Tag Archives: Sgt Maurice McCabe

Sgt Maurice McCabe outside the Disclosures Tribunal this summer

This morning.

Further to questions being asked about what former Justice Minister Frances Fitzgerald and the Department of Justice knew of the legal strategy used by the former Garda Commissioner Noirin O’Sullivan and several gardai in the O’Higgins Commission of Investigation in 2015 – in which allegations made by Ms O’Sullivan’s legal counsel were dropped after Sgt McCabe proved them to be false…

And reports of a phone call from Ms O’Sullivan to the then acting Secretary General at the Department of Justice Noel Waters on May 15, 2015 – the same date Sgt McCabe first gave evidence at the O’Higgins Commission which delivered the first blow to Ms O’Sullivan’s legal strategy…

And how within hours of Taoiseach Leo Varadkar saying on Tuesday, during Leaders’ Questions, that he could not be sure if there was such a call or not, Mr Waters announced he’ll be stepping down in February as he is approaching 40 years of service…

And Mr Varadkar saying yesterday that “it’s very hard to answer questions for third parties, or unnamed third parties” but admitted he hasn’t spoken with Mr Waters directly…

Niall O’Connor, on Independent.ie, reports:

Garda Headquarters has directed officers of all ranks to scrutinise their personal email accounts, handwritten notes and laptops for any material relating to Garda whistleblower Sergeant Maurice McCabe.

In an unprecedented move, an assistant commissioner has been appointed to oversee the collation of potentially reams of electronic and written data from gardaí that will then be forwarded to the Disclosures Tribunal.

In a memo sent to all Garda divisions, seen by the Irish Independent, Garda management laid down the diktat ahead of the next phase of the tribunal, which is examining an alleged smear campaign against Sgt McCabe.

The blanket search even includes emails sent from officers’ own personal Gmail accounts.

…The news of the major fishing expedition is believed to stem from previous criticism levelled at management by whistleblower Keith Harrison.

…Gda Harrison is taking separate High Court action against the Garda Commissioner for breaching a court order.

Former commissioner Nóirín O’Sullivan was accused of failing to fulfil an order to furnish Gda Harrison with the full Garda file in relation to a personal injury claim.

Acting Garda Commissioner Dónall Ó Cualáin may be forced to appear in court to defend the claim.

Gardaí must hand over all personal emails and notes about McCabe (Independent.ie)

Previously: The Legal Strategy Against Maurice McCabe

Meet The Acting Commissioner

Rollingnews

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)


Clockwise from top left: Sgt Maurice McCabe, former Garda Commissioner Noirin O’Sullivan, former Assistant Garda Commissioner Kieran Kenny; former Chief Superintendent Jim Sheridan and Superintendent Noel Cunningham, who is also president of the Association of Garda Superintendents

Yesterday.

John Mooney, in The Sunday Times, wrote that the Minister for Justice Frances Fitzgerald received a protected disclosure in the summer.

In it, it was claimed that the then Garda Commissioner Noirin O’Sullivan “was informed in May 2014 about a referral from Tusla, the child and family agency, which alleged garda whistleblower Maurice McCabe had been accused of raping a child”.

It’s not known if, on receipt of this information, Ms O’Sullivan notified Justice Minister Frances Fitzgerald about the allegation.

Mr Mooney reported that the protected disclosure has been referred to the Disclosures Tribunal where Judge Peter Charleton is examining claims that the circulation of this false rape allegation was part of a smear campaign against Sgt McCabe.

The Sunday Times‘ article didn’t report what specific day in May 2014 Ms O’Sullivan was supposedly informed.

Nor did it make clear whether the protected disclosure stated that Ms O’Sullivan was told the false rape allegation was a bona fide referral, or if she was told that a false rape referral had been made against Sgt McCabe and that there had been a catastrophic mistake.

This would appear to be crucial as May 2014 was both the month Tusla presented the false referral to the gardai as a bona fide referral and the month Tusla later informed senior gardai that the referral was botched.

In addition.

The Disclosures Tribunal has already been told by retired senior gardai that the fake rape referral travelled up the chain of command in An Garda Siochana and reached the Garda Commissioner’s office in May 2014 and that an update to inform Ms O’Sullivan that it was false was never passed on to Ms O’Sullivan.

Readers will recall…

A complaint by a Ms D was made in December 2006 some 11 months after her father, a guard, Mr D “lost his position and was reverted to other duties” after Sgt McCabe “caused the institution of serious disciplinary procedure against” Mr D in January 2006.

After the DPP investigated Ms D’s complaint, a letter from the DPP’s office was sent to the State solicitor for Cavan Rory Hayden on April 5, 2007, which stated: “Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault… there is no basis for prosecution.”

The investigation into the complaint was carried out by Inspector Noel Cunningham – now a Superintendent who is also president of the Association of Garda Superintendents.

The tribunal has heard how Mr Cunningham never gave or informed Sgt McCabe of the DDP’s full instructions but, unbeknownst to Mr Cunningham, Sgt McCabe had been fully briefed of them by Mr Hayden on April 5, 2007.

Readers will recall how Ms D’s 2006 allegation resurfaced during a counselling session, seven years later in the summer 2013, in Cavan, with RIAN counsellor Laura Brophy.

An erroneous allegation of rape against Sgt McCabe ended up being attributed to Ms D when Ms Brophy sent a botched referral to Tusla in August 2013.

Then, readers will recall, on April 30, 2014, Tusla social worker Laura Connolly plucked Sgt McCabe’s file randomly from a cabinet which contained unallocated cases and sent a notification of Sgt McCabe’s file to the gardai even though she was aware the 2006 allegation had already been sent to the gardai and that the DPP had ordered for no charges to be brought.

Ms Connolly made a monumental error by combining both the 2006 allegation, which was found to have no foundation by the DPP, and the 2013 allegation of rape pertaining to a Ms Y which had nothing to do with Ms D but was wrongly recorded by counsellor Laura Brophy as an allegation Ms D had made against Sgt McCabe.

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

(This would eventually lead to the setting up of the O’Higgins Commission of Investigation in 2015, during which 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.

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 the 2007 DPP’s directions overturned.

An Garda Siochana dropped both claims when Sgt McCabe produced a recording of the meeting in Mullingar and told the commission he had been fully briefed of the DPP’s directions and was very satisfied with them and, therefore, had no reason to want them overturned.)

The tribunal has heard that on Wednesday, May 7, 2014 – the same day then Justice Minister Alan Shatter resigned – Supt Leo McGinn, the district officer in Bailieboro, on receipt of Ms Connolly’s referral, forwarded Ms Connolly’s botched referral to the then Chief Superintendent Jim Sheridan, stating that he recommended the 2006/2007 investigation be reviewed.

Then, on May 14, 2014, the then Chief Superintendent Sheridan sent a letter to the then Assistant Commissioner Kieran Kenny.

This was the same day Ms D informed RIAN counsellor Laura Brophy that her referral to the gardai was incorrect.

In addition, Mr Sheridan told the tribunal that Supt McGinn told him the referral was incorrect on May 13, 2014.

And yet.

When Chief Supt Sheridan sent this letter to Mr Kenny on May 14, 2014, Mr Sheridan attached the referral with the unrelated digital penetration error and said the “the allegations contained in the attached referral have been the subject of a previous Garda investigation” which resulted in the DPP directing that there be no prosecution against Sgt Maurice McCabe.

He also stated that it was his understanding that Ms D had made complaints, based on the allegations set out in the attached referral, to Fianna Fail leader Micheal Martin and GSOC.

Kathleen Leader BL, for the tribunal, asked Mr Sheridan why he didn’t tell Asst Comm Kenny that the allegation in the referral was incorrect.

Mr Sheridan said he perhaps should have but he was trying to establish how the error had occurred.

“Perhaps in hinsight, I should have,” Mr Sheridan said.

Asked, in regards to the mention of complaints to Mr Martin and GSOC, was he of the understanding that Ms D had made complaints based on the digital penetration allegation, Mr Sheridan said no, he didn’t think that.

Once again, Ms Leader asked Mr Sheridan why he didn’t state that in the letter?

Mr Sheridan accepted that, in hindsight, he should have and said that there was no malice in his actions.

Ms Leader also asked Mr Sheridan about his knowledge of the complaints to Mr Martin and GSOC.

Mr Sheridan said he knew of the complaints based on media reports and he doesn’t recollect any official notification from GSOC.

In addition.

The tribunal has heard that, similar to Mr Sheridan, Mr Kenny knew the 2006/2007 investigation had nothing to do with any rape allegation.

And yet.

When former Mr Kenny gave evidence to the tribunal he told how, on May 16, 2014, he sent a letter to the Commissioner’s office [Noirin O’Sullivan], with the wrong referral attached.

The letter included the line:

“You will note that the allegation identifies the alleged perpetrator as Maurice McCabe.”

Mr Kenny was asked, while passing the matter on to Ms O’Sullivan, if he advised her that the allegation he was sending was different to the allegation of 2006.

He said: No.

The tribunal has previously heard that Mr Sheridan received an amended referral from Tusla on May 20 and that Mr Sheridan then passed this on to Mr Kenny.

But Mr Kenny said he never passed this on to the Garda Commissioner Noirin O’Sullivan.

The tribunal has also heard evidence from Ms O’Sullivan’s private secretary Frank Walsh who said that, despite a later letter sent by Mr Kenny to the Commissioner’s office on July 28, 2014, stating  that “developments will be reported” in regards to the matter – no such developments were reported.

In addition, Det Sgt Walsh told the tribunal that the false allegation against Sgt McCabe was still on file in the Commissioner’s office until the tribunal began earlier this year.

O’Sullivan ‘told of McCabe file’ (John Mooney, The Sunday Times)

UPDATE:

In his article, Mr Mooney also reports: “The tribunal is trying to establish whether the Department of Justice was told about the file, or whether garda management decided to withhold the information pending further inquiries.”

Readers may also wish to note that on February 12, 2017, following a report about the false rape allegation on RTE’s Prime Time on February 9…

Frances Fitzgerald told RTÉ’s The Week In Politics:

I had no knowledge of all of the things that have emerged on Prime Time in relation to referrals to Tusla and how inadequately they were dealt with; the problems with the counsellor, those issues were absolutely … I was stunned watching those on Thursday night as the public were and as concerned and that’s the truth.”

“…I had no reason to put Tusla in the terms of reference because, as I said to you, I had no knowledge of the facts that emerged on the Prime Time programme on Thursday evening. That’s the reality of the situation. I did not know those details.”

However, later, Fianna Fail leader Micheal Martin told RTE :

Mrs Frances Fitzgerald is saying she wasn’t aware of the Tusla file until Thursday. I think she needs to clarify that. I need to put on record that our spokesperson for justice, deputy Jim O’Callaghan, met with Frances Fitzgerald on Wednesday evening, specifically to broaden the terms of reference of the Charleton inquiry, to take on board the Tusla file because we had been alerted to it and I had spoken to Maurice McCabe on the Wednesday.

“I was anxious the terms of reference would include the Tusla file. Jim O’Callaghan met Frances Fitzgerald, alerted her to the existence of the file and that it needed to be covered.”

Garda Commissioner Noirin O’Sullivan

Readers may recall how the Disclosures Tribunal is currently on a break.

It will resume on September 18 when it will look at matters concerning Garda Keith Harrison and public bodies including Tusla.

The tribunal will then take another short break.

After that, in November, Judge Peter Charleton is scheduled to look at what information former Garda Commissioner Martin Callinan and then Deputy Garda Commissioner Noirin O’Sullivan may have briefed to former head of the Garda Press Office Supt Dave Taylor in 2014.

This section of the tribunal is also scheduled to look at a meeting between Mr Callinan and Fianna Fail TD John McGuinness, on January 24, 2014, in the carpark of Bewley’s Hotel, Newlands Cross, Co Dublin.

It’s also supposed to examine the broadcasting of a report by Paul Reynolds on RTÉ, on May 9, 2016, in respect of a leaked account of the O’Higgins Commission of Investigation, in which Mr Reynolds reported that the commission found Sgt McCabe “lied in a report to a senior officer” and to see if Ms O’Sullivan had any influence over that report.

And Judge Charleton will also be looking to see if the false allegation of rape that was circulated about Sgt McCabe “or any other unjustified grounds were inappropriately relied upon by the Commissioner during the hearings before Mr Justice Kevin O’Higgins” during this segment of the tribunal.

Readers will also recall how, after the report of the O’Higgins Commission of Investigation was published in May of last year, it emerged that claims made by Garda Commissioner Noirín O’Sullivan’s senior counsel to the O’Higgins commission – that Sgt McCabe was acting out of malice – were proven to be untrue.

The allegations of malice were allegedly based on a meeting which took place back in 2008 in Mullingar, apparently between Sgt McCabe, Sgt Yvonne Martin and Supt Noel Cunningham. As Sgt McCabe recorded the meeting, he was later able to disprove the claim of malice alleged at the O’Higgins commission.

But the events described above were not included in Justice O’Higgins’ findings.

Further to this…

Mary Regan, in yesterday’s Sunday Business Post, reported…

The government has been urged to act to remove the uncertainty surrounding the position of the Garda Commissioner who is being linked to a senior position in the EU law enforcement agency, Europol.

The Labour Party said reports and rumours about her candidacy are “unhelpful, particularly at a time when an Garda Síochána requires operational certainty”.

Last month The Sunday Business Post reported that Nóirín O’Sullivan, who is facing a number of controversies at home, is among those being considered for a senior position in the area of specialist operations.

The post becomes available in November, meaning O’Sullivan could potentially leave her current role in the autumn.

Asked if he or his department were made aware of her candidacy before she took her six week’s annual leave, the Justice Minister, Charlie Flanagan said: “She is expected back at her desk, I’m sure, in early September and I look forward to working with her on the subject of her ambitious reform programme.”

Calls for clarity on O’Sullivan Europol rumours (Sunday Business Post)

Garda Commissioner Noriin O’Sullivan and former Minister for Justice Frances Fitzgerald

This afternoon.

At the Disclosures Tribunal.

Legal counsel for Sgt Maurice McCabe Michael McDowell SC, while questioning Fiona Ward – a director of counselling with RIAN – claimed he was of the understanding that the former Minister for Justice Frances Fitzgerald was informed of “the whole situation” pertaining to Sgt McCabe in 2015.

Mr McDowell made the point as he was asking Ms Ward why “nobody bothered” to tell Sgt McCabe about the allegations that he said led to his reputation being “shredded in private”.

When this was queried by Supreme Court judge Peter Charleton, Mr McDowell said he could be wrong but repeated it was his recollection that Ms Fitzgerald was informed in 2015.

Readers will recall that Sgt McCabe was not made aware of the matters until December 29, 2015.

In February of this year, Ms Fitzgerald said she was not aware of the Tusla error and released a statement saying the Minister for Children Katherine Zappone had informed her in January, 2017, that she intended to meet with Sgt McCabe but that Ms Zappone did not inform Ms Fitzgerald of any details in relation to Tusla.

At the same time, Taoiseach Enda Kenny also said that he was also aware of Ms Zappone’s meeting with the McCabes and was also not made aware of the details of their meeting.

Readers will also recall how two protected disclosures were made to Ms Fitzgerald by Sgt McCabe and former head of the Garda Press Office Superintendent Dave Taylor, in relation to the same matter, in October 2016.

Ms Fitzgerald later appointed Mr Justice Iarfhlaith O’Neill to investigate the disclosures and Justice O’Neill’s report was given to Ms Fitzgerald in December 2016.

Ms Fitzgerald then announced that it was establishing the current Disclosures Tribunal on February 7, 2017.

Rollingnews

Earlier: Disclosures Tribunal: Day Two

Yesterday: Meanwhile, At Dublin Castle

Chief Executive Officer of Tusla Fred McBride

You may recall how a false allegation of child abuse against Sgt Maurice McCabe was circulated by Tusla.

Further to this…

[Chief Executive Officer of Tusla] Mr [Fred] McBride later issued a personal apology to Sergeant [Maurice] McCabe over the mistake, but now says he has never experienced such “unprecedented” levels of scrutiny in over three decades in social work and that it is difficult for Tusla employees not to perceive this as “hostility”.

Adding that he has “no problem” with scrutiny, Mr McBride said so much scrutiny at the same time is acting as a distraction and that there had been some hysterical reaction to Tusla’s involvement in the controversy.

He was speaking at the launch of Tusla’s Child Protection and Welfare Strategy 2017-2022 which provides a roadmap to streamlining services offered by the agency and ensuring consistency of service provision throughout the country.

Previously: A ‘Failure To Delete’ Error

Charleton Schedule

Tusla inquiries are a ‘distraction’ says chief executive (Ciaran D’Arcy, The Irish Times)

Clockwise from top left: Sgt Maurice McCabe, Mr Justice Peter Charleton, Garda Keith Harrison, Superintendent David Taylor, and Garda Commissioner Nóirín O’Sullivan 

Yesterday evening.

Supreme Court judge Peter Charleton published his first interim report on the Disclosures Tribunal.

In it, he loosely outlines when certain hearings pertaining to the tribunal will take place (more on this below)

In addition, he lists the parties – including journalists – who have been represented before the tribunal so far, and who represented them.

In relation to journalistic privilege, Mr Charleton writes:

Another privilege that is claimed is in respect of those who engage with journalists in the public interest to enable them to carry out the vital role of calling democratic and executive institutions to account. Some journalists have given witness statements in which they have helpfully specified conversations that have taken place outside of what they perceived to be the cloak of any such privilege, if it exists.

Others have refused to say whether there is any relevant testimony which they might offer. The extent of that privilege and the circumstances under which is arises are both likely to occupy time.

As for his appeal for cooperation from all interested parties, when he made his opening statement about the tribunal, on February 27, 2017, Mr Charleton said:

There were many useful pieces of correspondence received, including from concerned members of the public, though the general level of response was very disappointing.”

In addition:

“On 30 March 2017, the Tribunal sat to hear applications for representation from interested parties… On that day, several representatives of journalists indicated an intention to apply for representation but declined to answer any questions from the tribunal as to whether the individual or organisation seeking representation even had any relevant testimony to offer the tribunal.

It is important to record that not all journalists or media organisations took that approach. The full transcript of that hearing and the ruling of the tribunal as of 3 April 2017 are both available on the tribunal’s website.”

On the tribunal’s intended schedule, he writes:

The Tribunal is grateful for the co-operating of parties in its work to date and it is hoped the Tribunal will conclude hearing evidence before the end of this year.

It appears useful to the work of the Tribunal to divide its consideration of matters into about five substantial sections. What follows is only an outline.

Of pressing public concern is whether or not files in certain State agencies, who here might be identified as Rian, the Health Service Executive and the Child and Family Agency, otherwise Túsla, were created and distributed or otherwise used by senior members of our police force in inventing or furthering a false allegation of sexual abuse against Sergeant Maurice McCabe. 

This will be the first section of public hearings. It is hoped to engage in these and to complete them in July of this year. Progress on this matter has moved very far but the analysis of relevant computers is essential and there are further interviews to be conducted by our investigations.

Concerns in relation to Garda Keith Harrison and his family and the same State agencies might be regarded as being similar in kind, if not in detail, and it is hoped to engage in public hearings on that issue in September of this year. Again, considerable work has been done.

As to what may have been briefed to the then Garda Press Officer, Superintendent David Taylor for dissemination to journalists by former Commissioner Martin Callinan and then Deputy Commissioner Nóirín O’Sullivan, this is the subject of an inquiry in respect of which public hearings are hoped to be held, perhaps following a short break, in November.

Allied to this section are concerns in relation to an engagement between former Commissioner Martin Callinan and John McGuinness TD that is said to have taken place on 24 January 2014, in a very specific location, according to the terms of reference.

These sections do not seem to be divisible and evidence on one may be of assistance in the determination of what attitude was taken by those senior officers to Sergeant Maurice McCabe, if any, and as to how they responded or acted.

A specific, and it would seem relatively short inquiry, is to be made in relation to broadcasts on RTE of 9 May 2016. This, in fact, consisted of several broadcasts and commentaries, and as to whether Commissioner Nóirín O’Sullivan was influencing, or had dictated, the terms of these in some way.

The O’Higgins Commission was of course the subject of the commentary in relation to these broadcasts. It may be logical to consider that with the question as to whether false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by the Commissioner during the hearings before Mr Justice Kevin O’Higgins.

It is hoped to dispose of these matters in December of this year. It is not within the terms of reference to re-run the O’Higgins Commission but, instead, that report is part of the evidence before the tribunal. It might usefully be read by all interested parties.

Read the interim report in full here

Disclosures Tribunal

Screen Shot 2017-03-10 at 12.52.21

Minister for Children and Youth Affairs, Katherine Zappone

This morning.

On RTE’s Today with Sean O’Rourke.

The Minister for Children and Youth Affairs, Katherine Zappone spoke to Mr O’Rourke about several matters.

These included the Commission of Investigation into Mother and Baby Homes; Sgt Maurice McCabe; Taoiseach Enda Kenny telling RTE about a fictitious meeting with Ms Zappone prior to her meeting Sgt McCabe; and the results of yesterday’s Comptroller and Auditor General’s report which showed 18 religious congregations have, up to 2015, paid just 13% of €1.5billion redress costs associated with the compensation scheme for victims of abuse at religious residential institutions.

They began discussing the announcement Ms Zappone made yesterday that a scoping exercise will be carried out to examine calls for an expansion of the Commission of Investigation into Mother and Baby Homes’ terms of reference “to cover all institutions, agencies and individuals that were involved with Ireland’s unmarried mothers and their children.”

Sean O’Rourke: “When will you announce an extension or a broadening of the terms [of the Commission of Investigation into Mother and Baby Homes]?”

Katherine Zappone: “It’s a, it will be a number of weeks I expect. One of the first things that my department is doing is pulling together the ways in which the country dealt with these issues when the Commission of Investigation was established in 2014, looking at these issues about what institutions, what settings should be included and what should not.”

“At the time it was decided that it was appropriate to have a sample representative of settings but I suppose, in light of the discovery of, in terms of Tuam and the ways in which we are all trying to come to terms with this and Sean, you know, in the last number of days, I’ve listened to so many people, trying to reflect on the meaning of what has gone on in our history.

“And I have had, you know, many grown men come to me and cry in my, in my presence, trying to come with an understanding of what this meant for unmarried women and their children but also, you know, who is responsible, what was it about our society, how could people behave in this way. So, I’m sorry, I’m just trying to come to terms back to, you know, you’re saying how long will it take?

“There were decisions made in terms of the terms in 2014. Now that we’ve had this discovery, we’re trying to come to terms with it, as a nation. We need to look again at whether or not we need to include other institutions.”

Sean O’Rourke:Does every person who has a story to tell, and wants that story to be told, have a right to have it heard?

Zappone: “And so, yes I think so. And so, as the minister for children, another thing that I’ve identified that I would like to progress is not only perhaps to look at the extending the terms of reference of the Commission of Investigation but also to initiate a process throughout the country whereby there may be other ways in which we can keep the victims and the survivors at the centre of our attention to provide them with opportunities maybe for publicly to speak their truths which so many of them wish to do. And isn’t a possibility in the context of the Commission of Investigation.”

O’Rourke: “You spoke in the Dáil yesterday about museums of mercy, for instance, of memory, I beg your pardon, in Argentina and Chile. I think reference as well to South Africa – what model might you be thinking of?”

Zappone: “I’m referring to what’s known as a transitional justice approach to dealing with, now that we’re coming to terms with the fact that there was a wide scale large scale human rights violations on behalf of unmarried mothers and their children throughout the country, four decades. Is it enough? Is it enough to have a legal process of Commission of Investigation? It’s very important that we have that. But, in other countries, when they try to move on from what are considered to be repressive regimes, into a new era, they know that there maybe other ways in which there are opportunities for people to tell their truths, to remember what happened. Or to commemorate, a national day of commemoration, would be an example. Or other people are suggesting, perhaps the State ought to acquire some of the properties of where unmarried mothers were affectively put in against their will.”

“And to use that in other ways, as we try to, as a society, cope with, understand and move beyond and to heal, to a new way and a new time where we wish to be.”

O’Rourke: “It’s been quite a tumultuous month, not just for the Government, or the country, but also in particular for you, as minister for children and youth affairs. It was, I think, the 9th of February, when Katie Hannon had that report on Prime Time about the shocking allegations, false allegations, made against Maurice McCabe and then there was a political crisis

Later – speaking about the confusion over who knew what when in relation to Sgt Maurice McCabe 

O’Rourke: “You seemed to want it both ways at a certain point. A statement was issued on your behalf saying, initially, that you had informed relevant Government colleagues about the meeting, and then, subsequently, the position was oh it would have been highly inappropriate to brief Cabinet colleagues about matters pertaining to a protected disclosure. To what extent did you yourself add to the confusion?

Zappone: “Well, as you indicated there, I was out of the country for a very brief time. A long-standing family commitment. So I was not able to, I suppose, add my own voice, to offer the clarity in the way that I think I normally do in terms of issues that arise and coming to the media to address that. And so, given the time difference, distance, sorry the time differences, and the geographic distance I wasn’t able to be there, be there myself in order to offer that clarity about what happened, why I made the decisions and I think still, those decisions, I accept that, I have learned from, in terms of the way that we operate as a Cabinet. To perhaps be more explicit with information that one carries in the decisions that are being made. I said then, as I continue to say now, my prime concern was the protection of the McCabes and my understanding was that, with the information that I had shared, particularly with the Taoiseach, that their concerns would be incorporated into the tribunal of inquiry.”

O’Rourke:Did you fear, at a certain stage maybe, in the earlier part of this week you were still away, that your own membership of the Government was on the line. That you might have to leave Cabinet?

Zappone: “I, no, I, I didn’t think that, Sean?”

O’Rourke: “Or be forced out?”

Zappone: “Sorry?”

O’Rourke:Or be forced out? That you might have been sacked?

Zappone:Oh, ok, I’ll tell you, what, again, no, what was most on my mind was to ensure that a way of responding to this kept us moving to an appropriate response to the McCabes and I think, as you know, things have continued and certainly, under my own direct, sense of powers, as minister of children, I have, I ordered the establishment of a statutory investigation by HIQA, in terms of the way in which Tusla manages child abuse allegations, and I’m very pleased to say that I….

Speak over each other

Zappone: “…terms of reference have been agreed within the last week and that investigation will be initiated.”

O’Rourke: “And that’s an important part, perhaps the most important part of the bigger picture. But to go back to the politics of this for a minute. What did you think of what emerged afterwards to have been a fictitious account given by the Taoiseach on [RTE’s] This Week about having met you before you met the McCabes and told you ‘be sure you take a good note’.

Zappone: “Well, as you’ve already indicated. I was in the States when that programme [Prime Time] happened. When I came back, I responded to the media, I put on the record in the Dail, in terms of what happened. And that I know now, and I think everyone else knows that the Taoiseach has agreed with that account.”

O’Rourke: “At the same time, by all accounts, and his own not least, he’s been forced into a position where he’s brought forward, and significantly, it would appear, the date of his departure as leader of Fine Gael and as Taoiseach.”

Zappone: “I suppose, Sean, those are issues and decisions in relation to the Fine Gael party. I, as a Cabinet minister and engaging with this very,very, very difficult issue in relation to the McCabes, obviously, had a history, a complexity, my focus was on them. I behaved in relation to a concern for them. I communicated with the Taoiseach in a way that I thought that was appropriate. And what happened after that is outside of my control.”

O’Rourke:Should you have been more explicit in Cabinet. And I know there’s a constitutional bar on you giving details of Cabinet discussions but could, and should you have been more explicit about insisting Tusla needs to be brought into much more, front and centre, into the terms of reference of what was originally setting out to be, or being set up, as a Commission of Investigation?”

Zappone: “I suppose everything we do at the Cabinet table, Sean, comes as a result of a discerning process. And as I said, I have learned some lessons from this in terms of, you know, maybe bringing to the table things that before I might have felt were appropriately kept with me. But, at that particular moment, my discernment, as I said, my understanding and my reading of the terms that were in front of me, my communication with the Taoiseach was what I knew, from the McCabes, would be part of the investigation. And the judge who was leading that subsequently confirmed that, even before we actually enlarged the terms of reference.”

O’Rourke: “I suppose we have so many strands to the, our relationship with our troubled past and talking about, particularly, where children are concerned for now. We’ll talk politics later but, that are on the agenda at the moment, not least what’s emerged about the amounts of money being paid as part of the whole Redress arrangements which cost now over €1.5billion. The expectation, hope that it would be a 50:50 split between the State and the Church, mainly the Catholic Church, hasn’t materialised. What do you think should happen?”

Zappone: “I would be very much in agreement with my colleague, Minister [Richard] Bruton and support him in his re-engaging with the religious orders in order for them to make contributions to the redress scheme. Because they do share the burden of the responsibility. And I will support him in those discussions.”

O’Rourke: “And what about something that Micheal Martin, the Fianna Fáil leader, said to us on the programme a few days ago. That he felt it would be appropriate, now it wasn’t exactly in the context of redress, that the Catholic Church should hand over its hospitals is what he identified specifically to the State?”

Zappone: “Yes, I, you know, I reflect on that. I think, underneath that recommendation, is that the desire for all of us to ensure and to see that people are held accountable for what has gone on and in terms of the abuses that were done in relation to children, as well as women over the last number of years. Who is responsible? And if those people who are responsible? How much of they pay? How much should the State pay? Should we extend terms of reference, even for the Commission of Investigation that I’m overseeing and supporting and does that, does that mean that, ultimately, those people, the survivors, who are looking for compensation, ought we, the State, the religious orders, who ought to pay for that and how do we make those decisions. It’s all part of that space, Sean. And, I think, you know, if people are offering solutions on how to move forward, I’m listening to those. But I think we need to spend time reflecting on how to do this in the best possible way.”

O’Rourke: “The Taoiseach said, briefly, if possible, you might respond to this. That during the week, ‘women did not impregnate themselves, nuns did not reach into family homes and take babies out’. Do you think in any truth-telling process, you would set up, there’s any possibility, remote or otherwise, we will hear from men in large numbers, other than those who have suffered in the institutions? About what they knew? What they did?

Zappone: “That’s a great question, Sean. You have asked it. And I hope that the men here, you as a man, asking that question, I would love to see that happen.”

Previously:  ‘They Exclude And Stall While We Die’

‘Running Out The Clock’

Rollingnews

mauriceScreen Shot 2017-03-01 at 12.01.13

From top: Maurice McCabe; Katie Hannon and David McCullagh on Prime Time last night

Last night.

On RTÉ’s Prime Time.

Prime Time‘s political correspondent Katie Hannon gave a further update on the allegations of a smear campaign against Sgt Maurice McCabe which are now being investigated by the Disclosures Tribunal, headed by Mr Justice Peter Charleton, of the Supreme Court.

Readers will recall how, in her original Prime Time report on the matter, on February 9, 2017, Ms Hannon explained the sequence of events that led to Sgt McCabe becoming the subject of a false allegation of child abuse in a Tusla file, due to a “clerical error”.

In her February 9 report, Ms Hannon reported that an email from May 2014 indicated the counsellor – after realising she made the serious error in a referral letter about Sgt McCabe to Tusla –

believed that the local superintendent, the superintendent in the relevant district, had been asked to meet the Garda Commissioner in relation to this case. And there was some anxiety that this superintendent hadn’t been brought up to date about the error in the file and it had to be sent to him immediately”

The Garda press office told Prime Time that Garda Commissioner Noirin O’Sullivan had no meeting with the superintendent in question in May, 2014 and did not request such a meeting.

Further to this, and having seen this email, Francesca Comyn, of The Sunday Business Post reported, on February 12, that the email from the counsellor to Tusla stated:

I had another call in relation to the retrospective report which as you are aware contains a clerical error. I was informed that the superintendent in the jurisdiction referred to in the report was not yet aware of the clerical error and has been asked to meet with the Garda Commissioner in relation to the case.”

Further to this…

From last night’s (2 mins and 25 second) report from Katie Hannon on Prime Time

David McCullagh: “The Disclosures Tribunal into allegations there was a smear campaign against Sgt Maurice McCabe is under way but it will be some time before public hearings commence. Before that, our political correspondent Katie Hannon joins us to clear up one key issue in relation to the revelation of a Tusla file containing false allegations of a serious sexual assault. Katie, what’s tonight’s story all about?”

Katie Hannon: “There’s two terms of reference, within the 16 terms of reference that Peter Charleton is going to be looking at, at this tribunal. One is to inquire whether this Tusla file was  knowingly used by senior members of An Garda Siochana to  discredit Sgt McCabe and another of the terms asks what the former and current Garda Commissioners [Martin Callinan and Noirin O’Sullivan] knew about these matters.”

“So, go back to that Tusla file. Questions have already been raised. I discussed it in this studio about an email that was in that file released to the McCabes which seemed to indicate that the Garda Commissioner had asked for a meeting way back in May 2014 – in relation to what was in that file. Now, we put this to the Garda Commissioner at the time and  she told us she had not requested that meeting, that meeting did not happen.”

McCullagh: “So, do we know what that email actually referred to?”

Hannon: “So, we now can say what that meeting, what that email referred to. I’ve now learned that the “commissioner” referred to in that email was actually the assistant commissioner for the northern region at the time, the former commissioner Kieran Kenny. According to an informed source, assistant commissioner Kenny met with the superintendent, the relevant superintendent that month, in May 2014 and, crucially, he sent a full report of this meeting to Garda Headquarters.

So, basically, the upshot of this is that we now know that, two and a half years ago, Garda Headquarters were made aware that there was this allegation of child rape recorded by Tusla against Sgt Maurice McCabe and also that it had been subsequently withdrawn and described as a clerical error.”

And the questions that will be raised, presumably at the tribunal will be: what did they do on foot of that? We know, for a fact, that they did not contact Maurice McCabe. In fact, I understand that Sgt McCabe has yet to have any contact from Garda Headquarters even since this whole story broke a short time ago. We asked the Garda Press Office about this, they said they were precluded from commenting because the tribunal is now up and running. We asked the Justice Minister [Frances Fitzgerald] if she’d been briefed about it and, again, she declined to comment, saying it would be inappropriate because the tribunal has now commenced.”

Meanwhile…

In addition to reports of contact being made between the gardai and the counsellor after the discovery of the error, in May 2014, it has also been reported that there was at least an attempt by a Tusla social worker to contact a garda just after the false allegation/error was initially communicated by the counsellor to Tusla in August 2013.

Following an allegation made against Sgt McCabe in 2006, a file was sent to  the DPP – with the recommendation that there was no grounds for a prosecution – and that the DPP directed that no prosecution should be taken, with the observation that it was doubtful the allegations should constitute a crime at all.

In her original report on the matter, on February 9, Ms Hannon reported that, within days of the counsellor notifying Tusla of the false allegation – presumably without realising her referral contained a mistake/false allegation – a Tusla social worker contacted the garda who investigated the original 2006 complaint made against Sgt McCabe, to request a meeting.

However, it’s not known if that meeting took place.

Watch back in full here

Previously: Pasted In Error

1838 Tribunals_90503800 27/2/2017 Opening Statements of the Disclosures Tribunals. Justice Peter Charleton on the opening day of the Disclosures Tribunal in Dublin Castle. This tribunal has begun over the controversy of the Garda Whistleblowers scandals. Photo: RollingNews.ie Screen Shot 2017-02-27 at 09.37.49

This morning.

In Dublin Castle.

Mr Justice Peter Charleton, of the Supreme Court, reads his opening statement at the beginning of the Disclosures Tribunal – which will investigate allegations of a smear campaign against Sgt Maurice McCabe.

Watch live here

Rollingnews

UPDATE:

Mr Charleton said:

By instrument under the Tribunals of Inquiry (Evidence) Act 1921, as amended, the Minister for Justice and Equality on the 17th day of February 2017 appointed this Tribunal, following resolutions of Dáil Éireann and Seanad Éireann of the previous day. The Tribunal is tasked by that resolution with urgently inquiring into a range of matters all of which hinge on how the top officers within our national police force react when concerns are aired as to the performance of the gardaí. The central concern is whether such reaction has, possibly, and this is now unknown, not only been one of distaste, but of active and thought-through malice whereby media briefings take place against individuals who rock the boat.

As if that were not enough, there is an additional question as to whether those who air concerns about poor policing may also be targeted and attacked as to their family life and as to their adherence to basic standards of human decency. Certain disclosures are protected through procedures and safeguards laid down in the Protected Disclosures Act 2014 and this legislation had its origin in the six reports of the Morris Tribunal which worked between 2002 and 2008 on corruption and deceit within An Garda Síochána. As much of the focus of that tribunal was on the Donegal division, and was reported on as such, it may have been possible to regard the findings and recommendations of that tribunal as somehow isolated from Ireland and its police force by some feature of geographical remoteness.

The tribunal has been working since the day of its establishment and orders were made, letters sent and evidence gathered, as appropriate. There is more work to do and the purpose of this statement is to give necessary assurance as to how this tribunal will go about its work and what the general plan of work is.

The terms of reference of the Morris Tribunal covered an apparent homicide investigation, the police interrogation of 12 people, the planting of apparent explosive devices around Donegal for recovery and a false show of good police work, putting a bomb on a television mast to further an agenda, planting an aged and very dangerous firearm in an encampment of the Irish Travelling Community to enable arrest, the improper use of police agents, making threats through a ‘silver bullet’ ruse, alleged corruption at high level, disclosure by politicians, and the effectiveness of police structures to deal with such failings. These events spanned over a decade of police activity.

The Morris Tribunal completed 10 modules in 6 years. Here there are 2 modules and responsibility rests here for the completion of the first of these; terms of reference (a) to (o). The second, and catch-all module, module (p), generally and non-specifically concerns whether gardaí who have made protected disclosures were mistreated.

The first module concerns the response of Commissioner Nóirín O’Sullivan, ex-Commissioner Martin Callinan and others at the highest command level to disclosures made by Sergeant Maurice McCabe. In particular, this is focused on the manner in which the character of a person may possibly have been undermined by calumny or detraction. Both Sergeant Maurice McCabe and another officer, Garda Keith Harrison, may have had dealings with, or have been the subject of discussions at, the Child and Family Agency and some aspect of those discussions may also have involved the Health Service Executive. This needs to be explored.

All are aware that this tribunal was preceded by a commission of investigation under the Hon Mr Justice Kevin O’Higgins, former judge of the High Court and of the European General Court, a person for whom it is impossible not to feel the highest regard. His commission sat long hours for 34 days and produced a report of model clarity and characteristic restraint. Prior to that, in consequence of the uncovering of work that did not meet the standards that a modern police force would adhere to, and that a business would tolerate only in the sure knowledge of its early demise, there were internal enquiries, disciplinary proceedings and an investigation by Chief Superintendent McGinn and Commissioner Byrne. Those went on for years. The commission was the final step, established on the 3rd of February 2015 and issuing its final report on the 25th of April 2016. One of the issues before this tribunal is how counsel for the commissioner treated Sergeant Maurice McCabe when he was testifying.

The central witness in this tribunal as to the aspect of this affair involving media briefings was Superintendent David Taylor who, it is understood, was Garda press officer from the 1st of July 2012 to the 31st of May 2014. Superintendent Taylor had a meeting with Sergeant McCabe on the 20th of September 2016. There, essentially, what Superintendent Taylor said in his protected disclosure of the 30th of September 2016 was relayed to Sergeant McCabe, echoing those matters in his own, but earlier, protected disclosure of the 26th of September 2016.

Already, there have been several tribunals. Many were scrutinised and informed as to the appropriate procedures by litigation in the High Court and on appeal. In consequence of multiple court applications, the law as to how tribunals should go about their work is clear. The basic is touchstone is fairness and balance of application of procedures. There should be no need for yet further judicial reviews. If a person has a problem, that person should, first of all, apply to the tribunal in a genuine manner. Of course, there is a right of access to the courts. But, nevertheless, we cannot be naïve. This tribunal intends to focus on the existing law and to abide by its full strictures.

The entitlement to be represented will be afforded to everyone whose reputation is in any reasonable sense likely to be adversely affected by the report of the tribunal. It should be noted that the tribunal has the task of seeing through the business of the investigation from beginning to end and that, consequently, legal representation should be tailored with regard to the level of representation and as to attendance, based on how central the person represented is reasonably thought to be. The tribunal intends to afford represented persons either with copies of, or the entitlement to inspect, witness statements or any other documents relevant to their reputation. The tribunal intends to afford cross examination rights to all represented parties. It is expected, however, that the bulk of examination will be done by tribunal counsel. Since this is not a civil case, there are no adversarial parties. That does not obviate the need for focus. Counsel for the tribunal are entitled to cross examine witnesses called by the tribunal because the tribunal is not a party. Examination by other parties should take that into account and focus on matters of particular relevance to the issues which impact on them. Each party is entitled to make a written or oral submission, or both, at the conclusion of evidence.

There has been some question as to whether the tribunal should prepare a written report in draft form and then circulate it to the parties prior to the publication of the final report. Any draft report can be misinterpreted and, after all, is only a communication designed to seek comment; see term of reference (k). Circulation of a draft judgment does not happen following a civil trial. The judge hears the parties and considers the result. Then there is a judgment. It should also be borne in mind that a judge is entitled to disbelieve a witness, to say that an expert witness is not truly an expert or to disagree with an expert opinion without those people having representation. Witnesses, in any criminal or in any civil case, of whatever kind, are open to acceptance by the court, or to rejection, partial acceptance or partial rejection without any of their rights being affected. Just because you are a witness who may be disbelieved does not entitle you to representation. Were the court system to operate otherwise, every case would have multiple parties. All courtrooms would have to be enlarged. This tribunal will abide by the existing court rules. That is implied, in any event, by the relevant legislation in the several references to the tribunal having the powers and functions of the High Court.

The rules of evidence do not apply. The rules of logic and good sense do. Documentary evidence is to be considered for what it is worth, even though it may be hearsay. Where someone relays what another individual said, that is admissible. The value of such evidence depends on the scepticism which the absence of that witness may invoke and the inability to test statements relayed by another as to their sureness in fact. Such evidence may have little or no weight. One rule of evidence says that people cannot corroborate themselves. An exception to this is where a person is alleged to be fabricating the truth, then what he or she said long before can be repeated by another witness. As a matter of ordinary sense, however, the fact, for instance, that a person claims something and repeats that claim to five people and those five people give evidence of what was said to them, does not necessarily turn what the original person relayed into the truth. Any such circumstance will be looked at closely.

Any examination by counsel of what a witness says is subject to the rule that it should be based on instructions and directed towards what a represented party wishes to assert as an explanation as to what happened, or to present a contrary point of view. Where focus is kept, cross-examination of witnesses is concise. Any party examining a witness is expected to come to the point, with reasonable latitude, and to be polite, with no latitude. Examination should converge on what is important. While cross-examination is an instrument for finding the truth, it can also be used to obfuscate and to divert attention away from the central issues. It is expected that represented parties will provide their legal representative with clear instructions; that they will tell them what facts they will later testify to. Cross examination as to credit can be legitimate. That may, or may not, be in the discretion of counsel. It may depend on the client or it may be within counsel’s hands. The credit of a witness may be important, apart from their opportunity of observation, sureness of memory or possible motive. Where is a witness coming from may be germane to some cases.

If, for instance, a prisoner sharing a cell with an accused person on remand on a charge of murder claims that the accused confessed his motive to him for killing the victim, then the fact that the prisoner as a witness himself has a previous fraud convictions, is important. It would be less important if he had been unfaithful to his girlfriend, or perhaps had done something discreditable while under strain or while young. The law of evidence allows the control of cross examination as to the credit of a witness based on its usefulness to the determination of the facts at issue and its length. That is a rule of commonsense.

This rule is worth mentioning because term of reference (e) asks for a determination as to whether “false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe” when he was being examined before the O’Higgins Commission. Is there a privilege against disclosing instructions given by a client to their lawyer as to what is to be pursued in cross examination? Submissions will be heard on that matter since it is now a matter of conjecture as to what happened. The original transcript is in the possession of the tribunal and is being read in full. The matter will be further explored.

The tribunal is tasked with examining relationships between the gardaí and “media and broadcasting personnel”, term of reference (h), a broadcast on RTÉ television on the 9th of May 2016, term of reference (k), and contacts with the media “to brief them negatively that Sergeant McCabe was motivated by malice and revenge” in order to encourage negative comment and to point out his supposedly criminal conduct, terms of reference (a), (b), and (c). Is there a privilege against giving evidence, including relevant records, where someone communicates in confidence, or off the record, as the phrase goes to a journalist?

If that privilege exists, does it exist because of the public interest in protecting investigations by the media? Does journalistic privilege attach to communications to a journalist where that communication by the source may not be in the public interest but, instead, where the source is perhaps solely motivated by detraction or calumny? Submissions will be heard on this issue and a ruling may be necessary. For that ruling to be made, facts will need to be established. A primary source of such facts would appear to be the journalists to whom such allegations were allegedly made. This, according to the terms of reference, looks as if it may need to be pursued. The tribunal has been specifically tasked in the public interest to find out whether the media was used as an instrument for the dissemination of lies. That, however, may not be the only avenue of investigation.

In informer privilege, because of the danger to the life of those who confidentially help the police, the privilege is that of the informer and even lasts beyond death, according to some cases from abroad. The only person, in our law, who can waive the privilege, is the informer. In legal professional privilege, similarly, the client holds the privilege, and not the lawyer who gives legal advice on the basis of confidential instructions. Only the client can waive the privilege and reveal the confidential instructions: not the lawyer. Here, the privilege, if there is one, may attach to a communication to a journalist in the interests of providing truthful information to the public, but is it possible that such a privilege does not apply to using the media as an instrument of naked deceit? That may or may not have happened. Either way, the existing law suggests that the privilege is that of the confidential informant and not that of the journalist. However, the tribunal has no settled view on the matter and careful consideration will have to be given to the issue after submissions are heard.

On privilege and kindred issues, lastly, certain safeguards are provided by legislation, and certain safeguards inure under the Constitution, to those who find it difficult or impossible to access the system of justice, by reason of the subject matter of what they may need to testify to. Restricted hearings may take place, in terms of attendance and reporting, under section 2 of the 1921 Act, as amended. Submissions may need also to be heard on this as it will have to be carefully considered as to if there may be such a situation here; see terms of reference (d), (h), (n) and (o). Before we reach that stage, preliminary work will need to be done. The tribunal will approach this task with appropriate circumspection.

It is not now appropriate to ask for applications for representation. The reason is that matters are still unclear as to exactly whose reputation may be put in jeopardy in a manner beyond that of the tribunal’s analysis of their witness testimony. But, we must make progress.

The terms of reference make it crystal clear as to what is at issue. Here are the terms of reference:

[a] To investigate the allegation made in a Protected Disclosure under the Protected Disclosures Act 2014, on the 30th of September, 2016, by Superintendent David Taylor, wherein he alleges that he was instructed or directed by former Commissioner Martin Callinan and/or Deputy Commissioner Nóirín O’Sullivan, to contact the media to brief them negatively against Sergeant Maurice McCabe and in particular to brief the media that Sergeant McCabe was motivated by malice and revenge, that he was to encourage the media to write negatively about Sergeant McCabe, to the effect that his complaints had no substance, that the Gardaí had fully investigated his complaints and found no substance to his allegations and that he was driven by agendas.

[b] To investigate the allegation of Superintendent Taylor in his Protected Disclosure, that he was directed to draw journalists’ attention to an allegation of criminal misconduct made against Sergeant McCabe and that this was the root cause of his agenda, namely revenge against the Gardaí.

[c] To investigate what knowledge former Commissioner Callinan and/or Commissioner O’Sullivan and/or other senior members of the Garda Síochána had concerning this allegation of criminal misconduct made against Sergeant McCabe and whether they acted upon same in a manner intended to discredit Sergeant McCabe.

[d] To investigate the creation, distribution and use by TUSLA of a file containing false allegations of sexual abuse against Sergeant Maurice McCabe that was allegedly sent to Gardaí in 2013, and whether these false allegations and/or the file were knowingly used by senior members of An Garda Síochána to discredit Sergeant McCabe.

[e] 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.

[f] To investigate whether senior members of An Garda Síochána attempted to entrap or falsely accuse Sergeant McCabe of criminal misconduct.

[g] To investigate such knowledge which former Commissioner Callinan and Commissioner O’Sullivan had concerning the matters set out in [a], [b], [c], [d], [e] and [f] above.

[h] To investigate contacts between members of An Garda Síochána and:

Media and broadcasting personnel,
members of the Government,
TUSLA,
Health Service Executive,
any other State entities,
or any relevant person as the Sole Member may deem necessary to carry out his work

relevant to the matters set out in [a], [b], [c], [d], [e] and [f] above.

[i] To examine all records relating to the telecommunications interactions used by Superintendent Taylor, former Commissioner Callinan and Commissioner O’Sullivan, in the period from the 1st of July, 2012, to the 31st of May, 2014, to ascertain whether there are any records of text messages or other telecommunication interactions relating to the matters set out at [a], [b], [c], [d], [e] and [f] above and to examine and consider the content of any such text messages or other telecommunication interactions.

[j] To examine all electronic and paper files, relating to Sergeant Maurice McCabe held by An Garda Síochána and to consider any material therein relevant to [a], [b], [c], [d], [e] and [f] above.

[k] To investigate whether Commissioner O’Sullivan, using briefing material prepared in Garda Headquarters, influenced or attempted to influence broadcasts on RTÉ on the 9th of May, 2016, purporting to be a leaked account of the unpublished O’Higgins Commission Report, in which Sergeant McCabe was branded a liar and irresponsible.

[l] To investigate whether a meeting took place between former Commissioner Callinan and Deputy John McGuinness on the 24th of January, 2014 in the carpark of Bewley’s Hotel, Newlands Cross, Co. Dublin and to examine and consider the circumstances which led to any such meeting, the purpose of such meeting and matters discussed at such meeting.

[m] To investigate such knowledge which Commissioner O’Sullivan had of the meeting referred to in [l] above.

[n] To investigate contacts between members of An Garda Síochána and TUSLA in relation to Garda Keith Harrison.

[o] To investigate any pattern of the creation, distribution and use by TUSLA of files containing allegations of criminal misconduct against members of An Garda Síochána who had made allegations of wrongdoing within An Garda Síochána and of the use knowingly by senior members of the Garda Síochána of these files to discredit members who had made such allegations.

[p] To consider any other complaints by a member of the Garda Síochána who has made a protected disclosure prior to 16th February, 2017 alleging wrong-doing within the Garda Síochána where, following the making of the Protected Disclosure, the Garda making the said Protected Disclosure was targeted or discredited with the knowledge or acquiescence of senior members of the Garda Síochána.

Tá cónaí orainn i dtír agus táimid mar sliocht de daoine a luachálann an oideachais chomh mór leis an fhírinne. Ach, is í an fhírinne atá uachtaracha. Ghlac ár sinsear leis an mana a d’fhoghlaim gach páiste Éireannach: glaine ár gcroí, neart ár ngéag, agus beart de réir ár mbriathar. Ba é sin ár bród, uair amháin. Tá an binse fiosrúcháin anseo chun an fhírinne a shocrú: ní féidir an dubh a chur ina gheal, ach seal.

Is draein é an binse fiosrúcháin seo ar acmhainní muintir na hÉireann, agus beidh an costais íoctha tré géilleadh na ndaoine do na struchtúir dhaonlathacha, ina bhfuil an cánachas mar chuid shuntasach, in ár dtraidisiún. Beidh gach bréag a chuirfear in iúl don binse fiosrúcháin seo ag cur amú an méid a bhfuil íoctha ag gnáth fir agus gháth mná tríd a n-iarrachtaí gan staonadh. Is mar gheall ar sin nach bhfuil fáilte roimh aon neamh-chomhoibriú, aon atreorú na fócais nó aon dorchaim. Tá an pobal ag súil orainn ár obair a dheanamh faoi luas, agus conclúidí a bhaint amach go tapa. Agus muid ag tabhairt faoi ar an obair seo, ní féidir ach chuimhnigh ar laige an duine; agus an dóchas a bheith againn: is mór í an fhírinne agus bufaidh sí: the truth is powerful and will be victorious. Níl aon noisin réamh-cumadh sa binse fiosrúcháin seo i dtaobh cé a bhfuil ina bithiúnach, más é, agus cé a bhfuil ina íospartach, más é. D’fhéadfadh nach taitneoidh cinntí an binse fiosrúcháin seo le gach duine: bíonn an fhírinne searbh ach ní fhaigheann sí náire go deo, the truth is bitter though not shameful.

Is tréith úsáideach é den aigne dlí go bhfuil sé coinníollaithe chun fianaise a lorg, chun fianaise thacaíoctha a lorg, chun patrúin a léiríonn an fhírinne a lorg, agus gan léimeadh go dtí cinneadh, agus gan dearbhú go bhfuil rud míchlúiteach déanta ag duine gan chruthúnas leordhóthanach. Is é sin ar gcaighdeán agus beidh muid ag cloí go deimhin leis.

We live in a country as the descendants of a people who value education as almost as high a virtue as the truth. But, the truth is supreme. Our ancestors adopted the motto once learned by every Irish child: Glaine ár gcroí, neart ár ngéag, agus beart de réir ár mbriathar; purity of heart, strength and adherence to our word. That was once our pride. This tribunal is here to establish the truth: Ní féidir an dubh a chur ina gheal, ach seal; black can be made white but not convincingly. This tribunal is a drain on the resources of the Irish people, and it is paid for by their submission to the democratic structures of which taxation has been a central part in our tradition. Every lie told before this tribunal will be a waste of what ordinary men and women have paid for through their unremitting efforts. Every action of obfuscation, of diversion of focus, and of non-cooperation is unwelcome for that reason. We are expected to get on with our work with dispatch and to reach conclusions rapidly.

In embarking on this task, one can only be reminded of human frailty and can only hope: is mór í an fhirrine agus bufaidh sí, the truth is powerful and will be victorious. There are no pre-conceived notions in this tribunal as to who is a villain and who is a victim, if there are such. And it may be that what the tribunal finds will not be to everyone’s taste: Bíonn an fhírinne searbh ach ní fhaigheann sí náire go deo, the truth is bitter though not shameful.

One useful aspect of the legal mind is that it is conditioned to look for evidence, to seek supporting evidence, to look for patterns indicative of truth, to not leap to conclusions and to not declare that someone has done something discreditable without sufficient proof. That is our standard and we will abide by it.

Are you a witness to this matter? Then, the tribunal needs your help and needs it urgently. Many have already indicated publicly and in various circumstances that they have some knowledge. Now the opportunity has arrived to cooperate in this inquiry. The tribunal wants to know the detail of that; who did what, who said what, when, in what terms, who communicated with whom, by whatever means, and in what terms. What evidence have you of this beyond what you are saying? The details are central. The tribunal needs the detail.

Today, the tribunal is calling for all those people with knowledge of the matters in the terms of reference (a) to (o) inclusive to provide a written statement and to forward this to Elizabeth Mullan, solicitor to the tribunal at Dublin Castle, Dublin D02 Y337. That statement should be detailed and should be received by close of business on this day fortnight, the 13th of March 2017. In that statement, every person should indicate whether they wish to assert any form of ostensible legal professional privilege against disclosure of evidence or documents or any form of ostensible journalistic privilege. If there is any such assertion against giving a complete account of events, then that’s not ruled out, but at least we know what needs to be further explored.

While the tribunal has already made a range of orders preserving or requiring the handing over of documents, if any person has a phone, computer, electronic records or paper records, relevant to the terms of reference, then these should be brought to the tribunal within the same timeframe.

The tribunal has witnesses it needs to interview, and that will be done professionally; it has documents that it needs to examine. With the furnishing of witness statements, what is important to who will become clearer. Those whose reputation is impacted upon will be circulated with the relevant material. Then the tribunal will be in a better position to hear applications for representation. That is why there are no such applications and no other applications today. Any application, in any event, should be preceded by a letter to Elizabeth Mullan, solicitor to the tribunal at Dublin Castle, Dublin D02 Y337.

Thereafter, once the volunteered statements that have now been clearly called for are read, and further documents are examined, and circulated counsel for the tribunal will make an opening statement. There will then be a short pause, following which the tribunal will begin public hearings, subject to the need that may arise to hear some evidence in restricted circumstances.

Let me finally say, term of reference (p) is not now being considered unless there is some extraordinary striking similarity that someone wishes to bring in unambiguous terms to the tribunal’s attention. For the moment, p stands for parked.

Transcript via Disclosures Tribunal

Previously: ‘Nóirín Decided To Ring Him And Have A Good Chat About It’