minister, in my view, could have had no role in relation to the Garda case at the Commission, and contacts between the Commissioner and the Minister about the Commission, once it was going on, I was a bit uneasy about. But while I was thinking of what I might say to the Minister, Michael Flahive was on to me. His information had come from the Attorney General’s office, and it seemed to me that was, for want of a better phrase, a legitimate route for the Minister to get the information. And we agreed that he’d write an email setting out the conversations that he had or conversation that he had with Richard Barrett in the Attorney’s office.”
Amid talk of inappropriate contacts, it should be noted, during Mr O’Leary’s evidence, Diarmaid McGuinness SC, for the tribunal, pointedly noted that:
“She [Ms O’Sullivan] discussed matters with you that had arisen at the O’Higgins Commission in private…On an informal basis, she [Ms O’Sullivan] was happy to discuss it with you…”
But back to the email…
In addition to sending the email to Mr Quattrociocchi, Mr Flahive also cc-ed the now famous 4.57pm email to Mr Waters, by way of a Sec Gen Office group email address, Mr O’Leary and the department’s principal officer for policing Martin Power.
After Mr Quattrociocchi got the email, he bounced it on, at 5.04pm, to, as mentioned above, Ms Fitzgerald, and also to her two special advisors Fine Gael councillor Willliam Lavelle and Marion Mannion.
The tribunal has heard that, in all, ten people received the email.
Of this ten, the following people have been asked if they could recall reading the email.
These were their responses:
Mr Waters said: “I have no recollection of that email, but my private secretary advises that he received that and that he brought it to my attention on the following Monday, the 18th, and that I — he subsequently sent back an email to the writer, to Michael Flahive, to say that I had noted it.”
Mr Quattrociocchi: “I don’t have specific recollection, no.”
Mr Waters’ private secretary Denis Griffin, who was on the Sec Gen Office email group: “No, I don’t actually receiving it” [sic].
Dale Sunderland, a former principal officer and Head of Communications and Corporate Secretariat at the Department of Justice, who also got the email as part of the Sec Gen Office email group, said: “I don’t specifically have a memory of reading it, but I’m quite sure I did read it because I always made it my business to read all my emails.”
Bernadette Phelan, assistant principal officer in the corporate secretariat office in the Department of Justice and Equality, who was also in the Sec Gen Office email group, said: “I don’t recall reading the email.”
Paula Monks, clerical officer in the Department of Justice, who was also in the Sec Gen Office group said: “I don’t, no.”
Mr Lavelle was the only person to recall reading it, saying: “I have a vague recollection of reading it, yes.”
He also said he felt it was a “unique” email and he felt it was “inappropriate” to receive it.
He said he couldn’t recall any other such email from Mr Flahive to the minister that made him feel uncomfortable.
However, he said he never raised it or discussed it with Ms Fitzgerald.
Ms Mannion hasn’t appeared before the tribunal. The tribunal has also heard that she hasn’t given a statement to the tribunal to date.
Interestingly, Ms Leader BL, for the tribunal, pointed out, while Mr Quattrociocchi was giving evidence that, after the Irish Examiner and RTE reported on the O’Higgins Commission of Investigation almost exactly a year later, on or around May 13, 2016 – Ms Fitzgerald had a meeting with Ms O’Sullivan about the O’Higgins commission of investigation.
There was a comprehensive briefing of the meeting prepared for Ms Fitzgerald but it failed to mention the May 15 email, prompting Ms Leader to suggest:
“It would appear, for one way or another, that the information which was transmitted to the Minister on the 15th May 2015 has been, if I can, wiped from history in relation to this particular briefing,”
But, again, why does this email matter?
Mr Flahive’s email was fundamentally wrong.
It claimed – and it was based on fourth-hand information – that the legal row at the O’Higgins Commission centred on counsel for An Garda Siochana raising Ms D’s IRM complaint about the 2006 investigation into her allegation against Sgt McCabe at the commission.
[The tribunal has already heard that Ms D felt the original investigation into her complaint of 2006 wasn’t investigated properly and thus, wanted it included in the IRM. Ms D also made a complaint to GSOC about the 2006/2007 investigation.]
This wasn’t the case. As mentioned above, the legal row at the commission centred on the line of questioning being taken by Mr Smyth when Chief Supt Colm Rooney was giving evidence at the commission and said Sgt McCabe wanted the DPP’s directions – which exonerated Sgt McCabe – challenged.
Even though the claim made about the row in the letter was wrong, many have been wondering why Ms Fitzgerald didn’t become concerned – or why alarm bells didn’t ring out – when she saw the claim about Ms D’s IRM complaint being raised at the commission, given the IRM counsel had ruled in November 2014 that the matter was not to be included in the O’Higgins Commission of Investigation.
Yesterday, the tribunal heard that GSOC sent a nine-page report to Martin Power, a principal officer in the Department of Justice, outlining that it found nothing wrong with the investigation into Ms D’s complaint on May 21, 2015 – six days after the famous May 15, 2015 email.
GSOC specifically asked for Ms Fitzgerald to be told of this.
When Mr Power gave evidence yesterday, Michael McDowell SC, for Sgt McCabe, asked Mr Power when he gave this to the minister.
Mr Power said he couldn’t recall.
Mr McDowell also asked him he would have made a link between the May 15 email and the May 21 GSOC report in respect of the Ms D matter and Sgt McCabe.
Again, like many witnesses before him, Mr Power said he couldn’t recall and state if he made the connection at the time.
The hearing was briefly adjourned when Kathleen Leader BL, for the tribunal interrupted to say Mr Power had signed an affidavit of discovery in May 2017 and that documents discovered to the tribunal related to this GSOC report.
After the brief adjournment, Ms Leader explained that these documents discovered showed the GSOC report was sent by Frank McDermott, assistant principal officer in the policing division at the Department of Justice, to Ms Fitzgerald’s private secretary Chris Quattrociocchi on the very same day it was received – May 21, 2015.
Suddenly Mr Power remembered.
The tribunal then heard the document that was sent to Mr Quattrociocchi had also been forwarded to Noel Waters, Ken O’Leary, Michael Flahive and Martin Power.
And, furthermore, it heard that an 11-page submission – written by a Mr English, also of the garda division within the department and containing the nine-page GSOC report – was sent to Minister Fitzgerald on May 27, 2015.
The tribunal hear Mr Power wrote a covering submission for that submission which was entitled “Complaint by Ms. D, alleged cover-up by Gardaí of assault allegation against Sergeant Maurice McCabe.”
The covering submission was for Michael Flahive whom, it appears, saw it on June 2, 2015 – based on a handwritten note on the document.
In the covering submission, Mr Power wrote: “I think the alleged sexual assault was referred to in a particular context during the recent, initial hearings of the O’Higgins Commission of Investigation”.
Ms Leader asked Mr Power what he thought that referred to.
Mr Power told the tribunal: “I think certainly it’s a reference to the email of the 15th May, wherein the initial reference was made to the issue that had arisen at the O’Higgins Commission that day, and I suspect that either on foot of that then at that time or when this report came in I inquired as to whether there was a link, and clearly — well, I say I think it refers to that”
In turn, Mr McDowell asked Mr Power if it was just “forgetfulness” that caused him to say he couldn’t recall making the link.
Mr Power said: “I simply didn’t recall this submission at that time. But I am happy to say that it’s clear that at the time I sought to make the link, if it was appropriate to make the link and bring it to Michael’s attention who would have certainly been able to make the link if it was an accurate link..”
[Incidentally, May 21, 2015 was the same day Ms O’Sullivan held a private consultation with Colm Smyth SC in her office – a meeting of which there are no notes and, despite taking place just six days after the legal row at the commission, Mr Smyth said they didn’t discuss instructions or the row. Ms O’Sullivan can’t recall any specifics about it.]
Ms Fitzgerald hasn’t been asked yet about her knowledge of the GSOC investigation’s conclusions in May 2015 – but it’s likely she’ll be asked the same question that Mr Power was asked: would she have linked the GSOC report with the May 15 email and would it not have caused her some concern or prompted her to take some action?
Yesterday, she gave about two hours of evidence.
Half of that involved counsel for the tribunal asking her about the email of May 15, 2015 and her lack of a response to it.
Mr McGuinness SC, for the tribunal, asked her, repeatedly, why it didn’t set off alarm bells for her?; why she didn’t ask herself ‘what is going on?’; why, if she didn’t feel she had precise details, did she not speak to Mr Flahive about the matter?; why, if she didn’t think it appropriate to ask questions, why she didn’t ask the Department of Justice’s counsel to speak to An Garda Siochana’s counsel?
Ms Fitzgerald responded in the same way as last November: she didn’t think it was appropriate and that she felt it was a matter for Judge O’Higgins.
She said she never consulted with Ms O’Sullivan, Mr Waters, Mr Power, Mr Flahive, any of her advisors, or anyone else copied into the email.
She said she wasn’t aware of the phonecalls between Ms O’Sullivan and Mr O’Leary and she also wasn’t aware of the solicitor Annemarie Ryan’s “political dynamite” concerns about a judicial review.
And then, at the end, she said she made a “conscious decision” not to do anything.
Ms Fitzgerald will resume questioning this morning at 10am.
#DisclosuresTribunal McGarry points out the link Mr Power made (see here: https://t.co/IeMhLNQosV) between his comment about O’Higgins Comm and the May 15 email. FF says: He just mentions it’s the same case..nothing unusual about that..
#DisclosuresTribunal But McGarry asks FF if when she read Mr Power’s doc (which said the sex assault allegation was referred to at O’Higgins) it must have raised a concern in her mind – because she ALREADY knew the Ms D matter WASN’T to be included
#DisclosuresTribunal McGarry puts it to FF why she didn’t think ‘hang on a minute, the alleged sex assault shouldn’t be coming up’? FF says she would have had the same reaction to GSOC doc and Power’s cover submission as she did to the May 15 2015 email.
#DisclosuresTribunal FF says she would have thought/said this is something that had arisen at O’Higgins, it’s being dealt with “and if anything develops from that, that links to something extraordinary…then clearly that will emerge in report or by way of some action”.
The Disclosures Tribunal will continue this morning at Dublin Castle, overseen by Supreme Court Judge Peter Charleton.
Again, the former Garda Commissioner Noirin O’Sullivan’s evidence to date – in particular that she had little or no specific knowledge of the details of what was unfolding at the commission in May 2015 – will come into sharp focus.
Readers will recall how the tribunal is currently hearing evidence pertaining to the 2015 O’Higgins Commission of Investigation which looked at allegations made by Sgt Maurice McCabe of poor policing in the Cavan/Monaghan area.
Specifically, under the current term of reference, Judge Charleton is attempting to decipher whether of not the former Garda Commissioner Noirin O’Sullivan inappropriately used unjustified grounds to discredit Sgt McCabe at that commission.
To that end, it is essentially trying to tease out what actions, by whom, were taken/not taken throughout that commission and, also, to find out who knew what, when.
Today, the tribunal will hear from Assistant Secretary at the Department of Justice Ken O’Leary, among others.
The tribunal has already heard that Mr O’Leary shared several phone calls with Ms O’Sullivan on the day the legal row broke out on May 15, 2015.
One took place in or around the time Ms O’Sullivan was being asked to reconfirm her instructions.
Ms O’Sullivan has already told the tribunal she can’t really recall what they discussed during a call at 4.16pm which lasted for 3 minutes and 35 seconds.
However, she did concede:
“…when I spoke to Assistant Secretary O’Leary my decision and my instructions had already been re-confirmed and I was just satisfying myself was there something going on in the background that I should be aware of.“
She also said:
“Chairman, the only — the only thing that I can offer is that, again, my decision and the instructs have been given earlier that day, the only thing I would have been aware of at the 16:16 phone call was the fact that the document — sorry, it was later, actually, it was at, I would say, 7:00 that the document was going to be worked up over the weekend and that that was a piece of work that was ongoing by the legal team.“
From left: Sgt Maurice McCabe, Michael McDowell SC, Colm Smyth SC, and former Garda Commissioner Noirin O’Sullivan
At the Disclosures Tribunal in Dublin Castle.
The legal strategy taken at the 2015 O’Higgins Commission of Investigation, on behalf of the former Garda Commissioner Noirin O’Sullivan and several senior gardai, towards Sgt Maurice McCabe will come into sharp focus.
Ms O’Sullivan’s own evidence to the tribunal to date, and that of her liaison officer at the commission Chief Supt Fergus Healy, will also come into focus.
This is because Colm Smyth SC, who represented Ms O’Sullivan and senior gardai at the commission, will give evidence today and will be cross-examined by Michael McDowell SC, for Sgt McCabe.
[Mr Smyth gave around 15 minutes of evidence yesterday before the day’s hearing wrapped up]
Specifically, Mr Smyth will likely be asked about consultations he and his team had with Supt Noel Cunningham and Chief Supt Colm Rooney – who were also represented by Colm Smyth SC – on May 12 and May 13, 2015.
However, this questioning may be restrained as the tribunal has heard Supt Cunningham and Chief Supt Rooney have not waived legal privilege – so all or most matters pertaining to their legal consultations may not be discussed.
[Tribunal has also heard that that Attorney General’s Office is also not waiving privilege. This is the reason why solicitor Annemarie Ryan, of the Chief State Solicitor’s office, could not elaborate or explain on why she made the note “political dynamite” after learning of the legal row on May 15, 2015. She said this was based on what happened and material she had seen.]
The tribunal has already heard several witnesses say the May 12 and May 13 consultations largely gave rise to the five-page, 20-point letter sent from the Chief State Solicitor’s office to the O’Higgins Commission on Monday, May 18, 2015 – after counsel was requested to do so by Judge O’Higgins on Friday, May 15, 2015, after the legal row broke out.
This letter essentially set out what was going to be put to Sgt McCabe.
It contained an allegation of what Kathleen Leader BL, for the tribunal, likened to a ‘blackmail-like scenario’ against Sgt McCabe in relation to a meeting in August 2008 in Mullingar.
This particular claim was put to Sgt McCabe on Monday, May 18, 2015 and he said it was “absolutely false.”
It was eventually proven false by a tape recording of that meeting taken by Sgt McCabe which was given to the commission.
But this was not the letter’s only problem.
It had many of what Ms O’Sullivan called “factual inaccuracies” and what Mr McDowell has called “gross falsehoods”.
Mr Smyth is also likely be asked about former Garda Commissioner Noirin O’Sullivan’s specific instructions relayed to him, via Chief Supt Healy, in May 2015.
Readers will recall how – after the legal row broke out on the afternoon of Friday, May 15, 2015 – Mr Smyth told the O’Higgins commission that his instructions from Ms O’Sullivan had been reconfirmed.
Mr Smyth then agreed with Judge O’Higgins that his instructions regarding Sgt McCabe were that he “acted as he did for improper motives” and that his integrity was being challenged by Ms O’Sullivan.
Specifically, on Tuesday, Mr McDowell asked Ms O’Sullivan if what Mr Smyth said on May 15, 2015 was the “diametric opposite” of her instructions.
She replied: “Well, Chairman, I never instructed that Sergeant McCabe’s integrity be challenged.”
Furthermore, the tribunal has also heard Ms O’Sullivan say that she did make it clear to Chief Supt Healy that at no time was Sgt McCabe’s integrity to be challenged.
She said: “I made it clear that the facts that were going to be tested were never about — nobody ever suggested, in all of the feedback that I got from Chief Superintendent Healy, nobody ever suggested to me that there was any suggestion of an attack on Sergeant McCabe’s integrity.”
Ms O’Sullivan had this exchange with Mr McDowell about the afternoon of May 15, 2015:
Michael McDowell: “…When your counsel is asked what those instructions are, by Mr Justice O’Higgins, he says two things; he said that Sergeant McCabe acted as he did for improper motives, and secondly, that his integrity is being challenged in that respect. He said both of those things immediately after he had received a reconfirmation of your instructions.
“You see, what I am putting to you is, now, that apparently within minutes of you relaying your reconfirmation of your instructions via Chief Superintendent Healy to your counsel, they did the two things that you say you had expressly prohibited them from doing in conversation with Chief Superintendent Healy?”
Ms O’Sullivan: “Chairman, all I can say is that I never instructed that Sergeant McCabe’s integrity be challenged.”
Later in the O’Higgins proceedings, Mr Smyth said it was an error on his part to say Sgt McCabe’s “integrity” was being challenged.
However this occurred after the aforementioned tape recording produced by Sgt McCabe proved that the ‘blackmail-like scenario’ never happened and this was made clear at the O’Higgins commission on June 25, 2015.
Readers should note solicitor Annemarie Ryan, for the Chief State Solicitor’s office has already told the tribunal that she never received any instructions – between May 18 and June 24, 2015 – in relation to the aforementioned denial that Sgt McCabe made clear to Judge Higgins on May 18.
Readers should also note also Chief Supt Healy was in receipt of transcripts of the O’Higgins hearings and passed them on to Ms O’Sullivan private secretary. He said he “definitely” gave Ms O’Sullivan the “controversial ones”.
In addition, on June 11, 2015, submissions are made to the commission by counsel for Ms O’Sullivan, reiterating wrong claims made in the CSS letter.
Incidentally, the submission went further than the CSS letter in so much that it claimed “evidence” would be given to the commission to support the most ‘blackmail’ allegation.
The submissions 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 Supt Rooney appointed Supt Cunningham to investigate these complaints. Supt Cunningham attempted to meet Sgt McCabe to discuss the complaints and finally did so on the 25th August 2008. On this occasion, Supt Cunningham was accompanied by Sgt Martin.
“It is understood that Superintendent Cunningham and Sergeant Martin will give evidence that Sergeant McCabe said at this meeting that the complaint which he had made was a bid by him to have the full DPP directions conveyed to him and to complaining party.
“This is recorded in a report of the meeting prepared jointly by Sergeant Martin and Superintendent Cunningham.”
When Chief Supt Healy gave evidence, he was asked if the submissions were “signed off on, on behalf of the Commissioner and the various parties”, he said yes.
Mr Smyth is also likely to be asked about his understanding of why Ms O’Sullivan couldn’t meet with counsel or Ms Ryan, of the Chief State Solicitor’s office, on the weekend of May 16/17, 2015 – when Ms Ryan was seeking an urgent meeting with her.
Ms Ryan has given evidence that she repeatedly asked Chief Supt Healy to ask Ms O’Sullivan for a meeting at this time but that he said Ms O’Sullivan said she was too busy.
Chief Supt Healy has given evidence that he did put Ms Ryan’s request to Ms O’Sullivan and that she said she was otherwise engaged.
Ms O’Sullivan has been adamant to the tribunal that she was never informed that Ms Ryan sought a meeting.
Mr Smyth is also likely to be asked about a meeting Ms O’Sullivan had with Mr Smyth on May 21, 2015 – of which she has no recollection.
Ms Ryan did not learn of this meeting until July 2015 and she told the tribunal that it was described to her as a “cup of tea” meeting.
It’s unclear whether Mr Smyth will be asked about his understanding of the Ms D allegation.
The referral was presented as a true allegation and Ms O’Sullivan told the tribunal this week that nobody ever told her this was incorrect.
In addition, Mr Smyth is likely to be asked about a meeting in the Four Courts on May 11, 2015.
At this meeting, the garda legal team – Colm Smyth SC, Michael McNamee BL, and Garret Byrne BL – held its first consultation with several gardai, including Supt Cunningham and Chief Supt Colm Rooney.
Ms O’Sullivan wasn’t at this meeting but her liaison officer, Chief Supt Fergus Healy, was there on her behalf.
The purpose of the meeting was to discuss one of the incidents the commission was tasked with investigating, a public order incident and possible sexual assault on a bus in Kingscourt, Co Cavan.
But the tribunal has already heard notes of that meeting showed the meeting largely involved discussion around Sgt McCabe – and even former Garda John Wilson – and Sgt McCabe’s motivation.
The notes prompted Patrick Marrinan SC, for the tribunal, to say: “This has absolutely nothing to do with the factual matters to be investigated by the O’Higgins.”
Judge Charleton also commented on the notes and said they indicated that the thrust of what was heard at the meeting was that Sgt McCabe was a bitter man, led by emotion which could have led to unconscious bias.
Judge Charleton also suggested that the matters being raised were “liable to muddy the waters” and that they should have prompted someone to say “this may be the background but it has certainly nothing to do with anything that is going to come up in front of Mr Justice O’Higgins”.
Broadsheet tweeted during Mr Smyth’s first 15 minutes of evidence yesterday and will be tweeting from today’s proceedings here.
Disclosures Tribunal fan Peter Behan (top) nabs signatures from Former Garda Commissioner Noirin O’Sullivan and Sgt. Maurice McCabe of a copy of Force Of Justice: The Maurice McCabe Story by Michael Clifford.
Former Garda Commissioner Noirin O’Sullivan arriving at Dublin Castle this morning
At the Disclosures Tribunal.
Former Garda Commissioner Noirin O’Sullivan is expected to begin giving evidence as soon as Chief Superintendent Fergus Healy finishes giving evidence.
Ms O’Sullivan will be asked about her involvement in the O’Higgins Commission of Investigation as Judge Charleton seeks to establish if “unjustified grounds were inappropriately relied upon” by her “to discredit Sgt Maurice McCabe” during the commission when it heard evidence over 34 days between May and December 2015.
Judge Charleton already said last Friday week that he is no longer investigating whether “false allegations of sexual abuse were inappropriately relied upon” by Ms O’Sullivan to discredit Sgt McCabe during the commission.
This came after Michael McDowell SC, for Sgt McCabe, confirmed to the judge what Sgt McCabe believes happened. Mr McDowell explained that Sgt McCabe does not believe that anyone intended to ask him out straight if he abused a child.
Instead, Mr McMcDowell said:
“…there was consideration, God knows by whom, given to the question of putting Ms. D’s allegation firmly in the middle of the table at the O’Higgins Commission. It was firmly rejected and would have been an outrageous thing to do.
But 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 and to make it appear that none of his complaints about poor policing in his area were genuine, but that they were all concocted with a view to getting back at An Garda Síochána.”
Clockwise from top left: Former Secretary General of the Department of Justice Noel Waters; Terry Prone, of the Communications Clinic, former Garda Commissioner Noirin O’Sullivan and former Justice Minister Frances Fitzgerald
At the Disclosures Tribunal in Dublin Castle.
Evidence was heard from the former Secretary General at the Department of Justice Noel Waters and Head of Legal Affairs at An Garda Siochana Ken Ruane.
Mr Ruane is scheduled to continue giving evidence today and will be followed by Annemarie Ryan, of the Chief State Solicitor’s office.
On Friday, it also heard of Michael McDowell SC, for Sgt McCabe, say although nobody was suggesting that somebody was going to ask Sgt McCabe at the O’Higgins Commission of Investigation if he ever abused a child, “there was consideration, God knows by whom, given to the question of putting Ms D’s allegation firmly in the middle of the table at the O’Higgins Commission”.
It also heard of communications between the former Garda Commissioner Noirin O’Sullivan and the former Minister for Justice Frances Fitzgerald and the bizarre drawing up of statements by the Department of Justice for the Garda Commissioner to make to the Department of Justice.
That particular matter prompted Judge Charleton to recall Myles na gCopaleen and ask: “If the Garda Commissioner is writing to the Department of Justice what the Department of Justice wants to have written to it, what in heaven’s name does that mean in terms of any genuine progress in terms of attitude?”
It also heard of a draft speech Ms O’Sullivan sent to Ms Fitzgerald on May 18, 2016 – after the Irish Examiner broke the story in May 2016 about the O’Higgins Commission of Investigation and the strategy employed against Sgt McCabe – and in which she suggested Ms Fitzgerald tell the Dail, among other things, “I have interrogated this matter in detail with the 22 Commissioner of An Garda Síochána and now present to the House the outcome…I wish to state here now that I have full confidence in the Commissioner” (more about these communications in a later post).