Top: Michael McDowell (left) and Sgt Maurice McCabe. Above: From left Daniel McConnell, Juno McEnroe and Cormac O’Keefe
While examining whether media organisations colluded with senor gardai in the alleged smearing of whistleblower Maurice McCabe the tribunal heard from many indignant journalists.
Some resented being there (perfectly understandable if wrongly accused) while others treated the most innocent question with withering hostility.
Combined with this was the idea among a few witnesses, promoted by themselves, that their qualifications, status and perhaps the very future of Irish journalism were at stake.
The effect of all this was to produce testimony that could sound, even to counsel, as self-regarding and pretentious in the extreme.
Justice Charlelton and attending barristers, who may have thought they had witnessed hard to beat amour-propre in the Law Library, could only marvel wincingly.
Declining to confirm whether he had ever met Noirin O’Sullivan, Sebastian Hamilton, editor of the Irish Daily Mail, told the tribunal:
“…I say this as, you know, the third generation newspaper editor in my family. I believe that I should not ever have to discuss, and certainly shouldn’t be compelled to discuss, with anybody outside, who I meet, who I talk to…”
Challenged on why he didn’t follow up rumours regarding Ms D and Sgt McCabe, Fionnan Sheahan, editor of the Irish Independent, informed the tribunal:
“I have national media awards sitting on my desk because I pursued stories as a journalist which started off with basic hard facts….”
Another journalist described how he and colleagues took away certain allegations “and did some of our journalism” to check their veracity.
This suggested an alchemical process known to only a few had been achieved rather than what must have been just a few phone calls.
And it went on and on.
Indignation, convolution and some pretension would all be present during the questioning of journalists from the Irish Examiner.
Political correspondent Juno McEnroe, security correspondent Cormac O’Keeffe and political editor Daniel McConnell – all gave evidence because they were named by the former head of the Garda Press Office Supt Dave Taylor, who is waiving privilege, as having been negatively briefed by him in relation to Sgt Maurice McCabe.
Supt Taylor has told the tribunal he was instructed to negatively brief journalists about Sgt McCabe between mid-2013 up until former Garda Commissioner Martin Callinan’s retirement in March 2014.
When they gave evidence, Mr McEnroe, Mr O’Keeffe and Mr McConnell all refused to confirm or deny whether they had been negatively briefed by Supt Taylor.
Eventually, at a later hearing, Judge Peter Charleton described the evidence of the three journalists as, at times, “mysterious”, before adding “but I am left essentially with Cormac O’Keeffe and trying to read what precisely he is saying”.
The judge’s focus on Mr O’Keeffe is not surprising given what the chairman heard from Mr McEnroe and Mr McConnell.
After the tribunal was set up, and its solicitor Elizabeth Mullan sent letters to various journalists and editors asking for people with any information relevant to the tribunal’s terms of reference, Mr McEnroe initially sent a letter of reply stating he had no such information.
In a subsequent interview with the tribunal’s investigators, Mr McEnroe was shown his letter and he confirmed the content of it was correct.
But when he came to give his evidence, he apologised for sending the initial letter in error, and told the judge he was actually claiming journalistic privilege and wouldn’t be confirming or denying if he had any relevant information for the tribunal.
He also said the letter that he had sent was a “rushed judgment”.
Asked specifically if he had any information of any attempt made by Supt Taylor to discredit Sgt McCabe by reference to an allegation of criminal misconduct, Mr McEnroe said:
“In relation to Superintendent Taylor, I cannot — I cannot answer questions in relation to that, for fear of maybe disclosing information that could be relating to a source.”
The tribunal heard that in an interview with its investigators, the following was put to Mr McEnroe:
“I have been asked whether I’m aware and whether I have any evidence of any attempt made by former Commissioner Callinan and/or former Commissioner Nóirín O’Sullivan or any other senior member of An Garda Síochána to discredit Sergeant Maurice McCabe by reference to an allegation of criminal misconduct made against him, and if so, I have been asked to provide details and all attendant circumstances.”
He answered: “No, I am not.”
When he was questioned by Kathleen Leader BL, for the tribunal, Mr McEnroe confirmed that he didn’t consider Supt Taylor as being a “senior member” of the gardaí when he answered that question.
Ms Leader went on and asked – based on Mr McEnroe saying he didn’t include Supt Taylor in his answer – if the tribunal could therefore not exclude the possibility that he does have some knowledge of some other gardaí (other than Mr Callinan or Ms O’Sullivan, or gardai of assistant commissioner rank) attempting to discredit Sgt McCabe.
Mr McEnroe asked Ms Leader to repeat the question several times.
Mr McEnroe did confirm that neither former Garda Commissioner Martin Callinan nor his successor Noirin O’Sullivan, nor any politician, nor any journalist ever drew his attention to the Ms D allegation against Sgt McCabe.
He also said he didn’t become aware of the Ms D allegation until July 2014 – at which point Supt Taylor was supposedly finished his alleged smear campaign.
Mr McEnroe had the following exchange with Judge Charleton:
Charleton: “Maybe you’d actually speak plainly and maybe you’d just tell us did you become aware of an allegation of sexual misconduct against Sergeant McCabe at any time while David Taylor was Garda Press Officer in the 23 months ending on 10th June 2014.”
McEnroe: “No, I did not, Chairman.”
Charleton: “Well then, he couldn’t have negatively briefed you, could he?”
McEnroe: “I’d rather not discuss any conversations I might have had with a source or sources.”
Charleton: “And David Taylor was a source?”
McEnroe: “I’d rather not discuss conversations I may have had with sources, Chairman, and I am trying to answer questions but I cannot go further than that.”
Charleton: “It seems to me you are not trying to answer questions at all. It seems to me that you are actually playing games, Mr McEnroe.”
McEnroe: “I reject that.”
Mr McEnroe did say that, at the time of Sgt McCabe’s appearance before the Public Accounts Committee in January 2014 – just a week after Mr Callinan appeared and made his “disgusting” remark – he could recall a question mark being raised over Sgt McCabe.
“…this was more gossip, prattle, that somebody raised a question-mark or a doubt around Sergeant McCabe”.
“I’ve tried to recall, and I don’t remember specifics that might have been suggested to me or were put to me. I just remember there was a question-mark raised, you know, whether — is he a trustworthy person, or something along those lines, and I cannot be specific.
“I didn’t take those suggestions very seriously because they weren’t coming to me in a briefing sense, they were coming, as I say, from gossip or from tittle-tattle or something that was just put out there or a side comment. But I did actually go and speak to people who would have met Sergeant McCabe and also people who knew Sergeant McCabe, and I satisfied myself that there didn’t seem to be something to be concerned about.”
Daniel McConnell, who is now political editor of the Irish Examiner was the former group political correspondent at Independent News and Media during the time period of the alleged smear campaign against Sgt McCabe.
He left INM for the Irish Examiner in November 2015.
Mr McConnell wrote articles about the penalty points controversy, the Public Accounts Committee and Sgt McCabe on February 2, 2014, February 6, 2014, and two articles on February 24, 2014.
Similarly to Mr McEnroe, he also told the tribunal he could neither confirm nor deny the claim that Supt Taylor negatively briefed him about Sgt McCabe.
Mr McConnell said around the time of the PAC hearings in January 2014, there was vague “journalistic chatter” about Sgt McCabe but he said it was “very low level, inconsequential, in my view, and certainly something that I never either investigated, looked at, because it wasn’t within my remit to do so”.
Supt Taylor claims he would have spoken negatively about Sgt McCabe to Mr McConnell several times around the time of the PAC hearings and that he did this over the phone.
The tribunal saw there was one mobile phone contact from Supt Taylor to Mr McConnell in early February 2014, one in the second week of March 2014, one in April 2014 and two in May.
Of his position, Mr McConnell said:
“Myself and Mr [Cormac] O’Keeffe, you know, I think would be very… would have very similar views in relation to the principle of journalistic privilege, the protection of sources and the protection of not only those but the gathering of information, and the statement I gave to the Tribunal investigators reflected that and it’s my position here today.”
Kathleen Leader BL, for the tribunal, later had the following exchange with Mr McConnell:
Leader: “Source X gives you information?”
Leader: “Unnamed source in relation to something totally —”
McConnell: “We are speaking hypothetically here.”
Leader: “Totally unconnected to the Tribunal, hypothetical?”
Leader: “Source X says: I was doing something wrong when I gave you that information, I am telling you now that I was doing something wrong, I am waiving any protection, any privilege in relation to the giving of that information, all right?”
Leader: “And not only that, but I am waiving it publicly and I am saying all of this publicly, which is being reported on a daily basis publicly.”
Leader: “So does that source need any protection then, source X, leave Superintendent Taylor out of it?”
McConnell: “Sure. But I come from a position, Ms Leader, which is different.”
Leader: “No, I’m not asking you where you come from. I’m asking you does that source need protection?”
McConnell: “I’m asking from a journalist’s point of view, the person as a journalist who holds the privilege, it is therefore my obligation to the principle of journalistic privilege that I would not be in a position, even if a source, in my view, moved — or a perceived source or an alleged source moved to say — to waive that privilege, I would not be in a position, I feel, compelled by the obligation that I have to do my job, to start getting into a conversation that you are seeking to bring me into.”
Leader: “All right. I will ask you one more time. Does source X need any protection in those circumstances?”
McConnell: “Yes, I think source X would need protection, on the basis that there are many unintended consequences as to how people might ask a question, where a question is coming from, and also the potential motivations of other people, that may seem irrelevant at a particular time but could become relevant at a later point in date — or a later point in time.”
Leader: “If that source is one of a group of people of 12,000, do you think that source needs protection? There are 12,000-plus Gardaí in this country.”
McConnell: I’’m just not willing to get into a position, Ms Leader, to start talking about or getting into a process of identifying people. I would like to be helpful to the Tribunal. I have done a lot of work in terms of meeting with investigators, providing my mobile phone number, studying the evidence at play. I would — am genuinely, Chairman, seeking to be helpful to the Tribunal. I just, however, feel compelled to not get into a position where I feel a source of mine or a root of information could therefore be identifiable, I’m afraid I feel compelled I cannot do that.”
Mr McConnell added:
“If, say, someone gave me information two or three years ago or four years ago, and I find myself in a place like a tribunal of inquiry and I am being put under pressure to reveal where information came from, they’d never speak to me ever again, other people would never speak to me again, because the conclusion would be that Daniel McConnell is someone, when pressure is brought to bear, would sing like a canary.
“I, unfortunately, am not someone who will sing like a canary. I am someone who will protect my sources and someone who believes in the principle of journalistic privilege, and I do so not to frustrate the work of a tribunal of inquiry, but I do so because I think there are competing — you know, there is a balance of rights and issues at play here.”
Cormac O’Keeffe, security correspondent at the Irish Examiner, also refused to confirm or deny whether he had been negatively briefed by Supt Taylor.
But, in contrast to Mr McEnroe and Mr McConnell, Mr O’Keeffe said he couldn’t tell the tribunal if he had heard of any rumours about Sgt McCabe in 2013/2014.
“Anything that I may have heard, that may have come from a source, I am unable to go into because it may or may not identify a source…”
However he went on to say:
“I don’t want to mislead the Tribunal, I don’t know when exactly I would have heard various things. I came to this story I think relatively late. It would have been — I think my first story that is in the — what was circulated, was towards the end of February 2014. So that would have been when I would have started covering it.
“So whatever I might have heard in terms of half snatches of conversation or bits of gossip that may have been circulating, it would have, I would imagine, have been February, March, April, May of 2014.
“…It’s very hard to be certain what I heard or trying to remember what I heard because I don’t remember clearly what I heard. I do remember an allegation of sexual abuse being mentioned, I think when I initially heard that there was no reference to a child, the first
reference I think was in relation to a sexual allegation generally.”
He also said it’s possible he heard this in 2013.
He said he heard it a number of times and that he would have heard it from journalists.
He said he was “very cautious” of the information.
Asked if he would have heard it from anybody else, Mr O’Keeffe said:
“I am unable to comment on anything that may or may not identify a source.”
Judge Charleton pointed out:
“I believe there’s about five million people in the country, that is to say south and west of the border, and if you take out 12,000 of them, and there aren’t 12,000 journalists, let’s suppose there’s a thousand journalists, really and truly, that is getting me nowhere. And you feel kind of we are inquiring, well, of course we are inquiring, but we are not at the point where you are anything close to revealing a source. Really and seriously, Mr O’Keeffe, you are not. Unless I’m missing something totally, and I am off the wall in my thinking.”
Mr O’Keeffe told the tribunal:
“To me, the tribunal has a very specific terms of reference, that it is trying to get to the bottom of it. My fear is that by answering the general question, I will, if not directly, I will indirectly be answering the more specific questions, and I can’t do that.”
Mr O’Keeffe also refused to either confirm or deny if he was negatively briefed by either Martin Callinan or Noirin O’Sullivan.
And he refused to state whether he got any information from any member of An Garda Síochána.
He also said:
“I personally have nothing to hide, I did nothing wrong, but it’s the principle that is at stake. That this is a principle of not doing anything that jeopardises that crucial function that the press fulfil, and that is the free-flow of information from sources that is given in confidence and that is not to be interpreted as confirming whether Superintendent Taylor is or is not a source.”
Speaking directly to the judge, Mr O’Keeffe did confirm that he had previously spoken to Mr Callinan “very, very rarely”, he had met Ms O’Sullivan and he had regular contact with Supt Taylor – as he was the head of the Garda Press Office.
Just before he finished giving evidence, Mr O’Keeffe had the following exchange with Patrick Marrinan SC, for the tribunal:
Marrinan: “Do you believe that you have information that would impact on the workings of the Tribunal but you feel obliged to claim journalistic privilege?”
O’Keeffe: “I do feel obliged to claim journalistic privilege.”
Marrinan: “But in circumstances where otherwise you would have information to give to the Tribunal?”
O’Keeffe: “I feel I am unable to answer that question because my obligation is to protect journalistic privilege.”
Marrinan: “Well, can we exclude the possibility that you are claiming journalistic privilege just simply out of a point of principle, regardless of the circumstances in which you find yourself here giving evidence to the Tribunal?
O’Keeffe: “I am not crystal clear on what you are asking me.”
Marrinan: “Can we exclude the possibility that you are merely, as a matter of course, claiming journalistic privilege here today?”
O’Keeffe: “I think it certainly would be fair to say that I am not coming up here to do something out of a matter of course. I have considered this at some length, I have attended the tribunal as well. This is a considered, and I would admit, it’s a considered position I have taken and it’s an obligation, it’s an obligation on journalists to protect sources.”
Before Mr O’Keeffe withdrew from the tribunal, the judge asked Mr O’Keeffe if he believed he had heard about a rumour concerning Sgt McCabe before the day Martin Callinan stood down from his role as Garda Commissioner, March 24, 2014.
Mr O’Keeffe said he doesn’t know.
He did confirm that, after he heard it, he did check it out but he said he couldn’t tell the tribunal who he checked it out with or what steps he took.
Judge Charleton said Mr O’Keeffe could have checked it out with his colleague Michael Clifford.
O’Keeffe: “Yes, I actually don’t know if I checked it with Mick at the time.”
Charleton: “And I am not asking you who you checked it with but do you remember who you checked it with?”
O’Keeffe: “Not clearly in terms of the various people I might have checked it with.”
They then had this exchange.
O’Keeffe: “I believe my position from the start was, this is not something I am going to follow.”
Charleton: “Right. Well, I have heard reasons why journalists don’t follow things and they all seem to me to be very sensible reasons, such as, for instance, look, there was an investigation, be it by social services or Gardaí, and you can’t publish allegations where, at the end of the day, the DPP says look, if this happened, it didn’t even amount to an assault, never mind a sexual assault.”
O’Keeffe: “I mean, it’s the worst or one of the worst conceivable allegations you could make against somebody, and what do you with it? Am I going to ring the person and put it to them? Am I going to circulate it amongst various people I might check it with, and then they go, hold on, this is Cormac O’Keeffe, he is checking out the story and this is what he said to me? So, from the get-go, you know, it’s not necessarily that I sat down and made a formal decision about it, but my instinct from the start was, this is not something I am going to pursue.”
Charleton: “Yes. And that instinct was confirmed. How long did it take you to check things out?”
O’Keeffe: ” Well, given how hectic that period was between February, March, April and May when the Guerin Report was out, I’m pretty sure that it would have been in that time period.”
Charleton: “So are we talking about pretty much later on then? The 6th May 2014 is the Seán Guerin Report, critical of the previous Garda handling of the matter.”
Charleton: “So would it have been after that time?”
O’Keeffe: “No, I would imagine it’s between that period of February and May, but I mean, I can’t be absolutely sure.”
Judge Charleton clarified with Mr O’Keeffe that he can’t actually say he was never negatively briefed.
Mr O’Keeffe replied: “Well, that is — certainly, in my evidence, I haven’t said that, no.”
Later on, the judge mentioned something that was “disturbing” him and that was the possibility that any journalist, in the future, could write something about the alleged smear campaign against Sgt McCabe after having claimed privilege at the tribunal.
This is something the judge referred to on a number of occasions during the tribunal’s hearings.
Apart from the judge expressing his concern, it also seemed to be a lengthy and roundabout way of seeing if Mr O’Keeffe did actually have information relevant to the tribunal which wasn’t divulging.
The judge and Mr O’Keeffe had the following exchange.
Charleton: “One of the things that has been, I’d say the right word to use is disturbing me, is the whole notion that a journalist would come here and claim privilege and say, oh, I am not answering any of those questions, but are absolutely free, tomorrow morning, in whatever newspaper you care to mention, to write an article, yes, I was approached, and then, without naming your sources, just set out the fact that various members of the Gardaí came to you and said nasty things about Maurice McCabe.
“I mean, it seems absurd, it seems absolutely and utterly absurd that I’m sitting here trying to find stuff out and you are absolutely and completely at liberty to write such an article in the newspaper tomorrow, if you have any
information to that effect, but you are not going to tell me.”
O’Keeffe: “I have no intention of writing such an article.”
Charleton: “Well, do you have the material to write such an article?”
O’Keeffe: “Regarding revealing sources, absolutely not.”
Charleton: “No, not revealing sources, but even saying — look, you know, I have been reading newspapers all my life, and indeed it’s what I do at my lunch hour, is I read a newspaper, and I read several at the weekend so I very much enjoy newspapers and I respect those who are writing in them. But, I mean, do you actually have any information which would enable you to write a story saying, oh, I was approached or somebody told me something about Maurice McCabe? That is what Mr. Marrinan was asking you.”
O’Keeffe: “I am unable and I would not say or write anything that I believe could and would identify sources.”
Charleton: “No, I appreciate that, and we take that as an absolute given, we take that as an absolute given, as a bulwark which is never to be passed, taking that for the moment. But could you, in fact, write an article to the effect that people who you will not name approached you and told you things about Maurice McCabe, could you write such an article truthfully?”
O’Keeffe: “But this inquiry is set up for a very specific purpose with very specific named people in mind.”
Charleton: “Well, perhaps other unnamed people?”
O’Keeffe: “Well, –”
Charleton: “You see, the problem is, you would be entitled to write that article tomorrow, or let’s say the Tribunal report comes out in October and let’s suppose it exonerates everybody and then you know this but you are going to say, well, now is my chance to write this article, and then you write the article and it says that I got things wrong, and I am only a human being, after all, I can’t do anything more than assess what is there, I am not writing a work of fiction, but in the event that it was a question of completely exonerating the Gardaí of ever wishing to undermine the messenger, namely Maurice McCabe, would you ever be in a position where you could write such an article and say, well, the messenger was undermined to me by members of the Gardaí?”
O’Keeffe: “I don’t see how a situation would arise where I could do anything like that that I would see now as potentially be revealing a source.”
Charleton: “Again, and this is a bit like a crossword puzzle the whole morning really, it’s trying to work out what people are actually trying to say to me. What you seem to be saying to me is that in the event that you were to write such an article, then it would be clear that the persons named in the terms of reference would somehow be implicated, is that what you —
O’Keeffe: “Sorry, Chair, that wasn’t what I meant.”
Charleton: “Well, maybe you’d help me as to what you actually did mean.”
O’Keeffe: “That I couldn’t envisage writing any such piece that you are suggesting.”
Charleton: “And does that mean you actually don’t have any information to that effect? Without revealing any sources, does it mean – that is what Mr. Marrinan asked you – that you don’t actually have any information to the effect that there was any kind of attempt, anywhere, by any garda, to say that Maurice McCabe was not the person he was cracked up to be but, in fact, had an allegation against him in the past that there might be some validity to, or anything of that variety?”
O’Keeffe: “Well, I suppose that is the fundamental issue for me, is that I believe that by — that I can’t say anything that may reveal who a source is or who is not. That is my position.”
Charleton: “I know that. But, I mean, could you ever write an article to the effect that the Tribunal got it wrong, in the event that the Tribunal exonerated the Garda?”
O’Keeffe: “I’d have to ask you to ask me that question again, sorry, Chair.”
Charleton: “Could you ever write an article, if the Tribunal exonerated the Garda from ever trying to undermine the character of Maurice McCabe, saying, well, the Tribunal got it wrong because I know to the contrary? You would be absolutely entitled, as a journalist, to write such an article, by the way.”
O’Keeffe: “No, I couldn’t see myself writing such an article.”
The former editor of the Irish Examiner Tim Vaughan and its special correspondent Michael Clifford also gave evidence to the tribunal and will be covered in part 2 tomorrow.
Previously: Maurice McCabe And The Mail Newspapers