Minister for Children and Youth Affairs, Katherine Zappone
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?”
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.”
From top: Maurice McCabe; Katie Hannon and David McCullagh on Prime Time 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 TheSunday Business Postreported, 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.”
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.
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.
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.
Katie Hannon and David McCullough on last night’s RTE Prime Time
Further to last week’s Prime Time in which Prime Time‘s political correspondent Katie Hannon outlined the sequence of events concerning how a false allegation against Sgt Maurice McCabe ended up being circulated by Tusla.
Ms Hannon had further information, after speaking with the solicitor of the woman at the centre of the original allegation made in 2006; and after speaking with someone who has seen the Tusla referral document which contained the false abuse allegation.
The new information, as presented by Ms Hannon, means there are now conflicting accounts of how events unfolded – as put forward by the HSE, and subsequently the Minister for Health Simon Harris in the Dáil, Tusla, the Gardaí, and the solicitor for the woman at the centre of the original 2006 allegation.
David McCullough: “Now, lest we forget all this political turmoil is the treatment of Garda whistleblower Maurice McCabe and the revelation last week by our political correspondent Katie Hannon of the false sex abuse allegations made against him. As Katie told us, last week, those allegations in 2013 arose after a counsellor said she pasted the allegation from another file in error. Katie joins me now. There is a tribunal of inquiry to look into this and related matters. But, in advance of that, the department of justice has written to the Garda Commissioner posing six questions that the McCabes want answered, relating to: when the Gardai first learned about the allegations, about contacts between gardai and the supposed victim and contacts between gardai and the counsellor. And Katie, you have some new information about this?”
Katie Hannon: “Yes. Of course, a huge amount of focus has focussed on this referral from this counsellor that had this, what was described as this clerical error, this cut and paste error. Now, I’ve spoken with somebody who’s actually seen this document. We haven’t seen this document because it wasn’t released to the McCabes in the Tusla file because it had been retrieved because of data protection by the counselling service.”
“But, according to my source, what the counsellor is now telling the management there is that: what actually happened there was not a cut and paste error. She was actually using the template of a previous referral and typing over it, with this new McCabe referral and failed to delete some information referring to the previous referral. So it wasn’t a ‘pasting in’ error, it was a ‘failure to delete’ error. And she says that she just simply did not notice that before she sent on the referral [to Tusla].”
“Now, according to the person that I was talking to, who has seen it, it should have been obvious to anyone looking at it that there was a mistake in it because, I’m told, there actually was the names of two alleged abusers on the file that went over. Like the phrase that was used to me was: it would have jumped off the page. So, why that happened in Tusla when were then using this document to create the other files, the referrals, the files on the [McCabe] children, that’s the question that remains now.”
McCullough: “There’s been a lot of focus on how this error was ultimately discovered.”
Hannon: “Yes, and I’ve confirmed today that the girl at the centre of this, who made the original allegation back in 2006, she has given an account of how this happened that does not tally with the account that the Health Minister Simon Harris put on the Dáilrecord this week.”
McCullough: “And in what way is it different?”
Hannon: “Well, first of all, Minister Harris told the Dail that, and he was using information that he got from the HSE, he said that the girl had contacted the counsellor to say that the allegation of digital rape was incorrect, that she had never made it and that’s how the mistake came to light. That’s what the Dáil was told.”
“But I spoke to the girl’s solicitor today and he tells me that that is not the case. He says that, this is the sequence of events: the girl’s mother made the initial appointment, for her, with this counsellor. She attended just once. She had no idea that a referral had gone to Tusla as a result of this one counselling session, until many months later, her family were contacted by the guards and they were asked to attend to the Garda station about this allegation. Her parents went to the Garda station, looked at this, were presented with the allegation and said immediately: this is not our daughter’s allegation, this was never made.”
“And according to the girl’s solicitor, this was the last that she had to do with it, that she, whoever contacted the counsellor, it wasn’t her.”
“And also, what this does is it raises questions about when the gardai first were aware of this mistake. We know that Tusla sent them the file in early May. According to this account, from this girl’s solicitor, the guards were informed that it was incorrect, there was a mistake in it, by the 4th or 5th of May and that’s not what the rest of the files show…”
McCullough: “What does the Tusla file say?”
Hannon: “Yeah, the Tusla file says that the first contact with the garda was the original investigating guard that investigated the 2006 complaint – that was done back in August 2013. We don’t know what came of that, if the meeting took place. We know that Tusla contacted the guards with the referral in early May. We know that they were told about the referral, from the counsellor, on the 14th of May  and then they say, the file says they contacted the guards one or two days after that.”
McCullough: “Ok, so very, very briefly, we already have conflicting accounts here?”
Hannon: “We do, we’ve two serious conflicts. We’ve a conflict between the account that the minister [for health] gave the Dail this week to what the client says as regards when we found out about the error and there are other conflicts about when the guards knew about it in the first place and when the guards knew this second allegation was a mistake. So, you know, the attempt or demand for the answers to these six questions might be trickier I think than we think.”
McCullough: “Hence, the tribunal, ok, Katie, thank you very much.”
From top: John McGuinness, of Fianna Fáil; Taoiseach Enda Kenny, the Minister for Justice Frances Fitzgerald and the Minister for Children and Youth Affairs Katherine Zappone
During the ‘statements of clarification’ session in the Dáil.
Taoiseach Enda Kenny was asked a million many times to state when he first became aware of the smear campaign against Sgt Maurice McCabe.
At one point, he had the following exchange with Sinn Féin TD Caoimhghín Ó Caoláin.
Caoimhghín Ó Caoláin: “Will the Taoiseach tell us when he first became aware of that smear against Garda Sergeant McCabe?”
Enda Kenny: “I became aware of it the same as most of the rest of the nation, which was after the Prime Time programme.”
This is despite the fact Labour TD Brendan Howlin spoke about the campaign during Leaders’ Questions the day before the Prime Time programme was broadcast.
Readers will also recall how that supposed conversation he had with the Minister for Children and Youth Affairs Katherine Zappone, prior to her meeting Sgt Maurice McCabe, never happened…
Further to this…
Fianna Fáil’s John McGuinness – who has previously said he was warned not to trust Sgt Maurice McCabe by then Garda Commissioner Martin Callinan in a car park of Bewley’s Hotel on the Naas Road on January 24, 2014 – accused Taoiseach Enda Kenny of knowing about the allegations being made against Sgt Maurice McCabe ‘a long time ago’.
Readers will note that, in the Sunday Independent at the weekend, Philip Ryan reported that Mr McGuinness claimed Mr Callinan made false child abuse allegations – about Sgt McCabe – to Mr McGuinness during that meeting in 2014.
From last night’s session…
John McGuinness: “We’re here discussing this public inquiry because of the fact that the McCabe family have no trust whatsoever in a private inquiry. We’ve had enough of them. And, in relation to the smear campaign, why is it that we cannot admit that ,for the last number of years, for anyone who wished to stop and listen to what was being said in this house…I’ll deal with the car park in a minute…why is it that when we were told what was happening in relation to Maurice McCabe, anyone that supported him, was sold this narrative that he was a sex abuser. That he had abused people sexually. And that’s what they said. And therefore, those that supported him were knocked off of their support by virtue of that gossip and that innuendo and that accusation.”
“So the fact of the matter is: that while that was going on, the Tusla file existed. So how many gardai knew about that Tusla file? How many in this house knew about the allegations that were being made? And when he appeared before the public accounts committee, the great efforts were made by this house – and by members within it – to stop him from coming forward. That’s why we’re here today.”
“Because we have ignored Maurice McCabe and the other Maurice McCabes that exist out there. And if we’re to have any public inquiry into this then we have to take into consideration, the culture that has sent all of those people out sick, some of them struggling now with mental illness. And we cannot ignore those people. And the Government cannot ignore them. But how many within Government knew about those, about these allegations that were being made? Even though it might have been gossip. It was gossip that was being spread maliciously, to take you off your game and not to support Maurice McCabe. And all of us, in this house, knew what was going on.”
Enda Kenny: “I think it’s obvious Deputy McGuinness that the entire country feels sympathy with the pressure and stress and distress of the McCabe family. Now am I, am I right or not or did you have a meeting with the former commissioner of the gardai [Martin Callinan] and did you hear information, relevant to a smear campaign against Garda McCabe? And if you did, what did you do about it?”
McGuinness: “I knew about it Taoiseach because you knew long time ago about the accusations that were being made against Maurice McCabe. Everyone in this house knew and great efforts were made to derail Maurice McCabe and the story he was telling. Everyone knew. And the fact of the matter is, that it was a deliberate attempt to undermine Maurice McCabe, a deliberate attempt.”
Frances Fitzgerald: “[inaudible]…you say you had your meeting. That would have meant that some of these issues that you were told about would have been dealt with in the O’Higgins commission…”
McGuinness: “On legal advice, minister, I followed legal advice.”
Fitzgerald: “But… you followed legal advice… and like Minister [Katherine] Zappone, I didn’t want to give legs to something that was totally untrue…”
Fitzgerald: “Then what are you saying…”
McGuinness: “…I felt myself that it was untrue. And that’s the fact of the matter but you did nothing about Maurice McCabe.”
Fitzgerald: “Sorry, deputy, you didn’t want to act on legal advice…but you had direct information, deputy, which is more than many people or anybody in this house had.”
Later – after Fine Gael’s Regina Doherty asked Mr McGuinness to correct his claim that ‘everyone in the house’ knew
McGuinness: “Those of us that were clearly associated with supporting Maurice McCabe, knew about this and not everyone in the house.”
Fine Gael TD John Deasy
On RTÉ’s Prime Time.
Prime Time‘s political correspondent Katie Hannon interview Waterford Fine Gael TD John Deasy.
Mr Deasy explained to Ms Hannon that, on the same day the former Garda Commissioner Martin Callinan appeared before the Public Accounts Committee – and made his “disgusting” remark – he was approached by a senior garda who warned him not to trust Sgt Maurice McCabe.
He explained he lobbied Taoiseach Enda Kenny after the garda’s approach.
John Deasy: “Before the meeting, I was approached by a very senior guard and he proceeded to make some very derogatory comments about Maurice McCabe. The nature of which were, Maurice McCabe couldn’t be believed and couldn’t be trusted on anything. They were very, very derogatory. It was a serious attack and very strongly worded.”
“Maurice McCabe was in the Public Accounts Committee the following Thursday and I thought that he was credible and I made that judgement.”
Katie Hannon: “You’re quoted after that meeting, actually, in newspaper reports, as saying he’s a credible witness, he’s responsible and knowledgeable in his answers. How did you square that with what you had been told about him, by this senior garda.”
Deasy: “I formulated a view that he was correct. I think that I and others realised that there was a campaign against Maurice McCabe, to undermine his character…”
Hannon: “Being run by who?”
Deasy: “The gardai.”
Hannon: “At a senior level?”
Deasy: “Yeah and I had first-hand, you know, contact of that..”
Hannon: “So what did you do with this information?”
Deasy: “A couple of weeks later, I was having a meeting with Enda Kenny in Government buildings and, after that, it was on a separate issue, I asked to meet with him privately about Maurice McCabe and the entire affair. He would have known that that was significant. It’s not something I would have done every day. Probably twice in 15 years. And at that meeting, I said to him that I believed that Maurice McCabe would be vindicated. That he was being treated extremely badly. And that he was genuine and that this needed to be handled completely differently.”
Hannon: “And how did he respond to that?”
Deasy: “You know, he listened, he acknowledged it and the meeting ended. I do know, at the time, that another individual in Fine Gael was making a similar case to one of this cabinet colleagues, at the same time. And was being ignored and really wasn’t getting anywhere, was begin dismissed with regard to how the whistleblowers were being dealt with at the time and the treatment that was being meted out to them.”
Deasy: “I really can’t defend anyone in Government when it comes to Maurice McCabe.”
Also on RTE’s Prime Time last night.
Former Labour leader Pat Rabbitte (above) told David McCullough how a garda told him of the false allegation against Sgt Maurice McCabe back in 2014.
David McCullough: “You were sitting at cabinet for some of the period when all this was going on. Did you hear rumours about Maurice McCabe? The smears about Maurice McCabe?”
Pat Rabbitte: “I did, yes. Maurice McCabe approached me at the end of 2006 or early 2007, about policing difficulties and malfeasance and he had a major, thorough file. And I helped him or advised him, on the confidential basis he sought as best I could. But, when the incident blew up in 2013/14 – probably early 2014 – I was asked on a programme like this, that same question. And I explained that I did indeed know Maurice McCabe as an upstanding and, in my view, an honest, conscientious policeman.”
“And I was approached that night by a friend of mine, who’s a retired garda, to say that he didn’t know that I had any knowledge of Maurice McCabe and that I better be careful because did I not know what was going around and he, graphically, told me what was going ’round.”
McCullough: “And did you tell anyone about that?”
Rabbitte: “No, nobody. I thought it was foul gossip. I didn’t believe there was anything to it. And I didn’t think it should be given legs. But I did express my view publicly and privately about the probity and integrity of Maurice McCabe.”
McCullough: “But, if he was being traduced like that behind the scenes, was there not an obligation, on a politician, to somebody, whether it was the Minister for Justice, whether it was the Taoiseach?”
Rabbitte: “I think, in hindsight, you might be right. In hindsight, you may be right. But, you know, you could say the same about your own profession and you could say the same about others who were told about it.”
Fianna Fáil justice spokesman Jim O’Callaghan and Fine Gael Minister for Justice Frances Fitzgerald in the Dáil last night
In the Dáil.
There was a three-hour session entitled ‘Clarification of Statements made by the Taoiseach and Ministers’ in the wake of reports about the false sex abuse allegation against Sgt Maurice McCabe.
So, what was clarified?
Fianna Fáil’s justice spokesman Jim O’Callaghan and the Minister for Justice Frances Fitzgerald had this exchange at the very beginning.
Jim O’Callaghan: “Last Wednesday evening I met the Tánaiste in a quiet area of this House to tell her that I wanted the terms of reference of the proposed commission of investigation extended.”
“I told her that I had become aware, from speaking to my party leader Deputy Micheál Martin, who had spoken to Sergeant McCabe, that Sergeant McCabe had informed him that there would be a “Prime Time” programme broadcast on Thursday evening which would contain a story about a Tusla file that contained a false allegation of sexual abuse against Sergeant McCabe.”
“I told the Tánaiste that paragraph B of the terms of reference needed to be extended to cover that. The Tánaiste agrees that I asked her to extend the terms of reference. She also agrees that I asked her to extend the terms of reference because of a forthcoming “Prime Time” programme.”
“However, she denies that I told her about any Tusla file contained in that programme. If she is correct, why did she agree to consider my amendments, as she did, without asking me what the “Prime Time” programme was about?”
Frances Fitzgerald: “I got a phone call from Deputy O’Callaghan at about 6.30pm last Wednesday. He asked me if I would meet him and I left the parliamentary party meeting and went to meet him. We had a discussion for about 12 minutes. Deputy O’Callaghan informed me that there was a “Prime Time” programme the next evening. He used the word “documentary” in relation to Maurice McCabe and the allegations.”
“He said the programme would cover the smear campaign allegations that had been made against Sergeant McCabe and he said to me that I needed to look at the terms of reference because if they did not cover what emerged on the “Prime Time” programme that would not be a good place to be in and it would leave “egg on our face” in terms of the Dáil and the work we are doing.”
“He said to me that he wanted to make sure that the allegation of a smear campaign against Sergeant McCabe was covered and whether it had been carried out by the Garda Commissioner and the previous Garda Commissioner. I said to him that they were already covered in the terms of reference and the vast majority of our conversation was about the detail of the amendments and how they needed to be changed because the Deputy was concerned that the reference in relation to Superintendent Taylor was too restrictive and would mean that there was not a proper examination of the allegations.”
“For that reason, I agreed to consider how we would extend the terms of reference to make it absolutely clear that this could be covered. He also asked that Ministers would be included and I said there was no reason not to include them. I went away to do some work on the changes to the terms of reference.”
“At no time did Deputy O’Callaghan mention Tusla, and if he had, or if he had said to me he wanted a particular reference in that regard I would have included it. It would have been to my advantage to include it if I had been told about it, and if he had made it clear to me that Tusla should be included because “Prime Time” was covering it, I would have included it.”
“It would have been totally to my advantage to come back to the Dáil and insert Tusla. Deputy O’Callaghan made no mention the next day about Tusla when he made his speech.”
O’Callaghan: “I disagree with the Tánaiste. I referred to Tusla in our conversation. What the Tánaiste has said in her statement is that she was prepared to seek the amendment of important terms of reference based upon a forthcoming television programme I was telling her about.”
“At no stage is she saying that I indicated to her what the programme was about and at no stage did she ask. Is it credible that a Minister for Justice would agree to amend terms of reference of an important commission of investigation based on upon a television programme and not ask what the programme was about?”
Fitzgerald: “Deputy O’Callaghan made an extremely strong case that he felt the way the terms of reference were formulated as the judge presented them – because they were the judge’s words – regarding the allegation of a smear campaign in Superintendent Taylor’s protected disclosure was too narrow.”
“The Deputy spent most of the time talking to me about how it circumscribed the investigation too much and ought to be broader. He made his case entirely on the fact that the terms of reference were too narrow, not on the “Prime Time” programme. He made his case on the basis that the way the judge had written them made them too circumscribed. I accepted in full the Deputy’s bona fides on it.”
“He wanted the terms of reference changed so that there was no doubt whatsoever that all of those allegations could be investigated and I responded on that basis. What was in or not in the programme was not the central point. It was that the Deputy wanted clarity in respect of the allegations and that they would be fully investigated and would not be circumscribed by reference to Superintendent Taylor. That was the main point of the discussion.”
O’Callaghan: “The Tánaiste is correct in stating that most of our discussion was about paragraph (b) and I emphasised to her that it was too limited in terms of how it referred to Superintendent Taylor’s communications with the media and that it needed to be broader. However, I commenced the conversation with her by telling about the forthcoming programme which was in respect of a Tusla file. My final question for her is this. After her discussion with me, who did she contact and what did she say to them?”
Fitzgerald: “The first point I would make to Deputy O’Callaghan is that if he was so concerned about Tusla being included in the terms of reference, why did he not raise it himself? Why did he not raise it in his speech? I came in here last Thursday and asked for statements so I could take on board the point of view of everybody here. I was completely flexible in terms of what I wanted to include in terms of investigating it and getting at the truth.”
“After Deputy O’Callaghan spoke to me, I contacted the Attorney General, asked her about changing the terms of reference, told her what Deputy O’Callaghan’s formulation was and asked her whether it was legally sound and whether it was the way we should proceed.”
“I had a further discussion with Deputy O’Callaghan about how it should be changed. Deputy O’Callaghan reiterated the points made here the next day but he never mentioned Tusla. Other people mentioned different things they wanted included. Deputy O’Callaghan did not mention Tusla. I had a conversation with him primarily about making sure that the terms of reference included Government Ministers, that they included great clarity and that the commission would investigate the allegations fully.”
O’Callaghan: “Were any of the Tánaiste’s officials or Government officials aware of the Tusla allegation prior to the programme being broadcast on Thursday evening?”
Fitzgerald: “I was not aware of what was in the Tusla file prior to the programme being broadcast and neither were my officials. Nobody had brought it to my attention.”
During Leaders’ Questions, Independents 4 Change TD Mick Wallace named other Garda whistleblowers.
He also claimed that, in early 2014, a journalist contacted Supt Dave Taylor, to tell him that he had been in contact with the family of the girl at the centre of the false abuse allegation against Sgt McCabe.
Mr Wallace said the journalist told Supt Taylor “he had a great story and that it was going to be really damaging for McCabe”. Mr Wallace also said, following this conversation, Supt Taylor contacted both Martin Callinan and Noirin O’Sullivan.
From Mr Wallace’s speech in the Dáil…
“Taoiseach, I think the public inquiry should have a disciplinary, a criminal investigation running in parallel, run by people, policed from outside the country. A lot of bad things have happened.
“You said there Taoiseach that everybody has the presumption of innocence. You’ve a short memory. For several years, according to the Fine Gael government, Maurice McCabe was guilty until proven innocent.”
“Noirin O’Sullivan talked yesterday of a campaign of false accusations against her. Is she saying that Maurice McCabe was lying? David Taylor? Keith Harrison? Nick Keogh? Sinead Killian? Eve Doherty? Dermot O’Connell? And others? Are they all liars?”
“If she genuinely didn’t know how whistleblowers were treated. If she genuinely didn’t, she’s not fit for the job anyway, if she didn’t know what was going on in the force.
“With the O’Higgins inquiry, she instructed her legal team to give false evidence to the inquiry until Maurice McCabe’s tape turned it upside down. If she was innocent, why didn’t she sanction or discipline the two guards involved? Why? It’s a long time ago?
“How can you explain how Nick Keogh – when he reports Garda involvement in the heroin trade in Athlone, how come he faced five internal investigations in that same year and none before that? Why?”
“And the superintendent that Nick Keogh accused of bullying and harassing him, why was he put on the promotion list? Why”
“In 2014, the Garda Commissioner appointed an Assistant Commissioner to look at Keith Harrison’s complaint and the Assistant Commissioner leaked information back to the Superintendent that the subject of the complaint.
“And then, on foot of a different complaint, involving the very same superintendent, the same Assistant Commissioner was asked to carry out an investigation.
“And, if all that wasn’t bad enough, when GSOC, following its investigation into the second matter, asked for disciplinary proceedings to be taken against An Garda Siochana, who does Noirin appoint over it? You’d never guess: the same Assistant Commissioner.”
“A journalist contacted David Taylor in early 2014. He was press officer. The journalist told him that he’d been to the family of the girl at the centre of the sexual allegations of Maurice McCabe. He told her that he had a great story and that it was going to be really damaging for McCabe. Taylor texted [Martin] Callinan, texted [Noirin] O’Sullivan and told them the good news.”
“Callinan texted him, to welcome it. Noirin decided to ring him and have a good chat about it. A good chat about it. Now minister, Taoiseach, this is the woman who said, a couple of weeks ago, on the Sean O’Rourke programme, ‘I’ve absolutely no knowledge, nor was I privy to any campaign to undermine any individual in An Garda Siochana’.”
“The press officer, David Taylor, who was given back his job yesterday, said, this is a quote, ‘everybody in headquarters knew about the campaign against Maurice McCabe’. Everybody, seemingly Taoiseach, except Noirin. What do you think?”
Taoiseach Enda Kenny taking Leaders’ Questions this afternoon
“Now, I do, I do hope, I do hope – and I want to make this clear – as Minister Zappone pointed out, that when she informed me that she had spoken to the McCabes, that the discussion that she had with them was about allegations, false allegations, made to Tusla.
“She did not indicate to me any issue of the detail of the discussion she had with the McCabe family or, indeed, the existence of any content of a file which you mention. Obviously, this was, this was, this became very public knowledge on the relevant Prime Time programme.
“And Minister Zappone is very clear, that the discussions she had with Sgt McCabe were of a confidential nature, that she had to respect his privacy, that these things were not in the public domain at the time that she, that she met with him. And I say mea culpa here. Because I did say, I’m guilty here, of, of, of not giving accurate information.
“I understood, from thinking myself that I had, perhaps that she had asked me about meeting Sgt McCabe in the first place. It actually was her office that consulted with my officials, who told me. So, she, she is very clear that she did not tell me that she intended to meet Sgt McCabe. But she did tell her official to tell my office. So I regret that. I regret that. I regret that. I regret that… So, I didn’t actually, I didn’t actually… She didn’t tell me herself and she’s really sorry she did…She did tell me before the Cabinet meeting last Tuesday that she had met with him and they had discussed allegations that were false in respect of, given to Tusla.”
Taoiseach Enda Kenny speaking in the Dáil this afternoon – in response to questions from Fianna Fail leader Micheal Martin.
Later, in response to questions from Anti-Austerity Alliance TD Paul Murphy, Mr Kenny contradicts himself:
“When you come to the house of the people, in this position, and you actually tell the truth, that you get pilloried also. There are many people who’ve been here before me who, for many years, who’ve made mistakes. I stand here and I say the information about the minister’s meeting with McCabe family, that, that I had spoken to her about that, she notified my office. My office told me of that information. And I put that in the public domain and I regret that I shouldn’t have.”
“The minister did not refer to any of the details of the discussion with the McCabes or the existence of a file in Tusla or the information contained in that file. It is not true to say that I had any information about the existence of that, prior to the Cabinet meeting in Government Buildings here.”
Readers will recall how on Sunday, Enda Kenny told Colm Ó Mongáin, of RTE’s This Week, that Ms Zappone told him she intended to meet Sgt McCabe and his wife Lorraine “in a private capacity”.
Mr Kenny said:
“That’s all I knew. I said to her, ‘well, if you do have a meeting, make sure you have a thorough account of it’. So, when we had our [Cabinet] meeting on Tuesday, I wouldn’t have been aware of any of the details of her discussions.”
Asked if he asked Ms Zappone what the meeting was about, he said: “No, because she was meeting him in a private capacity which she’s entitled to do.”
Dáil proceedings are under way and can be watched livehere
Further to reports that Sgt Maurice McCabe met the Minister for Children and Youth Affairs Katherine Zappone on January 25, 2017…
And Tusla chief executive Fred McBride telling Áine Lawlor on RTÉ’s News at One this afternoon that Tusla briefed Ms Zappone’s department about the matters concerning Tusla and Sgt Maurice McCabe “within days of us finding out, or certainly at my level, finding out what had happened here…I can’t get an exact date but within a couple of days”…
And Katie Hannon reporting on Prime Time last night that on January 27, 2017, the chief operations officer of Tusla wrote to the Secretary General of the Department of Children and Youth Affairs acknowledging that ‘mistakes were made in the management of this matter’ and saying that he had ‘instituted a case review internal to Tusla’…
And the terms of reference of a commission of investigation into Supt Dave Taylor and Sgt Maurice McCabe’s protected disclosures being published on Wednesday, February 8, 2017…
Sarah Bardon, in The Irish Times, writes:
Ms Zappone met Sgt McCabe last month after receiving a letter from Tusla, the child and family agency, confirming it wrongly sent a file containing false allegations of child sex abuse made against Mr McCabe to gardaí.
Sources said Ms Zappone had not informed Cabinet of the matter when the proposed terms of reference for the commission of inquiry into the handling of garda whistleblowers were discussed this week.
…Neither Ms Zappone or her spokesman have responded to the claims yet.