Louis Le Fronde writes:
Dropped into my letterbox [Dublin 4]…Is he running [for the Dáil] again?
The leftist whiners won’t like it, but it l’m looking forward to his return…
From top: Michael McDowell; Quinn Holdings Directors from left: Dara O’Reilly, Tony Lunney, John McCartin and CEO Liam McCaffrey, speak to the meeting ourside Monaghan Garda Station after meeing with Garda Commissioner Drew Harris last night
On RTÉ’s Today with Seán O’Rourke, Fianna Fáil leader Mícheál Martin and Senator Michael McDowell spoke to Mr O’Rourke in light of the interview with Quinn executive Kevin Lunney on BBC Spotlight Northern Ireland programme last night.
Mr Lunney’s brother Tony Lunney also participated in the discussion.
Mr McDowell mentioned that if one drives into Crossmaglen, Co Armagh, today, the town’s ‘sniper at work’ sign is still perched on a telephone pole.
He then said:
“I think there has to be extremely heavy policing and surveillance and use of electronic counter measures, bugging, you name it. Tracing cars, you name it, tracing the use of phones, all of that has to be done very intensively.
“And I think that…again, I don’t want to be negative but there has been a clear lapse in policing on both sides of the border and there should have been a clear appreciation that this was going to escalate to the point that it has.
“And in any event, if it hadn’t escalated to the point that it has, it was still unacceptable.”
“That sign [in Crossmaglen] on the side of the road should have been removed by the gardai and the county council years ago. If I put up a sign in the middle of Ranelagh, giving out about Luas or something like that, it would be gone in ten seconds.
“You can’t have a differential approach to the rule of law…”
Listen back in full here
From top: James Wray, William McKinney; Senator Michael McDowell
On RTÉ Radio One’s Marian Finucane show.
Former Minister for Justice Senator Michael McDowell voiced his thoughts on the prosecution of Soldier F.
Soldier F is to go on trial next year for the murder of James Wray and William McKinney and for the attempted murders of Joseph Friel, Michael Quinn, Joe Mahon and Patrick O’Donnell during Bloody Sunday in the Bogside area of Derry in 1972.
Mr McDowell’s comments yesterday followed the former Minister for Justice reportedly making similar comments while speaking at an event last week to mark the 25th anniversary of the establishment of the Association of Retired and Commissioned Officers.
Mr McDowell was on the radio programme’s panel with Justine McCarthy, Political Correspondent for The Sunday Times, Mary C Murphy, a senior lecturer in politics Department of Government and Politics UCC, Diarmaid Ferriter, historian at UCD and Conall MacCoille, Chief Economist at Davy.
The barrister made his comments just after the panel had been discussing the potential political consequences of Spain’s Supreme Court ruling last month that the remains of former Spanish dictator Francisco Franco should be exhumed from the state mausoleum, where his remains have been buried since his death in 1975, and reburied next to his wife in a graveyard outside Madrid.
Michael McDowell: “This is the point that I was raising in the week, I was asked to speak to retired army officers here. It sounds very dangerous.”
McDowell: “But in any event, it was a very enjoyable occasion. But in the course of my remarks, I said to them, you know, there is a sense in which you have to make a very cold choice as to whether you run a line across this page of history and say ‘we’re not going behind that again’, ‘we’re not going back there’.
“I mean Solder F.”
Marian Finucane: “Yeah.”
McDowell: “On trial for something 47 years ago when you know and I know, Marian, you’d had people in this studio who’ve done far worse things and…”
Finucane: “Eh no…”
Finucane: “Anyone who has been in this studio has assured me that they haven’t and that they were never a member of the IRA and that’s a fact.”
Finucane: “They told me.”
McDowell: “They told you…well I mean…”
Justine McCarthy: “I think for, to be fair to the relatives of the people who were killed on Bloody Sunday, there is nothing worse than to have somebody shot dead, an innocent person.”
McDowell: “I know there isn’t but I really do think, you know, we faced that in the civil war here. And on the day of the handover to Fianna Fáil, the Minister for Defence said ‘destroy all records’ to do with the executions and all the rest of it.
“By far, I think it was Desmond Fitzgerald who signed that order to the armed forces. He was saying we’re drawing a line under that and they didn’t go back under that. The army switched its allegiance to De Valera’s government and…”
Diarmaid Ferriter: “Well a hundred years on, that civil war legacy is still a delicate issue. So if it’s only 45 years…”
McDowell: “Or in America, they’re still fighting their civil war. The question I’m saying, I don’t believe, I have to say, in all, of this notion of a truth commission. You’ll never find out the truth about most things that happened in Northern Ireland. The people who did the terrible deeds will never put there hands up and say ‘I did this’.”
Later the panel were discussing the situation facing the Kurds in northeast Syria near the Turkish border.
McDowell: “You’ve the crass ignorance of Donald Trump, you know what I mean. First of all, he claims to have won the battle against IS single handed. Then he had to acknowledge that they did most of the fighting for him. Then he lets them down with this telephone deal with Erdogan. Then he justifies that by saying the Kurds, god help them, were no help during D-Day invasion in Normandy…I mean to have a buffoon like him…”
Diarmaid Ferriter: “But it’s also the power that it’s giving to Putin as well…”
Finucane: “You may not like Mr Trump, Michael McDowell…”
McDowell: “I don’t.”
Finucane: “But he was elected under their system whether you like it or not.”
McDowell: “I agree with you, he was elected and I would accord him the respect that that involves but I would regard him as an absolutely shameful character. And I really think he’s a standing insult to the American people.”
Ferriter: “There’s another headline today, suggesting he’s going to tweet his way to a second term which is…”
Finucane: “Well, you see, I know there is a complete bias among our listenership, not universal because they get very annoyed at about, how, when anti-Trump stuff is said. His supporters think he’s kind of god.”
McDowell: “So did Adolf’s and Joe Stalin’s.”
McCarthy: “Somebody said the other day that the only member of the army that President Trump admires is Col Saunders.”
Listen back in full here
From top: Dr Michael Woods (right) with former Taoiseach Brian Cowen (left) and current FF leader Micheál Martín at a FF think-in in 2009; Senator Michael McDowell
Next Thursday, at 10.15pm.
RTÉ One will broadcast a new documentary Rome V Republic, presented by senator, barrister and former Attorney General Michael McDowell.
It will recall the June 2002 deal between Fianna Fáil and 18 religious orders, which awarded the orders indemnity against all legal claims if they paid €128m in cash and property.
The agreement was made by Dr Michael Woods, a devout Catholic, on behalf of Fianna Fail, before the 2002 General Election and on his last day in office.
Cabinet approval was never sought for the deal and it was also never run past the Attorney General of the day [Michael McDowell].
At the time of the deal, the total liability to survivors was estimated at €300m even though no detailed analysis was carried out by any government department.
As of 2017, the total liability was estimated at €1.5bn.
It’s been previously reported that Mr McDowell and his staff were excluded from two meetings between the State and the orders in November 2001 and January 2002.
Mr Woods reportedly later defended this move, saying:
“The legal people simply couldn’t have attended – it was a no-go area for them – they had fallen out with the religious.”
“My religion was an asset. They knew me and they knew my work. I can’t say someone else wouldn’t have been able to do the same. That said, they would have known me well.”
Today, The Irish Times reports Mr McDowell as saying:
“The simple fact of the matter is that the result was that the State effectively signed a blank cheque which cost us €1.4 billion in the end, in exchange for a promise of a contribution of €128 million from the religious orders.”
Two years ago, Seán O’Rourke, on RTÉ Radio One, interviewed the current leader of Fianna Fáil Mícheál Martin about the deal – asking if the Government should revisit the deal considering what had then emerged about the Bon Secours Mother and Baby Home in Tuam, Co Galway.
Mr Martin said:
“The church would never had been coming up with €1.5billion and the legal advice at the time, and I remember speaking to the late [Fianna Fáil] Rory Brady who was the Attorney General [sic], he was adamant that the State would always, because of its involvement, from the inspectorial regime at the time in industrial schools – it was culpable.”
Previously: Spotting The Woods For The Trees
INM’s Paul Williams and Dearbhail McDonald at the Dublin Castle this week
Independent News and Media Group Business Editor Dearbhail McDonald gave evidence on Tuesday at the Disclosures Tribunal in Dublin Castle.
Ms McDonald was asked about her involvement in the editorial process ahead of the publication of Irish Independent journalist Paul Williams’s first article about Ms D and Sgt Maurice McCabe which was published on April 12, 2014.
Ms McDonald, who would have been Legal Editor at INM at the time, was tasked with “stress-testing” and “fact-checking” Mr Williams’ first article about Sgt McCabe and Ms D.
Ultimately, she told the tribunal, she advised against Mr Williams’ first draft being published.
She also told Micheál Ó Higgins SC, for An Garda Síochána, that her advice led to Sgt McCabe’s reputation being “protected”, saying:
“I believe that the advices that I gave and the role that I played actually went to ensure that Mr McCabe’s reputation was protected. I gave advices, I’m not going to go into the specific advices that I gave. But the ultimate decision of an editor is final. And perhaps I wouldn’t — well, I know I advised against publication.”
Ms McDonald told Judge Peter Charleton:
“For reasons of confidentiality and privilege, I don’t want to go into the specific advices that I gave, but certainly there were material changes between the draft I saw and the article that was ultimately published.”
The tribunal has since asked Mr Williams if he can furnish the tribunal with the first draft of his first story on Ms D.
Both Ms McDonald and Mr Williams have both told the tribunal that they never spoke to each other about her “stress-testing” of his article – with Mr Williams saying he only learned last month of what she did through statements given to the tribunal.
The tribunal is examining a claim by the former head of the Garda Press Office Supt Dave Taylor that he was instructed by former Garda Commissioner Martin Callinan – with the knowledge of Mr Callinan’s successor Nóirín O’Sullivan – to negatively brief journalists about Sgt McCabe by telling them about the Ms D allegation made against Sgt McCabe in 2006.
In December 2006, the daughter of a Garda colleague of Sgt McCabe’s, referred to as Ms D, made an allegation of ‘dry humping’ against Sgt McCabe to gardai.
The matter was investigated by then Inspector Noel Cunningham, his investigation went to the DPP and, in April 2007, the DPP unequivocally ruled there was no basis for a prosecution.
Supt Taylor alleges that he was instructed to tell journalists about Ms D’s 2006 allegation and to tell them that, while the DPP ruled against a prosecution, the investigation was still the “root cause” of Sgt McCabe’s complaints about malpractice within An Garda Siochana.
The tribunal has already heard that three journalists called to the D family home in early 2014 – Debbie McCann, of the Irish Mail on Sunday; Eavan Murray, of The Irish Sun; and Mr Williams.
However, only Mr Williams – who interviewed Ms D and part-videoed an interview with Ms D on March 8, 2014 – wrote about Ms D in 2014.
He wrote four articles about Ms D which were published April and May 2014.
Mr Williams has told the tribunal he was not negatively briefed by either Supt Taylor, Ms O’Sullivan or Mr Callinan.
Ms O’Sullivan and Mr Callinan both deny Supt Taylor’s claims.
Ms McDonald explained to the tribunal that in March 2014 – at a time when she was covering the Anglo trial of Pat Whelan, Willie McAteer and Sean FitzPatrick in the Criminal Courts of Justice – she was asked by then INM Group Editor Stephen Rae to “stress-test” Mr Williams’ first article about Ms D.
Ms McDonald said she was asked to:
“…essentially stress-test a story that had been written by a colleague that they were considering for a publication, and I was tasked with that by my editor and asked to go off and make my own inquiries and to come back and see was it fit for publication, in my view, in terms of both being legally and factually robust…”
She further explained that she did know the article was about Sgt McCabe, saying:
“Yeah, at that stage it was fairly evident that it was, and I undertook my own inquiries and
reported back to my editor, Stephen Rae, to our group head of news, Ian Mallon, and, as the Tribunal is aware from my statement, I did compose a memo over which I’ve raised confidentiality and privilege, outlining some of my observations, concerns and the risks as I perceived them, and that was the end of the matter for me.”
Ms McDonald told the tribunal that she was given both the article and the video interview to consider before she made her own “inquiries”.
She also said that in/or around March 14 she would have watched the video in the company of Mr Rae and Mr Mallon.
[Mr Mallon can’t recall any meeting about the article or seeing the video]
Ms McDonald said she wrote up a memo, with her notes, as part of her inquiries and:
“It was quite a discrete function, task that I had been assigned. I did that. I had no — I wasn’t apprised of anything that happened before that, or how it came about, and I had no interaction thereafter with it. I went back to the CCJ [Criminal Courts of Justice] after that.”
Ms McDonald was asked by the counsel for An Garda Síochána if she was aware of the criticism that has been levelled against Mr Williams for him not contacting Sgt McCabe ahead of the publication of his series of articles.
[Mr Williams has already told the tribunal that he didn’t feel he needed to contact Sgt McCabe because Sgt McCabe wasn’t identified in the articles – though Sgt McCabe, and many witnesses have already told the tribunal they believed the articles were about him when they read them]
In response to this, Ms McDonald said:
“I have no knowledge of that because I was brought in specifically to assess or give my views or opinions, I have no absolutely no carriage or knowledge of what the company otherwise did in terms of liaising with Mr. McCabe or any of the relevant parties.”
Yesterday, Mr Ó Higgins SC, for An Garda Síochána, asked Mr Williams if he was aware that Ms McDonald, as part of her fact-checking exercise, contacted Michael McDowell SC, for Sgt McCabe, in March 2014.
Mr Williams said he wasn’t aware of this until April of this year – via the tirbunal.
Judge Charleton said there was nothing wrong with this contact between Ms McDonald and Mr McDowell, saying it was “a perfectly legitimate exercise as opposed to taking sides” while Mr Ó Higgins SC, for the gardaí, saying he wasn’t suggesting otherwise.
The tribunal has heard intermittently about a ‘poison pen’ letter, dated February 26, 2014, about Sgt McCabe which was sent to RTÉ and INM.
On Tuesday, Ms McDonald was asked about this letter and her knowledge, if any, of it.
She told Kathleen Leader SC, for the tribunal:
“It was the Tribunal through — or my lawyer, our lawyers, through the Tribunal, that brought attention to it, and I have no knowledge of it, no receipt of it, haven’t had it in my possession, did not see it until it was provided by the Tribunal.
And just even in terms of my own general practice, I do maintain a readers’ correspondence file where it’s suitable to hold on to material, and, if I had received that, I would have brought it to the attention of the relevant news editor or person that was working on it.
But I certainly, if it had been in possession, would not have given it away. I have a practice of retaining important correspondence when I receive it, including unsolicited and anonymous correspondence.”
Later, it was put to Ms McDonald by Mr Ó Higgins SC, for the gardaí, that, according to a statement of Sgt McCabe, Ms McDonald had “a role in relation to the issuance or the production of that letter and it coming to the attention of Sergeant McCabe’s side of the house?”
Ms McDonald said this was incorrect.
“And I just have to take issue and disagree with that because I am quite emphatic about my knowledge. The first time I saw or received the letter, had knowledge of the so-called foxtrot bravo letter, when it was brought to my attention courtesy of the Tribunal.”
“He [Sgt McCabe] says, “it was my understanding”, namely Mr McCabe’s understanding at the time, that the document had been given to a person. That was — that is not the case.”
Diarmaid McGuinness SC, for the tribunal, yesterday asked Mr Williams about this letter.
They had the following exchange:
McGuinness: “…just one final matter. The investigators asked you about this and you were shown a document… This is a letter dated — purported to be dated the 26th February of 2014, and Sergeant McCabe, when being interviewed by Mr [Sean] Guerin, read a fragment of it to Mr Guerin in connection with an allegation of sexual assault of a minor.”
Williams: “I’m aware of this, yeah.”
McGuinness: “So that was on the 1st April. And he told Mr. Guerin that his counsel had got it from the Irish Independent…”
Williams: “I read the statement…”
McGuinness: “…a couple of weeks earlier than that?”
Williams: “He told Mr Guerin that he got it — that his counsel, Mr McDowell, got it from Dearbhail McDonald in the Irish Independent. I read that. In 2014, this was?”
Williams: “I saw that, yeah.”
McGuinness: “And Sergeant McCabe then made a statement explaining his understanding of it…We’ve also been informed that Prime Time received this at the end of February. And we belatedly received a copy of that, a version of that letter from them since.”
Williams: “Prime Time received it when?”
McGuinness: “In February 2014.”
Williams: “Is this the same document?”
Williams: “Oh, right, okay.”
McGuinness: “But just in the context of this issue as to whether it came to the Independent, did you ever see this letter before?”
Williams: “The first time I ever heard about this document was in April when the Tribunal contacted my solicitor, and I saw it then the next day. I had no knowledge of it, never saw it before in my life.”
McGuinness: “And you heard no talk of it, about having been received or…”
Williams: “Never heard of it.”
McGuinness: “…going the rounds…”
McGuinness: “… or going to any other news organisations…”
McGuinness: “… or chitchat. Ms [Katie] Hannon referred to it in a broadcast in July 2016 on a Prime Time programme.”
McGuinness: “Did you pick up the reference from that at any stage?”
McGuinness: “In any event, this played no part in your knowledge or
information or decision-making?”
Williams: “No, and I also am very cognisant that my colleague Dearbhail McDonald made a very unambiguous statement stating that she never saw this document and never gave it to Mr McDowell.”
McGuinness: “No, I understand that, but I am just…”
Williams: “So I don’t know the provenance of it, I don’t know where it came from.”
McGuinness: “I’m just anxious to get your evidence on the matter to advance matters. Thank you very much, Mr Williams.”
Sgt McCabe’s legal team didn’t ask any questions of either Ms McDonald or Mr Williams – who gave evidence about his articles last summer.
The tribunal resumes.
Top: Maurice and Lorraine McCabe arrive to the Disclosures Tribunal last week; Above from left: Head of HR at An Garda Siochana John Barrett, former Chief Administration Officer Cyril Dunne, Michael McDowell SC, for Sgt Maurice McCabe and Supreme Court Judge Peter Charleton
At the Disclosures Tribunal.
Head of HR at An Garda Siochana John Barrett resumed giving evidence, before Supt Noel Cunningham was questioned (more about Supt Cunningham’s evidence later).
Mr Barrett claims that, following a meeting involving former Garda Commissioner Noirin O’Sullivan and former Chief Administration Officer Cyril Dunne, he was asked to stay back and Mr Dunne made a comment to him in relation to Sgt Maurice McCabe and the O’Higgins Commission of Investigation which took place in 2015.
He says that he was told by Mr Dunne “we’re going to go after him in the Commission”.
Mr Barrett said he believes the “we” was a reference to the executive of An Garda Siochana.
Mr Dunne – who is scheduled to give evidence tomorrow afternoon – denies this ever happened.
Mr Barrett didn’t take a note of this alleged remark and can’t specifically recall when this meeting took place.
But, based on looking at emails, he believes it was on May 13, 2015 – the night before the hearings of the O’Higgins Commission of Investigation began.
On Friday, the tribunal heard Conor Dignam SC, for Ms O’Sullivan, say she was in the UK on May 13, 2015 and left the UK at 5.35pm.
Yesterday Mr Dignam told the tribunal Mr Dunne has said he wasn’t in Garda HQ – where the alleged meeting took place – from 6pm on May 13, 2015 as he had “important” meeting related to a sports club in Wicklow of which he is honorary secretary.
In any case.
Mr Barrett maintains the remark was made to him and Mr Dunne maintains it wasn’t.
Yesterday, Judge Peter Charleton, who is overseeing the tribunal, put specific questions to Mr Barrett.
He asked Mr Barrett about his view of Noirin O’Sullivan as a Garda Commissioner in 2015 and why he didn’t contact her immediately after this comment was made to him.
He asked why it took him two years to tell Sgt McCabe about the alleged remark.
And he then asked him about his relationship with Mr Dunne – drawing attention to the fact there had been newspaper reports that suggested there was some conflict between them.
The questioning prompted Michael McDowell SC, for Sgt McCabe, to say that if questions put to Mr Barrett might infer that Mr Barrett had some kind of grudge against Mr Dunne then either the judge, or some counsel, should ask Mr Barrett out straight if that was the case.
Some tetchy exchanges then followed between Mr McDowell and Judge Charleton.
This is how it unfolded…
Judge Peter Charleton: “When we go back to this time, you are in Human Resources, it’s 2015, it’s early 2015, and you are in the job quite a short time, I think. You joined, what, the end of 2014?
John Barrett: “Yes, 3 October ’14.”
Charleton: “Yes. So you had got to know the Garda Commissioner by then?
Barrett: She was — I met her before I accepted the job. She hadn’t interviewed me, but I went to meet her in her office before I joined the job.
Charleton: And you made what offer?
Barrett:I felt that she was going to try and bring about change in the organisation.
Charleton: Did you feel she was a genuine person?
Barrett: At that point I had absolutely no difficulty with the mission that she set out to me.
Charleton: That is not the question I am asking you, Mr. Barrett.
Barrett: Yes, I did feel she was genuine.
Charleton: Did you feel she was a truthful person?
Barrett: I did, I did, absolutely.
Charleton: All right. And did you feel, in terms of the engagement with Maurice McCabe and the whole idea of whistleblowers perhaps not being right, not always necessarily being saints, but the necessity to listen to them and try to learn from what they were saying —
Charleton: — did you feel she was genuine about that?
Barrett: Yes, I believed that.
Charleton: And did you feel the efforts that you were putting in place, including the lengthy efforts that are detailed in the minute where you were driving along in your car, did you feel that they were actually engaged in, not from the point of view of public relations but from the point of view of setting things to right?
Barrett: I absolutely believed that, and at the end of that journey, Judge, I was quite pleased with the day’s work, yes.
Charleton: You were personally investing heavily in this as well?
Barrett: Yes, my credibility, my time, my energy.
Charleton: In the event that this turned into a success, clearly it would be a success that you would have led as Head of Human Resources?
Barrett: It would have been a collective effort. And I am not driven by individual accolades, but I would have taken some considerable personal pride had it been successful.
Charleton: So there you are, you are in May, you are in the job seven months.
Charleton: And your boss turns to you, having asked you to remain behind after a meeting with the Commissioner, who is genuinely attempting to move the Gardaí forward and to engage with those who make protected disclosures, and your boss tells you: by the way, we are going to ruin it all before the O’Higgins Commission?
Barrett: He didn’t say that.
Charleton: Well, I am finding it hard to construe it any other way. We are going after Maurice McCabe before the O’Higgins Commission. How do I construe that, Mr Barrett?
Barrett: I am alarmed by it, but I don’t understand it fully, Judge, that is the reality. I didn’t understand.
Charleton: You told me, Mr Barrett, that you had a visceral reaction to it. Visceral, of course, refers to your stomach, your intestines.
Charleton: Why did you have a visceral reaction to it?
Barrett: I have genuinely invested, time, energy, commitment in trying to move this thing to a point away from conflict. Maybe it’s naivete on my part, but I thought, simply, Judge O’Higgins was going to review all of the facts of the matters that were arising on the terms of reference and make a judgment on those facts, that it wasn’t going to be adversarial in its — that was my view. And clearly, what I had — just the shot fired across my bows was, this is something different. And I was conscious in hearing it, and it’s easy to be wise after the fact, of Maurice — of Sergeant McCabe’s doubts about the bona fides of the organisation when we first met in February. And I hadn’t won Sergeant McCabe over to suddenly believe that the organisation was, you know, after changing its perspective entirely. So this was a work in progress.
Charleton: And your visceral reaction, is what I asked you about.
Barrett: I felt my stomach tighten.
Barrett: I have — it’s just a feature of who I am, sir. I respond to things physically if they either shock or surprise.
Charleton: Did you feel that the process you had started was going to be ruined in consequence of what Mr Dunne revealed to you?
Barrett: I didn’t know that, but what I did know was, the process I was embarked upon was bearing fruit and I was protective of it.
Charleton: Well, what interpretation did you put on the remark you say that Mr Dunne made to you?
Barrett: The only thing that I, as I said in the transcript, the only thing that I did was, I took a further look at the terms of reference and left the —
Charleton: That is not what I am asking you. I am not interested in the terms of reference. I know the terms of reference. Right. You looked at them. What interpretation did you put on the remark that Mr Dunne made to you?
Barrett: That there would be conflict at O’Higgins of some sort.
Charleton: And how would that impact on the work that you embarked on?
Barrett: I felt that it would damage it. I felt it could possibly damage it.
Charleton: Do you mean possibly, or were you more definite about that, given your visceral reaction?
Barrett: Possibly. It could possibly damage it.
Charleton: Was it not appropriate, therefore, for you to ring the Garda Commissioner, a person whose genuineness you believed in and a person you trusted, and said, look, there may be a problem in relation to the O’Higgins Commission and the way it’s being approached, could we have a word about it?
Barrett: I very much regret not doing that, Judge.
Charleton: I am wondering why you didn’t do it? I am not wondering about your regrets, Mr. Barrett. I am wondering why you didn’t do it?
Barrett: I think that I was probably swept forward into all of the other things that were going on and didn’t do it and let the matter unfold. To a degree, I vested trust in the process. I perhaps shouldn’t have.
Charleton: Maurice McCabe trusted you?
Barrett: He did.
Charleton: And by not doing this, you were prepared to see somebody else, on your account of things, undermine his trust in the organisation, of which, by the way, you are a part.
Barrett: It weighs heavily on me.
Charleton: Whether it weighs heavily on you now or not, is neither here nor there. I am asking, why did you not react by ringing the Garda Commissioner and asking her what was the explanation for this and pointing out to her, look, there may be issues ahead in the event that this particular strategy is followed through, which conflicts with the strategy that we had already agreed and settled upon in numerous meetings?
Barrett: I don’t have a good answer to that, Judge. I don’t. I should have, and I didn’t. I was troubled by it. And then the matters unfolded over the coming weeks. I sought to continue to build a bridge with Maurice. The record shows that it’s sustained. Many of the initiatives that were spoken of, as far back as February, did not continue.
Charleton: It took you two years to tell him about this remark that you say happened.
Charleton: Why did it take you two years?
Barrett: Because the nature of my engagement — I am representing the organisation in my dealings with him. There are very specific issues arising in that relationship, as I saw it. I was, as I said yesterday — or Friday, in seeking to try and maintain Chinese walls, I wanted to represent the organisation.
Charleton: I really don’t understand this phrase about Chinese walls. I really don’t know what you are talking about when you say “Chinese walls”. It’s a phrase, by the way, that is used in relation to large firms of solicitors that seem to be representing opposite sides of Government agencies through the same firm. Now, I don’t know what it means, but let’s move on. Yourself and Mr Dunne, have you stayed in contact since he left the organisation?
Barrett: I shook his hand when I met him here on the 8th.
Charleton: That’s not what I asked you.
Barrett: We meet periodically.
Charleton: Mr Barrett, that’s not what I asked you.
Barrett: No, we are not socially engaged.
Charleton: Why not?
Barrett: I have no good answer for that. I mean, we had a professional relationship. There are many people for whom I have had — who have been working colleagues that I am not professionally engaged with, and there are people I have long, long engagements with.
Charleton: That is fair enough. For those perhaps who read the newspapers, it may appear that the two of you have been in conflict in relation to the interpretation of certain issues over the course of the last year or so. Would that be correct or incorrect?
Barrett: The issue is the —
Charleton: Forget about the issue. Just please answer the question.
Barrett: On one specific case, yes.
Charleton: On what?
Barrett: The financial irregularities at the Garda College.
Charleton: And you are saying what and he is saying what?
Barrett: Well, this matter was played out in front of the Public Accounts Committee.
Charleton: Just tell me, if you wouldn’t mind, please.
Barrett: The issue of how those matters were investigated and dealt with.
Charleton: And your view on the matter is directly contrary to his?
Barrett: Partly contrary to his. Partly. At the very beginning of that process, which was May of 2015, Cyril and I were in lockstep as to what needed to be done.
Charleton: It’s made headlines, hasn’t it?
Barrett: I haven’t studied the headlines in the last number of days, but I have followed it as it played out in the PAC.
Charleton: Thank you very much.
Barrett: Thank you, sir.
Michael McDowell: Judge, I think if it is going to be found in relation to this witness that he was motivated by a grudge against Mr. Dunne, somebody, yourself or your counsel, should put that —
Charleton: Now, Mr McDowell, that is going too far.
McDowell: Sorry, it’s not.
Charleton: No, it is going too far.
McDowell: Otherwise your questions seem to be irrelevant, Judge.
Charleton: What exactly is the point you are making, Mr. McDowell?
McDowell: Precisely the point I made; that if it is going to be inferred, from the matters that you have just raised with the witness, that he fabricated this remark on the part of Mr. Dunne as part of settling some grudge, that should be put to him fair and square by somebody.
Charleton: And you suggest it should be done by me?
McDowell: You asked the questions about his relationship with Mr. Dunne. Your counsel didn’t. If that is — if it is relevant, I think you should go the whole way with him, Judge.
Charleton: And all the remarks you have made during the course of this Tribunal about this being an inquiry, Mr. McDowell, do they not apply to me as well? Am I not entitled to inquire?
McDowell: Well, I think, Judge —
Charleton: And do you think —
McDowell: May I make this point, Judge?
Charleton: And do you think — well, I need to make a point too, Mr. McDowell, because you are very free with your language.
McDowell: I am not free with my language.
Charleton: Do you think, Mr. McDowell, that all the warnings about the judge entering into the arena are lost or do they not apply in these circumstances?
McDowell: You are not a judge; you are an inquisitor here. And if you have — if it was relevant to make those points to the witness, I think the — that the inference that appears to be blatant in them should be put to him.
Charleton: Mr Dignam asked the questions as well, didn’t he?
McDowell: And Mr Dignam has his instructions. I am just saying that somebody should put this to him. Chairman, can I make this point to you —
Charleton: Well, Mr. McDowell, it very often happens — it seriously very often happens that two people meet, they discuss matters, one comes out saying the following happened and the other comes out saying no, that didn’t happen at all. Now, it could happen, as well, that those people don’t exactly get along. Perhaps it’s because of a lack of an emotional connection that misunderstandings occur, but Mr. McGuinness has cleared it up. There is no misunderstanding here. It’s not a question of, for instance, we are adopting our strategy and it’s not going to be easy for Maurice McCabe. It’s a question of the ‘remark’, in inverted commas, being absolutely correct. Now, I really have to inquire, in circumstances where a person who allegedly made the remark says he didn’t make it and where the person to whom that remark was repeated within weeks, it seems, says, well, that never happened, as to precisely what is going on, and I think I am entitled to do that, Mr. McDowell. And I feel if I didn’t do that, I’d be failing in my duty to make an inquiry.
McDowell: Well, Judge, maybe perhaps I can put the question to the witness then.
Charleton: If you wish to put the question, you are certainly entitled to do so. But please don’t ascribe to me anything that you don’t know is in my mind.
McDowell: Judge, you asked the questions. I queried its relevance other than in this context.
Mr McDowell then went on to question Mr Barrett…
McDowell: Anyway, Mr Barrett, in case anybody would draw the inference from your evidence that you have fabricated this remark by Mr Dunne and that you have done so in part to settle some score with him or because you have a very poor relationship with him or you fell out with him, what have you got to say about that?
Barrett: “None of those assertions are true. Mr Dunne hired me into the organisation. I respect his background, I respect his integrity. We have a difference of view on one significant matter, which related to how we should proceed in relation to the investigation of financial irregularities at the Garda College. That is a matter of public record. I shook his hand here on the 8th January. I feel no animosity whatsoever from Mr Dunne, and that is a matter of fact.
Yesterday’s transcript can be read in full here
Previously: Diametrically Opposed
From left: Supt Noel Cunningham, solicitor at the Chief State Solicitor’s Office Annemarie Ryan, Colm Smyth SC and Michael McDowell SC
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.
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.
“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 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.”
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”.
“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?”
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”
#DisclosuresTribunal NC says he gave report to Commission and McCabe’s legal team on May 18 2015. McDowell repeats this did not happen. Charleton suggest sometimes, even in the High Court, “sometimes paper comes in like confetti”. NC says “There were documents flying, judge”
— broadsheet_ie (@broadsheet_ie) February 5, 2018
#DisclosuresTribunal McDowell calls up transcript of day 4 of O’Higgins (May 19, 2015)..showing McDowell DIDN’T have NC’s report of Mullingar meeting on May 19. Annemarie Ryan, of Chief State Solicitor’s office, previously told tribunal this WAS given to McCabe counsel on May 18
— broadsheet_ie (@broadsheet_ie) February 5, 2018
#DisclosuresTribunal Charleton says this “wouldn’t be the first time something like that happened” and says he could recall Ms Ryan’s evidence stating she was late to the Comm on the morning of May 18. Charleton says: “It happens”
— broadsheet_ie (@broadsheet_ie) February 5, 2018
#DisclosuresTribunal Before Supt Cunnigham finishes giving evidence, McDowell, returns to Day 4 of the O’Higgins transcript. In the transcript Gillane SC, for the O’Higgins Comm, said “Judge in relation to the current position and circulation of some documents there…”
— broadsheet_ie (@broadsheet_ie) February 5, 2018
#DisclosuresTribunal “…I think it might be appropriate to stand this witness down just for the present purposes and we’ll have [him] recalled hopefully later today.” McDowell tells tribunal the witness being referred to was Supt Cunningham and he was being stood down because..
— broadsheet_ie (@broadsheet_ie) February 5, 2018
#DisclosuresTribunal ..NC’s report of Mullingar meeting had NOT been circulated to McCabe’s counsel at that point (May 19, 2015). McDowell said they did not get it later that day. He couldn’t state when he received it but it was some time after.
— broadsheet_ie (@broadsheet_ie) February 5, 2018
#DisclosuresTribunal McDowell repeats the matter wasn’t sorted out until late June (when the Comm resumed and after McCabe’s tape was produced) and that this took place AFTER the submissions (which repeated wrong claims of CSS letter) were entered on June 11, 2015.
— broadsheet_ie (@broadsheet_ie) February 5, 2018
#DisclosuresTribunal McDowell pointed out the June submissions didn’t appear to take account of errors [or contradictions btw report and CSS letter]. Charleton said: “I appreciate what you’re saying.”
— broadsheet_ie (@broadsheet_ie) February 5, 2018
From top: Michael McDowell and Shane Ross
On Today with Sean O’Rourke, hosted by Cormac Ó hEadhra.
Former Attorney General and former justice minister Michael McDowell spoke to Mr Ó hEadhra about Transport Minister and Independent Alliance TD Shane Ross’s Judicial Appointments Commission Bill.
The bill will see non-legal members of a commission have the majority say on judicial appointments.
From the interview…
McDowell: “Shane Ross is driving this particular policy, it’s not a Fine Gael policy. He is driving it from a personal conviction based on an unfortunate experience he had in the courts himself. That the judiciary exercised their powers and are appointed on the basis of cronyism. That unfortunately is a gross untruth. And, secondly, it’s seemingly to create a problem that doesn’t exist. Our judiciary…”
Cormac Ó hEadhra: “Well, hang on, Shane Ross would obviously contest what you have said there…”
McDowell: “Well, sorry, all you have to do, Cormac, is look at his book, the Scroungers [sic, it’s Wasters]. And look at the venom towards the judiciary which he exhibits in it himself, and his son-in-law Nick Webb wrote this book. A whole chapter. No let me finish. A whole chapter of it is devoted to attacking the judiciary and suggesting that they operate or are appointed on the basis of cronyism. That is not true.”
Ó hEadhra: “Is it not about perception? Is he not trying to break down at the very least, the perception that some hold in this country, that when it comes or when it did come up to now anyway, to appoint the judges, some people perceived that political affiliation counted..”
McDowell: “Well, can I tell you this? I was minister for justice, I was attorney general from 1999 to 2002 and minister for justice from 2002 to 2007. And Rory Brady was the attorney general during the period that I was minister for justice. And during that period, in relation to the appointments to the superior court, I can say with absolute certainty that the great majority of the people who we appointed were people who, if they had political affiliations that were known, were not the affiliations of the two Government parties. We appointed people who, as far as I knew in the majority, were, had been in the past…”
Ó hEadhra: “Are you saying it was never a problem?”
McDowell: “No, I’m saying it has never been a significant problem and I believe that what is going on here with Shane Ross is effectively demanding a change in the way the Government approaches the appointment of judges based on a personal agenda of his which is not representative of what has happened in the past and which is not true.”
Ó hEadhra: “Ok, I’ll leave him to answer that question that you hold up against him but this bill, if you return to the bill for just one second. It’s not as if Shane Ross, or anybody else in Fine Gael either is proposing a bill that you take five or six random people off the street and ask them the considered judges, you will still have, by my understanding, three judges and the attorney general and some lawyers on this new appointment board – that’s still a significant cohort of legal expertise, is it not?”
McDowell: “There will be a minority of people on the new commission who know something about the administration of justice but the commission will be chaired by a person and it will have a majority of members who are chosen on the basis that they have nothing to do with the administration of justice. And that, I think, is entirely wrong. And the second point I want to make to you is this: that when it comes to promoting say, somebody from the High Court or the Court of Appeal to the Supreme Court, the idea of having a commission advise the Government which of the 35 or 40-odd High Court judges or 8 or 10 judges of the Court of Appeal, should be in the Supreme Court is fundamentally flawed. That is a decision for the Government of the day…”
Listen back in full here
From top: Garda Commissioner Nóirin O’Sullivan; Senator Michael McDowell
In the Seanad.
Senator McDowell said that Ms O’Sullivan should step aside “for the duration of the tribunal until it has reported, or permanently’’.
Mr McDowell said it was totally inconceivable that officers, including senior officers of a disciplined force, should be asked in public to accuse the person in charge of them of grave misbehaviour in evidence to a public inquiry.
He said it would be difficult for them to instruct counsel to cross-examine that person as to her honestly, reliability and suitability for office.
Mr McDowell said the public should not be judge and jury in the matter.
“However, the rights of all persons and the public to fairness come first,’’ he added. “The determination that the commissioner should remain in place during the tribunal is neither fair, nor appropriate nor defensible.”
Previously: How Did he Get Here?