From top: Counsellor Laura Brophy and her partner, Supreme Court judge Peter Charleton; Sgt Maurice McCabe and his wife Lorraine outside Dublin Castle yesterday
On day two of the Disclosures Tribunal in Dublin Castle.
The tribunal heard from two witnesses – counsellor Laura Brophy who works with HSE’s counselling service, Rian, and her line manager Fiona Ward.
The tribunal is investigating claims of an orchestrated smear campaign against Sgt Maurice McCabe.
Readers will recall how an allegation of inappropriate touching was made against Sgt McCabe by a 14-year-old girl in 2006 but, after it was investigated by then Inspector Noel Cunningham, the DPP directed that no prosecution be taken – with the observation that it was doubtful the allegations should constitute a crime at all.
The person who made this allegation is referred to as Ms D in the tribunal. Her father, also a guard, was a colleague of Sgt McCabe’s.
Sgt McCabe was not made aware of this allegation until nine years later, in December 2015.
The tribunal is not re-examining Ms D’s allegation but it is examining how her allegation – pertaining to 1998 when she was aged 6 or 7 – became conflated with another much more serious allegation of rape when counsellor Laura Brophy sent a retrospective disclosure of abuse report to Tusla, following two counselling sessions with Ms D in 2013.
During yesterday’s sitting, it was queried if Ms Brophy was misinformed by a member of Tusla before she sent the catastrophic retrospective disclosure; that of the three sentences that were wrongly attributed to Sgt McCabe in the abuse report, Tusla left one on the amended report in its communication with the gardaí; Supreme Court judge Peter Charleton outlined a “curious coincidence” of the timing of the erroneous report; and it heard Ms D herself is proposing to give evidence.
On Tuesday, during the first day of sittings, Ms Brophy explained that, on August 9, 2013, she had sent the retrospective abuse report – which contained the false allegation of rape – to Tusla because it was her understanding that Tusla had no knowledge of the 2006 allegation and that, therefore, the matter had not been considered by a social worker.
Ms Brophy said this understanding was based on a phone call she had had with Breige Tinnelly, of Tusla.
On Tuesday, it was put to Ms Brophy that, in her notes of the phone call, she made no note of this claim made by Ms Tinnelly.
Ms Brophy said that finding out that information was the purpose of her call and that, had Ms Tinnelly said there had been a previous referral, she wouldn’t have sent it.
Yesterday, Ms Brophy repeated this, saying:
“That is why I felt compelled to send the report and it was advised that I would send in a report.”
The tribunal heard yesterday that Ms Tinnelly, in her report of the phone call, also didn’t make reference to Ms Brophy asking if a referral had been previously sent.
It also heard that in Ms Tinnelly’s notes of the phone call, they also didn’t make reference to Ms Brophy asking her if a referral had been previously sent.
Ms Tinnelly did however note that Ms D had previously notified the gardai and that the DPP directed that there be no prosecution.
It was also brought to Ms Brophy’s attention that Ms Tinnelly created an “intake form” on the same date Ms Brophy sent her the retrospective abuse report, August 9, 2013.
Ms Brophy told the tribunal that she wasn’t aware Ms Tinnelly was creating such a report. Ms Tinnilly will be giving evidence to the tribunal at a later date.
Under cross-examination from Michael McDowell, Ms Brophy was asked to look at notes of a meeting that she had had with her line manager Fiona Ward in July 29, 2013.
The notes were written up by Ms Ward and Ms Brophy agreed that any information Ms Ward had at that point would have originated with Ms Brophy.
In the notes, it states: “Statement made at the time, case didn’t proceed.”
Mr McDowell put it to Ms Brophy that this showed that, in July 2013, Ms Brophy knew that the statement made by Ms D in 2006 proceeded to the DPP and didn’t proceed.
Ms Brophy agreed.
But Mr McDowell said:
“You said yesterday that if the gardaí already knew about it, there would be no point in telling them again about it, isn’t that right?”
Ms Brophy replied:
“Can I clarify that because I am not sure that is exactly what I said?”
She then explained that her main concern wasn’t about the gardaí knowing and that she was aware information was passed to the gardaí and that Ms D had made a statement. Instead, Ms Brophy said, her concern was that Ms D may not have had any contact with social workers.
Mr McDowell asked Ms Brophy if she had asked Ms D if she had had any dealing with social workers and Ms Brophy said Ms D had told her she couldn’t recall. Mr McDowell noted that Ms Brophy did not make a note of this.
Mr McDowell also asked Ms Brophy if she was aware that in 2006/2007, the gardai were obliged to inform the HSE of all such incidents. Ms Brophy said that this was her confusion and that’s what she wanted to check.
Ms Brophy added:
“That was my purpose for ringing social workers, to ask them would it have been reported, and they said they couldn’t confirm so then I had to elaborate further.”
Returning to the notes, Mr McDowell asks Ms Brophy to read out a section, which states: “Didn’t know of social worker involvement or not.”
After reading this, Ms Brophy said:
“So my apologies, that does actually answer your previous question, yeah; I didn’t know.”
Fiona Wards notes also included the following: “Father a garda. She wants to become a garda. Concerned alleged perpetrator (now in his 40s) still a garda, has two daughters of his own. Garda involved in… case of whistleblowing”.
Readers will recall that Sgt McCabe’s identification wasn’t made known to Ms Brophy until August 7, 2013 – when Ms Brophy held her second counselling session with Ms D.
Readers will also recall that on Tuesday, the tribunal heard that, prior to being informed of Sgt McCabe’s identity on August 7, 2013, Ms Brophy says she spoke to a social worker on July 30, 2013, and asked hypothetically – without identifying Ms D – what would or could happen about the type of allegation that Ms D had disclosed.
Ms Brophy said she was told that nothing could have been guaranteed at that point. She also explained that she told Ms D she would find out what she could for her, and that Ms D was concerned that Sgt McCabe would become aware of her identity.
Yesterday, Mr McDowell asked Ms Brophy about this concern Ms D had – of being identified to Sgt McCabe – and queries if Ms Brophy had asked Ms D about her concerns.
Ms Brophy said she felt it was “self-explanatory” and that many of her clients have the same concerns.
However, Mr McDowell argued that Ms D had already made a complaint, which had gone to the DPP. He said: “So there couldn’t have been any secret that she was a person who had made a complaint about it?”
Ms Brophy said Ms D wasn’t keen on it being reported.
Mr McDowell also drew attention to a part of Ms Ward’s notes, of her July 29, 2013 meeting with Ms Brophy, in which it states that Ms D was “concerned about impact of reporting to SW [social work] given she wants to join the Gardaí.”
And a section where it states: “Contact social work department. Social work said… need to have name and details and talk to the client and Gardaí.”
Mr McDowell put it to Ms Brophy:
“So that is, by the 29th, you are telling Ms Ward that you had contacted them and that they had told you that there would be a need to contact the Gardaí, is that right?”
Ms Brophy replied:
“I can see that it’s written on that date, I am just not sure that that is when I had the interaction but I can see that it’s written there.”
Mr McDowell says this “strongly suggests” that Ms Brophy had already been in contact with Tusla about the matter.
Ms Brophy conceded that that was what was written.
In addition, Mr McDowell recalled a note that Ms Brophy took of the meeting in which she states:
“I phoned SW today and spoke with duty social worker, Briege Tinnelly, who I informed about alleged and concerns about the report having been passed to SW [social work] ten years ago.”
Mr McDowell pointed out that this note doesn’t say “I wonder was it passed to them?” Ms Brophy said she supposed she was ringing to clarify matters.
Mr McDowell asked if Ms Tinnelly was able to give Ms Brophy an answer immediately on the phone – in regards to whether a referral had been previously made. Ms Brophy said it was her understanding that Tusla had a record on their system. She couldn’t recall how long it took Ms Tinnelly to retrieve the information, if it was minutes or seconds.
Ms Brophy’s Assessment of Counselling form – she filled out in relation to Ms D’s first initial counselling session – included a list of bullet points.
“This man was a garda in Bailieboro but has since moved. “Forced out” when the allegations came out.”
Mr McDowell told the tribunal it is an undisputed fact that Sgt McCabe was not “forced out” of Baileboro.
In any case, the tribunal heard that on the form, in the section where it asks for – names, address and occupation of alleged abuser – these were left blank but that Ms Brophy came back at a later stage and filled them in.
Ms Brophy said she could not fill that section out until after the second counselling session – on August 7, 2013 – because it wasn’t until the second session that Ms D identified Sgt McCabe.
Mr McDowell put it to Ms Brophy that Ms D was holding back on giving her Sgt McCabe’s name until Ms Brophy could “give her further assurances”. Ms Brophy said that was her best recollection.
“But you did write down at the time “has two daughters at the time aged approximately three and five years.”…You see the point is, you must have known that at the time because on the 29th of July, Fiona Ward, you tell her that?…Could it have been the case that you took it down at the time and knew well at the time who it was?“
Ms Brophy said that if that had been the case, she wouldn’t have needed to meet Ms D a second time – to get Sgt McCabe’s identity – and would have just sent the report in after the initial assessment.
A letter sent by social work team leader Keara McGlone to Superintendent Noel Cunningham on August 15, 2013 was also brought to the attention of Ms Brophy at the tribunal yesterday.
The letter states:
“Dear Superintendent Cunningham, Health Service Executive Child and Family Services have recently received a referral from Rian, a therapeutic counselling service for adult survivors of child sexual abuse. The referral states that Ms. D, now aged 21, has discussed during counselling sessions that she was sexually abused during her childhood by an adult male, M. McC.”
“I note from the social work file that you conducted a criminal investigation into these allegations in 2007. However, it appears the alleged perpetrator was not met with by Health Service Executive at that time.”
“I would like to meet with you to discuss the case prior to making any contact with the alleged perpetrator.”
Mr McDowell pointed out an inconsistency.
“I am just wondering, how could it be that you were told that there was no evidence of a social work file on the 8th or 9th of August in the course of a phone conversation, when, a week later, people are examining its contents and relying on its contents to contact Superintendent Cunningham?”
Ms Brophy said she isn’t in a position to answer that.
Mr McDowell argued that Ms Brophy was misinformed by Ms Tinnelly and that “the reality is that a report was going in on this occasion, no matter what” and that Ms Brophy’s claim – that she wouldn’t have sent in the report had been told that the matter was already known to Tusla – “is not supportive on the paper”.
The tribunal heard that, on August 9, 2013 – the same day Ms Brophy sent the retrospective abuse report, with the false allegation – Ms McGlone and Ms Tinnelly co-signed off on a Child Welfare and Protection document in which Sgt McCabe is identified which said the matter was going to be reported.
Mr McDowell queried, given this, how it could be that Ms McGlone, on August 15, wrote in a letter to Superintendent Noel Cunningham “I note from the social work file…” when six days previously she co-signed off on a referral on the basis that there had been no social work file.
Mr McDowell asked Ms Brophy if anyone contacted her to say that she had been misinformed and she said ‘No’.
Mr McDowell drew Ms Brophy’s attention to an interview with Ms D in The Irish Times from earlier this year. The article was written by Conor Lally.
In the article, quotes are attributed to Ms D in which she speaks negatively of her counselling session with Ms Brophy, though Ms Brophy is not named in the piece. Mr McDowell read out excerpts, saying:
When she was taking it down she said something, I don’t know her exact words, she said ‘I will have to refer this on’. The woman said ‘I remember straight away it got my back up. I was thinking refer what on? This has been reported, this has been investigated and the DPP said insufficient evidence, that is all, that is that, there is nothing going to change, I have accepted that’.”
‘I remember coming out of the counselling session and I was more annoyed than when I went in.'” “‘… more annoyed than when I went in’,” all right? “‘I remember thinking, stirring up shit for what? I knew by her she was going to report it whether I wanted to or not’, the woman said.”
Ms Brophy said this was not her recollection of their meeting.
Mr McDowell asked Ms Brophy if she had ever led Ms D to believe that she was going to report the matter whether Ms D liked it or not. Ms Brophy said she didn’t have the information to do so.
Ms Brophy was again asked about her contact with Supt Leo McGinn – after she was made aware of the error by Ms D on May 14, 2014. It was Supt McGinn who first made Ms D’s father of the “digital penetration” error without realising it was an error.
On Tuesday Ms Brophy told the tribunal that, on May 16, 2014, Ms Brophy sent a letter by registered post to Leo McGinn stating that, further to their call about the error, she’d amended the report and enclosed a corrected report. She apologised and requested that any copy of the erroneous report be retracted and replaced
Ms Brophy’s contact with Supt McGinn followed Ms D telling her that the superintendent hadn’t been told that there was an error made in relation to Sgt McCabe.
Mr McDowell asked Ms Brophy why she contacted the guards, given that her initial retrospective abuse report was never sent by her to the guards in the first place. He referred to an email Ms Brophy sent to Eileen Argue, a social work team leader, in which she stated:
“I have agreed to send the superintendent the amended and correct report by registered post today.”
Mr McDowell asked with whom she “agreed” to do so.
Ms Brophy said it was possible that she felt “it would be for the best to send” it by registered post to ensure that the gardai got the correct report. She said it was her understanding that the false allegation of digital penetration was the subject of a live Garda investigation.
In relation to the retrospective abuse form – which contained the serious errors – Ms Brophy identified three sentences that were wrong and needed to be removed.
But Mr McDowell informed Ms Brophy that, of the three sentences that she identified as wrong and asked to be removed, one remained on the Garda complaint.
Mr McDowell asked Ms Brophy:
“When did you first learn that only two of those sentences had been removed and that the, the content about threatening the father had been left on the amended and improved report?”
Ms Brophy responded:
“You are the first person to tell me that.”
Mr McDowell, in discussion with Supreme Court judge Peter Charleton, explained that it was Tusla which left in the incorrect sentence in their communication with the gardai.
Ms Brophy said she thought the matter had been resolved.
But the tribunal was reminded that, on December 29, 2016, Sgt McCabe received a Barr letter from a Ms O’Loghlen about an allegation of digital penetration of Ms D.
Ms Brophy said nobody ever came back to her about the matter after her attempts to clear the matter up in 2014.
Ms McDowell also asked Ms Brophy about the apologies, including letters, which were given to Ms D. He asked:
“Did anybody in the whole process ever think of apologising to Sergeant McCabe and his family for what had happened, to your knowledge?… did anybody in the system ever ask you to participate in making some redress to Sergeant McCabe?”
Ms Brophy said: “Not that I can recall.”
Michael O’Higgins SC, for the Commissioner Noirin O’Sullivan, read to the tribunal excerpts of a statement made by Ms D’s father in relation to when he became aware of the false allegation related to his daughter and Sgt McCabe – before it was known that it was a mistake – in May 2014.
“Early May, my superintendent, Leo McGinn, asked me did I have a minute. I went into his office. He handed me a HSE referral form and asked ‘is that your lassie? I said ‘yeah, that is her’. I saw the detail of the allegation, digital penetration. I couldn’t believe it. I got a fierce shock. I couldn’t think straight. I felt had she told the counsellor this and not told us. Had this actually happened. She had maybe told the counsellor but had not told us. I was sick to my stomach. I couldn’t wait to get out of the office.”
“I didn’t say anything to Leo McGinn as I didn’t know what was going on.”
This latter line ‘didn’t say anything’ suggests Mr D did not explain to Supt McGinn that this much more serious allegation was wholly different to Ms D’s original 2006 allegation.
Under cross examination, Mr O’Higgins drew Ms Brophy’s attention to an email Ms Brophy sent to her line manager Fiona Ward on May 15, 2014, in relation to a communication Ms Brophy had with Eileen Argue, a team leader in the Cavan Social Work Service. Ms Brophy had been experiencing some difficulty in getting a hold of Ms Argue.
The email states:
“Hi Fiona, I just wanted to update you of my contact with Eileen Argue team leader in the Cavan Social Work Service. Ms Argue informed me that she had contacted the chief superintendent in charge of this investigation and he informed her that the alleged has not yet been contacted in relation to the case as they were just beginning to look into the report from social services yesterday.”
This email indicates gardai had just started looking into the false allegation – as referred in August 2013 – just days before Ms Brophy had sent Supt McGinn a corrected version of the report on May 16, 2013.
In addition, the tribunal heard that, even when the error had been made clear, it had still been said to Ms Argue that somebody within An Garda Síochána would keep the original report along with the updated report.
Mr O’Higgins stated that, according to records, the matter had been given over to the Assistant Commissioner, as opposed to the Commissioner as said by Ms Brophy in evidence on Tuesday.
Under cross-examination from Michael Cush, for the HSE, Mr Cush brought Ms Brophy’s attention back to what Mr McDowell had highlighted earlier in relation to Ms Tinnelly.
Mr Cush said:
“McDowell suggested to you that that part of the note is easier to explain if you knew that it had been passed ten years ago, whereas I understand you to be saying that your concern was to ascertain whether it had been passed ten years ago because you didn’t know?”
Ms Brophy replied: “Yes, that’s correct.”
Mr Cush also returns to the “standard intake form” co-signed by Ms Tinnelly and Ms McGlone on August 9, 2013. Mr Cush states in Section 12 of the form there is essentially a question “Known to social work department,” and the entry is “No”. Elsewhere, in handwriting, somebody raised the question: “Query previously known?”
The tribunal heard that Ms Tinnelly, in her statement to the tribunal, said she ticked ‘No’ on that form, and Ms McGlone, in her statement to the tribunal, said: “The box on section 12 in this case is ticked ‘no’ which means there wasn’t an existing record for Maurice McCabe.”
Mr Justice Charleton also asked Ms Brophy several questions.
He asked if it was the case that Ms D told her that Sgt McCabe had been mentioned in a college lecture, in which he was “held up as an example of how to do things in Irish life” and that Ms D “was taking a contrary view”?
Ms Brophy said this was not told to her.
Justice Charleton also told how it’s his understanding that Sgt McCabe started to get media attention as a Garda whistleblower in December 2013/early 2014.
Ms Brophy said the stories about whisteblowing within the guards and the penalty points controversy didn’t impact her at all and this only became apparent when she went to resolve the error in May 2014.
Mr Charleton asked if Ms Brophy was aware that there was an investigation into a missing computer from a Garda station at around this time, relating to an individual who was abusing children. She wasn’t.
Mr Charleton was speaking in relation to Fr Michael Molloy, of Kill in Cootehill, Co Cavan, from whom a computer was seized by gardai in 2007 and brought to Baileboro Garda Station, on the same day of his arrest.
The computer was never forensically examined and was never mentioned in the file prepared for the DPP by Superintendent Noel Cunningham, even though it was referred to in statements made by a victim and a garda. The O’Higgins commission of investigation would later find the investigation into Fr Molloy to be have “major flaws”.
In November 2009, Fr Molloy was sentenced to five years imprisonment on the count of defilement of a child under 15; three years on the count of defilement of a child under 17; and three years on the count of possession of child pornography, all sentences to run concurrently.
In 2010, Bishop of Kilmore Leo O’Reilly wrote to Cootehill Garda station requesting the computer be located and returned to him as a matter of urgency. But the computer was missing and never subsequently found.
In 2012, a report by Detective Superintendent Tom Maguire stated that, on foot of an investigation into the missing computer by Supt O’Brien, he was of the opinion that Sgt McCabe was in breach of discipline over the missing computer. This opinion was formed before he is appointed to investigate Sgt McCabe.
In February 2012, disciplinary proceedings began against Sgt McCabe, over the missing computer. On June 21, 2013, Sgt McCabe, during his formal disciplinary interview, over the missing computer, said he had nothing to do with the investigation of Fr Molloy and that he never had the computer in his possession.
Then, on July 24, 2013, Sgt McCabe was told that he was, in fact, not in breach of discipline. This decision was based on obvious inconsistencies in the evidence of a garda which was the only evidence against Sgt McCabe. On August 6, 2013, the disciplinary investigation officially ended.
Mr Charleton said:
“… there is kind of a curious coincidence of the report in error going in or around the time when, if it was deliberate, and please park that for the moment… it could be regarded as causing maximum trouble? In other words, escalating something into something that it was not, with a view to doing somebody down, if you get my drift?”
“On the 21st of June 2013 in relation to this case concerning a computer, it’s called the Molloy case, it’s in the public domain, I am entitled to mention, it’s also in the O’Higgins Report, it concerns a sexual abuse, but it just so happens that a computer on which perhaps other records might have been stored went missing out of Garda custody. You appreciate that when something as evidence is brought into Garda custody, that it’s kept there for the purpose of the case, and even if somebody wants a computer for their teenage nephew, or whatever, it still remains Garda property until the absolute end of the case?
“That went missing, and a disciplinary interview had taken place on the 21st of June 2013 with Sergeant McCabe in relation to the missing computer.
“And it so happens that on the 18th of July 2013 Ms. D was referred to Rian, the counselling service, and then the plan was for you to meet her, which you did, on the 24th of July 2013… and the 7th of August 2013. And then on the 24th of July, in the Molloy case, this is the missing computer, Sergeant McCabe was notified by Detective Superintendent Maguire that he was not in breach of discipline in relation to the missing computer, and allegation that he was in charge of the exhibits having been resolved in his favour, that he wasn’t?
“Which would appear to indicate that if you were so minded, and please, I have underlined the word ‘if’, by making this error deliberately, it would have caused an enormous amount of trouble and perhaps supported those in the Gardaí who were against Sergeant McCabe, do you appreciate that?”
Ms Brophy said she did appreciate this timeline of events.
Mr Charleton contined:
“…in the light of all of that, how would you countenance doing such a thing deliberately for whatever motive against somebody; in other words, making the error that you made but instead of it being an error it being deliberate?”
Ms Brophy said “I would never be complicit in something like that.”
The tribunal also heard evidence from Fiona Ward yesterday afternoon and she will continue to be questioned from 2pm today. In addition, Carmel McAuley and Keara McGlone will also give evidence.
The sitting is expected to end at 6pm.
A transcript of yesterday’s proceedings can be read here