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