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 →
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 top: Judge Peter Charleton; Supt Noel Cunningham; Sgt Maurice McCabe and his wife Lorraine
The Disclosures Tribunal will resume at Dublin Castle at 10am.
It’s hoped one of the scheduled witnesses – Annmarie Ryan, who was a solicitor with the Chief State Solicitor’s office during the O’Higgins Commission of Investigation in 2015 – will be able to shed light on a bewildering matter that was revealed on Monday.
Specifically, the matter is this:
How did claims about a meeting in Mullingar in August 2008 – attributed to Supt Noel Cunningham who was present at the meeting – end up on 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?
Ms Ryan is the third witness scheduled to appear today.
The first is former General Secretary at the Department of Justice Noel Waters, who stepped down from his role on November 28 last, within hours of former Justice Minister Frances Fitzgerald’s resignation.
The second is Head of Legal Affairs at An Garda Siochana Ken Ruane.
But, to return to the bewildering letter from the Chief State Solicitor…
Readers will recall how the tribunal is currently looking at what happened in terms of the then Garda Commissioner Noirin O’Sullivan’s legal strategy during the O’Higgins Commission of Investigation between May 2015 and December 2015.
This commission, overseen by Judge Kevin O’Higgins, was set up to look at about a dozen Garda investigations in the Cavan/Monaghan area between 2007 and 2010, following complaints made by Sgt Maurice McCabe about these investigations.
At the outset of this commission, on Friday, May 15, 2015, Colm Smyth SC, for the then Garda Commissioner Noirin O’Sullivan, was questioning retired Chief Supt Colm Rooney, whom Mr Smyth also represented, when a legal row broke out.
This occurred after Mr Smyth explained that his instructions were to challenge the integrity, credibility and motivation of Sgt McCabe.
Mr Smyth’s stance prompted Sean Gillane, SC for the commission, to question the relevance of Mr Smyth’s line of questioning.
Michael McDowell SC, for Sgt McCabe, questioned the same and asked why he wasn’t given any notice of it, which he said left him “very, very deeply shocked”.
At the tribunal on Monday, Kathleen Leader BL, for the tribunal, pondered:
“The facts of the issues under investigation [at the O’Higgins Commission of Investigation] either stood up or did not, irrespective of any attitude that Sergeant McCabe might or might not take. It is in that context that it might be difficult to see how any issue of credibility could properly arise at all at all.”
In any event…
Mr Smyth had this exchange with Judge O’Higgins on that afternoon of May 15, 2015:
Smyth: “…my instructions are to challenge the integrity certainly of Sergeant McCabe and his motivation.”
Smyth:“His motivation and his credibility in mounting these allegations of corruption and malpractice.”
O’Higgins: “There is a difference. In relation to the question of credibility, as I have already indicated, that is an everyday matter. One can suggest to a witness that his evidence shouldn’t be believed because of something but an attack on somebody’s credibility, on his motivation or integrity is something that really doesn’t form part of this Inquiry. It would be necessary I think for you to go further and say that the complaints and the actions of Sergeant McCabe on your instructions were motivated by, his motivation was dishonest or wrong. In other words that he made these allegations not in good faith but because he was motivated by malice or some such motive and that impinges on his integrity. If those are your instructions from the Commissioner, so be it.”
Smyth: “So be it. That is the position, Judge.”
O’Higgins: “Those are your –”
Smyth: “Yes, as the evidence will demonstrate, Judge.”
After an adjournment, during which Mr Smyth checked with Noirin O’Sullivan about his instructions, and Ms O’Sullivan made two phone calls to the Department of Justice, Mr Smyth returned to the commission and said: “My instructions are re-confirmed.”
Mr McDowell SC, for Sgt McCabe, then requested that notice be given to him of what An Garda Siochana were going to put to Sgt McCabe.
This notice came the following Monday morning in the form of a five-page 20-point letter from the then Chief State Solicitor Eileen Creedon, who’s now a High Court judge.
This was the letter in full:
Mr. David J. O’Hagan,
Re: The Commission of Investigation…
Dear Mr. O’Hagan,
As directed by the Judge in the course of hearing on Friday, the 15th May 2015 we hereby provide the factual issues to be put to Sergeant Maurice McCabe:
1. In summer 2004, both Sergeant McCabe and a colleague applied for the vacant position of Sergeant in Charge of Bailieboro Garda Station. Sergeant McCabe was successful and took up the duties of Sergeant in Charge in October 2004.
2. In January 2006, Sergeant McCabe made a complaint against this colleague which resulted in a disciplinary sanction being imposed on the colleague.
3. The colleague applied for a transfer to another Garda station in December 2006 which request was refused for operational reasons due to the supervisory needs of Bailieboro station.
4. In December 2006, the colleague and his wife, on behalf of their daughter, made a complaint against Sergeant McCabe. Chief Superintendent Colm Rooney duly appointed Inspector (now Superintendent) Noel Cunningham to carry out a formal Garda investigation into the complaint.
5. Inspector Cunningham completed his investigation and forwarded the Garda Investigation file to the office of the DPP on or about the 19th of February 2007. Inspector Cunningham stated in his report to the DPP “taking all matters into consideration, including the question of whether the event happened, constituted a breach of the criminal law, it is felt that there is no ground for a criminal prosecution.”
6. The Director Of Public Prosecutions communicated the decision not to initiate any form of action against Sergeant McCabe and the observation was made that it was doubtful that the allegation could constitute a crime at all. The said directions were issued by way of a letter dated 5th April 2007 to the Cavan State Solicitor. Inspector Cunningham had requested that the directions from the DPP were to be forwarded for his attention rather than addressed in the usual way to the station and he received the directions, as he had requested, marked for his attention.
7. Upon receipt of said directions, Inspector Cunningham undertook the task of informing the parties to the complaint of the outcome of the investigation and the directions of the DPP. He advised the colleague and his wife on the 24th April 2007.
8. On the same day (the 24th April 2007) Inspector Cunningham sought to make an appointment with Sergeant McCabe to similarly advise him of the outcome of the investigation and the reasons from the DPP. However Sergeant McCabe was on sick leave from the 24th of April 2007 to the 21st of May 2007. Sergeant McCabe initially refused but subsequently agreed to meet on the 8th of May 2007.
9. On the 8th May 2007, Inspector Cunningham met with Sergeant McCabe by appointment at the Bailie Hotel. Inspector Cunningham was alone but Sergeant McCabe was accompanied by Sergeant Regina McArdle who was present initially as AGSI representative and then welfare officer. Inspector Cunningham duly informed Sergeant McCabe of the outcome of the investigation and the responses/directions of the DPP.
10. On 15th and 17th October 2007, there were two incidents in which Sergeant McCabe had an encounter with the wife and daughter, respectively, of Mr D. Following these incidents, Sergeant McCabe raised with Superintendent Clancy the issue of dissemination of the DPP’s directions which were given at the conclusion of an investigation into an allegation assault against Sergeant McCabe. Sergeant McCabe stated that he was of the view that the colleague’s family were unaware of the DPP’s directions. He stated that he was aware that Inspector Cunningham had met the colleague’s family concerning the outcome of the DPP’s directions. As a consequence, on the 22nd October 2007, Superintendent Clancy sent a minute to Inspector Cunningham in Monaghan seeking his observations on the issue.
11. Superintendent Clancy recalls having a meeting with Sergeant McCabe at the beginning of February 2008. At that meeting, Superintendent Clancy ascertained from Sergeant McCabe that he had no desire to have the colleague’s family prosecuted for the incidents he complained about. Superintendent Clancy asked Sergeant McCabe to convey his attitude in this matter by way of a written report as the Superintendent wished to have his views recorded on file. Sergeant McCabe stated that he would forward a report indicating that he did not wish to have the colleague’s family prosecuted. At the same meeting, Superintendent Clancy informed Sergeant McCabe that he had been in contact with Inspector Cunningham on the issue of the dissemination of the DPP’s directions. Superintendent Clancy informed Sergeant McCabe that Inspector Cunningham had communicated the DPPs directions to the colleague’s family on 24th April 2007. Sergeant McCabe then stated that he wished to view the actual written direction given by the DPP. Sergeant McCabe stated he felt that he should be ‘exonerated’ by the DPP. Sergeant McCabe stated that he would make written application to the Superintendent to have the DPP’s written directions shown to him. On 7th February 2008, Superintendent Clancy sent a minute to Sergeant McCabe giving the outcome of his enquiries with Inspector Cunningham on the issue of dissemination of the DPP’s directions.
12. On Tuesday, 26th February 2008, Superintendent Clancy received an envelope marked personal containing a report dated the 25th February 2008 from Sergeant McCabe. In this report, Sergeant McCabe made a number of allegations of incidents which allegedly occurred as far back as 2004 against Mr D and other unnamed members of Bailieboro Garda Station. Sergeant McCabe acknowledged that he had received Superintendent’s Clancy’s minute of 7th February 2008. Sergeant McCabe asked for full disclosure of the D.P.P.’s directions. “I urge you, if you can, to asked[sic] the DPP to allow the full DPP directions to be conveyed to me and the other party, in particular Mrs. D., in his particular case due to the fact that all parties work in close proximity and I would really appreciate it. That is all I am asking.”
13. Superintendent Clancy immediately forwarded this report to the divisional officer, Chief Superintendent Colm Rooney, recommending that the allegations made by Sergeant McCabe be investigated. In the meantime, Superintendent Clancy sought sight of the written directions as given by the DPP. Having carefully viewed the content of the DPP’s directions, the Superintendent decided that he would adhere to the DPP’s guidelines and that he would not request release of the document. On 11th March 2008, Superintendent Clancy met Sergeant McCabe and gave him the outcome of his decision.
14. Sergeant McCabe was unhappy with the outcome of the decision of the DPP, as he believed that the decision ought to have completely exonerated him rather than recording that there was not sufficient evidence to proceed against him.
15. In or around the same time Sergeant McCabe presented Superintendent Clancy with a series of operational issues for his attention, which were of a type which would normally have been dealt with by the Sergeant in Charge of the station.
16. Sergeant McCabe sought 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 DPP. He demanded that Chief Superintendent Rooney communicate with the DPP to seek a declaration of innocence from the DPP in relation to the allegation. Chief Superintendent Rooney advised Sergeant McCabe of the policy of the DPP 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 DPP.
Chief Superintendent Rooney pointed out to Sergeant McCabe that from his own experience of dealing with criminal files to the DPP he was aware of the DPP’s role to determine if sufficient evidence was available on a file to direct a prosecution. Chief Superintendent Rooney advised sergeant McCabe that it is not the Garda Commissioner’s policy that An Garda Síochána, 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 is he so wished to seek the declaration he required.
17. In March 2008 Sergeant McCabe applied to be redeployed from his position as Sergeant in Charge of Bailieboro Garda Station and this request was granted.
18. Pursuant to the complaint made by Sergeant McCabe on the 26th February 2008 to Superintendent Clancy, Chief Superintendent Colm Rooney appointed Inspector Noel Cunningham to carry out an investigation.
19. Having been appointed to investigate Sergeant McCabe’s complaint against Superintendent Clancy, now Superintendent Noel Cunningham, having attempted on a number of occasions to meet with Sergeant McCabe, eventually met with Sergeant McCabe by appointment on the 25th August 2008 in Mullingar Garda Station, to receive details of his formal complaint. Superintendent Cunningham was accompanied to this meeting by Sergeant Yvonne Martin. Notes were taken at the meeting and countersigned by Sergeant Martin and a detailed report of the meeting was prepared by Superintendent Cunningham, and its contents agreed with Sergeant Martin and forwarded to Chief Superintendent Rooney. In the course of this meeting Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaints against Superintendent Clancy was to force him to allow sergeant McCabe to have the full DPP directions conveyed to him.
20. It is understood that Sergeant McCabe had further interactions with assistant commissioner Derek Byrne and Chief Superintendent Terry McGinn prior to the investigation carried out by them.
On Monday, the tribunal specifically heard that point 19 was a “serious error”.
Ms Leader BL, for the tribunal, asked:
“…a serious error seems to have been made as to the purport of the Mullingar meeting of the 25th of August 2008. Where did the notion come from that Sergeant McCabe turned up to that meeting and announced that his issues with Superintendent Clancy had been manufactured by him in order to create some kind of a pressure wave so that senior management would bow to his demand that the DPP’s letter exonerating him would be circulated?
“This idea, which somehow got into paragraph 19 of counsel’s letter to the Commission on behalf of Commissioner Nóirín O’ Sullivan, is not contained in the report of Superintendent Cunningham and it does not accord with the tape that Sergeant McCabe had made of the meeting.
Supt Cunningham first 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.”
He then went on to say he believed it was the first time he was reading paragraph 19.
Questions may also arise about the paragraphs which claim Sgt McCabe was angry with the DPP and that he wanted the DPP’s directions challenged; that he wanted the DPP to exonerate him and that he wanted the DPP to declare his innocence.
These claims appear equally bewildering as paragraph 19, as Sgt McCabe knew the DPP’s directions and they did exonerate him.
Readers should note that the claims in the Chief State Solicitor letter – alleging Sgt McCabe wanted the DPP to exonerate him – chime with evidence that was given just before the legal row kicked off at the commission on May 15, 2015.
At that point, Colm Smyth SC, for Ms O’Sullivan and several gardai including Supt Cunningham and retired Chief Superintendent Colm Rooney, asked Mr Rooney about a meeting he had with Sgt McCabe.
Chief Supt Rooney told the commission:
“It was probably late 2007, yes, definitely. He came to my office and he was in that state and he demanded of me that I write to the Director of Public Prosecutions and I challenge a decision that Director of Public Prosecutions had made in respect of him.”
Readers may wish to recall, in terms of the DPP directions mentioned above, they relate to a retrospective allegation which was made against Sgt McCabe by a 14-year-old daughter of a Garda colleague of Sgt McCabe’s in 2006 and, following an investigation by then Inspector Noel Cunningham, the DPP directed that no prosecution take place.
Ms D made the allegation in a statement to gardai in December 2006, about 11 months after her father, Mr D, lost his position as sergeant in charge of the crime unit and was reverted to regular sergeant, following a report made by Sgt McCabe against Mr D for attending the scene of a suicide after drinking alcohol.
On April 5, 2007, the DPP issued its directions as follows:
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.
Sgt McCabe learned of the directions on the day they were issued (April 5, 2007) when he was verbally briefed of them by the Cavan State Solicitor Rory Hayden.
But he kept his knowledge of the directions to himself.
The tribunal heard that Sgt McCabe and Supt Cunningham didn’t eventually meet to discuss the DPP’s directions until May 8, 2007.
In the summer, Supt Cunningham told the tribunal that when he relayed the DPP’s directions to Sgt McCabe he didn’t specifically read out the DPP’s directions to him.
Instead, he told the tribunal:
“I told him there was no prosecution, I believe it was due to lack of evidence, I didn’t actually take a note of it.”
On August 9, 2013, after Ms D received counselling from RIAN counsellor Laura Brophy, during which Ms D repeated the 2006 claim, Ms Brophy unnecessarily re-referred – in so much as it had been previously referred and investigated – the matter to Tusla but conflated the “humping” allegation with an allegation of rape which was wholly unrelated to both Ms D and Sgt McCabe.
This false allegation of rape sat in an unallocated Tusla file until May 2014 when it was simultaneously found to be a mistake and yet travelled officially all the way up to the then Garda Commissioner Noirin O’Sullivan’s office – even though certain gardai involved in moving it up the chain of command knew about the 2006/2007 allegation and knew that there was no such rape allegation made by Ms D against Sgt McCabe in 2006/2007.
The tribunal has already heard that, within days of the mistake in the Tusla referral being discovered, the then Assistant Commissioner Kieran Kenny received an amended referral but never passed it on to Ms O’Sullivan.
Sgt McCabe didn’t learn of the false rape allegation until a letter was sent to him on December 29, 2015.
The false rape allegation was still on file in the commissioner’s office until the tribunal began earlier this year.
The Disclosures Tribunal is also examining the knowledge and circulation of this false rape allegation among senior gardai and members of the media.
Clockwise from left: Sgt Maurice McCabe, former Chief State Solicitor Eileen Creedon, now a High Court judge; Superintendent Noel Cunningham
The Disclosures Tribunal resumed in Dublin Castle.
Readers will recall how the tribunal, overseen by Supreme Court judge Peter Charleton, is investigating claims of an orchestrated smear campaign against Garda whistleblower Sgt Maurice McCabe, by former Garda Commissioner Martin Callinan with the knowledge of his successor Noirin O’Sullivan, as alleged by the former Head of the Garda Press Office Supt Dave Taylor.
The tribunal is currently dealing with the inquiry’s term of reference ‘e’ which is to investigate if false allegations of sex abuse or any other unjustified grounds were inappropriately relied upon by the then Garda Commissioner Ms O’Sullivan during the O’Higgins Commission of Investigation in 2015.
Yesterday, the tribunal heard transcripts from the O’Higgins Commission of Investigation; it heard a number of serious “errors” made in terms of claims made about Sgt McCabe during the commission; and it heard how Ms O’Sullivan consulted the Department of Justice about the legal strategy of An Garda Siochana taken at the commission.
It also saw a transcript of the tape recording that Sgt McCabe had made of a meeting he had with Supt Noel Cunningham and Sgt Yvonne Martin on August 25, 2008.
And it heard that at least one section of a document signed by the Chief State Solicitor of the time Eileen Creedon, now a High Court judge, was incorrect and contained a claim attributed to Supt Noel Cunningham which was proven to be untrue by the tape.
It also heard that Supt Cunningham’s notes matched what was revealed in the tape recording – prompting Kathleen Leader BL, for the tribunal, to ask how it ended up in Ms Creedon’s letter.
Readers should note Ms Creedon’s name was not mentioned in yesterday’s proceedings.
In addition, Kathleen Leader BL, for the tribunal, told the tribunal that Sgt McCabe’s integrity was impugned at the commission.
Readers will recall how a retrospective allegation was made against Sgt McCabe by a 14-year-old daughter of a Garda colleague of Sgt McCabe’s in 2006 and, following an investigation by then Inspector Noel Cunningham, the DPP directed that no prosecution take place.
The allegation made by the then girl, referred to in the tribunal as Ms D, was that, during a game of hide and seek in 1998, when she was about six, Sgt McCabe pressed against her. Ms D used the word “humping” in her Garda statement.
Ms D made the allegation in a statement to gardai in December 2006, about 11 months after her father, Mr D, lost his position as sergeant in charge of the crime unit and was reverted to regular sergeant, following a report made by Sgt McCabe against Mr D for attending the scene of a suicide after drinking alcohol.
Ms D’s allegation was investigated by Supt Noel Cunningham and the DPP ordered that no prosecution take place.
The DPP’s directions included the following:
“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.”
The tribunal has already heard that Sgt McCabe was verbally briefed of the DPP’s full instructions by the Cavan State Solicitor Rory Hayden on April 5, 2007, the day they were issued, but he kept his knowledge of the directions to himself.
The tribunal has also already heard that Sgt McCabe and Supt Cunningham didn’t eventually meet to discuss the DPP’s directions until May 8, 2007.
Ms D’s allegations resurfaced six years later, on August 9, 2013, when Ms D received counselling from RIAN counsellor Laura Brophy.
During this counselling, Ms D repeated the 2006 claim and Ms Brophy unnecessarily re-referred – in so much as it had been previously referred and investigated – the matter to Tusla but conflated the “humping” allegation with an allegation of rape which was wholly unrelated to both Ms D and Sgt McCabe.
This allegation of rape sat in an unallocated Tusla file until May 2014 when it was simultaneously found to be a mistake and yet travelled officially all the way up to the Garda Commissioner Noirin O’Sullivan’s office – even though certain gardai involved in moving it up the chain of command knew about the 2006/2007 allegation and knew that there was no such rape allegation made by Ms D against Sgt McCabe in 2006/2007.
The tribunal has already heard that, within days of the mistake in the Tusla referral being discovered, the then Assistant Commissioner Kieran Kenny received an amended referral but never passed it on to Ms O’Sullivan.
Sgt McCabe didn’t learn of this false rape allegation until a letter was sent to him in December 2015.
The false rape allegation was still on file in the commissioner’s office until the tribunal began earlier this year.
As mentioned above, the tribunal is currently investigating if false allegations of sex abuse or any other unjustified grounds were inappropriately relied upon by the then Garda Commissioner Ms O’Sullivan during the O’Higgins Commission of Investigation in 2015.
Essentially, the tribunal is currently tasked with deciphering what exactly Ms O’Sullivan’s approach was during the O’Higgins Commission of Investigation and to decide if it was justified.
The O’Higgins Commission of Investigation – between May 13, 2015 and December 17, 2015 – looked at allegations of Garda misconduct in the Cavan-Monaghan area, as laid out by Sgt McCabe.
During the inquiry, Ms O’Sullivan was represented by Colm Smyth, SC, while Sgt McCabe was represented by Michael McDowell, SC.
Yesterday the tribunal heard Kathleen Leader BL for the tribunal, take Judge Charleton, and those in attendance, through sections of transcripts from the O’Higgins Commission of Investigation.
They heard audio recordings from the commission while Ms Leader’s lengthy statement was followed by all in attendance on screen.
Ms Leader also read out correspondence and statements given to the tribunal from members of the Department of Justice, the Office of the Attorney General and the former Justice Minister Frances Fitzgerald.
Specifically, Ms Leader revealed:
At least two errors, which were not in Sgt McCabe’s favour, were relayed in the O’Higgins Commission of Investigation.
This follows Patrick Marrinan SC, for the tribunal, last August telling the tribunal that in respect of the “litany of grave errors” concerning Tusla, “There isn’t an error in his [Sgt McCabe’s] favour. Nobody made a mistake by which he benefited.” Continue reading →
Clockwise from top left: Lorraine McCabe, Sgt Maurice McCabe, former Minister for Justice Frances Fitzgerald, and former Garda Commissioner Noirin O’Sullivan
The Disclosures Tribunal released details of who will appear before Judge Peter Charleton for the first 10 days of sittings, after it resumes on January 8.
These witnesses will be asked questions in relation to the tribunal’s term of reference ‘e’.
Specifically, this term of reference is:
“To investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe at the Commission of Investigation into Certain Matters in the Cavan/Monaghan district under the Chairmanship of Mr Justice Kevin O’Higgins.”
Readers will recall how claims made about Sgt McCabe at the outset of the privately held commission in 2015 were proven to be untrue but the claims and fall-out of the same were never recorded in Justice O’Higgins’ final report.
When the tribunal resumes on Monday, January 8, the first witness will be the Head of Legal Affairs at An Garda Siochana Ken Ruane.
Also appearing on the first day will be Anne Marie Ryan, who was a solicitor with the Chief State Solicitor’s office during the O’Higgins Commission of Investigation.
On the afternoon of Tuesday, January 9, the former Garda Commissioner Noirin O’Sullivan will appear.
Ms O’Sullivan may also appear on the morning of Wednesday, January 10.
Colm Smyth, SC, who represented Ms O’Sullivan and other gardai at the O’Higgins Commission of Investigation, will also appear on Wednesday, January 10.
Mr Smyth will be followed by Gareth Byrne, BL, and Michael MacNamee, BL, who were also part of the legal team representing Ms O’Sullivan and other gardai.
The guards whom Mr Smyth, Mr Byrne, Mr MacNamee and Ms Ryan represented at the O’Higgins Commission of Investigation included former Garda Commissioner Noirin O’Sullivan, her predecessor Martin Callinan, retired Chief Supt Colm Rooney, Chief Supt Michael Clancy, retired Assistant Commissioner Kieran Kenny, retired Chief Supt Jim Sheridan and Supt Noel Cunningham.
On Thursday, January 11, head of HR at An Garda Siochana John Barrett will give evidence.
Readers will recall how it has been previously reported that the Disclosures Tribunal has already been told that – before the beginning of the O’Higgins Commission of Investigation – a member of Garda management told Mr Barrett “we are going after Maurice at the commission”.
It’s expected that Mr Barrett will give evidence in relation to this claim.
Mr Barrett will be followed by the former Chief Administration Officer Cyril Dunne.
On Friday, January 12, Richard Barrett, of the Attorney General’s office, will appear, followed by Michael Flahive, of the Department of Justice.
Readers may recall Mr Barrett and Mr Flahive’s involvement in the now infamous email that led to calls for former Tanaiste Frances Fitzgerald to resign several weeks ago.
This was an email sent by Mr Flahive to Department of Justice officials, including former Minister for Justice Frances Fitzgerald’s private secretary Christopher Quattrociocchi, on May 15, 2015.
In it, Mr Flahive said he received a call from Mr Barrett and that, according to Mr Barrett, a row had taken place at the O’Higgins Commission of Investigation between the legal counsel for Sgt Maurice McCabe and the former Garda Commissioner Noirin O’Sullivan.
In the email, Mr Flahive wrote that Mr Barrett told him the row occurred because the counsel for Ms O’Sullivan wanted to introduce a complaint that the 2006 investigation into Ms D’s ‘dry humping’ allegation against Sgt McCabe wasn’t investigated properly.
Mr Flahive outlined that Michael McDowell, SC for Sgt McCabe, objected to this being raised and asked if Ms O’Sullivan had authorised the argument that this claim was relevant to Sgt McCabe’s motivation.
Mr Flahive explained that Mr Barrett said Ms O’Sullivan had authorised this approach.
Mr Quattrociocchi forwarded this email to to three people, including Ms Fitzgerald.
The other two people were Ms Fitzgerald’s special advisors William Lavelle, a Fine Gael councillor, and Marion Mannion.
After the email emerged, readers may recall, Sgt McCabe told Taoiseach Leo Varadkar the alleged events outlined in this email never happened.
Former General Secretary of the Department of Justice Noel Waters will appear on Monday, January 15.
Readers will recall Mr Waters resigned with immediate effect on November 28 – within hours of Ms Fitzgerald resigning.
On Tuesday, January 16, Mr Quattrociocchi will give evidence, followed by the former Tanaiste Frances Fitzgerald.
On Wednesday, Fine Gael councillor Mr Lavelle will appear.
On Thursday, January 18, Sgt Maurice McCabe will give evidence.
Terry Prone of the Communications Clinic and former Garda Commissioner Nóirín O’Sullivan at the Public Accounts Committee on July 13, 2017
An Garda Siochana paid the Communications Clinic €10,400 and €92,955 in 2015 and 2016 respectively.
Further to this…
On Thursday, July 13, 2017.
The former Garda Commissioner Nóirín O’Sullivan was asked about this sum of €92,955 by Fianna Fáil TD Marc MacSharry, in a meeting of the Public Accounts Committee.
Ms O’Sullivan told the committee the money would have been used to train gardai to deal with local radio and media.
“As part of our modernisation and renewal programme, we have committed to opening up the organisation. I do not have the exact breakdown here, but maybe some of my colleagues do.
“The moneys would again have been spent on training Garda and civilian members around the country for interaction with local radio and local media, for example, on some of the information messages that would have gone out around Operation Thor and the “lock up and light up” campaign.
“Again, we can provide an exact breakdown or maybe some of my colleagues would have it, but that is what it would have been.”
When Mr MacSharry specifically asked Ms O’Sullivan if she had attended any media training sessions with the PR firm, Ms O’Sullivan said:
“No. Maybe it is an opportunity, if I may Chair, to do something. I have seen a lot of speculation and commentary. Particularly, I think there was a figure of €140,000 mentioned which apparently I spent in terms of preparing for Committee of Public Accounts meetings. That is completely untrue. I have never received any preparatory training. Like yourself, Chair, I am not sure where that reporting came from. Certainly, no, I did not. “
Mr MacSharry attempted to clarify further when they had this exchange:
Marc MacSharry: “So the €92,000 was for people who would have to be spokespeople for local radio after a crime or were being consulted on an issue or something.”
Ms Nóirín O’Sullivan: “And, for example, district offices. As the Deputy will have seen, one of the criticisms we have received is that we are insular and defensive. Some of the inspectorate reports quite rightly raised the fact we need to speak more openly to the media. The Deputy would have seen a lot of our local officers around the country engaging more with the media. We have found that part of public reassurance is to get on local radio stations in particular and give out messages of reassurance and crime prevention and stories of interest to local communities.”
Yesterday, John Mooney, in The Sunday Times, reported that the Disclosures Tribunal is examining advice which Terry Prone, of the Communications Clinic, gave to the former Garda Commissioner Noirin O’Sullivan in May, 2016.
Ms Prone gave this advice after it emerged that claims made by Ms O’Sullivan’s senior counsel during the O’Higgins Commission of Investigation in 2015 – that Garda whistleblower Sgt Maurice McCabe was acting out of malice – were proven to be untrue and journalists were asking Ms O’Sullivan for a comment about the same.
Mr Mooney reported:
“The tribunal has been notified of email exchanges between senior gardai and Prone from May 2016, when the PR executive was consulted on the wording of a statement issued by the garda press office in response to media queries about O’Sullivan’s approach to McCabe at the O’Higgins Commission hearings.
“…Charleton has been given statements and documents that show Garda Headquarters held a meeting to discuss how it would respond to the issues identified by O’Higgins. The Garda press office later released three statements on the report and the leaked transcripts.
“Prone advised O’Sullivan on the second statement, which was released by the garda press office. It was an attempt to clarify the then commissioner’s role after newspapers published transcripts of the commission’s hearings. The statement, released on May 16, quoted O’Sullivan as saying she believed “dissent was not disloyalty” and she never regarded McCabe as malicious. It added that she was legally precluded from commenting on matters discussed at the commission.
“Charleton has been told the statement was circulated by O’Sullivan to Garda Headquarters on a private Gmail account, which deleted emails after 30 days, before its release. Copies were retained by Garda Headquarters as they were sent to official accounts. The email thread shows Prone had advised O’Sullivan.”
Two separate attempts earlier this year, by journalists Ali Bracken, of the Irish Daily Mail, and Ken Foxe, to obtain details of An Garda Siochana’s hiring of the Communications Clinic, under the Freedom of Information Act, have been rejected.
Specifically, Mr Foxe sought “copies of any emails between the Garda Commissioner Noirin O’Sullivan and PR consultant Terry Prone or the Communications Clinic during the period in which those services were provided to AGS.”
The Department of Justice paid the Communications Clinic €2,336, €756 and €24,221 in 2014, 2015 and 2016 respectively.
Two weeks ago, the Department of Justice released a series of emails which showed how, on Saturday, July 4, 2015, RTÉ journalist John Burke sent a press query to the Garda Press Office.
Mr Burke asked about the former Garda Commissioner Noirin O’Sullivan’s counsel questioning Sgt Maurice McCabe’s motivation at the O’Higgins Commission of Investigation.
Subsequent to this, in an email from the Department of Justice Secretary General Office Assistant Secretary Ken O’Leary to the then Minister for Justice Frances Fitzgerald, Mr O’Leary stated Ms O’Sullivan phoned him “to let me know they had received queries from Colm O’Nongain [sic] about Sgt McCabe”.
Mr O’Leary added that the Garda Press Office was asked “was it the Garda Commissioner who had instructed counsel to adopt an aggressive stance towards Sgt McCabe at the O’Higgins Commission”.
He told Ms Fitzgerald: “The Gardai are not commenting.”
He then went on to advise Ms Fitzgerald, who was scheduled to appear on RTE’s This Week on Sunday, July 5, 2015, to say the following:
“Both the Garda Commissioner [Noirin O’Sullivan] and myself have made it clear that Sgt McCabe is a valued member of the Force.”
She was also advised to say she couldn’t comment on the O’Higgins Commission of Investigation and that:
“…it would be wrong of anyone to make public comment which might interfere with or attempt to influence those proceedings in any way.”
In addition, Mr O’Leary also told Ms Fitzgerald that she could say:
“It would be wrong of anyone to make public comment which might interfere with or attempt to influence those proceedings in any way. The Commission clearly has to be let take its course.”
In the end, Ms Fitzgeraldwasn’t asked about the matter when she appeared on RTE’s This Week on Sunday, July 5, 2015.
Meeting of the joint Oireachtas committee on justice and equality; Deputy Secretary General at the Department of Justice Oonagh McPhilips
Readers may recall Tanaiste and former Minister for Justice Frances Fitzgerald’s resignation last week…
And the resignation of the secretary general of the Department of Justice Noel Waters…
And how the resignations were largely prompted by the emergence of an email, of May 15, 2015, in which Michael Flahive, of the Department of Justice, wrote to Ms Fitzgerald’s private secretary Christopher Quattrociocchi in which he relayed the contents of a phone call he received from Richard Barrett, of the Attorney General’s office, about Sgt Maurice McCabe and the O’Higgins Commission of Investigation…
Department of Justice officials, including deputy secretary general at the department Oonagh McPhilips, are appearing before the Oireachtas justice and equality committee this morning.
Further to this…
“The most senior civil servant in the Department of Justice has defended the advice given to the former justice minister Frances Fitzgerald in relation to the legal strategy deployed by gardaí before the O’Higgins Commission.
“Oonagh McPhillips told the Oireachtas Justice Committee that the department’s advice to a minister would consistently be that they should not be involved in any way in a case to be presented by another party before a commission of investigation.
“….However, under questioning from Fianna Fáil’s Jim O’Callaghan about an email sent to Ms Fitzgerald informing her of the adversarial approach being taken by the legal team for the Garda Commissioner in relation to Sergeant Maurice McCabe, Ms McPhillips accepted that the minister would have done nothing wrong if she had discussed this email with her own officials, and expressed her dissatisfaction with the approach.
“She could express that view, but the advice from the department would be that there’s nothing you can do about it”, Ms McPhillips said.”
Tanaiste and former Minister for Justice Frances Fitzgerald
On RTÉs News At One.
Aine Lawlor interviewed Tanaiste and former Minister for Justice Frances Fitzgerald about what she knew, when, in relation to the legal strategy employed by the former Garda Commissioner Noirin O’Sullivan against Sgt Maurice McCabe at the O’Higgins Commission of Investigation.
During the interview, Ms Fitzgerald said she received an email in May 2015 stating a criminal charge against Sgt McCabe had been raised at the commission and that it had been claimed that this charge hadn’t been properly investigated.
Ms Fitzgerald said she was told a row ensued between the counsel for Sgt McCabe and the counsel for the commissioner at the commission because of this claim.
Ms Fitzgerald said the email was based on information that an officer in the Attorney General’s office gave to a Department of Justice official in a phone call in May 2015.
After the interview, just as Leaders’ Questions began in the Dail, Fianna Fail leader Michael Martin told the Dail that just before he entered the Dail chamber…
“I took a phonecall from Maurice McCabe, he’d been on to another deputy. And he is adamant that such an issue was never raised during the O’Higgins inquiry. And he’s taking very serious issue with the remarks of the Tanaiste on the News at One today. And my understanding is that he will be issuing a statement.”
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 Colm Smyth SC said it would argue Sgt McCabe was making complaints about Garda misconduct because he had a grudge 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 by Chief Supt Colm Rooney that Sgt McCabe had sought a meeting with him in 2007 demanding that the DPP’s directions – in respect of an “dry humping” allegation made by the daughter of a guard previously disciplined by Sgt McCabe in 2006 – be overturned.
The commission was told this was the basis of a grudge held by Sgt McCabe and the reason behind him making complaints about Garda misconduct.
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.”
At the beginning of the O’Higgins Commission of Investigation, An Garda Siochana weren’t aware that Sgt McCabe had been verbally, but fully, briefed of the DPP’s directions on the same day they were issued in April 2007.
Sgt McCabe gave evidence on day two of the commission – Friday, May 15, 2015 – in which he explained his knowledge of the DPP’s directions and how he had no desire for them to be overturned as he was very satisfied with them.
This hasn’t been reported elsewhere.
Readers will also recall how Broadsheet has previously reported how, on that same Friday afternoon, Michael McDowell SC, for Sgt McCabe, called for documentary evidence to be produced to support the claim that Sgt McCabe wanted the DPP’s directions overturned.
Over the following weekend, and in response to Mr McDowell’s request, a five-page document compiled by the then Chief State Solicitor Eileen Creedon, now a High Court judge, was introduced to the commission on Monday, May 18, 2015 – day three of the commission.
In Ms Creedon’s letter, she stated:
“[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.”
A tape recording of the meeting, produced by Sgt McCabe, contradicted Ms Gleeson’s assertions.
The claim about the grudge and the claim about the grudge being made known at the meeting were dropped by the Garda Commissioner’s legal counsel.
But they were never included in the commission’s final report.
In addition, it’s been claimed by Labour TD Alan Kelly that a phonecall was made from the Commissioner’s office to the secretary general of the Department of Justice Noel Waters on May 15, 2015.
The purpose of that alleged call is unknown.
Last week, Mr Waters announced he’s stepping down from his role in February.
Readers will recall how, after the report of O’Higgins Commission of Investigation was published in May 2016 – which didn’t outline any of the details above, Mick Clifford, in the Irish Examiner, and Katie Hannon, of RTE, reported how Ms O’Sullivan’s legal counsel made the claim about 2008 Mullingar meeting and how Sgt McCabe’s tape recording proved this not to be the case.
There have since been calls to know exactly what the Department of Justice and the then Minister for Justice Frances Fitzgerald knew of this legal strategy.
Last week, Taoiseach Leo Varadkar told the Dail Ms Fitzgerald learned of the legal strategy when it became public knowledge – which is May 2016.
But last night, Ms Hannon reported on Claire Byrne Live that a Department of Justice spokesperson confirmed to her this week that Ms Fitzgerald was first made aware in May 2015.
Further to this…
From News At One:
Aine Lawlor: “I think, minister, and just to clarify again so we’re not at cross purposes. The questions here are not in relation to whether you’re the person drawing up the strategy. The question is are you the person being informed about what’s going on? There was a row at the tribunal [sic] in May 2015. The O’Higgins Commission was told that evidence would be produced to show that whistleblower Maurice McCabe who had fought so long and so hard to be able to tell his story and suffered so much for it, that he would be shown to be somebody with a grudge.
“We’re told the Department was informed. Who told you then?”
France Fitzgerald: “Let me be clear: what emerged last week from and what the Department were referencing yesterday was that there was a conversation between an official in the Department of Justice and the Attorney General’s office.The Attorney General’s office officer told an official in the department in a telephone conversation…”
Lawlor: “Was this Noel Waters?”
Fitzgerald: “And that an issue had arisen at the tribunal in relation to the approach that the counsel for An Garda Siochana were taking. And that the counsel for Sgt Maurice McCabe had objected very strongly to that. Because it was raising an issue about a criminal, a serious criminal complaint which his counsel felt had nothing to do with the current situation. And this was then put in an email by the official who had taken the phonecall. The Department discovered that email last week and I was informed towards the end of the week, in relation to this. Now when I…can I…”
Talk over each other
Lawlor: “Sorry minister, because you’ve said a fair bit but you still haven’t answered the question: were you, because the department says now, as of last night, you were aware of this. Who told you what in May 2015 about that row?”
Fitzgerald: “What I’ve said to you is that the department discovered an email last week when they were trying to answer various questions that had come in. They found an email that record that details of this conversation that it had been sent to me at that point and that it is..”
Lawlor: “The email was sent to you?”
Fitzgerald: “Let me finish.. that it specifically said in the email that there was no function for me getting involved in a Commission of Investigation and anybody’s evidence before it that it would be actually a criminal act by me if I was to get involved in that. Now when I…”
Lawlor: “Did you read that email Tanaiste?”
Fitzgerald: “When I spoke to the Taoiseach, let me just say this Aine, when I spoke to the Taoiseach what I explained was that all of the information that came out in May 2016, about garda witnesses, about tapes. All of that, that was leaked, I had absolutely no knowledge about any of that until May 2016 and that is what I had said to the Taoiseach and that is what he was commenting on when he spoke in the Dail.”
Lawlor: “Ok, I’ll come onto May 2016 in a minute but let’s just stay with May 2015. There’s this row at the tribunal. There is a conversation between the AG’s office and somebody in your Department, you haven’t told us whom.”
Fitzgerald: “That’s right.”
Lawlor: “And you are sent an email about this. Did you read that email?”
Fitzgerald: “Well I don’t remember that particular email.”
Lawlor: “Do you remember getting information about this?”
Fitzgerald: “One of the reasons that I don’t remember it is because it actually specifically said that I had no function in relation to evidence before a tribunal, given by any party. What I have done and what I…”
Lawlor: “So you don’t remember?”
Fitzgerald: “I don’t remember that particular email but the department found it last Thursday and I, I spoke to the Department and saw what was in it. But the point is that it specifically said I had no role in relation to it. Now what I did do, though Aine, and I think it’s very important to say this is that from the moment I became Minister for Justice I did absolutely everything to make sure that any discussion that I would have with the Garda Commissioner in relation to whistleblowing was about making sure that whistleblowers were protected, supported, that the way they were dealing with it in An Garda Siochana, they brought in Transparency International, my constant focus was to, and any time any thing was raised in the Dail, was to discuss and say you know, you’ve got to look after whistleblowers properly…”
Lawlor: “Tanaiste, given that you couldn’t remember what you had been told in May 2015. Why when Mick Clifford and Katie Hannon reported in May 2016 that actually the State had argued that Maurice McCabe was simply a man with a grudge and if he he hadn’t secretly recorded the conversation with other gardai, that might have stuck. Why did you not have your memory jogged? And speak about that in the Dail in 2016?”
Fitzgerald: “I was not party to what was going on at the O’HIggins Commission. You know the O’Higgins Commission was private and as minister, I remember saying at the time, when there was part information leaked that I couldn’t comment on part information when I didn’t have the full facts and what I said was we’d set up and what I did was set up the Charleton tribunal which is now examining the specifically that legal strategy but I didn’t know about that legal strategy but that commission, that tribunal is examining precisely what the approach was to the evidence and the approach that the gardai took. I meant he Charleton Tribunal which is where, if anybody has any information, or any TD, or any member of the public has information about this issue, it should go to the Charleton Tribunal now which this house set up, and or course the Department of Justice is also part of that those terms of reference.”
Lawlor: “You didn’t know about this, of course, minister, and you can’t remember the email but the fact of the matter is did the penny not drop even in May 2016? That if it were not for the media, if it were not for Maurice McCabe’s own tapes, because he didn’t trust by that stage, at that stage, because of everything he had been through, that man could have been left out to dry and not believed. The O’Higgins Commission may not have said the things you’ve just quoted about. The Charleton Tribunal may never have happened and that would have happened on your watch as minister for justice. Because you weren’t remembering it was the media that were publishing.”
Fitzgerald: “That’s a quite unfair description because what I did, as minister, when I got the Guerin Report, I set up the O’Higgins Commission. Every act I took, in my role as Minister for Justice, was to support whistleblowers and then when this issue about the strategy, the legal strategy which we’ve yet to hear, from the Charleton Tribunal, precisely what that legal strategy was, I have set up a specific term of reference in the Charleton Tribunal.”
Lawlor: “So you were expressing support for Maurice McCabe in the Dail, praising him, but you were also, when the leaks came out instead of saying ‘oh my gosh, yes, I got an email, I remember that now’. You were condemning those leaks as illegal, did you not remember the email you’d been sent at the time, telling you that this was a strategy condemning…”
Fitzgerald: “What I was saying was that it was part of the story and as minister for justice, I couldn’t operate on the basis of leaks that were coming out. And indeed, Aine, it’s very important to remember there’s a tribunal sitting at the moment, to examine specifically the issue of that strategy and whether there was a strategy in place. I cannot assume what that strategy was. What is referenced in the email is an event at the tribunal in relation to a disagreement between two counsel and the details around that. That’s what’s referenced. It’s not about an overall strategy.”
Lawlor: “And you’ve told us in this interview that the Chief State Solicitor’s Office was dealing with the Attorney General on this. Did you have any conversations with the Attorney General…”
Fitzgerald: “The Chief..sorry? The Chief State Solicitor, no, the Attorney General and a department of official that had the conversation that was then reported to me.”
Lawlor: “OK, did you discuss this with the Attorney General?”
Fitzgerald: “No, I didn’t discuss the details of this because it wasn’t my role to be discussing anybody’s strategy at the tribunal.”
Lawlor: “Why? It was fair enough for the State to argue that Maurice McCabe had a grudge?”
Fitzgerald: “But I do not have evidence, I do not have evidence that the State were arguing that Maurice McCabe had a grudge?”
Lawlor: “Well there was a row about it in May 2015 and…isn’t that what we were talking about Tanaiste?”
Fitzgerald: “No, no, the information that was shared from the Attorney’s office at that point was that – about the disagreement between the two counsel down at the tribunal. It was, I…I was not involved…”
Lawlor: “And what were you told they were disagreeing about?”
Fitzgerald: “..in the legal strategy.”
Lawlor: “What were you told they were disagreeing about?”
Fitzgerald: “About the fact that a serious criminal charge which Sgt McCabe had denied had been raised.”
Lawlor: “What kind of criminal charge, did you not ask?”
Fitzgerald: “Well you know, it’s, I, it wasn’t for me to get into the details in relation to it, the criminal charge.”
Lawlor: “You were the minister for justice…”
Ftizgerald: “The criminal charge had been, had, you know, there had been I think subsequently, there has been detail in relation to that but what I was, what was reported to me, the allegation had been that a serious criminal complaint against Sgt McCAbe, which he had always denied had not been properly investigated by the Garda Siochana. That was the allegation.”
Lawlor: “And that’s in the email is it?”
Fitzgerald: “That, that, that is the only detail in relation to the specific of the complaint against the two of them.
Lawlor: “And that’s what the email says, is that right?’
Fitzgerald: “The allegation had been that a serious criminal complaint against Sgt McCabe, which he’d always denied, had not been properly investigated and that was the source of disagreement between the two counsel.”
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.”