Tag Archives: Disclosures Tribunal

From left: Supt Noel Cunningham, solicitor at the Chief State Solicitor’s Office Annemarie Ryan, Colm Smyth SC and Michael McDowell SC

Today.

At the Disclosures Tribunal.

Supt Noel Cunningham is scheduled to give evidence.

Although Supt Cunningham is not waiving his client/lawyer legal privilege, it is hoped Supt Cunningham will be able to shed light on how and why several specific events occurred at the O’Higgins Commission of Investigation in 2015.

It’s also hoped Supt Cunningham may be able to help shed light on a matter that, to use a term used several times by various counsel at the tribunal, appears to have left solicitor at the Chief State Solicitor’s Office Annemarie Ryan and Michael McDowell SC, for Sgt Maurice McCabe, “diametrically opposed” to each other.

Specifically, Ms Ryan has given evidence to say that she gave Supt Cunningham’s report of an August 2008 meeting with Sgt Maurice McCabe in Mullingar to both the commission and Sgt McCabe’s counsel – namely Mr McDowell – on the morning of May 18, 2015.

On Friday, Mr McDowell categorically told the tribunal this didn’t happen.

This prompted Mr McDowell to have the following exchange with Judge Peter Charleton.

McDowell: “The report by Superintendent Cunningham dated some day in September 2008 was not handed in on day 4 [May 19, 2015] — or day 3 [May 18, 2015]. It was produced at a later stage.”

Charleton: “Maybe. But the evidence I have at the moment is that it was actually handed in with the letter —

McDowell: “No, it wasn’t.”

Charleton: “Well, somebody is going to have to tell me that, and not just by nodding and gesticulating. If that is going to become important, somebody will have to tell me by evidence.”

McDowell: “I think, Judge, that if you check the transcript, the evidence is the contrary, that it wasn’t handed in that day.”

Charleton: “Well, the evidence is it was handed in that day and that people didn’t get a chance to read it, specifically those whose name was to the letter. But, Mr. McDowell, that can all be corrected. Don’t worry about it. That’s my understanding of it, but I actually think I’m right. I don’t always think I’m right, but I actually think I’m right on this occasion.”

McDowell: “I know I am not always right, but on this I think I am right.”

Charleton: “You could well be, because you were there, but I think someone is going to have to tell me about that if it becomes important.”

Why does this matter?

Because Supt Cunningham’s report of this Mullingar meeting matched the transcript of Sgt McCabe’s tape recording of the same.

And yet, this fact came as a “total surprise” to Supt Cunningham’s legal team on June 25, 2015, as stated by Michael McNamee BL, for the former Garda Commissioner Noirin O’Sullivan.

To recap.

Readers will recall how a legal row broke out at the commission on Friday, May 15, 2015, while retired Chief Supt Colm Rooney was giving evidence.

After the row – and after the legal team for then Garda Commissioner Noirin O’Sullivan, Supt Cunningham, Chief Supt Rooney and Supt Michael Clancy, among others said it was Ms O’Sullivan’s instructions to challenge the motivation of Sgt McCabe – Judge Kevin O’Higgins called on Ms O’Sullivan’s legal team to supply the commission and Sgt McCabe with a document outlining the claims that they intended to put to Sgt McCabe.

This letter, from the Chief State Solicitor’s office, was submitted to the commission’s chair and Sgt McCabe’s legal team on the morning of May 18, 2015.

This letter included an allegation of a blackmail-like scenario against Sgt McCabe in paragraph 19 of the letter.

It stated:

“Having been appointed to investigate Sergeant McCabe’s complaint against Superintendent Clancy, now Superintendent Noel Cunningham, having attempted on a number of occasions to meet with Sergeant McCabe, eventually met with Sergeant McCabe by appointment on the 25th August 2008 in Mullingar Garda Station, to receive details of his formal complaint.

“Superintendent Cunningham was accompanied to this meeting by Sergeant Yvonne Martin. Notes were taken at the meeting and countersigned by Sergeant Martin and a detailed report of the meeting was prepared by Superintendent Cunningham, and its contents agreed with Sergeant Martin and forwarded to Chief Superintendent Rooney. In the course of this meeting Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaints against Superintendent Clancy was to force him to allow sergeant McCabe to have the full DPP directions conveyed to him.”

Colm Smyth SC, for Ms O’Sullivan and other gardai, put this allegation to Sgt McCabe as he gave evidence on Monday, May 18, 2015 and Sgt McCabe said it was “absolutely false”.

Kathleen Leader BL, for the tribunal, previously said that while Supt Cunningham gave evidence on May 19, 2015, “an issue arose with regard to the circulation of documentation which led to Superintendent Cunningham not completing his evidence on that day”.

The tribunal hasn’t heard the details of that issue.

In any event, the commission didn’t sit after May 19, 2015 until June 25, 2015.

But on June 11, 2015, lengthy submissions were given to the commission and to Sgt McCabe’s legal team, on behalf of Ms O’Sullivan and the other gardai, and in one paragraph, the allegation of blackmail was repeated.

And, the submission claimed, evidence would be put forward to support this.

It said:

“It is understood that Superintendent Cunningham and Sergeant Martin will give evidence that Sergeant McCabe said at this meeting that the complaint which he had made was a bid by him to have the full DPP directions conveyed to him and to the complaining party. This is recorded in a report of the meeting prepared jointly by Sergeant Martin and Superintendent Cunningham.”

However,

On June 25, 2015, when the commission resumed, Judge O’Higgins called into question this blackmail-like allegation as set out in the Chief State Solicitor’s letter of May 18, 2015.

This was because, in the intervening period of when the commission wasn’t sitting, Sgt McCabe had provided a secret tape recording of the meeting which proved that no such blackmail situation had unfolded at the meeting.

Colm Smyth SC, for the then Garda Commissioner and Supt Cunningham, told Judge O’Higgins that the tape recording “came up somewhat by surprise to us during the course of the examination by me of Superintendent Cunningham, I am going to have to take him through this transcript”.

Sean Gillane SC, for the commission, put the following to Supt Cunningham:

“I know you didn’t write this letter but again I infer from your evidence that in relation to paragraph 19 of the letter written by the Chief State Solicitor that has been referred to this morning, that following then is, I put no higher than this, the wrong end of the stick, in the course of this meeting Sergeant McCabe advised superintendent the only reason he made the complaint against Superintendent Clancy was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him. That just doesn’t appear to be right.”

Supt Cunningham agreed.

Supt Cunningham then went on to point out that his report of the August 2008 meeting matched the contents of Sgt McCabe’s tape.

Supt Cunningham’s report, the tribunal has heard, stated:

‘Sergeant McCabe stated that this report was composed by him to highlight matters that occurred in Bailieborough where he was Sergeant in Charge in Bailieborough station. He stated the report was a bid by him to have the full directions of the DPP conveyed to him and the Ds in relation to the allegations made against him by Ms. D and subsequent investigation.’

In a later statement to the Disclosures Tribunal, Mr Smyth attempted to explain why a false allegation had been put to Sgt McCabe at the commission. He said:

“A misunderstanding in instructions which came from clients other than Commissioner O’Sullivan resulted in an inaccuracy related to an interaction with Sergeant McCabe on 25th August 2008 in Mullingar Garda Station.”

But when he gave evidence to the tribunal about this “misunderstanding in instructions”, Mr Smyth said, actually, it wasn’t so much of a “misunderstanding” but they were the “wrong instructions”.

He said:

“I think there was a misunderstanding as to the precise — the proper instructions should have been that this, just as I have related to you, we weren’t given the correct version, and there was a clear misunderstanding – not so much a misunderstanding, there were clearly wrong instructions.”

And, as for the perceived so-called ‘to’ versus ‘against’ error in the CSS letter, Mr Smyth said:

“I can speak for myself in respect of this, I was left in no doubt about this; my clear perception was that this was “against” rather than “to” at the time.”

When asked if Mr Smyth saw Supt Cunningham’s report on the morning of May 18, 2015, Mr Smyth said: “I don’t recall seeing that document.”

When Michael McNamee BL, also for Ms O’Sullivan and Supt Cunningham, was asked if solicitor Annemarie Ryan gave Supt Cunningham’s report of the Mullingar meeting to him on the morning of May 18, 2015, Mr McNamee said: “No, sir, she didn’t.”

Mr McNamee also gave evidence about the submissions and said “they were approved before they were delivered”.

Readers will also recall how Diarmaid McGuinness SC, for the tribunal, has told the how Supt Cunningham made a statement to the tribunal explaining why he didn’t spot the mistake in the Chief State Solicitor’s letter.

Mr McGuinness said:

“The position is that he [Supt Noel Cunningham] recites in his statement that he received the letter, he didn’t have an opportunity to print it, and read it from his phone, but he wasn’t able to read it from his own phone and he said he had bad eyesight and he said that he didn’t see the mistake in paragraph 19, and that, had he seen the error, it would have been clear to him.”

When asked about this claim and if it was brought to his attention at the time, Mr McNamee said: “No, it was not brought to my attention at the time.”

Readers may wish to note it was in this exchange Ms Ryan had with Ellen Gleeson BL, for Colm Smyth, that she claimed she gave Supt Cunningham’s report to the commission on the morning of May 18, 2015.

Ellen Gleeson: “Ms. Ryan, I think you indicated, Mr. McDowell asked you earlier to confirm that it was only when the record of the Mullingar meeting came to light that the error in the letter of the 18th of May was revealed?”

Annemarie Ryan: “That is correct.”

Gleeson: “But in fact, I think you had handed in to the Commission and I think also to Sergeant McCabe’s team, as I understand it, Noel Cunningham’s report of the September 2008 with the letter of the 18th May, you had made that available, I think you said earlier in your evidence on day 42, at page 140, that you had handed in those enclosures, including that report on that date?”

Ryan: “Yes. The 18th May 2015, I recall Mr O’Hagan [solicitor for the commission] wanted the letter immediately and, as I said, I was late for other reasons getting over there, out of my control, and I gave the letter over, I was then copying the documentation, there was three documents and they followed within a couple of minutes, and the hearings commenced and I do recall a part — and then a copy of it I was directed to give it to Maurice McCabe’s legal team. My notes show I gave over three copies and with the letter, with the documentation and no other party received that letter or documentation.”

Gleeson: “Thank you. And the September 2008 letter, of course, referred to the complaint being to Superintendent Clancy, isn’t that right?”

Ryan: “Yes.”

Gleeson: “And would you agree, therefore, that the September 2008 report, which revealed that mistake in relation to the complaint against Clancy, was made available to everyone by your clients before the transcript of the Mullingar meeting was provided by Sergeant McCabe?”

Ryan: “Yes, it was. I received it directly from the clients that morning of the 18th of May 2015.”

Previously: “The Linchpin”

Disclosures Tribunal on Broadsheet

UPDATE:

From, top: Maurice McCabe And Lorraine McCabe; From left: Former Garda Commissioner Noirin O’Sullivan; Supreme Court judge Peter Charleton and former Minister for Justice Frances Fitzgerald

Today.

At the Disclosures Tribunal in Dublin Castle.

Head of HR at An Garda Siochana John Barrett will continue to give evidence.

Yesterday, he told the tribunal that former Chief Administration Officer of An Garda Siochana Cyril Dunne told him “we are going after him in the Commission”.

He has said he believes this occurred on May 13, 2015 – the day before the O’Higgins Commission of Investigation began.

He was to bring documentation supporting this claim to the tribunal this morning.

Meanwhile, Supt Noel Cunnigham and retired Chief Superintendent Colm Rooney are scheduled to give evidence once Mr Barrett is finished answering questions.

Separately…

Yesterday, at the end of the former Minister for Justice Frances Fitzgerald’s evidence, she had this exchange with Supreme Court judge Peter Charleton who is overseeing the tribunal.

Judge Peter Charleton: The last matter I wanted to ask you about I think was this whole thing of, forgive a kind of a male sporting term, a game changer, this question was asked of Ken O’Leary, and he said, look, I knew there was an allegation against Maurice McCabe, or at least this is what I said to him, I knew that there was a ruling by the Director of Public Prosecutions that this does not amount to a sexual assault, it doesn’t amount to an assault at all, even if there were no issues as to credibility. Now, did you actually know the text of the DPP’s letter of, I think, the 5th May 2007? Had you ever actually read that letter in the context of this?

Frances Fitzgerald: I don’t believe that the — I’m not absolutely sure, but I don’t think the DPP’s original letter was available in the Department. It might have been made available to the IRM.

Charleton: Yes.

Fitzgerald: And maybe in that context. But I may have seen it in that context.

Charleton: “Yes. And did you sit down and read the file? ”

Fitzgerald: Yes, I would have. The IRM file? Yes.

Charleton: No, no, I mean the original investigation file?

Fitzgerald: No, no, no.

Charleton: You didn’t?

Fitzgerald: Never. That was very much within the IRM.

Charleton: Yes. Because in doing that, I suppose, you get a good sense of the whole thing, and that’s the only way, in effect, to make sense of it?

Fitzgerald: Yes.

Charleton: And again it’s not a criticism.

Fitzgerald: I don’t believe I did, yes.

Charleton: Mr. O’Leary said the following; he said, look, in the event that it had come to my attention that counsel for the Garda Commissioner had been instructed by the Garda Commissioner to actually accuse Maurice McCabe of sexually assaulting a child, that would have put an entirely different complexion on it, it would have brought it to a completely different level and he would have gone in to you straightaway. Now, obviously that never happened. But were you to have — were that to have been the information that was put before you, would you have reacted differently or thought about matters differently or —

Fitzgerald: Well, if that situation had arisen, effectively what you would have a Garda Commissioner doing is bringing up an issue that had been dealt with by the DPP, that had been dealt with by the Independent Review Mechanism and GSOC, which she would have been aware of, I think, at that point, if the dates are right, and that would be a very extraordinary situation. If an allegation that had been disproved by — you know, was not taken as — that there was any basis to it, and the Garda Commissioner was doing that, that would be a totally different situation, and I imagine if that happened at the Commission of Investigation, that I believe that there would be a different note going from the CSSO to the Attorney and there would be different issues being raised, and at that point then there would be a different discussion.

Charleton: And which arising out of that is, I wouldn’t, I suppose, be any kind of a lawyer if I didn’t know about Cabinet confidentiality, and I’m not asking you to breach that, but it’s become increasingly stark every time I read paragraph (e) that I have been required to investigate whether false allegations, plural, of sexual abuse were inappropriately relied on by Commissioner O’Sullivan to discredit Maurice McCabe. Now we know that didn’t happen. But where did the notion that anybody had made false allegations of sexual abuse and put them to Sergeant McCabe at the O’Higgins Commission ever come from? If you can’t answer that, don’t answer it. But I’m just tending to wonder why is it there?

Fitzgerald: Yes. Well, it’s very hard to say exactly where it arose from. But it seemed to be — it seemed to be an innuendo that, you know, was around, and that — in terms of, I think there may have been, there may have been some media coverage in relation to it, and I suppose there perhaps was confusion between the investigation into the Ms. D complaint, which was about the investigation as opposed to the original allegation. But certainly we felt that it needed to be in the terms of reference —

Charleton: Yes.

Fitzgerald:— because it had arisen from all of this.

Charleton:Sure. Even if that were so, why is there a plural on it?

Fitzgerald: The plural is?

Charleton: “False allegations of sexual assault”. I’d just better get the exact words.

Fitzgerald: Yes.

Charleton: I’m sorry, just give me a second to look back at it. “False allegations of sexual abuse”. Allegations.

Fitzgerald: Yes. Well, it was allegation. That may be — that may be referring to a sense of it being out there with other people, the allegation. But you’re right, it is only about, clearly only about the allegation.

Charleton: Yes. But I’m required to investigate into a number of, it could be from anything to two to God knows, the awful cases that have been seen in the courts —

Fitzgerald: Yes.

Charleton: — where there is — you know, and the swimming — or the swimming case or the gymnastic case in America recently. It’s rarely one. Why the plural, do you know? And if you don’t know, you don’t know.

Fitzgerald: I mean, I would have taken advice on the terms of reference at the time. And I can’t — I can’t say on that.

Charleton:: Thank you very much.

Fitzgerald: Thank you.

The tribunal continues today. Follow Olga Cronin’s coverage here.

Previously: Unconscionable

Questions For Frances

Clockwise from top left: Lorraine and Maurice McCabe; Frances Fitzgerald, Noirin O’Sullivan, Ken O’Leary, Michael Flahive, Noel Waters

Yesterday.

At the tail-end of former Tanaiste and Minister for Justice Frances Fitzgerald’s appearance at the Disclosures Tribunal.

Ms Fitzgerald said on two occasions that she made a “conscious decision” in respect of an email she received on May 15, 2015, about Sgt Maurice McCabe and the O’Higgins Commission of Investigation.

Readers will recall how the email – originally sent by the then assistant secretary at the Department of Justice Michael Flahive to Ms Fitzgerald’s private secretary Chris Quattrociocchi on May 15, 2015 and then forwarded on to Ms Fitzgerald and others – only emerged last November and largely led to her eventual resignation.

It was only disclosed to the tribunal after it emerged in November.

At the time, when calls were being made for her to resign, Ms Fitzgerald said, ad nauseam, that she couldn’t recall reading the email.

The Dail repeatedly heard from her, and Taoiseach Leo Varadkar, that she and/or the Department of Justice had “no hand, act or part” in forming the former Garda Commissioner Noirin O’Sullivan’s legal strategy at the O’Higgins Commission of Investigation.

Yet yesterday, in response to the suggestion from Diarmaid McGuinness SC, for the tribunal, that, once she got this email, she basically did nothing and consulted nobody – a suggestion repeatedly put to her last November – she responded to the claim somewhat differently.

She told the tribunal that she wouldn’t frame what happened in the manner Mr McGuinness suggested.

Instead, she said: “I made a conscious decision to obviously not interfere with the Commission of Investigation in anyway because I would have seen it as inappropriate.”

She also said: “I made a conscious decision that Judge O’Higgins would deal with whatever issues, as I expected he would, at the Commission.”

As mentioned above, Mr Flahive sent the email to Ms Fitzgerald’s private secretary Chris Quattrociocchi on May 15, 2015, at 4.57pm.

It was sent following a flurry of messages sent from solicitor Annemarie Ryan, of the Chief State Solicitor’s office to Michael Dreelan, of the Attorney General’s office, who in turned contacted his superior at the AG office, Richard Barrett, who in turn went on to contact Mr Flahive – who then wrote to Mr Quattrociocchi.

[Readers will recall how the tribunal has already heard that Ms Ryan wrote down “political dynamite” in a note about what she saw occurring at the O’Higgins Commission on May 15, 2015, and her knowledge of the situation].

But, going back to Mr Flahive’s email to Ms Fitzgerald’s private secretary.

It was sent after the following sequence of events…

From 3.10pm to 3.36pm: The O’Higgins Commission of Investigation adjourned to allow Colm Smyth SC, for Noirin O’Sullivan and other gardai, get instructions after a row broke out over a line of questioning being taken in relation to Sgt Maurice McCabe when evidence was being given by Chief Supt Colm Rooney.

From 3.26pm to 3.40pm: Noirin O’Sullivan spoke on the phone with the then Secretary General of the Department of Justice Noel Waters for around 14 minutes.

Neither Ms O’Sullivan nor Mr Waters kept notes of this call and neither have any real recollection of what was specifically discussed.

At 3.29pm: Noirin O’Sullivan’s counsel sent her a short “letter of comfort” or written advices to her, via her liaison officer at the commission Chief Supt Fergus Healy, saying: “In particular, we consider it necessary and in the interests of a fair and balanced examination of the subject matter of the investigation, that specific issues be put to Sgt. McCabe regarding his conduct and interactions with senior management following the completion of a formal garda investigation into a complaint against Sgt. McCabe which resulted in a direction by the DPP that no further action was to be taken against Sgt. McCabe.”

At 4.10pm: The O’Higgins Commission adjourned for a second time to allow Mr Smyth get his instructions reconfirmed.

At 4.16pm: The then Assistant Secretary to the Department of Justice Ken O’Leary spoke to Noirin O’Sullivan on the phone for around three minutes.

Mr O’Leary has given evidence that there were two “hurried phone calls” that afternoon but Ms O’Sullivan has told the tribunal that doesn’t accord with her memory or record of events.

There are no notes of these calls.

But Mr O’Leary’s evidence has been that during the first call Ms O’Sullivan told him an issue had arisen at the commission and asked him if there was anything that he believed she should be mindful of.

The tribunal has also heard that in his statement to the tribunal, Mr O’Leary said Ms O’Sullivan called him.

But this week, when he gave evidence, he said he was changing that stance.

He said: “I’m changing it to the extent that I think it may have been that I had been on the telephone to the Commissioner or the Commissioner had another phone, that isn’t included in the records.”

At 4.34pm: The O’Higgins Commission of Investigation resumed and Colm Smyth SC, for Ms O’Sullivan and other gardai, told Judge O’Higgins that his instructions were reconfirmed – which were to challenge the credibility and motivation of Sgt Maurice McCabe.

Mr Smyth also told the commission that afternoon that Ms O’Sullivan was challenging Sgt McCabe’s “integrity” but later, in late June 2015, Mr Smyth told the commission this was an error on his part.

So.

In a nutshell.

The sequence of those communications shows Ms O’Sullivan spoke to officials from the Department of Justice before Mr Smyth’s instructions were reconfirmed..

Both Mr O’Leary and Mr Waters, although they have no notes and no specific recollection, say they would not have given advice to Ms O’Sullivan on how to instruct her legal counsel.

In addition, Ms O’Sullivan, despite also not having any specific recollection of these calls, also told the tribunal:

“At no time did I discuss or seek approval/advice from the Department in respect of my instructions or otherwise to counsel. In fact, instructions had already been given to counsel. An Garda Síochána was represented independently from the Department of Justice at the Commission, and as such, the Department have no involvement in any instructions given by me to counsel.”

So where does Ms Fitzgerald fit into this?

And what of the famous May 15 2015 email?

Well.

It should be noted that the two Department of Justice officials Ms O’Sullivan spoke to before her instructions were reconfirmed – namely Ken O’Leary and Noel Waters – also got the email.

And not only that, before the email was sent, Mr O’Leary had had a telephone conversation with Mr Flahive – who called Mr O’Leary after he had been contacted by Richard Barrett, of the Attorney General’s office, as previously mentioned.

During that phone call, Mr O’Leary disclosed to Mr Flahive that he had spoken to Ms O’Sullivan on the phone twice – but Mr Flahive didn’t disclose this detail in the email to the minister.

Mr O’Leary said that he himself had been thinking of drawing up an email for the minister but was happy for Mr Flahive to do so, as he felt it was more appropriate for Mr Flahive to contact Ms Fitzgerald.

Mr O’Leary told the tribunal:

“The Minister, in my view, could have had no role in relation to the Garda case at the Commission, and contacts between the Commissioner and the Minister about the Commission, once it was going on, I was a bit uneasy about. But while I was thinking of what I might say to the Minister, Michael Flahive was on to me. His information had come from the Attorney General’s office, and it seemed to me that was, for want of a better phrase, a legitimate route for the Minister to get the information. And we agreed that he’d write an email setting out the conversations that he had or conversation that he had with Richard Barrett in the Attorney’s office.”

Amid talk of inappropriate contacts, it should be noted, during Mr O’Leary’s evidence, Diarmaid McGuinness SC, for the tribunal, pointedly noted that:

“She [Ms O’Sullivan] discussed matters with you that had arisen at the O’Higgins Commission in private…On an informal basis, she [Ms O’Sullivan] was happy to discuss it with you…”

But back to the email…

In addition to sending the email to Mr Quattrociocchi, Mr Flahive also cc-ed the now famous 4.57pm email to Mr Waters, by way of a Sec Gen Office group email address, Mr O’Leary and the department’s principal officer for policing Martin Power.

After Mr Quattrociocchi got the email, he bounced it on, at 5.04pm, to, as mentioned above, Ms Fitzgerald, and also to her two special advisors Fine Gael councillor Willliam Lavelle and Marion Mannion.

The tribunal has heard that, in all, ten people received the email.

Of this ten, the following people have been asked if they could recall reading the email.

These were their responses:

Mr Waters said: “I have no recollection of that email, but my private secretary advises that he received that and that he brought it to my attention on the following Monday, the 18th, and that I — he subsequently sent back an email to the writer, to Michael Flahive, to say that I had noted it.”

Mr Quattrociocchi: “I don’t have specific recollection, no.”

Mr Waters’ private secretary Denis Griffin, who was on the Sec Gen Office email group: “No, I don’t actually receiving it” [sic].

Dale Sunderland, a former principal officer and Head of Communications and Corporate Secretariat at the Department of Justice, who also got the email as part of the Sec Gen Office email group, said: “I don’t specifically have a memory of reading it, but I’m quite sure I did read it because I always made it my business to read all my emails.”

Bernadette Phelan, assistant principal officer in the corporate secretariat office in the Department of Justice and Equality, who was also in the Sec Gen Office email group, said: “I don’t recall reading the email.”

Paula Monks, clerical officer in the Department of Justice, who was also in the Sec Gen Office group said: “I don’t, no.”

Mr Lavelle was the only person to recall reading it, saying: “I have a vague recollection of reading it, yes.”

He also said he felt it was a “unique” email and he felt it was “inappropriate” to receive it.

He said he couldn’t recall any other such email from Mr Flahive to the minister that made him feel uncomfortable.

However, he said he never raised it or discussed it with Ms Fitzgerald.

Ms Mannion hasn’t appeared before the tribunal. The tribunal has also heard that she hasn’t given a statement to the tribunal to date.

Interestingly, Ms Leader BL, for the tribunal, pointed out, while Mr Quattrociocchi was giving evidence that, after the  Irish Examiner and RTE reported on the O’Higgins Commission of Investigation almost exactly a year later, on or around May 13, 2016 – Ms Fitzgerald had a meeting with Ms O’Sullivan about the O’Higgins commission of investigation.

There was a comprehensive briefing of the meeting prepared for Ms Fitzgerald but it failed to mention the May 15 email, prompting Ms Leader to suggest:

“It would appear, for one way or another, that the information which was transmitted to the Minister on the 15th May 2015 has been, if I can, wiped from history in relation to this particular briefing,”

But, again, why does this email matter?

Mr Flahive’s email was fundamentally wrong.

It claimed – and it was based on fourth-hand information – that the legal row at the O’Higgins Commission centred on counsel for An Garda Siochana raising Ms D’s IRM complaint about the 2006 investigation into her allegation against Sgt McCabe at the commission.

[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.]

This wasn’t the case. As mentioned above, the legal row at the commission centred on the line of questioning being taken by Mr Smyth when Chief Supt Colm Rooney was giving evidence at the commission and said Sgt McCabe wanted the DPP’s directions – which exonerated Sgt McCabe – challenged.

However.

Even though the claim made about the row in the letter was wrong, many have been wondering why Ms Fitzgerald didn’t become concerned – or why alarm bells didn’t ring out – when she saw the claim about Ms D’s IRM complaint being raised at the commission, given the IRM counsel had ruled in November 2014 that the matter was not to be included in the O’Higgins Commission of Investigation.

Yesterday, the tribunal heard that GSOC sent a nine-page report to Martin Power, a principal officer in the Department of Justice, outlining that it found nothing wrong with the investigation into Ms D’s complaint on May 21, 2015 – six days after the famous May 15, 2015 email.

GSOC specifically asked for Ms Fitzgerald to be told of this.

When Mr Power gave evidence yesterday, Michael McDowell SC, for Sgt McCabe, asked Mr Power when he gave this to the minister.

Mr Power said he couldn’t recall.

Mr McDowell also asked him he would have made a link between the May 15 email and the May 21 GSOC report in respect of the Ms D matter and Sgt McCabe.

Again, like many witnesses before him, Mr Power said he couldn’t recall and state if he made the connection at the time.

But then.

The hearing was briefly adjourned when Kathleen Leader BL, for the tribunal interrupted to say Mr Power had signed an affidavit of discovery in May 2017 and that documents discovered to the tribunal related to this GSOC report.

After the brief adjournment, Ms Leader explained that these documents discovered showed the GSOC report was sent by Frank McDermott, assistant principal officer in the policing division at the Department of Justice, to Ms Fitzgerald’s private secretary Chris Quattrociocchi on the very same day it was received – May 21, 2015.

Suddenly Mr Power remembered.

The tribunal then heard the document that was sent to Mr Quattrociocchi had also been forwarded to Noel Waters, Ken O’Leary, Michael Flahive and Martin Power.

And, furthermore, it heard that an 11-page submission – written by a Mr English, also of the garda division within the department and containing the nine-page GSOC report – was sent to Minister Fitzgerald on May 27, 2015.

The tribunal hear Mr Power wrote a covering submission for that submission which was entitled “Complaint by Ms. D, alleged cover-up by Gardaí of assault allegation against Sergeant Maurice McCabe.”

The covering submission was for Michael Flahive whom, it appears, saw it on June 2, 2015 – based on a handwritten note on the document.

But.

In the covering submission, Mr Power wrote: “I think the alleged sexual assault was referred to in a particular context during the recent, initial hearings of the O’Higgins Commission of Investigation”.

Ms Leader asked Mr Power what he thought that referred to.

Mr Power told the tribunal: “I think certainly it’s a reference to the email of the 15th May, wherein the initial reference was made to the issue that had arisen at the O’Higgins Commission that day, and I suspect that either on foot of that then at that time or when this report came in I inquired as to whether there was a link, and clearly — well, I say I think it refers to that”

In turn, Mr McDowell asked Mr Power if it was just “forgetfulness” that caused him to say he couldn’t recall making the link.

Mr Power said: “I simply didn’t recall this submission at that time. But I am happy to say that it’s clear that at the time I sought to make the link, if it was appropriate to make the link and bring it to Michael’s attention who would have certainly been able to make the link if it was an accurate link..”

[Incidentally, May 21, 2015 was the same day Ms O’Sullivan held a private consultation with Colm Smyth SC in her office – a meeting of which there are no notes and, despite taking place just six days after the legal row at the commission, Mr Smyth said they didn’t discuss instructions or the row. Ms O’Sullivan can’t recall any specifics about it.]

Ms Fitzgerald hasn’t been asked yet about her knowledge of the GSOC investigation’s conclusions in May 2015 – but it’s likely she’ll be asked the same question that Mr Power was asked: would she have linked the GSOC report with the May 15 email and would it not have caused her some concern or prompted her to take some action?

Yesterday, she gave about two hours of evidence.

Half of that involved counsel for the tribunal asking her about the email of May 15, 2015 and her lack of a response to it.

Mr McGuinness SC, for the tribunal, asked her, repeatedly, why it didn’t set off alarm bells for her?; why she didn’t ask herself ‘what is going on?’; why, if she didn’t feel she had precise details, did she not speak to Mr Flahive about the matter?; why, if she didn’t think it appropriate to ask questions, why she didn’t ask the Department of Justice’s counsel to speak to An Garda Siochana’s counsel?

Ms Fitzgerald responded in the same way as last November: she didn’t think it was appropriate and that she felt it was a matter for Judge O’Higgins.

She said she never consulted with Ms O’Sullivan, Mr Waters, Mr Power, Mr Flahive, any of her advisors, or anyone else copied into the email.

She said she wasn’t aware of the phonecalls between Ms O’Sullivan and Mr O’Leary and she also wasn’t aware of the solicitor Annemarie Ryan’s “political dynamite” concerns about a judicial review.

And then, at the end, she said she made a “conscious decision” not to do anything.

Anyone?

Ms Fitzgerald will resume questioning this morning at 10am.

Previously: Disclosures, Discrepancies And Noirin

Disclosures Tribunal on Broadsheet

Rollingnews

UPDATE:

Former Tanaiste and Minister for Justice, Frances Fitzgerald this morning

Today, the former Minister for Justice Frances Fitzgerald will give evidence to the Disclosures Tribunal.

Readers will recall how Ms Fitzgerald resigned in November 2017 following the publication of emails she was in receipt of pertaining to the O’Higgins Commission of Investigation in 2015 – which examined allegations of poor policing in the Cavan/Monaghan area made by Sgt Maurice McCabe.

It’s likely Ms Fitzgerald will be asked, among other matters, about the following…

– Her exact knowledge of Ms D’s allegation made against Sgt Maurice McCabe in December 2006 which was found to have no basis by the DPP in April 2007.

– Her exact knowledge of the former Garda Commissioner Noirin O’Sullivan’s understanding of Ms D’s complaint – given Ms O’Sullivan has given evidence to say she received a false referral alleging Sgt McCabe stood accused of rape in May 2014 and was never told this was incorrect.

– Her knowledge of Ms D’s complaint about the 2007 investigation into her allegation.

– Her knowledge of the Independent Review Mechanism’s counsel involvement/contacts with Ms D and/or complaint about the investigation.

– Her knowledge and understanding of who and what her predecessor Alan Shatter was talking about when he told the Dail on June 19, 2014:

“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.”

– Her knowledge of GSOC’s investigation in December 2014 which eventually found there was no issue with the original investigation into Ms D’s allegation of 2006/2007.

– Her knowledge of the consideration given to including Ms D’s complaint about the investigation in the O’Higgins Commission of Investigation.

– Her knowledge of members of the Department of Justice and An Garda Siochana orchestrating the Ms D investigation file being given to the IRM counsel for their examination.

– Her knowledge of the IRM counsel deciding – in November 2014 – that, after examining the Ms D file, that her complaint should not be included in the O’Higgins Commission of Investigatioj

– Her reaction to the email of May 15, 2015 which sent from Michael Flahive, the then Department of Justice assistant secretary, to Christopher Quattrociocchi, Ms Fitzgerald’s then private secretary and cc-ed to the Department’s General Secretary Noel Waters, among others.

This email wrongly claimed that the legal row at the O’Higgins Commission centred on counsel for An Garda Siochana raising Ms D’s IRM complaint about the 2006 investigation at the commission.

Mr Flahive later said this was a coded reference to the IRM as a means to avoid explicitly describe Ms D’s complaint against Sgt McCabe.

But, as mentioned above, Ms Fitzgerald was informed in November 2014 that Ms D’s complaint would not be included in O’Higgins.

– Her communications with Noirin O’Sullivan and Terry Prone, of the Communications Clinic, in May 2016 after reports about the legal row in the commission first emerged in the Irish Examiner and RTE.

– Her decision not to publish the “letter of comfort” Noirin O’Sullivan got from her legal counsel on the afternoon/evening of May 15, 2015 – after she requested it via her liaison officer Chief Supt Fergus Healy – after the legal row broke out. The tribunal has already heard that Ms O’Sullivan asked Ms Fitzgerald to publish the short letter but didn’t.

– Her appearance on Prime Time on May 17, 2016.

– Her speech given to the Dáil on May 18, 2016.

Olga Cronin will be tweeting from  the tribunal today.  Follow her here.

Previously: Disclosures Tribunal on broadsheet

Rollingnews

From left : Noirin O’Sullivan, Terry Prone and Frances Fitzgerald

Yesterday.

At the Disclosures Tribunal.

There was an  exchange between Patrick Marrinan SC, for the tribunal, and former Deputy Secretary of the Department of Justice and Equality Ken O’Leary, who retired last June.

It came after Mr Marrinan asked Mr O’Leary about the Department of Justice’s relationship with the Garda Commissioner.

It was in the context of the swirling of drafts – with the help of Terry Prone of the Communications Clinic – being sent back and forth between the then Garda Commissioner Noirin O’Sullivan and the then Minister for Justice Frances Fitzgerald, via Mr O’Leary, in May 2016 after reports emerged in the Irish Examiner and RTE about the O’Higgins Commission.

The drafts were in relation to pending public statements by Ms O’Sullivan and contributions to the Dáil by Ms Fitzgerald.

When Ms O’Sullivan gave evidence, it was put to her that it appeared she was drafting a statement for the minister – to be made in the Dáil – when she wrote an email, with a draft attached, and the message:

“I understand that you may have to make a statement this morning and I enclose a draft for your consideration.”

But Ms O’Sullivan said:

“I may have said a draft, I don’t mean a draft statement, it’s a draft insofar as here are pointers that you can choose to use or not.

But actually, and we probably will come to the email but they were the facts, the actual facts as opposed to the erroneous facts that were floating around the commentary at that time.“

The draft, or pointers, included the lines:

“I have interrogated this matter in detail with the Commissioner…I wish to state here and now that I have full confidence in the Commissioner.”

Ms Fitzgerald didn’t end up saying this in the Dail.

Returning to the exchange between Mr Marrinan and Mr O’Leary:

Patrick Marrinan: “I mean, a commentator might say that you know, that the Department was acting hand in glove with the Commissioner at the time?”

Ken O’Leary: “And so it was, for the very good reason that we had to take a public interest view in relation to all these matters and our view was that the public interest was not going to be served in any way by the Commissioner’s position being put in jeopardy at that time.”

Marrinan: “Yes. But you will appreciate that we are probably hearing about this relationship as it existed at the time between the Department and the Garda Commissioner for the first time, because it’s not evident and apparent to members of the public to know that there is this closeness and degree of closeness between the Garda Commissioner and Department — officials in the Department of Justice and indeed the Minister, do you understand?”

O’Leary: “Well, I mean, there is two points I’d make: Like, our contribution, I mean, if any of the material that week looked as if we were very supportive of the Garda Commissioner, that’s because we were very supportive.”

Marrinan: “Yes.”

O’Leary: “And it wasn’t because of loyalty or whatever. It was because we took the view that there was no proper basis for questioning the Commissioner’s position. But there was a danger because of the political feverish climate going on at the time, if people had looked at previous things that had happened during the course of Garda controversies they could go anywhere.

And frankly, we also thought there was a danger that the Commissioner, given the way she was being pilloried in public and the very difficult position that was in, there was obviously a danger that a sensible person might say, look, I am not putting up with this any more.

And the implications for us of having to find a new Commissioner and the disruption that would have been caused, as I say our view of the public interest was that anything we could do to support the Commissioner, we would do, because we thought that was in the interests of the leadership of the Guards, and the public interest.

So as I say, it wasn’t all friends helping each other out; it was a clear view of where we thought the public interest lay. If –I mean, if the O’Higgins Commission report said the Commissioner inappropriately relied on strategies to do down Sergeant McCabe, well then we would have had to deal with that in an entirely different way.”

Marrinan: “Yes. So I mean, would it be fair to summarise your position in relation to this, that you may well have been hand in glove with the Commissioner in relation to this issue at the time, not because you had a cosy relationship but because the Department had taken a view arising out of the O’Higgins Commission that the Commissioner was in fact correct in her approach and there was no question that she was going to resign?”

O’Leary: “It’s not that we were taking a view the Commissioner was correct in what happened at the O’Higgins Commission, because we had absolutely no information except for one detail, we may be coming to.

What we were doing was relying on Judge O’Higgins’s report and there was nothing in that that questioned in any way the approach of the Garda Commissioner on our reading of it. The hand in glove phrase, do you know, if you don’t mind me saying so, it is a bit pejorative. Like, we were working closely with the Garda Commissioner in the situation which arose to achieve the objectives we thought were best in the public interest.”

Marrinan: “Yes. But so closely that you thought it appropriate and not out of order to send a draft letter to the Commissioner for her consideration to send back to the Department and also that the Garda Commissioner could contact the Minister directly with what, on the face of it, appears to be a draft speech expressing confidence in her?”

O’Leary: “In relation to, you know, what is called a draft letter, I have tried to explain the background to that, if it had been written, headed instead ‘points that you might take into account in the light of our discussions’, I don’t think anyone would find that objectionable and maybe that is what I should have done.”

Marrinan: “I know. But that is not the way it’s written, it’s written in the first person, as indeed the speech is written in the first person.”

O’Leary: “Well, I mean, frankly, like, that is a question of form rather than substance in relation to what was going on.”

Marrinan: “Well, I think if it had become — either the letter or the speech had become bestsellers, there might have been a quarrel in relation to copyright and royalties, but anyway.”

The tribunal continues today.

Previously: Disclosures Tribunal on Broadsheet

Former Garda Commissioner Nóirín O’Sullivan

The Disclosures Tribunal will continue this morning  at Dublin Castle, overseen by Supreme Court Judge Peter Charleton.

Again, the former Garda Commissioner Noirin O’Sullivan’s evidence to date – in particular that she had little or no specific knowledge of the details of what was unfolding at the commission in May 2015 – will come into sharp focus.

Readers will recall how the tribunal is currently hearing evidence pertaining to the 2015 O’Higgins Commission of Investigation which looked at allegations made by Sgt Maurice McCabe of poor policing in the Cavan/Monaghan area.

Specifically, under the current term of reference, Judge Charleton is attempting to decipher whether of not the former Garda Commissioner Noirin O’Sullivan inappropriately used unjustified grounds to discredit Sgt McCabe at that commission.

To that end, it is essentially trying to tease out what actions, by whom, were taken/not taken throughout that commission and, also, to find out who knew what, when.

Today, the tribunal will hear from Assistant Secretary at the Department of Justice Ken O’Leary, among others.

The tribunal has already heard that Mr O’Leary shared several phone calls with Ms O’Sullivan on the day the legal row broke out on May 15, 2015.

One took place in or around the time Ms O’Sullivan was being asked to reconfirm her instructions.

Ms O’Sullivan has already told the tribunal she can’t really recall what they discussed during a call at 4.16pm which lasted for 3 minutes and 35 seconds.

However, she did concede:

“…when I spoke to Assistant Secretary O’Leary my decision and my instructions had already been re-confirmed and I was just satisfying myself was there something going on in the background that I should be aware of.“

She also said:

“Chairman, the only — the only thing that I can offer is that, again, my decision and the instructs have been given earlier that day, the only thing I would have been aware of at the 16:16 phone call was the fact that the document — sorry, it was later, actually, it was at, I would say, 7:00 that the document was going to be worked up over the weekend and that that was a piece of work that was ongoing by the legal team.“

Continue reading →

From left: Sgt Maurice McCabe, Michael McDowell SC, Colm Smyth SC, and former Garda Commissioner Noirin O’Sullivan

This morning.

At the Disclosures Tribunal in Dublin Castle.

The legal strategy taken at the 2015 O’Higgins Commission of Investigation, on behalf of the former Garda Commissioner Noirin O’Sullivan and several senior gardai, towards Sgt Maurice McCabe will come into sharp focus.

Ms O’Sullivan’s own evidence to the tribunal to date, and that of her liaison officer at the commission Chief Supt Fergus Healy, will also come into focus.

This is because Colm Smyth SC, who represented Ms O’Sullivan and senior gardai at the commission, will give evidence today and will be cross-examined by Michael McDowell SC, for Sgt McCabe.

[Mr Smyth gave around 15 minutes of evidence yesterday before the day’s hearing wrapped up]

Specifically, Mr Smyth will likely be asked about consultations he and his team had with Supt Noel Cunningham and Chief Supt Colm Rooney – who were also represented by Colm Smyth SC – on May 12 and May 13, 2015.

However, this questioning may be restrained as the tribunal has heard Supt Cunningham and Chief Supt Rooney have not waived legal privilege – so all or most matters pertaining to their legal consultations may not be discussed.

[Tribunal has also heard that that Attorney General’s Office is also not waiving privilege. This is the reason why solicitor Annemarie Ryan, of the Chief State Solicitor’s office, could not elaborate or explain on why she made the note “political dynamite” after learning of the legal row on May 15, 2015. She said this was based on what happened and material she had seen.]

The tribunal has already heard several witnesses say the May 12 and May 13 consultations largely gave rise to the five-page, 20-point letter sent from the Chief State Solicitor’s office to the O’Higgins Commission on Monday, May 18, 2015 – after counsel was requested to do so by Judge O’Higgins on Friday, May 15, 2015, after the legal row broke out.

This letter essentially set out what was going to be put to Sgt McCabe.

It contained an allegation of what Kathleen Leader BL, for the tribunal, likened to a ‘blackmail-like scenario’ against Sgt McCabe in relation to a meeting in August 2008 in Mullingar.

This particular claim was put to Sgt McCabe on Monday, May 18, 2015 and he said it was “absolutely false.”

It was eventually proven false by a tape recording of that meeting taken by Sgt McCabe which was given to the commission.

But this was not the letter’s only problem.

It had many of what Ms O’Sullivan called “factual inaccuracies” and what Mr McDowell has called “gross falsehoods”.

Mr Smyth is also likely be asked about former Garda Commissioner Noirin O’Sullivan’s specific instructions relayed to him, via Chief Supt Healy, in May 2015.

Readers will recall how – after the legal row broke out on the afternoon of Friday, May 15, 2015 – Mr Smyth told the O’Higgins commission that his instructions from Ms O’Sullivan had been reconfirmed.

Mr Smyth then agreed with Judge O’Higgins that his instructions regarding Sgt McCabe were that he “acted as he did for improper motives” and that his integrity was being challenged by Ms O’Sullivan.

Specifically, on Tuesday, Mr McDowell asked Ms O’Sullivan if what Mr Smyth said on May 15, 2015 was the “diametric opposite” of her instructions.

She replied: “Well, Chairman, I never instructed that Sergeant McCabe’s integrity be challenged.”

Furthermore, the tribunal has also heard Ms O’Sullivan say that she did make it clear to Chief Supt Healy that at no time was Sgt McCabe’s integrity to be challenged.

She said: “I made it clear that the facts that were going to be tested were never about — nobody ever suggested, in all of the feedback that I got from Chief Superintendent Healy, nobody ever suggested to me that there was any suggestion of an attack on Sergeant McCabe’s integrity.”

Ms O’Sullivan had this exchange with Mr McDowell about the afternoon of May 15, 2015:

Michael McDowell: “…When your counsel is asked what those instructions are, by Mr Justice O’Higgins, he says two things; he said that Sergeant McCabe acted as he did for improper motives, and secondly, that his integrity is being challenged in that respect. He said both of those things immediately after he had received a reconfirmation of your instructions.

“You see, what I am putting to you is, now, that apparently within minutes of you relaying your reconfirmation of your instructions via Chief Superintendent Healy to your counsel, they did the two things that you say you had expressly prohibited them from doing in conversation with Chief Superintendent Healy?”

Ms O’Sullivan: “Chairman, all I can say is that I never instructed that Sergeant McCabe’s integrity be challenged.”

Later in the O’Higgins proceedings, Mr Smyth said it was an error on his part to say Sgt McCabe’s “integrity” was being challenged.

However this occurred after the aforementioned tape recording produced by Sgt McCabe proved that the ‘blackmail-like scenario’ never happened and this was made clear at the O’Higgins commission on June 25, 2015.

Readers should note solicitor Annemarie Ryan, for the Chief State Solicitor’s office has already told the tribunal that she never received any instructions – between May 18 and June 24, 2015 – in relation to the aforementioned denial that Sgt McCabe made clear to Judge Higgins on May 18.

Readers should also note also Chief Supt Healy was in receipt of transcripts of the O’Higgins hearings and passed them on to Ms O’Sullivan private secretary.  He said he “definitely” gave Ms O’Sullivan the “controversial ones”.

In addition, on June 11, 2015, submissions are made to the commission by counsel for Ms O’Sullivan, reiterating wrong claims made in the CSS letter.

Incidentally, the submission went further than the CSS letter in so much that it claimed “evidence” would be given to the commission to support the most ‘blackmail’ allegation.

The submissions stated:

“Sergeant McCabe then made a series of complaints against other officers in Bailieboro station, including Superintendent Clancy, against whom he alleged a lack of support.

“Chief Supt Rooney appointed Supt Cunningham to investigate these complaints. Supt Cunningham attempted to meet Sgt McCabe to discuss the complaints and finally did so on the 25th August 2008. On this occasion, Supt Cunningham was accompanied by Sgt Martin.

“It is understood that Superintendent Cunningham and Sergeant Martin will give evidence that Sergeant McCabe said at this meeting that the complaint which he had made was a bid by him to have the full DPP directions conveyed to him and to complaining party.

“This is recorded in a report of the meeting prepared jointly by Sergeant Martin and Superintendent Cunningham.”

When Chief Supt Healy gave evidence, he was asked if the submissions were “signed off on, on behalf of the Commissioner and the various parties”, he said yes.

Mr Smyth is also likely to be asked about his understanding of why Ms O’Sullivan couldn’t meet with counsel or Ms Ryan, of the Chief State Solicitor’s office, on the weekend of May 16/17, 2015 – when Ms Ryan was seeking an urgent meeting with her.

Ms Ryan has given evidence that she repeatedly asked Chief Supt Healy to ask Ms O’Sullivan for a meeting at this time but that he said Ms O’Sullivan said she was too busy.

Chief Supt Healy has given evidence that he did put Ms Ryan’s request to Ms O’Sullivan and that she said she was otherwise engaged.

Ms O’Sullivan has been adamant to the tribunal that she was never informed that Ms Ryan sought a meeting.

Mr Smyth is also likely to be asked about a meeting Ms O’Sullivan had with Mr Smyth on May 21, 2015 – of which she has no recollection.

Ms Ryan did not learn of this meeting until July 2015 and she told the tribunal that it was described to her as a “cup of tea” meeting.

It’s unclear whether Mr Smyth will be asked about his understanding of the Ms D allegation.

Ms O’Sullivan received a false referral – alleging that Ms D was accusing Sgt McCabe of rape –  from the then Assistant Commissioner Kieran Kenny in May 2014.

The referral was presented as a true allegation and Ms O’Sullivan told the tribunal this week that nobody ever told her this was incorrect.

In addition, Mr Smyth is likely to be asked about a meeting in the Four Courts on May 11, 2015.

At this meeting, the garda legal team – Colm Smyth SC, Michael McNamee BL, and Garret Byrne BL – held its first consultation with several gardai, including Supt Cunningham and Chief Supt Colm Rooney.

Ms O’Sullivan wasn’t at this meeting but her liaison officer, Chief Supt Fergus Healy, was there on her behalf.

The purpose of the meeting was to discuss one of the incidents the commission was tasked with investigating, a public order incident and possible sexual assault on a bus in Kingscourt, Co Cavan.

But the tribunal has already heard notes of that meeting showed the meeting largely involved discussion around Sgt McCabe – and even former Garda John Wilson – and Sgt McCabe’s motivation.

The notes prompted Patrick Marrinan SC, for the tribunal, to say: “This has absolutely nothing to do with the factual matters to be investigated by the O’Higgins.”

Judge Charleton also commented on the notes and said they indicated that the thrust of what was heard at the meeting was that Sgt McCabe was a bitter man, led by emotion which could have led to unconscious bias.

Judge Charleton also suggested that the matters being raised were “liable to muddy the waters” and that they should have prompted someone to say “this may be the background but it has certainly nothing to do with anything that is going to come up in front of Mr Justice O’Higgins”.

Broadsheet tweeted during Mr Smyth’s first 15 minutes of evidence yesterday and will be tweeting from today’s proceedings here.

Previously: Memory Full

Disclosures Tribunal on Broadsheet

From top: Michael McDowell, Sgt McCabe’s senior counsel; Former Garda Commissioner Noirin O’Sullivan

Former Garda Commissioner Noirin O’Sullivan has been giving evidence to the Disclosures Tribunal for the past two days.

As of 10am this morning, when she returns to give evidence, she will have given around eight hours of testimony.

Her exact knowledge at certain points in time and on certain matters remains a little unclear.

Especially in terms of the Ms D allegation.

Readers will recall how a Ms D made a retrospective ‘humping’ complaint in December 2006, 11 months after her father, a guard, Mr D “lost his position and was reverted to other duties” after Sgt McCabe “caused the institution of serious disciplinary procedure against” Mr D in January 2006.

After the DPP investigated Ms D’s complaint, its directions included the line:

“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… there is no basis for prosecution.”

Ms D’s 2006 allegation resurfaced during a counselling session seven years later in the summer 2013, in Cavan, with RIAN counsellor Laura Brophy.

An erroneous allegation of rape against Sgt McCabe ended up being attributed to Ms D when Ms Brophy sent a botched referral to Tusla in August 2013.

On April 30, 2014, Tusla social worker Laura Connolly allegedly plucked Sgt McCabe’s file randomly from a cabinet which contained unallocated cases and sent a notification of Sgt McCabe’s file to the gardai even though she said she was aware the 2006 allegation had already been sent to the gardai and DPP had ordered for no charges to be brought.

Ms Connolly combined both the 2006 allegation, which was found to have no foundation by the DPP, and the 2013 allegation of rape pertaining to a Ms Y which had nothing to do with Ms D but was wrongly recorded by counsellor Laura Brophy as an allegation Ms D was making against Sgt McCabe.

Further to this…

Yesterday….

Ms O’Sullivan was asked by Kathleen Leader BL, for the tribunal, if she had “prior knowledge” of the Ms D allegation at the time some gardai – including Supt Noel Cunningham and Chief Supt Colm Rooney – were holding consultations with their, and her, legal counsel ahead of the O’Higgins Commission of Investigation on May 12 and May 13, 2015.

The tribunal has heard it been claimed by several witnesses – including Ms O’Sullivan’s liaison officer Chief Supt Fergus Healy and solicitor Annemarie Ryan, of the Chief State Solicitor’s office – that these consultations largely gave rise to the contents of Chief State Solicitor’s letter which was produced to the O’Higgins Commission of Investigation on May 18, 2015.

The purpose of this letter was to outline to the commission and Sgt McCabe’s legal team what was going to be put to Sgt McCabe at the commission.

The tribunal has also heard that this letter outlined several occurrences which actually never occurred.

In particular, one specific claim that at a meeting in August 2008 Sgt McCabe conveyed he wanted to “force the hand” – in a blackmail-like scenario – of a superintendent to give the DPP’s directions to the Ms D family., after Sgt McCabe was publicly confronted by Ms D and Mrs D in October 2007.

This was proven false by a tape recording of this meeting with two gardai including Supt Noel Cunningham.

The tribunal has not heard oral evidence from Supt Cunningham, retired Chief Supt Rooney or any of the members of Ms O’Sullivan’s counsel at the commission about the sequence of events yet.

Yesterday, Ms O’Sullivan called the incorrect claims in the CSS letter ‘factual inaccuracies’, while Michael McDowell SC, for Sgt McCabe, called them ‘gross falsehoods’.

But returning to the Ms D allegation…

And Ms Leader’s question about her knowledge of the Ms D allegation in May 2015.

Ms O’Sullivan said:

“Yes, my understanding would have been limited to — I mentioned in my opening that back in 2008/2009 I was an assistant commissioner in Human Resource Management. At that time, these incidents actually, the allegations in relation to the malpractice in Bailieboro, had already started, and I was presented on my, I think my first day back in Human Resources, with a minute from Mr. Costello — or, sorry, a minute to go back responding to a minute from Mr. Costello in relation to those matters.

And to apprise myself of what I was dealing with, I sought and obtained a report from Chief Superintendent Terry McGinn, who had been dealing with a number of the issues raised by Sergeant McCabe, and contained in that document is a reference to the Ms. D allegation. “

“It’s, I think, from my memory it’s about a seven- or eight-page document and the reference is probably about two paragraphs…. No, Chairman [when asked if she would have looked at the investigation file at any time] and I would have no need to or no reason to…I knew who — not who Mr D was, but I knew that it was relating to a colleague, a colleague’s daughter, and I also knew that the DPP had directed upon it and that there was no basis for a prosecution.”

Ms O’Sullivan, in her response to Ms Leader, makes no reference to a rape allegation.

But Ms O’Sullivan also acknowledged to Michael McDowell SC, for Sgt McCabe, that she knows she got a referral about Ms D and Sgt McCabe from then Assistant Commissioner Kieran Kenny in May 2014.

However, she has “no memory of reading it”.

The tribunal has already heard Mr Kenny sent this to Ms O’Sullivan on May 16, 2014.

This is significant as the referral was incorrect and wrongly claimed that Sgt McCabe had been referred for the digital, anal and vaginal rape of Ms D.

The tribunal has also previously heard that Mr Kenny, after receiving a corrected referral, never sent this on to Ms O’Sullivan.

Yesterday, Mr McDowell specifically asked Ms O’Sullivan if she was ever told this referral was incorrect.

She said: “No, Chairman, I was not.”

Mr McDowell then put it to Ms O’Sullivan:

“So if you had seen the allegations of anal and digital — anal and vaginal and digital rape, you wouldn’t have known whether they were the original allegations being rehashed or new and mistaken allegations?”

She replied: “That would be correct, Chairman, yes.”

So was her knowledge of matters – in May 2015 – that Sgt McCabe stood accused of raping a child?

If this is correct, would this not have been something that would have been on her mind before the O’Higgins Commission of Investigation and something that she should have flagged with her counsel?

And if this is incorrect, and she in fact knew, at that point, that the accusation of rape against Sgt McCabe had been an error, in the interest of doing what she wanted – which she has repeatedly stated was to put all matters of interactions between Sgt McCabe and senior gardai in Cavan/Monaghan before O’Higgins – would this have been something that she should have flagged with her counsel?

The tribunal has heard that Asst Comm Kenny and Ms O’Sullivan held a meeting with Sgt McCabe and his solicitor in August 2015 about his welfare and workplace issues.

And yet.

Sgt McCabe was told nothing of this false rape allegation.

Sgt McCabe didn’t learn of this false rape allegation until Tusla sent him a letter – incorrectly claiming they were investigating him for rape – on December 29, 2015.

The tribunal has also already heard that on May 16, 2014, Ms O’Sullivan’s then private secretary Supt Frank Walsh, on receipt of this incorrect rape referral, replied to then Asst Comm Kenny, saying:

“I am directed by the Commissioner to refer to email correspondence from your office of the 16th May 2014, the content of which has been noted by the Commissioner. It is noted that you are considering this matter and that you would keep the Commissioner informed of developments.”

The tribunal has also already heard that on June 17, 2014, Supt Walsh wrote again to Asst Comm Kenny, saying:

”I am directed by the Commissioner to refer to previous correspondence from your office of 16th May 2014 in the above and to inquire on the current status of the matter.”

So it would appear there was an active effort on the part of Ms O’Sullivan, via Supt Walsh, to keep informed of what was happening in regards to this incorrect allegation of rape – something Ms O’Sullivan seemingly believed was a true allegation.

In the summer, the tribunal heard there was no further correspondence about the matter and the false rape allegation remained on file in the Garda Commissioner’s office until early 2017.

Meanwhile…

Readers may wish to also note…

The tribunal has previously heard in evidence given by the Head of Legal Affairs at An Garda Siochana Ken Ruane that the Attorney General’s Office was involved in appointing Kieran Mulvey as an external mediator to help with Sgt McCabe’s workplace issues in March 2015.

The tribunal has also heard Chief Supt Fergus Healy, who was the liaison officer for Ms O’Sullivan at the O’Higgins Commission of Investigation, say he told Ms O’Sullivan on the evening of May 15, 2015 that “the Attorney’s office were keeping a watching brief, from a
distance, on this”.

He elaborated: That is, in a nutshell, what I had kind of said to her. I had told her that there was a watching brief being kept on this, from a distance, by the Attorney’s office, words to that effect.”

Asked how he knew this, Chief Supt Healy said: “I was inside in the Commission and I think Ms Ryan had mentioned it to me…”

Much has been made of the seemingly conflict between Ms O’Sullivan’s public stance of support for Sgt McCabe versus the legal instructions taken on her behalf towards Sgt McCabe at the O’Higgins Commission of Investigation.

But does the Attorney General’s office also have questions to answer?

Olga Cronin will be tweeting from the tribunal today. You can follow Olga here

Previously: Disclosures Tribunal on Broadsheet

Meanwhile…


From top: Former Garda Commissioner Noirin O’Sullivan; Maurice and Lorraine McCabe this morning.

Today.

Former Garda Commissioner Noirin O’Sullivan is continuing to give evidence to the Disclosures Tribunal in Dublin Castle about the O’Higgins Commission of Investigation.

Olga Cronin is there and ‘sheet tweeting on the evidence given so far today.

For the first time the public heard Ms O’Sullivan speak about her knowledge of the false rape allegation that was levelled against Sgt McCabe in documentation circulated between Tusla and An Garda Siochana in 2013 and 2014.

Readers will recall how, on May 16, 2014, then Asst Commissioner Kieran Kenny sent a letter to the the then Garda Commissioner Noirin O’Sullivan’s office, with the wrong referral attached.

The letter included the line:

“You will note that the allegation identifies the alleged perpetrator as Maurice McCabe.”

 

Ms O’Sullivan has told the tribunal she can’t remember getting the false referral when it was sent to her by Mr Kenny.

Asst Comm Kenny also told the tribunal he subsequently received an amended/corrected referral but never sent this on to Ms O’Sullivan.

In the summer, Ms O’Sullivan’s former private secretary told the tribunal that he was of the understanding she had read the incorrect referral in May 2014.

Readers will recall it was May 2014 when Sean Guerin SC recommended that a Commission of Investigation be carried out into Sgt McCabe’s allegations of malpractice in Cavan/Monaghan – giving rise to the O’Higgins Commission of Investigation.

Furthermore.

The tribunal heard of two letters that Mr Walsh sent to Asst Comm Kenny – in which he clearly stated “I am directed by the Commissioner” – asking for further details on any follow-up action on foot of Mr Kenny’s referral.

This morning.

Ms O’Sullivan told the tribunal that she read Mr Walsh’s evidence and doesn’t dispute it.

However, she said she had “no recollection of that letter being brought to my attention”.

She repeated: “I don’t remember it”.

Kathleen Leader BL, for the tribunal, asked Ms O’Sullivan, given timing of the O’Higgins Commission and her receipt of the false referral – and the level of interaction between her and the department  about Sgt McCabe – if she had ever shared any information about this false referral with the Department of Justice or any Department of Justice officials.

Ms O’Sullivan said she didn’t and it would have been “very inappropriate [to do so] even if I had seen it”.

Ms O’Sullivan said when the issue of the false rape allegation arose in 2017 (presumably because of tribunal), she learned the referral sent to her office was “filed on a different file to deal with Ms D as opposed to McCabe file”.

She said, in light of referral being in Ms D’s file as opposed to Sgt McCabe’s, that perhaps its relevance to Sgt McCabe was “not immediate” to her.

The tribunal continues.

Olga’s tweets can be followed here

Earlier: Unforgettable

Rollingnews

Former Garda Commissioner Noirin O’Sullivan arriving at Dublin Castle this morning

This morning.

At the Disclosures Tribunal.

Former Garda Commissioner Noirin O’Sullivan is expected to begin giving evidence as soon as Chief Superintendent Fergus Healy finishes giving evidence.

Ms O’Sullivan will be asked about her involvement in the O’Higgins Commission of Investigation as Judge Charleton seeks to establish if “unjustified grounds were inappropriately relied upon” by her “to discredit Sgt Maurice McCabe” during the commission when it heard evidence over 34 days between May and December 2015.

Judge Charleton already said last Friday week that he is no longer investigating whether “false allegations of sexual abuse were inappropriately relied upon” by Ms O’Sullivan to discredit Sgt McCabe during the commission.

This came after Michael McDowell SC, for Sgt McCabe, confirmed to the judge what Sgt McCabe believes happened. Mr McDowell explained that Sgt McCabe does not believe that anyone intended to ask him out straight if he abused a child.

Instead, Mr McMcDowell said:

“…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.”

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