Tanaiste and former Minister for Justice Frances Fitzgerald and the email she claims she received on afternoon of May 15, 2015, but can’t remember receiving
At around 7.30pm.
Following questions over who knew what, when, in relation to the legal strategy used by the former Garda Commissioner Noirin O’Sullivan and several gardai to discredit Garda whistleblower Sgt Maurice McCabe during the O’Higgins Commission of Investigation in 2015…
Readers will recall how claims made at the commission were dropped after Sgt McCabe proved allegations made by the legal counsel for Ms O’Sullivan and allegations outlined in a five-page letter by the Chief State Solicitor Eileen Creedon, now a High Court judge, were not true…
Taoiseach Leo Varadkar telephoned Sgt Maurice McCabe.
The call lasted around 15 minutes.
Broadsheet understands Mr Varadkar read out the email above – which Ms Fitzgerald told RTE’s News at One yesterday was sent to her in May 2015 but of which she had no memory – to Sgt McCabe.
It came after Mr Varadkar told the Dail last week that she only became aware of the legal strategy when it became public knowledge – a year later – in May 2016.
This email, Ms Fitzgerald told the Dail last night, came about after the Chief State Solicitor contacted an official in the Attorney General’s office who, in turn, contacted an official in the Department of Justice who, in turn, sent the email to Ms Fitzgerald.
The email suggests that, at the start of the hearings of the O’Higgins commission, the legal counsel for An Garda Siochana raised an allegation “that a serious complaint against Sergeant McCabe (which has had always denied) had not been properly investigated by the Garda Siochana”.
During the News At One, Ms Fitzgerald said this caused a row between the legal counsel for the Garda Commissioner, Colm Smyth SC, and the legal counsel for Sgt McCabe, Michael McDowell SC.
Sgt McCabe told Mr Varadkar during their telephone call that such a claim had never been made, or even mentioned, during the O’Higgins Commission of Investigation.
He told him that what was at issue at the commission, on May 15, 2015, was the fact he had been accused of wanting the DPP’s directions – in respect of a ‘dry humping’ allegation in 2006 – overturned.
Sgt McCabe explained to Mr Varadkar that, on the afternoon of May 15, 2015, he gave evidence to the commission outlining that he was very satisfied with the DPP directions and had no desire for them to be overturned.
Sgt McCabe also told the Taoiseach that the full transcript of the O’Higgins Commission of Investigation can prove a) the contents of the email were never mentioned and b) what was at issue was the claim made by An Garda Siochana that Sgt McCabe wanted the DPP’s directions overturned.
Tanaiste and former Minister for Justice Frances Fitzgerald gave a statement to the Dail, during which the email she alleges was sent to her on the afternoon of May 15, 2015, was circulated to TDs present.
She also stated that she was aware the Taoiseach had spoken to Sgt McCabe yesterday evening.
However, she never mentioned that Mr Varadkar was told by Sgt McCabe that he said the contents of the email were untrue – even though this was put to her by Solidarity-People Before Profit TD Paul Murphy.
After she made her statement, at around 8.30pm, Mr Murphy asked Ms Fitzgerald, specifically, if she read the email and then forgot about it?
“When the department told me about this email last Thursday, as I’ve said, I didn’t remember that email. I would tend to read all of the emails that come to me. I can only assume that I did read it but I did not remember it when I was speaking to the Taoiseach.
“What I said to the Taoiseach was that I was, I would, I did not know about it, any legal strategy in advance. I wasn’t part of any legal strategy. I had no hand, act or part in any legal strategy. And that I was only aware of all of the details that came out one year later in may 2016.
“That’s what I said to the Taoiseach, that’s what I was referencing when I spoke to him and when he spoke here in the Dail, he was obviously repeating that and what I was referencing was the information that came out in May 2016 which was widely reported in media about tapes, about the Mullingar, about other Garda witnesses that I had no clue, no information about that.
“And that’s what I said to the Taoiseach when I spoke to him and obviously then the email was brought to my attention.”
Mr Murphy then said:
“Maurice McCabe is adamant that the criminal charges that you referred to on the radio and you refer to in the email here were not raised at the O’Higgins Commission. He’s adamant that what was raised at the O’Higgins Commission was in relation to him supposedly, which was false, seeking to get access to information of the DPP’s decision, not criminal charges.
“And he’s adamant that the email is inaccurate. So that begs a very serious question. I mean I trust that this is the email. But if it’s the case and if the transcript proves that the case that these were issues that were not raised in the O’Higgins Commission well then doesn’t it raise more serious questions if a campaign of slander etc was continuing and was being filtered through phone calls and then into emails.”
Ms Fitzgerald replied:
“When you look at, this was referencing a call from a senior official in the office of the Attorney General. Now you’re saying that Sgt McCabe is saying that what is in the email is incorrect. I would, I can only tell you what was in the email.
“I have absolutely no reason to believe that either a senior official from the department of the Attorney General or a senior official in my department would record what they, you know, what’s here, incorrectly, or as part of any campaign against Sgt Maurice McCabe. That would be quite an extraordinary allegation to make about a senior official in the Department of the Attorney General.
“Now if you’re saying there’s a discrepancy between Sgt McCabe’s view and what is in this email. Well, we will just have to see what he has to say about it and, as I say, the Taoiseach did have a conversation with him…”
Readers should note that the serious complaint being referred to in the email above is related to an allegation of ‘dry humping’ in 1998 made by a Ms D 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 was involved in a disciplinary process against him 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.”
In August, Broadsheet reported how, at the outset of the O’Higgins Commission of Investigation, in May 2015, Chief Supt Colm Rooney claimed Sgt McCabe had sought a meeting with him in 2007 demanding that the DPP’s directions – in respect of the “dry humping” allegation – be overturned.
The commission was told this was the basis of a grudge held by Sgt McCabe and the reason behind him making complaints about Garda misconduct.
When Chief Supt Rooney made this claim, An Garda Siochana weren’t aware that Sgt McCabe had been verbally, but fully, briefed of the DPP’s directions on the same day they were issued in April 2007.
Sgt McCabe gave evidence on day two of the commission – Friday, May 15, 2015 – in which he explained his knowledge of the DPP’s directions and how he had no desire for them to be overturned as he was very satisfied with them.
This was the first serious blow to the legal strategy employed by An Garda Siochana at the O’Higgins Commission of Investigation.
This hasn’t been reported elsewhere.
However, last night in the Dail, Independents 4 Change TD Mick Wallace outlined the same chain of events.
Readers will also recall how, also at the outset of the commission, Colm Smyth SC, for the then Garda Commissioner Noirin O’Sullivan and An Garda Siochana, said they would argue Sgt McCabe was making complaints about Garda misconduct because of this so-called grudge 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.
But when this claim was made, the gardai weren’t aware that Sgt McCabe had recorded this meeting. This recording was given to the commission and proved the counsel’s claim to be untrue.
Readers will also recall how, on the same Friday afternoon of May 15, 2015, Sgt McCabe’s legal counsel Michael McDowell called for documentary evidence to be produced to support the claim that Sgt McCabe wanted the DPP’s directions overturned.
Over the following weekend, and in response to Mr McDowell’s request, a five-page document compiled by the then Chief State Solicitor Eileen Creedon, now a High Court judge, was introduced to the commission on Monday, May 18, 2015 – day three of the commission.
This letter, in which it outlined claims of the Mullingar meeting, was contradicted by Sgt McCabe’s tape recording.
Last night, Mr Wallace contended that a meeting must have been held after Mr McDowell made his request for documentary evidence.
He asked Ms Fitzgerald if she knew who attended that meeting or if she knew anything about that meeting.
“I don’t know who attended that meeting. I do know Sgt McCabe, in relation to this allegation, as you will be aware as well, the Charleton Tribunal, at the Disclosures Tribunal, that he said it did not happen, it did not happen, it’s all a horrendous allegation to make and it did not happen. So we’re very clear about his view on this issue that arose.
“But deputy I couldn’t possibly, I’m not going to try and run the tribunal here and different elements of it.”
Mr Wallace then asked if she could confirm a meeting did take place over the weekend before Ms Creedon’s five-page letter was produced.
Ms Fitzgerald replied:
“How would I possibly know whether there had been a meeting in relation to what you’ve outlined or not? I could, I had no role, I do not have any role, I did not have any role in relation to the legal strategy. And I would say deputy if you have that, the queries you have, the questions, if you have information, the place for that to be laid is before the tribunal which is currently sitting and they are investigating in huge detail, under Judge Peter Charleton all of these issues.”
In relation to the claim outlined in the email – that there had been an allegation that a serious complaint against Sgt McCabe hadn’t been investigated properly…
Readers may wish to note that the Disclosures Tribunal has heard how Irish Independent journalist Paul Williams met Ms D at her home on March 8, 2014 and interviewed her.
Part of this interview was recorded on video.
Ms D told Mr Williams she felt her allegation of 2006 wasn’t investigated properly.
Mr Williams was the only journalist to interview Ms D in 2014 – a year after her allegation of ‘dry humping’ was wrongly recorded as an allegation of rape by a counsellor and Tusla in August 2013 and eventually passed up to the Commissioner Noirin O’Sullivan in May 2014, completely unbeknownst to Sgt McCabe.
Mr Williams told the tribunal he wasn’t aware of this apparent mistake until February 2017.
During Mr Williams’ interview with Ms D recorded on video, they discussed GSOC and the tribunal heard that, in the video, Paul Williams is recorded asking Ms D:
“Would this involve GSOC or the Guards themselves or who would you like to investigate this? What body are you going to complain to?”
While giving evidence, Mr Williams was asked if he spoke to Ms D about GSOC before videoing the interview and he said: No.
However, Ms D told tribunal:
I recall speaking to Paul Williams and telling him that I was very unhappy with how the investigation of my complaint was handled in 2006. There was a couple of valid reasons I had for this belief, and having explained these reasons to Paul Williams he did suggest to me, and advised me, that if I had a complaint that I wished to follow that GSOC was an avenue I could go down, yes.
On April 29, 2014, Ms D emailed the Garda Siochana Ombudsman Commission (GSOC) claiming her allegation against Sgt McCabe was not properly investigated.
In her follow-up statement to GSOC on July 3, 2014, Ms D said:
“Paul Williams told me that my case had been known by a few people in senior ranks in the Gardaí and Government for some time.”
In relation to this comment, Mr Williams told the tribunal:
“That, that comment came from the fact, I would have been talking to — when after I interviewed her [Ms D] I contacted [former Head of the Garda Press Office who alleges there was a smear campaign against Sgt McCabe] Dave Taylor, told him what I was looking at, asked him questions. He made a throwaway remark that it was known in the Park, as in the Phoenix Park, and he suggested it was known in government. But it was — it was a passing comment, and I actually reported that back to her, I told her what he told me.”
Ms D’s father also made a statement to GSOC.
When they gave their statements, neither Ms D nor Mr D told GSOC about the “monumental cock-up” by RIAN counsellor Laura Brophy and Tusla in relation to the elevation of a ‘dry humping’ allegation to an allegation of rape.
The Disclosures Tribunal has already heard that, after looking at Ms D’s complaint, GSOC reported, in May 2015:
“GSOC established that Inspector Noel Cunningham carried out appropriate inquiries and uncovered no evidence of any criminality on the part of him in the investigation or any other Gardaí and how the investigation was conducted.”
In addition, Mr McDowell SC, for Sgt McCabe, told the Disclosures Tribunal, that, after this finding, GSOC sent a “lengthy report” to the then Minister for Justice Frances Fitzgerald about the same.
Previously: Absence of Malice