No Absence Of Malice

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From top: Michael Clifford, Colette Sexton and Gavan Reilly; Vincent Browne

Further to the statement Garda Commissioner Nóirín O’Sullivan released last night – in which she stated:

“I want to make it clear that I do not – and have never, regarded Sergeant McCabe as malicious.”

Vincent Browne discussed the matter with his panel on TV3’s Tonight With Vincent Browne last night.

The panel included Irish Examiner journalist Michael Clifford, who last week reported that Ms O’Sullivan’s senior counsel Colm Smyth told Justice Kevin O’Higgins – during his Commission of Investigation into Sgt Maurice McCabe’s complaints – that McCabe told two officers he was acting out of malice.

The allegation was proven to be false after Sgt McCabe produced a recording of his conversation with the two Gardai – and the episode wasn’t included in the final report.

Mr Clifford reported:

The documents show that, at the commission, Mr O’Higgins asked the commissioner’s lawyer whether “you are attacking his [McCabe’s] motivation and attacking his character”.

The reply from Colm Smyth, SC, was: “Right the way through.”

He told the judge that he was acting on instructions.

This morning, Mr Clifford reported that after he received a draft of the O’Higgins report, he threatened to get an injunction against the publication of the report – because the episode wasn’t included.

Colette Sexton, of the Sunday Business Post and Gavan Reilly, of Today FM were also on the panel.

Grab a tay…

Gavan Reilly: “On the question of who was acting on whose instructions, by the way, Vincent, it’s worth bearing in mind that the senior counsel involved in this particular exchanged that formed Mick’s story on Friday. Not only were they hired and instructed by the Chief State Solicitor but they were the same legal team that represented not only Noirin O’Sullivan but the two former commissioners Fachtna Murphy and Martin Callinan and all the other members of the Gardai who were implicated by Maurice McCabe’s allegations the whole way down so…”

Talk over each other

Vincent Browne: “That makes it even more confused because it could have been somebody else that…”

Michael Clifford: “No, the counsel was specific on whose instructions he was representing.”

Browne: “On what basis are you saying, are you asserting this?”

Clifford: “I’m asserting… it was in the story on Friday. He was asked was it the Commissioner that wanted to follow this line and he said, he was operating on instructions.”

Browne: “I know but where do you get this from?”

Clifford: “It fell off the back of a lorry, I mean what do you expect me to say to that?”

Browne: “Have you two…have you, I assume that it fell, let’s assume it fell off the back of a lorry. But then did you, did you independently confirm that what fell off the back of the lorry was true?”

Clifford: “I am 100% secure and confident in the veracity of that story that was published.”

Browne: “All right, tell us about this story that you have in the Examiner tomorrow, the ‘McCabe threat to injunct inquiry report’. What’s that?”

Clifford: “This is, when the draft report, as I understand it, was released, Sgt McCabe was, as I understand it, very perturbed because he felt that it was entirely imbalanced and that one of his main issues with that was the fact that this matter was not included, at all, in the draft report. As a result of that he was minded to take a legal action, to injunct the report. We saw something similar in the Moriarty draft report, where there was a similar scenario. Now, ultimately, they didn’t do that because the costs would have been so prohibitive. But I think it just demonstrates how perturbed he was that this matter in particular, I think there may have been a few others but this was one of the main reasons…”

Browne: “Which matter are you talking about?”

Clifford: “The matter about the….”

Browne: “The malice issue, yeah.”

Clifford: “The attempt to impugn his character that this hadn’t been included in the report and I have to say, just looking at it, there’s a question there for Kevin O’Higgins. Let’s for example assume that he had, Sgt McCabe didn’t have a tape recording of that and that officers came in and said he had expressed malice, would that have been in the final report? Would it have…we’d have had a very different report, remember, completely. You’d have had a report that suggested that McCabe had brought forward these allegations on the basis of malice and therefore they had to be treated on that basis and seen in that light. That’s the kind of report you’d have had if hadn’t protected himself with a tape recording. And would have that have been included? And if so, why was it not included as it emerged here.”

Reilly: “It does raise the other question though as to whether the inquiry would have been allowed to include that, if, as you mentioned, that if it was included on the basis of arguments by lawyers and not by evidence from witnesses. That if this was something that was brought to the tribunal only by lawyers chatting among themselves really..”

Clifford: “Oh yeah but surely…”

Talk over each other

Clifford: “There’s an indication that there’s going to be evidence to that effect, and then the tape recording was produced, surely it was still incumbent to hear the evidence to see what was going to be said…”

Browne: “OK, we gotta take a break but I think, just before we go to a break, it’s fair to say that yes, questions arise, further questions arise that the Garda Commissioner has got to address but I think it’s fair to say that, given her record and given her stature and known integrity, that it’s very unlikely that she is telling a lie about a matter as central as this to the whole O’Higgins’ report.”

Watch back in full here

Previously: ‘I Have Never Regarded Sgt McCabe As Malicious’

Nóirín’s Disgust

12 thoughts on “No Absence Of Malice

  1. Tish Mahorey

    O’Higgins should never have been chosen for this inquiry considering his familial connections to Fine Gael and An Garda Siochana. In a real democracy, this would never stand up to scrutiny.

    From the Irish Independent on 2nd March 2013:

    “He is “steeped” in Fine Gael, according to former Law Library colleagues. Mr Justice O’Higgins is a first cousin of the late Fine Gael politician Tom F O’Higgins, a former chief justice, whose father Tom is regarded as the “founder of the blueshirts”.

        1. Harry Molloy

          Read it on here a lot. I think it’s a rag but it’s always highly critical of FG when I read it.

          doesn’t matter

  2. Gorev Mahagut

    What on earth are these Commissions of Inquiry for?

    The have all the paraphernalia of the justice system. They’re usually run by judges or senior counsels. They hear evidence. Lawyers for various parties get involved. Conclusions are reached.

    But they have one big difference from the criminal justice system. Courts command respect: inquiries don’t.

    Courts hear arguments and consider evidence and then a verdict is delivered. And everyone abides by that verdict. We all know miscarriages of justice happen from time to time, and we all know that the people involved sometimes make a balls of things. So the system is always open to scrutiny and we take nothing for granted. But basically no-one wants to live in a society without a criminal justice system so we accord it a level of respect and we take it seriously because the alternative is appalling.

    But no-one respects a commission of inquiry. The report comes out and everyone keeps arguing and seeking injunctions and criticising the report and the commission. Nothing is settled. No-one is happy. Unless they find a single paragraph which backs up their own position and they blather on about that in the knowledge that no-one will ever read rest of the bloody thing.

    I might be wrong but I don’t think anything was revealed by the O’Higgins Commission that we didn’t already know. Except that certain lawyers made very serious allegations which they couldn’t back up. And the only reason we didn’t know that before the Commission is because it happened during the Commission. And then O’Higgins left it out of the report.

    You’d almost think these Commissions were designed to look like a serious and credible part of the justice system, as long as nobody looks too closely. To make you think justice had been served. For some reason.

    1. Anne

      Except that certain lawyers made very serious allegations which they couldn’t back up.

      They could back it up all right.. they had written notes from meetings held with McCabe.
      Fabricated lies of him saying he was acting out of personal malice..

      Unfortunately for them McCabe had recordings of the meetings to refute these written notes.

  3. Tish Mahorey

    “What on earth are these Commissions of Inquiry for?”

    You correctly answer your own question here:

    “To make you think justice had been served. For some reason.”

  4. Anne

    Are we going to get an explanation at all from Noirin O’Sullivan about these fabrications at the inquiry?

    I don’t care how she now feels deep down about the man… what about the instructions her counsel were given, about what turned out to be complete fabrications at the inquiry?

    This is corruption at the highest level and she’s saying she can’t comment. This isn’t good enough.

    The bunch of fupping swines were caught rotten… and the best they can come up with is, to say we never felt that way really, and we can’t comment.

  5. Anne

    Were these two officers acting alone or under instruction in producing these notes after meetings with McCabe falsely claiming McCabe said he was motivated by personal malice?

    If they were acting on instruction, whose instruction was it? At what level are these orders coming down from?

    Are these two officers going to be interviewed even?

    In what sense should they to be protected from making these false allegations.. that ‘their evidence should remain private’? It’s out in the open now.. so an explanation sil vous plait.

    What a corrupt little cabal we have in An Gardai Siochana

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