Clockwise from top left: Marian Finucane; Gerald Keane and former Garda Commissioner Martin Callinan
The Disclosures Tribunal will resume with celebrity solicitor Gerald Kean taking questions first.
Sgt Maurice McCabe and former Garda John Wilson sued over comments made by Mr Kean during a panel discussion on the Marian Finucane Show on RTÉ Radio One on Sunday, January 26, 2014.
The radio appearance came two days after the then Garda Commissioner Martin Callinan met Fianna Fail TD and then chairman of the Public Accounts Committee John McGuinness in a car park on the Naas Road – Friday, January 24, 2014.
At this time there were discussions within PAC over whether or not Sgt McCabe would go before it to discuss the quashing of penalty points, following the publication of a report by the Comptroller and Auditor General into the matter in October 2013.
Mr Callinan had appeared before the PAC on Thursday, January 23, 2014, to discuss the same report – which found that one in five motorists avoided penalty points because their cases were not pursued. For 2011 and 2012 – the C&AG found approximately 2,900 cases were terminated for around 700 vehicles, with three or more cases terminated each.
Mr McGuinness claims at the car park meeting of January 24, 2014, Mr Callinan told him Sgt McCabe abused his children and nieces and that he was making a “grave mistake” in relation to the PAC.
Mr Callinan denies Mr McGuinness’ claims.
In October 2013, the then Minister for Justice Alan Shatter told the Dail that Sgt McCabe and ex-Garda Wilson had not cooperated with an internal garda investigation into the quashing of penalty points by Assistant Commissioner John O’Mahoney – which found there was no widespread quashing of points.
In March 2014, Mr Shatter apologised in the Dail for making this claim.
The tribunal has already heard that after Sgt McCabe heard Mr Kean’s comments, he wrote to Mr Kean and that Sgt McCabe received a letter back from Mr Kean.
These letters haven’t been shown to the tribunal yet.
Further to this…
The transcript from the Marian Finucane Show (the other panellists were then Minister for Communications Pat Rabbitte, former Assistant Commissioner Martin Donnellan, former editor of the Sunday Tribune and managing destination editor with the Lonely Planet Noirin Hegarty):
Gerald Kean: “I am very, very clear in my opinion and I think it’s reflected by Mary Carr in the Mail [Irish Mail on Sunday] today that matters of criminality should be left within An Garda Siochana to deal with and if, as some political commentators and media persona have said this week, they don’t have confidence in the Garda Siochana, then we’ve a really serious problem because I do have confidence in the Garda Siochana. And I do think that matters of criminality, where there’s allegations of criminality have to be dealt with within the force.”
Marian Finucane: “But the force investigating the force?”
Kean: “Well that’s what the force is there for. Let me put it this way to you. And I mean I’m not sure, I don’t understand why this hasn’t been highlighted in the media. If we take, for example, the one that I have an interest in, these penalty points and the role of the Commissioner of An Garda Siochana [Martin Callinan] there.
“There’s two words – I know Noirin and Martin were talking beforehand about – first of all, you know, this criticism of him saying before the Public Accounts Committee that it’s ‘my force’ and this – well, with all due respects, the head of the Armed Forces calls ‘his men’.
“Nobody’s suggesting the Commissioner is at home with the Deputy Commissioner [Noirin O’Sullivan] and Assistant Commissioners sitting around the fire planning a coup de tat. I mean ‘my force’ denotes pride, it does.
“And I did my usual yesterday, I contacted guards all over the country. I spoke to 13/14 members of the force, now they’re mostly guards – one inspector and one sergeant – and they basically are saying, there’s nothing wrong with that.
“It is his force, he’s the leader, he’s not suggesting, for one moment, it’s not a very important organisation that’s there for the benefit and at the behest of the State – of course he’s not. It’s just a turn of phrase.
“And then I know there’s this question about him referring to ‘disgusting’. You know, when you put that in context, what he’s saying is that he’s always stated, and I’ve been in the presence, I only met the man personally once, so he’s not somebody I know that well, but I know at one function he advocated, in no uncertain terms, the importance of whistleblowers and the importance of protecting them but…”
Finucane: “But yet, but yet, there was fierce undermining of…sorry, Noirin, you wanted to come in on…”
Kean: “Well, yeah, the undermining is the fact that when whistleblowers, first of all, do not co-operate in any way shape or form with the investigation, the investigative committee under Inspector [sic, Assistant Commissioner ] John O’Mahoney] who’s a very respected man, they didn’t co-operate with that at all. They go in, they breach the Data Protection Act, that’s clear. I mean I think that is clear.
“And from the information that I have, it looks as if they breached Data Protection, which is a criminal offence, and then what they do is they spoonfeed this information to certain Independents in Dail Eireann, instead of the proper practice, procedure. I don’t believe for one minute that the Minister, or sorry, that the Commissioner and Deputy Commissioners and Assistant Commissioners are going to condone for one moment any illegality that takes place within An Garda Siochana.”
Finucane: “Gerald? Do you remember Donegal?”
Kean: “Yes, I do. Yeah I do. But I’m not saying, sorry, I didn’t say there’s no wrongdoings within An Garda Siochana.”
Kean: “I said I don’t accept that the Minister, or sorry that the Commissioner, the Deputy Commissioners, the Assistant Commissioners, all sit around and said ‘let’s bury this, let’s bury this’. I don’t accept that.”
Noirin Hegarty: “I would say to Gerald, I would disagree completely. Look at the facts. These whistleblowers did go through the proper procedures within the gardai. It would be generally viewed that it was somewhat of a whitewash internally in terms of how they dealt with this, then they went to elected members of Dail Eireann. Now they’re before the Public Accounts Committee with information. There isn’t transparency in this.
“If you’re the leader of an organisation, like the Commissioner of the Gardai and somebody comes to you to give you information that you don’t want to hear and your first instinct, or even your second or third instinct, is to discredit that person or to shut them up in some way, then your part of the problem and I think what we saw this week with Martin Callinan was that he may well be part of the problem.
“He talked about ‘my force’ and I don’t agree with you, the head of the Armed Forces doesn’t refer to ‘his men’. Number one, it’s not just men anymore, it’s men and women.
Finucane: “They forget that.”
Hegarty: “They do forget that. But he also referred to the whistleblowers as ‘disgusting’. Now this is highly charged, personal language – what is disgusting about bringing into the public arena something you feel very strongly about.
“In fact , the price that the whistleblowers have paid has been enormous. John Wilson was effectively forced out of the gardai and the sergeant [Maurice McCabe] has been named now and people know who he is and I can only imagine that there are reprisals internally are there. John Wilson had a rat tied to his door so his family have paid an enormous price for him coming out and saying, he didn’t have to do this at any point.
“And I think what you’re seeing is that culture eats strategy for breakfast. So no matter what you’re saying about internal garda procedures, at this point there needs to be some kind of an independent inquiry to restore faith.
“Because why should there be a golden circle that get their penalty points written off.
Finucane: “Martin Donnellan…”
Hegarty: “Because you’re a celebrity , because you’re a journalist, or because you’re whoever, it’s wrong. It should be one law for everyone.”
Kean: “But the Commissioner said that. The Commissioner said that.”
Hegarty: “But, in practice, it’s not what’s happening. Look at the figures, Gerard. You see. For example, seat belts, something like 500 penalty points for seat belts written off two years ago, then it went down to 300, there were none last year – nobody had their penalty points quashed for not wearing their seatbelt. Now if that doesn’t tell you that there was a problem, and that people are waking up to it, what does?”
Finucane: “Well, can I just come to Martin Donnellan on that, because I mean the point that Gerard made and that I believe is universally accepted is there is respect for the gardai, there is a desire for them to do their job, etc, etc, etc. But they have to be seen to as well, would you not say?”
Martin Donnellan: “Well, you know, the gardai, since 1922, they operate on the moral authority of the people of this country – there’s no doubt about that. So that’s the way they’re founded and set up. And I trained back in the late 1960s and during the training and during our mentoring out in stations, we were encouraged to use our discretion and when we went in, poor judges brought people in for various offences, minor and serious, but generally minor in the District Court, and you had some young fella for his first offence, and it might be a small amount of cannabis, it might be breaking a window and the judge used, the judiciary used discretion all the time.
“And the judge would say to the gardai and it was said to me many a time: ‘do you think we should give this guy a break here. If I give him a criminal conviction, he may not realise it now but it is going to come again’ him later on in life – he’s going to have a criminal conviction and that is the way I came up through the job.
“I saw discretion being used very wisely and it’s part of what the gardai do. Now. Ok. We’ll come along now to the penalty points and the, the, you see, as I look at this from outside now. Five and a half years gone now…”
Finucane: “You’re still part of the family.”
Donnellan: “I am indeed. And maybe fell out with them a little bit at times and, you know, but I learned the best form of success is revenge anyway. A very wise man said that to me. But discipline, we’re a disciplined, the gardai are are disciplined organisation. Now, it’s OK, like I don’t know Mr Wilson, and I don’t know the sergeant [Maurice McCabe] so I don’t know how they got to the situation or how it developed to where we are now – where we have. Now. I read a paper the other day with shock, where it said that up to 200 officers are, we’ll say, cancelling notices corruptly, now that’s a very, just think about that for a minute, that’s unlawful. It’s unlawful, it’s corruption, it’s unlawful.”
Finucane: “But do you take Noirin’s point?..”
Donnellan: “I see Noirin’s point..”
Finucane: “…that when the whisteblowers came out in the open, suddenly the number goes down to zero.”
Donnellan: “Correct, yeah, and I agree. Even [Assistant Commissioner] John O’Mahoney has been mentioned here already. He did an investigation. He’s one of the best and most competent investigators in this country. I worked with that man at various ranks but the Commissioner put him in charge and I could see why. But the people that made the allegations, what I would like to know is, had they the full facts? They downloaded stuff from computers, ok? They went then and they made assumptions. This, that these were incorrectly or unlawfully…”
Finucane: “Well they noticed patterns.”
Donnellan: “Of course they did. But did they go behind the issuing or the cancellation of them? Now, I agree with you. If some-…”
Finucane: “They were knocked off PULSE, as I understand, straight away – so that is circulating wagons. And I mean, I’m quoting [Judge Peter] Smithwick when he talked in his [tribunal] report about within the gardai, loyalty was prized above honesty..”
Donnellan: “Well, I can say this much to you, as far as I’m concerned, and the people I, I prosecuted, arrested guards and prosecuted them and jailed them. That was part of what I did. I did internal investigations aswell.
“Now, OK, Judge Smithwick said loyalty took precedence over honesty, I think that is not correct. He’s entitled to his opinion, he sat at that [tribunal] for five years, he’s an eminent member of the judiciary, but that’s a very big reach I do think. Because…”
Finucane: “But you see that is what people are saying, some people, not all people, they’re saying about the Commissioner.”
Donnellan: “I know it is, listen I don’t want to go talking about the Commissioner or his choice of language or whatever. But. Listen. We’re a disciplined force, I do not believe that Garda Wilson and the sergeant were effectively dealt with in the first place. Unless that they’re saying ‘well, listen, I’m going to go further with this’. I heard a saying a long, long time ago when we’d be dealing with somebody, he’d say ‘listen, if I go down on this, I’ll bring a lot with me’. So maybe they wanted to go to a higher forum…”
Finucane: “You cannot allege that against them either.”
Donnellan: “No, I am not alleging, I’m not alleging but..’
Finucane: “That can’t be done..”
Hegarty: “That’s why we need…”
Talk over each other
Pat Rabbitte: “I don’t think Marian that we can judge the issues here today. The issue is whether or not it’s properly before the Public Accounts Committee. I agree with what Martin says about discretion in all walks of life, including the Garda Siochana and I understand what he’s saying as well about what the mood in the country and amongst the gardai was when he was a young garda growing up in the force, so to speak. The past is a foreign country, the gardai and the rest of us now operate in a more complex and difficult environment and the issue is, ought the Public Accounts Committee examine this question.
“And it seems to be, since the day, the Secretary General of the Department of Justice handed over the job of Accounting Officer to the head of the Garda Siochana, that he is responsible to the Public Accounts Committee for monies misspent, or monies badly spent or monies forgone or not collected on behalf of the Exchequer so, that much is very clear.
“Now the issue is narrowing it down to whether or not the Public Accounts Committee ought to be entitled to take witnesses and whether in particular take the witnesses that are the whistleblowers in this case. I don’t know what Gerald’s opinion is, as a lawyer.
“My own opinion is that: so long as the committee has satisfied itself that they have a credible witness and he or she, he in this case, follows a legitimate, answers, follows a line of answering legitimately questions that are put to him, that he is entitled to be heard.”
“He’s not entitled to use it as a platform to promote an agenda of his own, if he had such an agenda or to make allegations…”
Finucane: “Well allegations against named people would be outrageous…”
Rabbitte: “…against particular colleagues who wouldn’t be there to defend themselves. That, it seems to me, would not be permitted. And but, is the Public Accounts Committee entitled to take evidence if they have settled in their own minds that he’s a credible witness, and that they’re entitled to ask legitimate questions relating to monies forgone. It seems to me they are.”
“Whether or not there has been any criminality, as Gerald says, is a separate issue for a different forum. But in terms of whether monies have been forgone, that ought to have been collected for the State, it seems to me the Public Accounts Committee are entitled to pursue it.”
Kean: “I think the important thing is that, we all agree, and I think it’s accepted, that the vast majority members of An Garda Siochana here deserve our support and confidence. But it annoys me when people are not getting the facts right.”
“And Noirin is simply, absolutely, totally incorrect when she says that the whistleblowers have done everything they can within An Garda Siochana, on this matter that’s been investigated, it’s just simply wrong. She’s believing what she’s reading in the papers.”
“The fact of the matter is that Inspector [Assist Comm] John O’Mahoney who we accept is a wonderful, I’ve never met the man but I’ve heard great things about him. But he was set up to investigate this and these two gentlemen…”
Finucane: “I’ve no doubt the other men are wonderful men too, do you know what I mean?”
Kean: “I’ve no doubt about that aswell. I’m not denying that at all. But what I’m saying is they did not cooperate with that investigation. And by the way, just so you’re aware of these…as a result of John O’Mahoney’s investigation, three or four members of the force have been sent forward for disciplinary action.
“Secondly, many new reforms have been put in place, based on his, which were needed, we’re not saying, nobody is suggesting, of course there were wrongdoings. But in addition to that, which people don’t know, is the anti-fraud mechanism which is in place has sent four relatively senior members of An Garda Siochana files to the DPP for criminal prosecution.”
Finucane: “But you sound like that’s outrageous? That is the way it is supposed to be..”
Kean: “No, no..It should be that way, yes, but what I’m saying is, you’re absolutely right. And every one of them who’ve done a wrongdoing should go. But what I’m saying is that for some reason ‘it’s as if there’s a whitewash here’, nobody is aware that they are trying to do something and that’s under the Garda Commissioner, and I think that reflects badly on the rank and file members if there is just one-way criticism of An Garda Siochana. I believe that An Garda Siochana are well able to deal.
“And if, by the way, at the end of that, they don’t get a say, and if they don’t, if the whistleblowers, who have a very legitimate right to air their grievances, if they don’t go through the proper channels to get that, well absolutely fire on ahead.”
Hegarty: “But on the one hand, Gerald, you’re saying the whistleblowers have an absolutely legitimate right to air their grievances, on the other hand it’s clear that this hasn’t been dealt with.
“You’re speaking as if this is done, it’s over, it has been investigated thoroughly and we can move on from here.
“Clearly, we can’t.”
Kean: “Nobody said…”
Hegarty: “What I’m saying is, nobody, well you are…”
Kean: “I’m saying that you can’t, you can’t have it, in fact I’m saying the very opposite, you can’t investigate it thoroughly when an inspector is set up to investigate and the two whistleblowers don’t cooperate, they don’t cooperate…”