‘It Was Dragged Back In, In A Collateral Way To Demean Him’

Clockwise from top left: Former Secretary General of the Department of Justice Noel Waters; Terry Prone, of the Communications Clinic, former Garda Commissioner Noirin O’Sullivan and former Justice Minister Frances Fitzgerald

Last Friday.

At the Disclosures Tribunal in Dublin Castle.

Evidence was heard from the former Secretary General at the Department of Justice Noel Waters and Head of Legal Affairs at An Garda Siochana Ken Ruane.

Mr Ruane is scheduled to continue giving evidence today and will be followed by Annemarie Ryan, of the Chief State Solicitor’s office.

On Friday, it also heard of Michael McDowell SC, for Sgt McCabe, say although nobody was suggesting that somebody was going to ask Sgt McCabe at the O’Higgins Commission of Investigation if he ever abused a child,  “there was consideration, God knows by whom, given to the question of putting Ms D’s allegation firmly in the middle of the table at the O’Higgins Commission”.

It also heard of communications between the former Garda Commissioner Noirin O’Sullivan and the former Minister for Justice Frances Fitzgerald and the bizarre drawing up of statements by the Department of Justice for the Garda Commissioner to make to the Department of Justice.

That particular matter prompted  Judge Charleton to recall Myles na gCopaleen and ask: “If the Garda Commissioner is writing to the Department of Justice what the Department of Justice wants to have written to it, what in heaven’s name does that mean in terms of any genuine progress in terms of attitude?”

It also heard of a draft speech Ms O’Sullivan sent to Ms Fitzgerald on May 18, 2016 –  after the Irish Examiner broke the story in May 2016 about the O’Higgins Commission of Investigation and the strategy employed against Sgt McCabe – and in which she suggested Ms Fitzgerald tell the Dail, among other things, “I have interrogated this matter in detail with the 22 Commissioner of An Garda Síochána and now present to the House the outcome…I wish to state here now that I have full confidence in the Commissioner” (more about these communications in a later post).

It also heard how a “dissent is not disloyalty” statement issued by Garda Commissioner Noirin O’Sullivan on May 25, 2016, was drawn up by the Deputy Secretary of the Department of Justice Ken O’Leary (who is to give evidence next week).

Readers will recall how John Mooney, of The Sunday Times, has previously reported that the Disclosures Tribunal has already been notified of email exchanges between Terry Prone, of the Communications Clinic, and senior gardai in May 2016, during which she was consulting gardai on a response to media queries about Ms O’Sullivan’s legal approach at O’Higgins.

Ms Prone’s name was briefly raised in the tribunal last Friday when Michael McDowell SC, for Sgt McCabe, put it to Mr Waters: “At some stage in the documentation which has been furnished to us, we have seen a proposed public statement being made by the Minister which was composed by Terry Prone for the Commissioner of An Garda Síochána?”

Mr Waters said: “I have no knowledge of that.”

They then had this exchange:

McDowell: “You haven’t seen that. Were you aware that she was advising the Commissioner of An Garda Síochána in relation to a PR matter?

Waters: “Not at that stage, no.”

McDowell: “Did she have any contract with the Minister at the time?”

Waters: “Not to my knowledge.”

McDowell: “Did she furnish service, either voluntarily or for remuneration, to the Minister at the same time?”

Waters: “I have no information that she did. From my recollection, there was no question of Terry Prone being hired by the Department and paid out of the public purse in respect of services for the Department at that stage. She would have been in previous administrations, but certainly not at that stage.”

Readers will recall ongoing efforts by journalist Ken Foxe to obtain details of both An Garda Siochana and the Department of Justice’s hiring of the Communications Clinic in recent years.

And readers will also note that An Garda Siochana paid the Communications Clinic €10,400 and €92,955 in 2015 and 2016 respectively, while the Department of Justice paid the Communications Clinic €756 and €24,221 in 2015 and 2016 respectively.

But back to the tribunal.

Its current module is looking at matters concerning the O’Higgins Commission of Investigation which ran from May until December 2015.

Specifically, in this module, Supreme Court judge Peter Charleton is being asked to investigate if false allegations of sex abuse or any other unjustified grounds were inappropriately relied upon by the then Garda Commissioner Ms O’Sullivan during the O’Higgins Commission of Investigation in 2015.

Readers will recall how a false allegation of rape ended up being levelled against Sgt McCabe in official documents after a 2006 retrospective allegation of inappropriate touching by a Ms D – the daughter of a Garda colleague of Sgt McCabe’s – was conflated with an allegation of rape by a RIAN counsellor in August 2013 and then, again, by a Tusla social worker in May 2014.

The Garda investigation into Ms D’s complaint in 2006 was carried out by then Inspector Noel Cunningham and the DPP found there was no basis for a prosecution.

However, the matter came back to life as a much worse claim on paper and unbeknownst to Ms D, after Ms D had a counselling session in August 2013 and RIAN counsellor Laura Brophy unnecessarily – in so much as it had been previously referred and investigated – re-referred the matter to Tusla with a wholly incorrect allegation of rape.

When the rape allegation was found to be a catastrophic mistake, it still ended up travelling officially all the way up to the then Garda Commissioner Noirin O’Sullivan’s office – even though certain gardai involved in moving it up the chain of command knew about the 2006/2007 allegation and knew that there was no such rape allegation made by Ms D against Sgt McCabe in 2006/2007.

The tribunal has already heard that, within days of the mistake in the Tusla referral being discovered, the then Assistant Commissioner Kieran Kenny received an amended referral but never passed it on to Ms O’Sullivan.

The false rape allegation was still on file in the commissioner’s office until the tribunal began earlier this year.

The O’Higgins Commission of Investigation was set up by the then newly appointed Justice Minister Frances Fitzgerald in the wake of the publication of the Guerin Report on May 13, 2014 – just two days before the fake rape allegation in relation to Sgt McCabe was sent to the Garda Commissioner’s office.

The Guerin Report was a scoping exercise carried out by Sean Guerin SC in which he looked at complaints Sgt Maurice McCabe had made in respect of certain Garda investigations and matters in the Cavan/Monaghan area.

The establishment of a Commission of Investigation into the complaints was one of Mr Guerin’s key recommendations.

Readers will recall how Alan Shatter resigned as Justice Minister on May 7.

In parallel with the O’Higgins Commission of Investigation, Ms Fitzgerald set up the non-statutory Independent Review Mechanism (IRM) which involved a team of barristers doing paper reviews of hundreds of complaints in relation to Garda investigations.

The purpose of the panel was to investigate allegations of Garda misconduct, crime and cover-up and to ascertain if further investigations were needed.

The tribunal has already heard that Ms D felt the original investigation into her complaint of 2006 wasn’t investigated properly and thus, wanted it included in the IRM.

Ms D also made a complaint to GSOC about the 2006/2007 investigation.

GSOC found, in December 2014, that there was nothing wrong with the investigation.

Ms D’s complaint to GSOC came amid contact she had with Irish Independent journalist Paul Williams.

Mr Williams met Ms D on March 8, 2014 and interviewed her, part of which was recorded on video. During the interview recorded on video, they discussed GSOC.

The tribunal has heard that, in the video, Paul Williams said to 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.”

Yet 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.”

What has this got to do with the testimony of Mr Waters?

Well.

The infamous May 15, 2015 email sent from Michael Flahive, the Department of Justice assistant secretary, to Christopher Quattrociocchi, Ms Fitzgerald’s private secretary and cc-ed to Mr Waters, among others, at 4.57pm – which almost triggered the collapse of Government in November – was thrashed out in terms of its claim about the IRM during Mr Waters’ testimony.

Specifically.

The email claims to recount details of a legal row that broke out on Friday, May 15, 2015, at the outset of the O’Higgins Commission of Investigation.

In it, Mr Flahive claims Richard Barrett, of the Attorney General’s Office, communicated with him that the row centred on counsel for An Garda Siochana raising Ms D’s IRM complaint about the 2006 investigation at the commission.

The tribunal has already heard that Mr Flahive has given the tribunal a statement about this email – which was the first communication to the Department of Justice about the O’Higgins Commission of Investigation – and that he made a coded reference to the IRM as a means to avoid describing Ms D’s allegation against Sgt McCabe.

Readers will recall how, when the email emerged, Ms Fitzgerald said she couldn’t recall getting the email.

In any event.

On Friday, Conor Dignam SC, for the Garda Commissioner, described the characterisation of the legal row “incorrect”.

Readers will recall how Sgt McCabe told Taoiseach Leo Varadkar as much when the email was first published last November.

Last week, the tribunal heard the row broke out when, during Chief Supt Colm Rooney’s evidence, Colm Smyth SC, for Ms O’Sullivan and other gardai, started to ask Mr Rooney about a meeting he had with Sgt McCabe and about Sgt McCabe’s “motivation” and “credibility”.

However.

Although Ms D’s IRM complaint wasn’t raised at the commission on the afternoon of Friday, May 15, 2015, the tribunal has now heard that there was a “consideration” to include Ms D’s complaint about the 2006 investigation in the O’Higgins Commission of Investigation.

Many questions about this “consideration” were put to Mr Waters on Friday – after the email of May 15, 2015 was brought to his attention.

However, Mr Waters couldn’t recollect much.

He couldn’t recall the email being sent to him on May 15, 2015 at 4.57pm.

He couldn’t recall the email being shown to him by his private secretary the following Monday, May 18, 2015.

He couldn’t recall if the – albeit incorrect – claim about the legal row triggered any alarm bells for him.

Asked if he spoke to the Minister for Justice Frances Fitzgerald about the email and its contents, he said: “Not to my knowledge, no.”

Asked if knew of any contact between the then Garda Commissioner and anyone in the Department of Justice between May 15 and 25 – which was the date Ms Fitzgerald noted sight of the email – Mr Waters said: “Not to my knowledge, no.”

And yet, he shared a near 15-minute phone call with Ms O’Sullivan when she called him from her landline in the middle of the legal row – the contents of which neither Mr Waters nor Ms O’Sullivan remember and of which there are no notes.

Asked by Michael McDowell SC, for Sgt McCabe, why the email, together with the “probable content” of the phone call with Ms O’Sullivan wasn’t “creating in your mind extreme disquiet that effectively a decision made in the Department that the O’Higgins Commission of Investigation was to have nothing to do with this issue was being circumvented?”, Mr Waters said: “That may be your view, but, as I say, my evidence is that I have no recollection of that at all.”

Mr Waters also couldn’t recall if he had knowledge of two phone calls made by Ms O’Sullivan to the then Assistant Secretary at the Department of Justice Ken O’Leary in which she raised matters pertaining to the O’Higgins Commission of Investigation.

In a statement already aired in the tribunal, Mr O’Leary has told it that Ms O’Sullivan told him a legal row had broken out on that Friday, May 15 and that: “The focus of our conversation related to the question of evidence, and I do not recall it touching on any overall legal strategy counsel for the Commissioner.”

In addition, Mr Waters repeatedly said that – when he did see the email – it’s likely didn’t give it any more thought when he read the last paragraph in the email which stated: “…this is a matter for the Garda Commissioner, who is being legally advised, and that neither the Attorney General nor the Minister has a function relating to the evidence a party to a Commission of Investigation may adduce.”

And, he repeatedly said the Department of Justice couldn’t have been involved in seeking how the former Garda Commissioner Noirin O’Sullivan or An Garda Siochana were approaching the O’Higgins Commission as, he said, this “could have compromised the entire process”.

He also repeatedly told Diarmaid McGuinness SC, that it was his understanding that barristers involved in the IRM process looking at Ms D’s complaint about the 2006 investigation got sight of the Garda file before satisfying themselves that there “were no circumstances in which it would warrant being part of the terms of reference for the O’Higgins Commission”.

It’s not clear when this happened but the tribunal was told that the matter should have been put to bed by May 15, 2015.

In light of the claim about the barristers satisfying themselves that Ms D’s complaint about the investigation didn’t warrant being included in the O’Higgins Commission of Investigation, Mr McGuinness asked Mr Waters why then – if the IRM considered the matter closed – did the paragraph in the May 15, 2015 letter not jump out at him.

Mr McGuinness said: “…my concern here in relation to this third paragraph is: Did it not set off an alarm bell with you as to whether the Garda Commissioner was trying to raise this issue against Sergeant McCabe within the Commission when it hadn’t been included within the terms of reference?”

Mr Waters again said he had no recollection of the email.

Under cross-examination by Michael McDowell SC, for Sgt McCabe, Mr McDowell also asked Mr Waters why alarm bells didn’t ring when he saw the May 15, 2015 email.

Specifically, Mr Waters was asked if, in May 2015, he knew Ms D’s complaint – over the investigation into her 2006 allegation – had already been looked at by the IRM as well as GSOC.

Mr Waters said he couldn’t give a definitive answer but he assumes he was aware that the matter was raised in the IRM.

And again, he repeatedly said he couldn’t recall seeing the email and couldn’t reconstruct today what he was thinking back then, in 2015.

Mr McDowell also asked Mr Waters if it was common knowledge in the Department of Justice at the time that an allegation of sexual assault had been made by Ms D against Sgt McCabe.

Mr Waters said: “I should — my sense is that it probably was — there was knowledge in the Department of that, yes, at that stage, yes.”

Mr McDowell asked if it was known by the minister and Mr Waters said: “I would imagine that it would have been in as much as anybody else, because she was involved in the preparation of the terms of reference for the O’Higgins Commission.”

The tribunal heard it was Minister Fitzgerald who would have set the terms of reference for the tribunal.

Returning to the matter of the IRM, Mr McDowell attempted to find out where the source of the “consideration” to include Ms D’s complaint about the 2006 investigation in the O’Higgins Commission of Investigation came from.

He asked:

 

“A barrister appearing — had no function to say this should be sent to Mr. Justice Kevin O’Higgins to investigate?…Mr. Flahive is reciting that consideration was being given to asking Mr. Justice O’Higgins to consider that matter in addition to the other matters that he was going to examine in his Commission of Investigation… I’m asking, who was giving that consideration or giving consideration to that possibility?”

 

Mr Waters told Mr McDowell that it was his understanding that the consideration “emanated from the barrister in the IRM”.

Asked if that idea was “bounced off the department [of Justice]?, Mr Waters said: “I think it was, but I think the Department, we would have recognised that this would have been a most serious development.”

Mr McDowell asked if there would be records in the department about this “consideration” but Mr Waters said he had no idea of what records might be available.

Mr McDowell also suggested that if it was the case that Ms D’s complaint about the 2006 investigation had been included in the O’Higgins Commission of Investigation, Sgt McCabe “would end up effectively as an accused person”.

Later Mr Dignam, SC, for the Garda Commissioner, while cross-examining Mr Waters, put it to Mr Waters that the IRM were looking at the “adequacy or inadequacy of a Garda investigation?…Not of the truth, or otherwise, of any allegation which had been made against any individual?”

Mr Waters agreed, saying: “Absolutely, yes. Absolutely, yes.”

Judge Charleton spoke up around that time and reaffirmed “it would have been an investigation into an investigation…I am with you [Mr Dignam] on that point”.

However.

Mr McDowell argued that if Ms D’s complaint about the 2006 investigation had been added to the O’Higgins Investigation in 2015, it would have been a “monstrous inversion” of the public statements being made by the then Garda Commissioner Noirin O’Sullivan at that time about Garda whistleblowers – in which she spoke about treating them correctly and fairly.

Mr Waters argued: “The point is that it wasn’t [included]…It was something that we, as I said earlier, that we would have been very concerned about in the Department, yes, but it was — this did not happen, and I think the Department, if I may say so, to its credit, took steps to ensure that this was properly done.”

He added: “I think the Department would have been in a — very deeply conscious that if, out of the process, further victimisation would have taken place in respect of Sergeant McCabe, and I think that’s why we would have sought or asked the IRM barrister would it be helpful if you saw the DPP file.”

At one point, Judge Charleton interrupted to say to Mr McDowell: “I still, I have a query in my mind, and the query in my mind was, did that actually ever happen? Did one of the people doing the IRM actually suggest that this one should go forward? And I don’t know that yet.”

In turn, Mr McDowell asked Mr Waters if it was his belief a barrister suggested it and the Department of Justice “batted it down, or is it your suggestion — your belief that that the suggestion might have come from in the Department itself?”.

Mr Waters said it “certainly didn’t” come from the department.

On Friday, Mr McDowell read to the tribunal an excerpt from a Dail speech given by former Minister for Justice Alan Shatter, on Thursday June 19, 2014 – some weeks after his resignation on May 7, 2014 – in which he spoke about the recommendation made by Mr Guerin SC for a Commission of Investigation to be held.

Mr Shatter told the Dail:

“If the statutory inquiry [which eventually became the O’Higgins Commission of Investigation] is to be comprehensive, it should include all cases dealt with in Bailieboro Garda Station which had given rise to complaint. There is a matter which has been the subject of articles in the Irish Independent, which included a report of Deputy Micheál Martin meeting an individual who alleges she was the victim of a sexual assault and her complaint was not recorded on the Pulse system and did not result in a prosecution. I understand from the newspaper report that Deputy Martin was to provide information on this matter to the Taoiseach and I presume he has done so. This case should clearly form part of any statutory inquiry.”

This matter, readers will recall, was referring to Ms D and her complaint that the investigation into her allegation wasn’t carried out properly.

At this point, in June 2014, the false rape allegation was in the Garda Commissioner’s office – unbeknownst to Sgt McCabe.

Asked by Mr McDowell, if the suggestion by Mr Shatter could have triggered the “consideration” to include Ms D’s complaint about the investigation in the privately held O’Higgins Commission of Investigation, Mr Waters said: “I have no knowledge of that. I couldn’t comment with any view on that at all.”

Mr Waters added: “My sense is that it was coming from the barrister who had seisin of the application or the case before the IRM. I had no knowledge whether a previous minister was involved in this or had made any suggestion. I know that the Department would have been completely running against our view for us to have suggested this and then only sometime later to say no, we can’t do this.”

Judge Charleton also pointed out that it was “quite coincidental” that around that time of the email and the legal row, on May 19, 2015, GSOC contacted Garda Headquarters to inform it that there had been nothing wrong with the investigation into Ms D’s complaint.

Indeed.

Meanwhile.

The tribunal heard Judge Charleton ask Mr McDowell if it was Sgt McCabe’s contention that nobody at the O’Higgins Commission of Investigation ever intended on asking him something along the lines of “didn’t you sexually abuse a child?”.

Mr McDowell said that, yes, that was the case.

But.

Mr McDowell synopsised what Sgt McCabe, and his legal team, believe was happening at the O’Higgins Commission of Investigation.

He said:

“What was actually happening in Sergeant McCabe’s view, and this is a view which his legal team prefers, was an effort to bring in utterly irrelevantly in module one and to push into the mouth of Superintendent Rooney this background material solely for the purpose of embarrassing Sgt McCabe and raising a question mark in the minds of the Commission, why is this man — is he really concerned with bad policing at all or is he trying to settle a score with Superintendent Clancy and other people in the Garda Síochána.

“And his motivation and his credibility and, from time to time, his integrity was stated to be in issue precisely because of that. And we say that, and this is why I pursued the line of questioning with this witness earlier this morning, or earlier in the day, we say that there was consideration, God knows by whom, given to the question of putting Ms D’s allegation firmly in the middle of the table at the O’Higgins Commission.

“It was firmly rejected and would have been an outrageous thing to do. But we believe and we say, and Sergeant McCabe is adamant on this, that it was dragged back in in a collateral way to embarrass him, to query his motives, to make him — to demean him in the eyes of the Commission and to make it appear that none of his complaints about poor policing in his area were genuine, but that they were all concocted with a view to getting back at An Garda Síochána.”

The tribunal continues.

Previously: Maurice McCabe And The Chief State Solicitor’s Letter