Tag Archives: O’Higgins Commission of Investigation

Former Garda Commissioner Noirin O’Sullivan and former Minister for Justice and current Tanaiste France Fitzgerald

This morning.

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.

Alan Kelly in fresh Maurice McCabe complaint (Irish Examiner)

Previously: What Is Going On?

Absence Of Malice

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

This afternoon.

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 truewhile 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 day Sgt 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.

This afternoon.

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…

Flanagan: [inaudible…]…”weekend”

Howlin: “The question is the state of knowledge…”

Flanagan: “…it didn’t suit Deputy Kelly’s agenda…”

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.”

Previously:  ‘No Hand, Act, Or Part’

The Legal Strategy Against Maurice McCabe

May Day

Absence Of Malice

 

Leo Varadkar during Leaders’ Questions this afternoon

In the past 30 minutes.

Taoiseach Leo Varadkar responded to questions from Fianna Fail leader Micheal Martin about the O’Higgins Commission of Investigation.

Readers will recall questions have been asked about what knowledge, if any, the former Minister for Justice Frances Fitzgerald – who is currently in the United Arab Emirates on a trade mission – had of the legal strategy employed by An Garda Siochana against whistleblower Sgt Maurice McCabe during the O’Higgins commission.

The legal strategy set out to argue Sgt McCabe had made complaints about Gardai because of a grudge and that evidence of this was based on a meeting Sgt McCabe had with two gardai.

But the strategy was dropped when Sgt McCabe produced a recording of the meeting.

Mr Varadkar said:

I spoke to the Tanaiste yesterday, who’s currently in the United Arab Emirates on a trade mission. She confirmed to me that she had no hand, act or part in forming the former commissioner’s [Noirin O’Sullivan] legal strategy.

Nor did she have any prior knowledge of the legal strategy that the former commissioner’s team pursued. She did find out about it after the fact, but around the time it was in the public domain when everyone else knew about it aswell.”

“Needless to say, the current minister for justice was not the minister for justice at the time and also had no hand, act, or part, or prior knowledge of the legal strategy being pursued by the former commissioner’s legal team.

“In terms of the Department of Justice, and I appreciate the Department of Justice is a big place with lots of different people in it but, as things stand, the Department of Justice hasn’t been able to find any record of being prior informed or being informed before the fact about the legal strategy the commissioner was going to pursue.

“They were told, the Department was told about the approach taken by the commissioner’s senior counsel but that was after the cross-examination had taken place.

“So they obviously were not in a position, after the fact, to express concerns about it or to counsel against it.

Readers will recall that, at the outset of the O’Higgins Commission in 2015 – which was looking at complaints of Garda malpractice made by Sgt McCabe, legal counsel for the then Garda Commissioner Noirin O’Sullivan and An Garda Siochana said it would argue that Sgt McCabe was making these complaints because of a grudge.

It was told evidence of this would be based on a meeting Sgt McCabe had with two gardai, Supt Noel Cunningham and Sgt Yvonne Martin, in Mullingar in August 2008.

Broadsheet has previously reported how it was also claimed at the O’Higgins Commission of Investigation that the reason Sgt McCabe had a so-called grudge was because he wanted directions made by the DPP in 2007 – in respect of an “dry humping” allegation made by the daughter of a guard previously disciplined by Sgt McCabe in 2006 – overturned.

But the DPP’s directions were categorically in Sgt McCabe’s favour.

They included the line: “Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault… there is no basis for prosecution.”

An Garda Siochana weren’t aware that Sgt McCabe had been fully briefed of the DPP’s directions until he told the commission this on May 15, 2015 and explained how he was totally satisfied with the directions and no desire for them to be overturned.

In addition, Sgt McCabe produced a recording of the meeting in Mullingar to the commission – which turned out to completely contradict the claims made about the meeting.

An Garda Siochana later dropped both claims in the commission and they were never reported in the commission’s final report.

Further to this…

In response to a question from Mr Martin to Mr Varadkar about reports of a phone call, on May 15, 2015 – from Ms O’Sullivan to the Secretary General of the Department of Justice – in relation to the legal strategy adopted…

Mr Varadkar said:

“Whether it was on, I know you’ve claimed that it was a call on the day of the cross-examination to the secretary general, we haven’t been able to confirm if that’s the case or not.

I think perhaps it was not. So I think that assertion may be false, but I don’t want to swear to that today until I can find out for certain but I think that assertion is probably incorrect.

“There may well have been a phonecall from the commissioner’s office to the Department of Justice on the day but it’s not unusual for the commissioner’s office to contact the Department of Justice.

“So to answer your questions, the former Justice Minister Frances Fitzgerald had no hand, act or part in the legal strategy, had no prior knowledge of it and she and the department only found out about it after the cross examination had already taken place.”

Update:

Hmm.

Previously: The Legal Strategy Against Maurice McCabe

From top: Sgt Maurice McCabe; former Garda Commissioner Noirin O’Sullivan and former Minister for Justice Frances Fitzgerald; Labour TD Alan Kelly

You may recall a post from Friday, entitled The Legal Strategy Against Maurice McCabe.

It centred on questions put to the Department of Justice, by Labour TD Alan Kelly, in relation to what knowledge, if any, the department had about the legal strategy employed by An Garda Siochana at the O’Higgins Commission of Investigation in 2015.

Readers will recall how at the O’Higgins Commission of Investigation – which was set up to examine complaints of Garda malpractice made by Sgt McCabe – legal counsel for former Garda Commissioner Noirin O’Sullivan said it would argue that Sgt McCabe made his complaints because of a grudge and that evidence of this would be based on a particular meeting Sgt McCabe had with two other gardai.

This line of argument was dropped after Sgt McCabe produced a recording of the meeting which proved this was untrue.

Mr Kelly has written to the Department of Justice asking what knowledge the former Justice Minister Frances Fitzgerald had of this legal strategy.

He’s also written to the Ceann Comhairle Seán Ó Fearghaíl, the now Justice Minister Charlie Flanagan and Taoiseach Leo Varadkar about the same.

He’s now calling for Mr Varadkar to make a public statement on the matter.

He also said he believes that, if the Department of Justice was aware, then the terms of reference for the Disclosures Tribunal – which is being overseen by Supreme Court judge Peter Charleton and is examining allegations of a smear campaign against Sgt McCabe – need to be widened to include the department.

Further to this…

Mr Kelly spoke to Sean O’Rourke on RTE Radio One this morning in which he reiterated his questions.

From the interview…

Sean O’Rourke:You lay particular emphasis on contacts between the Commissioner’s office and the office of the Secretary General of the Department of Justice on the 15th of May 2015. Why is that date important?

Alan Kelly:It’s very important because this is the day that everything changed in relation to O’Higgins and that Maurice McCabe became aware of a different strategy as regards the Commissioner and their legal strategy to him. And, in relation to the whole aspect of whether he had had motives, different motives…”

O’Rourke: “Yeah, a grudge.”

Kelly: “An agenda or had a grudge in relation certain aspects of the gardai and that’s why he acted in the way in which he did. It was proven to be false…”

Later

Kelly:If they [Department of Justice] come out and say ‘no, they weren’t aware in any way, shape or form, this dies. Because it’s effectively saying look no they weren’t privy to anything. The issue is this: in the questions and answers that I’ve got back from Minister Flanagan, he doesn’t deny that there were meetings. He doesn’t deny that there was something going on.”

Readers may wish to note that, although it hasn’t been mentioned on RTE, Broadsheet previously reported how, at the outset of the O’Higgins Commission, the legal counsel for Ms O’Sullivan argued that the reason for this so-called grudge was that Sgt McCabe wanted the directions made by the DPP in 2007 – in respect of a “dry humping” allegation made by the daughter, Ms D, of a guard previously disciplined by Sgt McCabe in 2006 – overturned.

But the DPP’s directions were categorically in Sgt McCabe’s favour.

And what the gardai didn’t know, going into the commission, was that Sgt McCabe had been fully briefed of the DPP’s directions back in 2007 when they were first issued.

These were the DPP’s directions:

Dear Sir,

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.

And the date Sgt McCabe informed the O’Higgins Commission that he was fully aware of the DPP’s directions, knew they were strongly in his favour and, therefore, had no desire for them to be overturned?

May 15, 2015.

(Readers should note the ‘humping’ allegation mentioned above was revived in 2013 when Ms D went to a counsellor and the counsellor sent a botched referral outlining a much more serious allegation of rape to Tusla.

This botched referral would eventually reach Ms O’Sullivan’s office in May 2014 and the false allegation against Sgt McCabe remained on file in the Commissioner’s office until the Disclosures Tribunal began earlier this year).

Previously: Absence Of Malice

Listen back to Today with Sean O’Rourke in full here

Related: McCabe smear: Fitzgerald refuses to clarify what she knew of planned campaign (Juno McEnroe, Irish Examiner)

From top: RTE’s Katie Hannon on Prime Time; Labour TD Alan Kelly; Sgt Maurice McCabe arriving at Dublin Castle for the Disclosures Tribunal; former Garda Commissioner Noirin O’Sullivan and former Justice Minister Frances Fitzgerald

Last night.

On RTÉ’s Prime Time.

Katie Hannon had a report on Sgt Maurice McCabe and how he was treated during the O’Higgins Commission of Investigation, overseen by Justice Kevin O’Higgins.

Readers will recall how, on May 6, 2014, Sean Guerin SC, after examining allegations of Garda misconduct made by Sgt McCabe, Mr Guerin recommended that a Commission of Investigation be held into the complaints.

This would eventually lead to the setting up of the privately held O’Higgins Commission of Investigation in 2015.

At the outset of the O’Higgins Commission, counsel for the then Garda Commissioner Noirin O’Sullivan and An Garda Siochana said it would argue that Sgt McCabe acted out of malice and that evidence of this would be based on a meeting Sgt McCabe had with two gardai, Supt Noel Cunningham and Sgt Yvonne Martin, in Mullingar in August 2008.

Broadsheet has previously reported how it was also claimed at the O’Higgins Commission of Investigation that the reason Sgt McCabe was acting in such a way was because he wanted directions made by the DPP in 2007 – in respect of an “dry humping” allegation made by the daughter of a guard previously disciplined by Sgt McCabe in 2006 – overturned.

But the DPP’s directions were categorically in Sgt McCabe’s favour. They included the line: “Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault… there is no basis for prosecution.”

An Garda Siochana weren’t aware that Sgt McCabe had been fully briefed of the DPP’s directions on the same day they were issued in April 2007.

So.

An Garda Siochana were forced to drop both claims at the O’Higgins Commission of Investigation, when Sgt McCabe produced a recording of the meeting in Mullingar and told Judge O’Higgins he had been fully briefed of the DPP’s directions, was very satisfied with them and, therefore, had no reason to want them overturned.

Further to this…

Last night.

On RTE’s Prime Time, RTE’s political correspondent Katie Hannon reported on the O’Higgins Commission of Investigation.

She recalled the efforts by Ms O’Sullivan’s senior counsel to claim that Sgt McCabe had been making complaints about Garda malpractice because a grievance with a guard.

(It wasn’t reported about how the DPP’s directions were said to be the reason behind Sgt McCabe’s so-called grievance in the O’Higgins Commission of Investigation)

She also recalled how when this was first reported – by Michael Clifford in The Irish Examiner and Ms Hannon – after the commission’s report was published in May 2016, the then Garda Commissioner Noirin O’Sullivan faced down calls to resign.

And the Justice Minister Frances Fitzgerald insisted she retained confidence in Ms O’Sullivan.

Ms Hannon also recalled how Ms Fitzgerald was asked twice on Prime Time if she was taken aback by what happened in the O’Higgins Commission.

Ms Hannon reported that Ms Fitzgerald insisted she couldn’t comment on “selected leaks of a transcript”; that “they may not tell the full story”; and “they should not legally be in the public domain”.

Ms Hannon then explained there are now questions over what Ms Fitzgerald and the Department of Justice knew about the legal strategy at the O’Higgins Commission of Investigation.

And she told how Labour TD Alan Kelly has been asking questions about the same.

Ms Hannon reported:

“It goes without saying: if justice officials, or any political figures were aware of this strategy in advance, that would be a very serious matter.”

“…one of them [questions asked by Mr Kelly] asked the minister to outline, fully, the extent of meetings and communications that the former Garda Commissioner had with the Department of Justice prior to her giving those instructions to the legal team.

“Another asked specifically about a phone call that occurred, that is said occurred, on May 15, 2015,  and that is in fact the day this legal strategy was launched at the Commission of Investigation.”

During the report, Mr Kelly, in a pre-recorded interview, said:

I’ve been given information, I’ve had conversations, I’ve met with people and they’ve told me of their concerns, their concerns about who knew what in the Department of Justice regarding the legal strategy employed by the former Commissioner at the O’Higgins Commission.

“And they raised such concerns that I felt it necessary to put down the parliamentary questions that I did, to get to the bottom of what was known about the Department of Justice, when they knew it and, most importantly, were they privy to the legal strategy that was adopted by the legal team of the previous commissioner.

“Because if they were, that is absolutely very, very serious.”

He added:

“The responses are absolutely outrageous, they do not answer the questions. They’re an affront to democracy, they’re an affront to Dail Eireann. And I have asked the Ceann Comhairle to investigate these and he has told me today that he will.

“I’ve also written to the Minister for Justice, I’ve written to An Taoiseach to intervene and I’ve also rang the secretary general yesterday but, you know what, of course he never rang me back.”

Ms Hannon added that she has asked the Department of Justice if it was aware of the legal strategy employed at the O’Higgins Commission of Investigation in advance of its proceedings and was the Minister for Justice briefed of the same.

She said:

This evening, a spokesperson for the department replied that they couldn’t directly answer that question because of the limitations on what can be said when matters may come under the remit of the Disclosures Tribunal.

“…It begs the question, if the department was completely and totally out of the loop in relation to this legal strategy, how could it become a matter for the Disclosures Tribunal?

Further to this…

Readers should note that the day of the phone call mentioned by Ms Hannon – May 15, 2015 – was also the day Sgt McCabe told the O’Higgins Commission that he had been fully briefed of the DPP’s instructions.

And yet…

This was the letter Chief State Solicitor Eileen Creedon, now a High Court judge, gave to the commission on Monday, May 18, 2015.

Ms Creedon’s letter stated:

Sergeant McCabe was unhappy with the outcome of the decision of the Director of Public Prosecutions, as he believed that the decision ought to completely exonerated him rather than recording that there was not sufficient evidence to proceed against him.”

“Sergeant McCabe sought as an appointment to see Chief Superintendent Colm Rooney and this was facilitated in June/July 2007. At the meeting Sergeant McCabe expressed anger and annoyance towards the Director of Public Prosecutions. He demanded that Chief Superintendent Rooney communicate with the Director of Public Prosecutions to seek a declaration of his innocence from the Director of Public Prosecutions in relation to the allegation.

“Chief Superintendent Rooney advised Sergeant McCabe of the policy of the Director of Public Prosecutions in dealing with such issues, a policy which Sergeant McCabe was himself professionally aware of. Chief Superintendent Rooney told Sergeant McCabe that he could not seek such a declaration on Sergeant McCabe’s behalf from the Director of Public Prosecutions.”

“Chief Superintendent Rooney pointed out to Sergeant McCabe that from his own experience of dealing with criminal files to the Director of Public Prosecutions he was aware of the Director of Public Prosecutions role to determine if sufficient evidence was available on a file to direct a prosecution”

“Chief Superintendent Rooney pointed out to Sergeant McCabe that it was not the Garda Commissioner’s policy that An Garda Siochana challenge the Director of Public Prosecutions on his decisions.”

“Chief Superintendent Rooney further pointed out to Sergeant McCabe that, as a private citizen, it was open to him to write to the Director of Public Prosecutions if he so wished to ask the declaration he required.”

[In relation to the 2008 meeting in Mullingar] … “Superintendent [Noel] Cunningham was accompanied to this meeting by Sergeant Yvonne Martin. Notes were taken at the meeting and countersigned by Sergeant Martin, and a detailed report of the meeting was prepared by Superintendent Cunningham, and its contents agreed with Sergeant Martin, and forwarded to Chief Superintendent [Colm] Rooney.”

“In the course of this meeting Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaint against Superintendent [Michael] Clancy was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him.”

It was after this letter was issued that Sgt McCabe told his legal team that he had a recording of the meeting in Mullingar.

This recording was later given to Judge O’Higgins who told the commission it was in direct conflict with Ms Creedon’s letter.

As mentioned above, the matter was then dropped.

Watch back in full here

Related: Kelly on a quest: Four questions may lift the lid on alleged attempts to smear Garda whistleblower (Michael Clifford, The Irish Examiner)

Previously: Absence Of Malice

May Day

From left: Lorraine McCabe, Sgt Maurice McCabe, Supt Noel Cunningham and Garda Commissioner Noirin O’Sullivan

Readers will recall the Commission of Investigation into allegations of Garda misconduct by Garda whistleblower Sgt Maurice McCabe, overseen by Judge Kevin O’Higgins, in 2015.

In the wake of the publication of the commission’s report, in May 2016, it emerged that it failed to report certain matters that happened during the commission.

Michael Clifford, in the Irish Examiner, reported that, at the beginning of the proceedings, Colm Smyth SC, for the Garda Commissioner Noirin O’Sullivan, said that evidence would be produced to show that Sgt McCabe had told two other gardai that he made the complaints out of malice at a meeting in Mullingar in August 2008.

This claim of intention on the part of An Garda Siochana was later dropped as Sgt McCabe went on to produce a recording of the meeting which proved this was untrue.

However, what hasn’t been reported is what the gardai alleged motivated Sgt McCabe to act out of malice. Today, we can reveal what this is.

Judge O’Higgins was told that Sgt McCabe acted out of malice because he wanted the DPP’s directions made in respect of Ms D’s 2006 “humping” allegation overturned.

However, these are the DPP’s directions:

Dear Sir,

I acknowledge receipt of your letter dated 1st March 2007 together with copy Garda investigation file.

I agree with you and the Guards, that the evidence does not warrant a prosecution. There was no admission. The incident as described by the injured party is vague. It appears that it was only when she was eleven/twelve that she decided that whatever occurred was sexual in nature.

Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault.

Further, the account given to her cousin [redacted] differs in a number of respects to that given to her parents and the Guards. 

There is no basis for a prosecution.

An Garda Síochána made this claim to Judge O’Higgins on the basis that it didn’t know Sgt McCabe was fully aware of the DPP’s full, seemingly unequivocal directions.

And when he made this known at the O’Higgins investigation, this claim by An Garda Siochana was also dropped – and was also never mentioned in the report.

It now seems clear that knowledge of both the O’Higgins Commission of Investigation, which was carried out in private, and the Disclosures Tribunal, which is being carried out in public, are needed to understand what happened to Sgt McCabe.

Read on

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David Davin Power

It’s a bottle of smoke.

A non-story

Important people told him.

It’s hard to see how we are going to get of the bottom of this. Now the Opposition want the legal instructions which the Commissioner gave to her legal team to be disclosed but where would that end? After all, would that mean that other legal instructions, say that Maurice McCabe gave to his team, would have to be disclosed in turn?

And it really is a big ask in any situation to request that people disclose what they said to their lawyers in the course of proceedings or a Commission of Inquiry of whatever.

But, as things stand, what we do know from leaked transcripts is that there was an initial suggestion by the lawyer for the Commissioner that malice would have been part of the motivation attributed to Maurice McCabe but then, when he was questioned by the judge, some months later, another transcript, piece of transcript that’s leaked shows that he withdrew that effectively and said he simply wanted to question Sgt McCabe’s motivation and credibility which is bad enough when you think about it.

… the whole thing is really overly complicated by various disclosures and can be boiled down to what the Commissioner felt about Maurice McCabe at the time she was talking to her lawyers in advance of the O’Higgins commission.

Now I don’t know how much further we’re going to get because nobody is suggesting that the full transcript which would be voluminous of the commission is being published because that would call into question how people would behave in front of any future tribunals.

So I think we would probably have to wait until the Dáil debate on the O’Higgins report itself which we think will be next week. The Taoiseach will have to choose his words very carefully in relation to Alan Shatter, in relation to Maurice McCabe, in relation to Noirin O’Sullivan.

And he’ll also have to deal with the findings and the recommendations of the commission in relation to very questionable behaviour of gardaí in Baileboro which sadly has been somewhat obscured by the politics controversies.

RTÉ Political Correspondent David Davin-Power speaking on News At One this afternoon.

Readers may note Garda Commissioner Nóirín O’Sullivan’s legal counsel made his withdrawal after Sgt Maurice McCabe gave Justice O’Higgins a transcript of a recording of the meeting he held with two gardaí in Mullingar.

Good times.

Previously: Clarifying Matters

Same Sheet Different Day

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Last night in the Dáil, during the Adjournment Debate, Independents 4 Change TDs Clare Daly and Mick Wallace addressed Tánaiste and Justice Minister Frances Fitzgerald.

They were speaking about Garda Commissioner Nóirín O’Sullivan’s representation at the O’Higgins Commission of Investigation in respect of Sgt Maurice McCabe.

Ms Daly and Mr Wallace spoke in the Dáil before transcripts of Ms O’Sullivan’s legal counsel Colm Smyth SC speaking before Judge O’Higgins were revealed on RTÉ’s Prime Time last night.

The transcripts revealed that Mr Smyth initially told Mr O’Higgins: “My instructions are to challenge the integrity of Sgt McCabe and his motivation.”

The two men then had the following exchange:

O’Higgins: “…An attack on somebody’s credibility and his motivation or integrity is something that really doesn’t form part of this inquiry. It would be necessary for you to go further and say that the complaints and the actions of Sgt McCabe were motivated by… that is motivation was dishonest or wrong…In other words that he made these allegations not in good faith but because he was motivated by malice, by 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…[later] this isn’t something I’m pulling out of the sky, judge, I mean I can only act on instructions.”

Later, in November – after Sgt McCabe produced a transcript of his meeting in Mullingar with two gardaí – Mr Smyth told Justice O’Higgins that, in fact, he, on behalf of Ms O’Sullivan, was not challenging Sgt McCabe’s integrity but just his credibility and motivation.

Mr Smyth said he erred earlier when he said ‘integrity’.

Further to this…

Clare Daly: “I listened to the Tánaiste during Leaders’ Questions with a mixture of disbelief and awe. Does she really believe that the questions about the conduct of the Garda Commissioner are going to go away? Does she really believe that, by saying that the Commissioner made it clear that she supported Maurice McCabe, it is the end of the matter?”

“What the Commissioner’s statement actually said was that she had never regarded Maurice McCabe as malicious. Fair play to her, that is very nice, but it is not the issue at hand. The issue in front of the public is that the Garda Commissioner’s legal team, allegedly on her instruction, attempted to mislead the commission deliberately by entering false information in order to challenge the motivation and credibility of Maurice McCabe.”

The fact that legal counsel has stated that the attempt to challenge his integrity was its idea and not the Commissioner’s does not make any difference. It is reminiscent of the former Minister, Alan Shatter, throwing Oliver Connolly under the bus.”

“The commission was told that two senior gardaí would give direct evidence to the effect that Maurice McCabe was present at a meeting and stated that he operated under malice. It was only when irrefutable evidence was presented showing it to be false that the allegation was withdrawn.”

“If the Tánaiste does not have a problem with this, we are in even bigger trouble than I believed. There is an immediate crisis of trust and confidence in the Commissioner. Public statements uttered by her in support of whistleblowers have been contradicted by her actions behind the scenes.”

“The Tánaiste should not be surprised about that because we are not. Eighteen times since the Tánaiste became Minister, Deputy Wallace and I have tabled the issue of Commissioner O’Sullivan’s treatment of the whistleblowers Mr. Keith Harrison and Mr. Nick Kehoe.”

The Tánaiste has done nothing. Will she launch a full investigation into the Commissioner’s actions in accordance with the Garda Síochána (Policing Authority and Miscellaneous Provisions) Act, under which she can investigate and remove the Commissioner for actions that discredit her office?”

“Will she commission the Garda Síochána Ombudsman Office, GSOC, to launch an investigation? If not, why not?

I am reminded of a memorable contribution by Deputy Wallace in the Dáil when he told the former Minister that it was time for the latter to go and to take the then Commissioner with him. It is obvious that it is time for the current Commissioner to go. Unless the Tánaiste acts, the Commissioner will take her with her.”

Mick Wallace: “If Maurice McCabe had not made a recording, the judge would have been compelled to believe the two officers and Maurice McCabe would have been destroyed. This development was not even mentioned in the O’Higgins report. Surely, that undermines the report’s integrity.”

“We still do not know whether Ms Nóirín O’Sullivan’s legal team, under her direction, handed documents to the commission that contained a false statement. That is supposedly a criminal offence. This is a serious matter.”

I find it difficult to believe that, when there is so much discussion about doing things differently in all aspects of politics, Fianna Fáil does not want to know about this situation. It just wants the issue to go away as well. This is shocking.”

“What the Commissioner says in public is different to what is happening on the ground. Keith Harrison and Nick Kehoe have been treated abysmally for two years. Both are out sick now. One gets less than €300 per week and the other gets nothing. Every effort has been made to hound them out of their jobs.”

It is two years since Mr. Harrison tried to get a proper hearing and he has only had one proper meeting with GSOC. GSOC requested Mr. Kehoe’s file after a poor internal Garda investigation. The Garda was given 30 days to deliver it but still has not done so.

“Ms Nóirín O’Sullivan asserts that dissent is not disloyalty, but that is not true. Now it is being claimed that the question of integrity was not raised and the senior counsel is being thrown under the bus or is taking one for the team.”

“The Commissioner is not even rowing back on how she questioned Maurice McCabe’s motivation. She has not rowed back on the fact that she was questioning his character. Who in God’s name would be a whistleblower? She is not fit to be the Commissioner.”

“Nothing has changed. It is as it was. We will not improve or change how we do policing in Ireland until we change the hierarchy and start from scratch.”

Transcript via Oireachtas.ie

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Garda whistleblower Sgt Maurice McCabe on duty in Mullingar, Co. Westmeath, when he met Enda Kenny while the Taoiseach was canvassing in the town ahead of the local and European elections in May 2014

You’ll recall how High Court Judge Kevin O’Higgins was appointed in 2015 to chair a Commission of Investigation into complaints of Garda malpractice in the Cavan-Monaghan area made by Sgt Maurice McCabe.

The Commission of Investigation was launched on the advice of Sean Guerin SC who initially looked into Sgt McCabe’s complaints.

The O’Higgins report has not been published but it was handed to the Minister for Justice Frances Fitzgerald on April 25.

Since then, there has been a drip feed of articles about the contents of the report.

Last night, after having secured a copy of the report, RTÉ journalist Philip Boucher Hayes said the following on RTÉ One’s Drivetime:

It’s a bit of a Late Late Show report – there’s something for everyone in it. It’s the kind of document that doesn’t make a clear determination one way or another so much as it criticises and it exonerates everybody in equal measure. If you were of the view that Maurice McCabe blaguarded his colleagues and exaggerated cases in order to pursue his own agenda, you’d find some substantiation for that in what Justice O’Higgins has to say.

McCabe was “prone to exaggeration at times”. Some of his complaints against his fellow gardaí were “over stated”. Some were described in the report as “unfounded”. And, as evidence of McCabe’s ingenuity, his detractors will point to the allegations which were “withdrawn”.

A picture emerges of McCabe on this reading, as somebody who cried wolf, who dragged the reputations of his colleagues and the entire force through the mud needlessly but that’s a selective reading of what Justice O’Higgins has to say.

He also says of the whistleblower sergeant that he is a person “who acted out of genuine legitimate concern”, that he “was never less than truthful in his evidence”.

The judge says he, “unreservedly accepts his bona fides” and that he had shown “courage and performed a genuine public service at considerable personal cost. For this he is due the gratitude of not only the general public but An Garda Síochána”.”

Those who were previously persuaded that Maurice McCabe wasn’t the victim of discrimination will find evidence in the support this belief. McCabe said he “had reason to believe that he was being set up and wrongly implicated” in some of the cases of which he had complained. Attempts were being made to point the finger of blame right back at McCabe where he had cried malpractice.”

The judge said that such a belief was “unproven” so McCabe wasn’t being persecuted for coming forward on this reading. Yes, except the report also says that there are five instances where there were attempts by the force to “blame Mr McCabe for malpractice or poor policing”. And, in each of these cases, the judge decided that “the sergeant was being wrongly blamed”.

So, simultaneously, Maurice McCabe wasn’t being persecuted for blowing the whistle but was being wrongly blamed by fellow gardaí for doing things that he didn’t do.

Another headline Maurice McCabe’s detractors point to is his allegation of corruption made against Former Garda Commissioner Martin Callinan. Mr Callinan is “entitled to have his reputation vindicated” and that allegations made against him by Maurice McCabe “were unfounded and deeply hurtful” says the judge. Proof again that McCabe was pointing an unjustified finger of blame.

But in the same paragraph, where this appears, it’s also made clear that McCabe never accused Callinan of corruption – “He had not intended to make allegations of criminal conduct against the Commissioner but rather of an abuse of power only.”

Frustrated that he was being ignored by Garda management, Maurice McCabe had found a device that would ensure his complaints which, the judge affirms, would get a hearing.

“The complaint was in part a device to make sure that it came before the minister. At that time a complaint against the Commissioner had to be referred to the minister.”

Again the judge offers something for all sides to say they had been unfairly maligned and simultaneously vindicated.

Anyone reading the accounts of the report that Maurice McCabe withdrew his allegations could reasonably infer that he knew he was on shaky ground in some of the things that he was saying.

On the contrary though it emerges in the transcripts of the commission that Sgt McCabe withdrew one complaint against an officer whom he felt should have been more critical of the shortcomings of a junior officer.

When he was presented with the testimony of the senior criticising his junior, McCabe withdrew the complaint saying that this “was the first time I’ve seen this”.

Justice O’Higgins had to plot his way through a great deal of, he said, she said. But what was at the root of all of this was McCabe’s allegations of Garda incompetence or malpractice. Here, he finds repeatedly that the Gardai didn’t do their jobs properly.

He says, of Lorraine Brown, and her allegation of assault that she “under went a harrowing experience and was entitled to have the matter dealt with competently and professionally by the gardaí. Unfortunately, as is evident from the findings of the commission, her legitimate expectations in this regard were not met.”

Of Maurice McCabe’s claim that gardai were failing to prosecute motoring offences and impose penalty points, the judge finds that “there was a clear pattern of members of the public being stopped for having no insurance or some other deficit in their documentation. In a number of those offences, the member of the public recorded as having admitted the offence. However, the examined print outs reveal a failure to prosecute in many instances.”

Of the investigation into the assault at the Lakeside Manor Hotel, the judge says “the investigation of this incident was characterised by delay and error. Sgt McCabe correctly identified the deficiencies in the investigation and the steps necessary to rectify them”.

And of the most tragic of all of the cases, highlighted by Maurice McCabe, the murder of Sylvia Roche Kelly, by Jerry McGrath, the judge concludes that McGrath shouldn’t have been out on bail and wouldn’t have been were it not for a failure on the part of gardaí in Cavan.

He says that there can be no excuse for “a misclassification of that assault and a failure to communicate effectively within AGS [An Garda Siochána] to ensure accurate and relevant information was shared.

Any report this long is going to lend itself to being read from in a way that supports one narrative over another. Even more so in the case of this report which offers something for everyone to support their case.

But so too does it support many of the allegations of incompetence, poor practice, malpractice and failure to serve the public that were at the heart of what Maurice McCabe first alleged.

Listen back in full here

Previously: Lest We Forget

Fennelly Report: The Digested Read

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Taoiseach Enda Kenny shaking hands with Sgt Maurice McCabe in Mullingar, Co. Westmeath during the 2014 local and European elections

You may recall how Mr Justice Kevin O’Higgins was appointed last year to carry out a Commission of Investigation into allegations made by Sergeant Maurice McCabe, following a report by Sean Guerin SC, who recommended such an investigation take place.

The allegations pertained to allegations of Garda corruption and malpractice in the Cavan-Monaghan division.

Further to this, the Commission has requested more time to carry out its work and asked for its deadline to be extended until April 29.

The Department of Justice sez:

The Minister for Justice and Equality, Frances Fitzgerald, TD, has extended the reporting date for the O’Higgins Commission of Investigation by three months to end April 2016 following a request from the Commission.”

“This Commission of Investigation was established to investigate and report on certain matters relative to the Cavan/Monaghan Division of the Garda Síochána and has Mr Justice Kevin O’Higgins as Sole Member. The Commission commenced its work on 10 February 2015 and was set an indicative period of one year within which to report.”

“The Commission submitted an Interim Report on 14 December 2015 requesting the Minister to exercise her powers under section 6(6) of the Commissions of Investigation Act 2004 to provide a three month extension for the Commission to report. The Commission is now proposing to report by 29 April 2016. The Minister has granted the extension.”

See the interim report here.

More to follow.