Clockwise from left: Sgt Maurice McCabe, former Chief State Solicitor Eileen Creedon, now a High Court judge; Superintendent Noel Cunningham

Yesterday.

The Disclosures Tribunal resumed in Dublin Castle.

Readers will recall how the tribunal, overseen by Supreme Court judge Peter Charleton, is investigating claims of an orchestrated smear campaign against Garda whistleblower Sgt Maurice McCabe, by former Garda Commissioner Martin Callinan with the knowledge of his successor Noirin O’Sullivan, as alleged by the former Head of the Garda Press Office Supt Dave Taylor.

The tribunal is currently dealing with the inquiry’s term of reference ‘e’ which is 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.

Yesterday, the tribunal heard transcripts from the O’Higgins Commission of Investigation; it heard a number of serious “errors” made in terms of claims made about Sgt McCabe during the commission; and it heard how Ms O’Sullivan consulted the Department of Justice about the legal strategy of An Garda Siochana taken at the commission.

It also saw a transcript of the tape recording that Sgt McCabe had made of a meeting he had with Supt Noel Cunningham and Sgt Yvonne Martin on August 25, 2008.

And it heard that at least one section of a document signed by the Chief State Solicitor of the time Eileen Creedon, now a High Court judge, was incorrect and contained a claim attributed to Supt Noel Cunningham which was proven to be untrue by the tape.

It also heard that Supt Cunningham’s notes matched what was revealed in the tape recording – prompting Kathleen Leader BL, for the tribunal, to ask how it ended up in Ms Creedon’s letter.

Readers should note Ms Creedon’s name was not mentioned in yesterday’s proceedings.

In addition, Kathleen Leader BL, for the tribunal, told the tribunal that Sgt McCabe’s integrity was impugned at the commission.

To recap…

Readers will recall how a retrospective allegation was made against Sgt McCabe by a 14-year-old daughter of a Garda colleague of Sgt McCabe’s in 2006 and, following an investigation by then Inspector Noel Cunningham, the DPP directed that no prosecution take place.

The allegation made by the then girl, referred to in the tribunal as Ms D, was that, during a game of hide and seek in 1998, when she was about six, Sgt McCabe pressed against her. Ms D used the word “humping” in her Garda statement.

Ms D made the allegation in a statement to gardai in December 2006, about 11 months after her father, Mr D, lost his position as sergeant in charge of the crime unit and was reverted to regular sergeant, following a report made by Sgt McCabe against Mr D for attending the scene of a suicide after drinking alcohol.

Ms D’s allegation was investigated by Supt Noel Cunningham and the DPP ordered that no prosecution take place.

The DPP’s directions included the following:

“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. Further, the account given to her cousin [redacted] differs in a number of respects to that given to her parents and the Guards. There is no basis for a prosecution.”

The tribunal has already heard that Sgt McCabe was verbally briefed of the DPP’s full instructions by the Cavan State Solicitor Rory Hayden on April 5, 2007, the day they were issued, but he kept his knowledge of the directions to himself.

The tribunal has also already heard that Sgt McCabe and Supt Cunningham didn’t eventually meet to discuss the DPP’s directions until May 8, 2007.

Ms D’s allegations resurfaced six years later, on August 9, 2013, when Ms D received counselling from RIAN counsellor Laura Brophy.

During this counselling, Ms D repeated the 2006 claim and Ms Brophy unnecessarily re-referred – in so much as it had been previously referred and investigated – the matter to Tusla but conflated the “humping” allegation with an allegation of rape which was wholly unrelated to both Ms D and Sgt McCabe.

This allegation of rape sat in an unallocated Tusla file until May 2014 when it was simultaneously found to be a mistake and yet travelled officially all the way up to the 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.

Sgt McCabe didn’t learn of this false rape allegation until a letter was sent to him in December 2015.

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

As mentioned above, the tribunal is currently investigating 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.

Essentially, the tribunal is currently tasked with deciphering what exactly Ms O’Sullivan’s approach was during the O’Higgins Commission of Investigation and to decide if it was justified.

The O’Higgins Commission of Investigation – between May 13, 2015 and December 17, 2015 – looked at allegations of Garda misconduct in the Cavan-Monaghan area, as laid out by Sgt McCabe.

During the inquiry, Ms O’Sullivan was represented by Colm Smyth, SC, while Sgt McCabe was represented by Michael McDowell, SC.

Yesterday the tribunal heard Kathleen Leader BL for the tribunal, take Judge Charleton, and those in attendance, through sections of transcripts from the O’Higgins Commission of Investigation.

They heard audio recordings from the commission while Ms Leader’s lengthy statement was followed by all in attendance on screen.

Ms Leader also read out correspondence and statements given to the tribunal from members of the Department of Justice, the Office of the Attorney General and the former Justice Minister Frances Fitzgerald.

Specifically, Ms Leader revealed:

At least two errors, which were not in Sgt McCabe’s favour, were relayed in the O’Higgins Commission of Investigation.

This follows Patrick Marrinan SC, for the tribunal, last August telling the tribunal that in respect of the “litany of grave errors” concerning Tusla, “There isn’t an error in his [Sgt McCabe’s] favour. Nobody made a mistake by which he benefited.”Continue reading →