Clockwise from top left: Legal Affairs Correspondent at The Irish Times Colm Keena, Sgt Maurice McCabe, former Garda Commissioner Nóirín O’Sullivan and Brendan Howlin; Above: headline over Mr Keena’s Disclosures Tribunal round-up on June 30, 2018
As featured yesterday, Conor Lally, Security and Crime Editor of The Irish Times, covered the significant events in the Maurice McCabe story which led up to the Disclosures Tribunal and would eventually become a witness at the hearings.
Colm Keena, the Legal Affairs Correspondent of The Irish Times, reported from the the tribunal throughout its year-long sitting.
Last month, at the close of the tribunal, Mr Keena summed up his feelings and concerns about the past 12 months in Dublin Castle.
In an article under the headline ‘Charleton evidence raises questions about damaging claims made’ , Mr Keena asserted:
A number of serious allegations against former Garda commisssioner Nóirín O’Sullivan and others have been strongly challenged by the evidence heard over the past year at the Charleton Tribunal.
He later added:
“…it is possible to point to significant episodes in the controversy where damaging public claims were made on the basis of reasons the tribunal evidence has now shown to be questionable.”
Mr Keena’s article was broken up by six subheadings, outlining different incidents about which claims were made and evidence was given.
They were: Brendan Howlin; the RTÉ broadcasts; O’Higgins commission; text messages; the smear campaign and the Tusla files.
Mr Keena recalled how Labour leader Brendan Howlin told the Dáil on February 8, 2017:
“This morning a journalist contacted me and told me they had direct knowledge of calls made by the Garda Commissioner to journalists during 2013 and 2014 in the course of which the Commissioner made very serious allegations of sexual crimes having been committed by Sergeant Maurice McCabe.”
Mr Keena went on to explain that what Mr Howlin said in the Dáil was based on a conversation he had had with former Irish Mail on Sunday journalist Alison O’Reilly in which she relayed to him what the Irish Mail on Sunday‘s crime correspondent Debbie McCann allegedly told her.
Ms O’Reilly claims Ms McCann told her in 2014 that the then Deputy Commissioner Nóirín O’Sullivan and then head of the Garda Press Office Supt David Taylor were sources for her information on Ms D – a woman who made an allegation against Sgt McCabe in 2006 which was categorically dismissed by the DPP in 2007.
Mr Keena reported that Ms McCann categorically denies Ms O’Reilly’s claim, that Ms McCann says she never spoke to Ms O’Sullivan about Sgt McCabe, and that Ms O’Sullivan also denies she ever spoke to Ms McCann about Sgt McCabe.
Mr Keena also reported that billing records before the tribunal show there were no telephone contacts between Ms O’Sullivan and Ms McCann during the time period of the alleged smear campaign against Sgt McCabe, as alleged by Supt Taylor, between mid-2013 to March 2014.
Mr Keena also reported that Mr Howlin didn’t check the veracity of what he was saying with either Ms McCann or Ms O’Sullivan.
Mr Keena then wrote:
“His claim was the first the public ever heard of McCabe being linked to alleged sex abuse. In his short comment, Howlin referred to sexual crimes, plural, and journalists, plural. His intervention was hugely damaging to O’Sullivan and was reported extensively in the media.”
However, three years before this, Paul Williams, in the Irish Independent, wrote four articles about Ms D’s allegation against Sgt McCabe.
Mr Williams reported that the woman had come forward “as a result of the whistleblower controversy”.
Many witnesses who went before the tribunal said they knew Mr Williams was referring to Sgt McCabe when they read the articles.
Sgt McCabe himself said he received phone calls about them – from people who guessed Mr Williams was writing about him.
The tribunal also heard evidence from many journalists who said that in 2013 and early 2014, they were aware of the Ms D allegation against Sgt McCabe.
Mr Keena was technically correct to say that Mr Howlin’s claim “was the first the public ever heard of McCabe being linked to alleged sex abuse”, but the allegation was known in police and media circles.
In respect of Mr Howlin using the plural terms “journalists”, the Labour leader conceded this was an error on his part when he gave evidence to the tribunal.
Mr Howlin clarified:
“There was two journalists in my mind, one was the journalist Alison O’Reilly who’d spoken to me and the second was Debbie McCann, who was the conduit for the information. They were the journalists, plural.”
He also clarified that the did not have “direct knowledge” – he only knew what Ms O’Reilly told him.
Although unreported by Mr Keena, when Mr Howlin made his claim in the Dáil in February 2017, he stated:
“I do not know whether the charges that have been made against the Garda Commissioner are true or not.”
Mr Howlin made his remark in the Dáil at a time when the Government was discussing and setting the terms of reference for a Commission of Investigation into Supt Taylor and Sgt McCabe’s protected disclosures.
The Children’s Minister Katherine Zappone was in possession of a letter from the chief operations officer of Tusla – since January 2017 – regarding a false rape allegation against Sgt McCabe from 2013/2014 which was created by a counsellor, unbeknownst to Ms D, following counselling sessions Ms D had with a HSE counsellor in July 2013.
[Sgt McCabe wasn’t told about this false rape referral until January 2016 – when Tusla wrote to him in December 2015 and told him it was investigating him for rape and, despite Sgt McCabe’s solicitor Sean Costello writing back to Tusla immediately to say the claim was entirely false, Tusla didn’t acknowledge it was false until the summer of 2016]
When Mr Howlin gave his contribution to the Dáil in February 2017, the Cabinet was not considering the Tusla matter for inclusion in the then pending commission of investigation.
Mr Keena referred to the tribunal’s term of reference K which solely looked at the reports by Paul Reynolds on RTÉ about the O’Higgins Commission of Investigation and if Ms O’Sullivan influenced Mr Reynolds’ reports.
The term of reference specifically states the tribunal was to “investigate whether commissioner O’Sullivan, using briefing material prepared by Garda Headquarters, influenced or attempted to influence broadcasts on RTÉ on the 9th of May 2016, purporting to be a leaked account of the unpublished O’Higgins Commission Report, in which Sergeant McCabe was branded a liar and irresponsible.”
This term of reference came about because Sgt McCabe, in his protected disclosure, told the tribunal that John Barrett, head of HR in An Garda Siochana, told him that Mr Reynolds’ reports ‘came from Block One’ – which is another term for the Garda Commissioner’s office.
Mr Barrett denies saying this to Sgt McCabe.
Mr Keena wrote:
“This term of reference could be seen as the equivalent of a charge not only against O’Sullivan but also against the RTÉ crime correspondent, Paul Reynolds, who produced the broadcasts. He, and the colleagues who worked with him in producing the broadcasts, felt they were being accused of being Garda stooges or bad journalists.”
Mr Keena added:
In a protected disclosure (a supposedly highly-confidential disclosure made under the “whistleblower” law) in October 2016, McCabe said he was on stress-related leave and that the reports by Reynolds were part of the reason for this.
Citing three numbered reasons for his being out of work, McCabe said the first was O’Sullivan’s “treatment of me”.
Another was the production of “false evidence” in an attempt to “set me up” at the confidential hearings of the O’Higgins commission.
The third was the “disgraceful series of broadcasts” on RTÉ on May 9th, 2016, in which he had been “branded as a liar and irresponsible”.
“The disclosure then continued: “I am now satisfied, on impeccable authority, that those RTÉ broadcasts were planned and orchestrated by the commissioner, Nóirín O’Sullivan, personally using briefing material prepared at Garda Headquarters.”
Mr Keena then went on to say:
“The Oireachtas opted to reflect McCabe’s claim in the tribunal’s terms of reference, even though O’Sullivan had rejected the claim as untrue.”
However, many, if if not all, of the allegations which are before the tribunal are contested by those who are alleged to have done things or said things.
There would be no tribunal if contested allegations were not included in its terms of reference.
Mr Keena pointed out that Sgt McCabe included the claim about Paul Reynolds’ reports in his protected disclosure based on “one sentence he claims was made to him” by Mr Barrett.
It’s worth noting Judge Charleton told the tribunal even if Sgt McCabe did withdraw the claim he made on the basis of what he says he was told by Mr Barrett – given Mr Barrett denies it – he would still be obliged to look into the matter.
Of Mr Reynolds’s reports (dealt with in detail here) , Mr Keena wrote:
“The broadcasts by Reynolds led the news on RTÉ all day, on both radio and television [on May 9, 2016]. That they are based on the contents of the then-unpublished O’Higgins commission report can now be shown as the report has been published.
“In them, Reynolds tells viewers and listeners what is in the report, which he had a copy of and no-one at the tribunal has suggested otherwise. If McCabe did not like the broadcasts, then his issue was with Mr Justice Kevin O’Higgins, Reynolds told the tribunal.
“The word “lie” is used in the broadcasts, but it does not appear in O’Higgins. However the report does state that McCabe told an “untruth” to a Garda inquiry knowing it to be untrue. There is no mention of McCabe being “irresponsible” in the broadcasts. The use of the word “lie” was discussed within RTÉ. The broadcasts included the fact that the word used in the report was “untruth”.
“Reynolds, when asked by the tribunal chairman, said he was resentful and angry about the charge made against him. The former chief news editor at RTÉ, Ray Burke, who worked for days with Reynolds on the broadcasts, said the criticisms of their work was an insult to him and his colleagues.”
Mr Keena didn’t detail the evidence heard from Mr Reynolds and Mr Burke in the run-up to his broadcasts on May 9, 2016.
Mr Keeena didn’t explain that notes which Mr Reynolds had shared with the tribunal showed that in April and May – in the run-up to his May 9 reports – he had notes of two conversations with a person or people about the Ms D matter and Sgt McCabe.
Mr Reynolds also told the tribunal he didn’t think to ask why he was being told about the Ms D allegation as he prepared to report on O’Higgins.
Mr Reynolds told the tribunal he had heard about the Ms D allegation in 2013 in the context of the penalty points controversy, and he knew the DPP’s categorical directions, therefore, he knew the Ms D allegation had nothing to do with the complaints Sgt McCabe was making about policing in Cavan/Monaghan.
Kathleen Leader BL, for the tribunal, put it to Mr Reynold that “that is exactly the point”.
In terms of the “untruth” Sgt McCabe made, Mr Keena also didn’t explain the details of this.
The “untruth” centred on a report from 2008 in which Sgt McCabe told Supt Michael Clancy that the victim of an assault and his wife had made a complaint to GSOC even though he knew this wasn’t the case.
The purpose of the “untruth” was that Sgt McCabe felt the couple had been badly treated by members of An Garda Síochána and he felt if he said they complained to GSOC, the matter would gain more attention.
The assault took place in a Cavan pub and the man suffered injuries to his head and face.
Judge O’Higgins, in his report, criticised the handling of the case by An Garda Siochana and found there was an “inordinate delay” in interviewing witnesses and compiling a file on the matter.
Ultimately, Judge O’Higgins said the following about this “untruth”:
“While this concern [of Sgt McCabe’s] was genuine and commendable it is unacceptable to furnish false information in a report.”
In terms of Mr Reynolds’ broadcasts not saying Sgt McCabe was “irresponsible” Mr Keena also didn’t mention that Ms Leader BL, for the tribunal – after the tribunal listened to all of his reports – put the following to Mr Reynolds:
“It could be said, Mr Reynolds, that in conveying to the public on the national broadcasting authority that a lot of complaints were made that nothing came of, and in particular in relation to very senior officers in An Garda Síochána, that Sergeant McCabe, in complaining as he did, was irresponsible in so doing…?”
Mr Reynolds said there was “no implication” from his broadcasts that Sgt McCabe was irresponsible.
Mr Keena’s article also didn’t point out that Michael McDowell SC, for Sgt McCabe, put it Mr Reynolds that he didn’t “mention the fact Sgt McCabe’s evidence had been preferred by the O’Higgins Commission on all of the areas where he was in conflict with other gardaí”.
Another omission in Mr Keena’s piece, in respect of Mr Reynolds is that, apart from Supt Taylor claiming he negatively briefed Mr Reynolds – which Mr Reynolds denies – Dublin City University professor Colm Kenny alleged to the tribunal that Mr Reynolds and Tom Brady, of the Irish Independent, told him, in early 2014, that Sgt McCabe was being investigated for child abuse.
Mr Kenny said he felt they were telling him to “cop himself on” and to “not take Sgt McCabe at face value”.
He also said they encouraged him to go and talk to gardai “up there” – which Mr Kenny took to mean gardai in Cavan/Monaghan.
Both Mr Reynolds and Mr Brady categorically deny the claim.
More can be read about Mr Reynolds’ evidence here.
Mr Keena wrote the following about the O’Higgins Commission of Investigation – and claims made by Sgt McCabe concerning it – in his article:
The O’Higgins commission sat in private. In its report it found that while McCabe had made valid complaints about policing matters, serious allegations he had made against a number of senior officers were unfounded.
An allegation of corruption made against Callinan did not have a “scintilla of evidence” to support it, the report found. While the commission said McCabe had been truthful, it also noted that he was prone to exaggeration.
Rearding the use of the word “corruption” – it should be noted that Sgt McCabe’s complaint in relation to Mr Callinan was the placing of then Supt Michael Clancy on a promotions list, given his complaints about Supt Clancy, who is now Chief Supt Clancy.
It was referred to as a complaint of “corruption” because Sgt McCabe made the complaint under the Charter of the Garda Síochána (Confidential Reporting of Corruption or Malpractice) Regulations 2007.
While Judge O’Higgins did not uphold the complaint against Mr Callinan, he did say in his report:
“The commission is satisfied that Sergeant McCabe did hold genuine concerns that there was some impropriety in the promotion of Chief Superintendent Clancy.”
The tribunal also heard that, on day seven of the O’Higgins Commission of Investigation, Chief Supt Terry McGinn gave evidence to it about the nature of Sgt McCabe’s complaints.
Specifically, she said:
“In relation to Sergeant McCabe’s complaint, he particularly told me… that his complaints were not against Garda sergeants, his complaints were against Garda management and their failure to, and I summarise it here, I have other words, as I was exploring what Sergeant McCabe said to me. And he said: ‘In all of my statements and exhibits, my purpose was to highlight poor standards, poor work practices and failure by Garda management to address these issues. I am also concerned at the service provided by the Gardaí to the public. I am not alleging corruption or criminality by any members or nor have I any evidence to support this allegation‘.”
In relation to the reports by Katie Hannon, on Prime Time, and Mick Clifford, in the Irish Examiner, on events at the O’Higgins Commission of Investigation which weren’t recounted in the O’Higgins report, Mr Keena wrote:
“One aspect of the reports was that a serious claim against McCabe was to have been made by O’Sullivan’s legal team at the private commission hearings. ‘That was blown out of the water when McCabe produced a transcript’ of a secret recording he had made which disproved the claim, said the Examiner report.
“On May 26th, 2016, Mick Wallace, who has long championed McCabe, told the Dáil: “Two gardaí were planning to perjure themselves or provide false evidence to impugn Sgt McCabe’s motives [at the O’Higgins commission] until a recording was produced.”
“The recording referred to was one made secretly by McCabe of a meeting with a Garda colleague. The recording showed that the claim made against McCabe in a summary document produced by the legal team acting for O’Sullivan and other senior officers at the commission hearings was incorrect. The summary document was designed to justify the O’Sullivan legal team’s desire to attack McCabe’s motivation at the commission hearings.
“However, the evidence heard by the tribunal shows that another document handed in by the same legal team, at the same time or soon thereafter, disclosed that the claim against McCabe contained in the summary was incorrect. This document, a report of the meeting secretly taped by McCabe, gave a version of events that agreed with McCabe’s transcript. In other words, it also showed that the claim made in the summary was incorrect. In the witness box, McCabe was asked if he accepted this. He said at first that he did, and then immediately changed his answer.
“I’ll just tell you, and I have, you know, admitted a few things here, but I have to say, and it is in my heart, that I think if I hadn’t got the recording of the Mullingar meeting, I think it would have been serious for me.”
“The tribunal was told that the incorrect or mistaken claim arose following a consultation between lawyers and a Garda officer. In other words, someone misdescribed or misunderstood what was being said during a series of consultations that took place over a weekend in order to have the summary document ready for the Monday morning. There is no evidence that connects O’Sullivan directly in any way with what happened over the weekend. The legal team was acting for her but also for other officers. The legal team met these officers, but not O’Sullivan. The tribunal will in time report on the matter.”
“Prime Time and the Irish Examiner did not name the two gardaí. However, during his comments under Dáil privilege in 2016, Wallace named the two gardaí he said were “planning to perjure themselves” at the O’Higgins commission as Supt Noel Cunningham and Sgt Yvonne Martin.
“Sgt Maurice McCabe would be buried by now if he had not taped the conversation,” Wallace said.
“RTÉ has recently made a six-figure settlement with Cunningham arising out of the Prime Time report. A defamation case against the broadcaster taken by Martin continues. Both are also suing the Irish Examiner, as well as other media organisations. In a statement to the tribunal, Martin said she had never even attended the O’Higgins commission.
“Nor have I ever, to this day, been contacted by the garda commissioner, [O’Sullivan], her legal team, Gsoc [Garda Síochána Ombudsman], the media, to clarify my involvement in or recollection of the [taped] meeting.”
Mr Keena’s reference to an “incorrect or mistaken” claim [singular] in a “summary document” may be downplaying the matter.
The O’Higgins inquiry looked at allegations of poor policing in the Cavan/Monaghan area made by Sgt McCabe, with Judge Kevin O’Higgins overseeing 34 days of privately held hearings from May 14, 2015 until December 17, 2015.
At the outset of the commission, on May 15, 2015, Colm Smyth SC, representing Ms O’Sullivan [his chief client], retired Chief Supt Colm Rooney, Supt Michael Clancy and Supt Noel Cunningham told Judge O’Higgins that it was his instructions – as re-confirmed twice that afternoon by Ms O’Sullivan – to challenge the integrity, motivation and credibility of Sgt McCabe.
Mr Smyth would later – in November 2015 – tell the commission that in respect of him having stated it was his instructions to challenge Sgt McCabe’s “integrity” – this was an error on his part.
But he maintained it was his instructions to challenge Sgt McCabe’s motivation and credibility – as a means to “test the evidence” of Sgt McCabe.
[During the entire time of the commission, Sgt McCabe was never made aware that a wholly false allegation of child rape was sitting in a file in the then Garda Commissioner Noirin O’Sullivan’s office since May 2014]
The tribunal heard a lot about incidents and evidence given at O’Higgins on Day 1 (Thursday, May 14, 2015), Day 2 (Friday, May 15, 2015), Day 3 (Monday, May 18, 2015), Day 4 (Tuesday, May 19, 2015) and Day 5 (June 24, 2015).
Specifically, it also heard about “gross falsehoods”, in the words of Michael McDowell SC, for Sgt McCabe, or “factual inaccuracies”, in the words of Ms O’Sullivan, which were levelled against Sgt McCabe at the O’Higgins inquiry – and which mainly centred on the DPP’s directions in respect of Ms D’s 2006 complaint.
These falsehoods/inaccuracies were raised in evidence at the outset of the commission, committed to paper in the form of a 20-paragraph letter submitted on behalf of the Chief State Solicitor’s office to the commission on May 18, 2015, and, in some cases, committed to paper again when written submissions were later made to the commission on June 11, 2015.
This 20-paragraph document is what Mr Keena was referring to when he wrote “summary document”.
One of the falsehoods/inaccuracies in this document was an allegation that Sgt McCabe was angry with the DPP and that he wanted the DPP’s directions challenged.
Unbeknownst to An Garda Síochána at the time of the O’Higgins commission, Sgt McCabe was fully briefed of the DPP’s directions since April 2007, and was, in his own words to the tribunal, “absolutely thrilled” with them.
Judge Charleton described the DPP’s directions “as close to an exoneration as anyone could get” – making the claim given in evidence that Sgt McCabe wanted them challenged bewildering.
And yet it happened.
Chief Supt Colm Rooney, who was in charge of the Cavan/Monaghan District in 2007 but who was retired by the time of the O’Higgins inquiry – in response to a question from Colm Smyth SC, for both CS Rooney and Noirin O’Sullivan – told the commission in evidence on May 15, 2015, the following about a meeting he had with Sgt McCabe in late 2007:
“Sergeant McCabe came to see me, sought an appointment to come and see me in my office in Monaghan. He contacted my office and made an appointment and I saw him. He came to me. He was very angry, he was very annoyed and he was very upset.
“He came to my office and he was in that state and he demanded of me that I write to the Director of Public Prosecutions and I challenge a decision that Director of Public Prosecutions had made in respect of him.”
It was these words which prompted a legal row that afternoon with, initially, counsel for the commission Sean Gillane SC, calling into question the line of questioning by Mr Smyth SC, followed by Mr McDowell.
As a consequence of the legal row, the hearing adjourned for Colm Smyth SC to seek confirmation of his instructions from Ms O’Sullivan – as she was his primary client.
This communication with Ms O’Sullivan went through her liaison officer Chief Supt Fergus Healy and, ultimately, Ms O’Sullivan did reconfirm her instructions – twice – that her legal team was to challenge the motivation and credibility of Sgt McCabe.
At the time, Mr Smyth also said his instructions were to challenge Sgt McCabe’s integrity but, as mentioned above, he later, in November 2015, told the commission this was an error on his part.
As a further consequence of the legal row, Judge O’Higgins said Mr McDowell was entitled to know what “adverse allegations” were being made against Sgt McCabe.
The letter from the Chief State Solicitor was composed over the following weekend and submitted on the Monday morning.
The letter, the tribunal heard, was a means to give notice to the commission and Sgt McCabe’s legal team of the “matters to be relied on” by Noirin O’Sullivan at the O’Higgins commission.
The letter – or summary document as labelled by Mr Keena – was headed:
“As directed by the Judge in the course of hearing on Friday, the 15th May 2015 we hereby provide the factual issues to be put to Sergeant Maurice McCabe”
Of the letter’s 20 paragraphs, at least 13 made reference to either Ms D, Mr D, or the DPP’s directions concerning Ms D’s 2006 allegation – without specifically stating the details of Ms D’s allegation.
And it was littered with the aforementioned falsehoods/inaccuracies.
The letter can be read in full here
It’s important to note the letter didn’t contain simply one error.
It alleged Sgt McCabe expressed anger and annoyance towards the DPP.
It alleged that Sgt McCabe “demanded” that Chief Supt Colm Rooney “communicate with the DPP to seek a declaration of innocence from the DPP in relation to the allegation” – echoing the evidence of Chief Rooney given just days before.
It alleged that Chief Supt Rooney told Sgt McCabe that it was not the policy of the gardaí to challenge the DPP.
It alleged Sgt McCabe was unhappy with the DPP’s decision and that the DPP’s decision “ought to have completely exonerated him rather than recording that there was not sufficient evidence to proceed against him”.
[When, during the tribunal, Mr McDowell pressed Mr Rooney on the idea that the DPP ruled there was merely “insufficient evidence” in terms of the Ms D allegation – which is entirely not the case – Mr Rooney said: “Well, he certainly didn’t say that he was absolutely exonerated, either.”]
The letter also suggested Sgt McCabe had attempted to blackmail Superintendent Michael Clancy and that Sgt McCabe had confessed this to Supt Noel Cunningham, in the company of Sgt Yvonne Martin, at a meeting in Mullingar in August 2008.
Paragraph 19 of the letter 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.”
Counsel for An Garda Síochána told the tribunal that instead of saying ‘complaint against Supt Clancy’, the letter should have said ‘to’ and that this was an error.
The tribunal also heard that in notes of the legal consultation between Supt Cunningham and his legal team, Supt Cunningham said “to” and not “against”.
However, this doesn’t explain the alleged threat of force.
Even putting the ‘to’ versus ‘against’ alleged error aside, the paragraph also suggests that the meeting took place on foot of complaints made by Sgt McCabe.
But the tribunal heard that this really wasn’t the case.
The tribunal heard that, in February 2008, Supt Michael Clancy requested Sgt McCabe to draw up a report about his dealings with the D family and that Supt Clancy said he would see if he could get the DPP’s directions shown to the D family.
The request came some four months after Sgt McCabe had been confronted by members of the D family in public in October 2007.
Sgt McCabe obliged with the request and then Supt Clancy tasked Supt Noel Cunningham to investigate Sgt McCabe’s report – and this was what the purpose of the meeting in Mullingar in August 2008 was about.
But even if one was to put the “falsehoods” or “inaccuracies” in the CSS letter to the side, the false ‘blackmail’ error was put to Sgt McCabe – by Colm Smyth SC – when Sgt McCabe was in the witness box on Day 4 of the commission, Monday, May 18, 2015, the same day the CSS letter, littered with problems, was given into the commission.
Specifically, Mr Smyth and Sgt McCabe had this exchange:
Smyth: “In the course of that meeting, Sergeant, you advised Superintendent Cunningham that the only reason you made a complaint against Superintendent Clancy was to force him to allow you to have the full authority directions conveyed to you?”
McCabe: “That is absolutely false.”
Despite this being said in a room full of people the “error” wasn’t spotted.
It was also repeated when written submissions were submitted to the commission on June 11, 2015.
Paragraph 70 of 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 Superintendent Rooney appointed Superintendent Cunningham to investigate these complaints. Superintendent Cunningham attempted to meet Sergeant McCabe to discuss the complaints and finally did so on 25th August 2008. On this occasion, Superintendent Cunningham was accompanied by Sergeant Martin.
It is understood that Superintendent Cunningham will give evidence that Sergeant McCabe said at that meeting [in Mullingar in August 2008] that the complaint which he had made alleging lack of support, as referred to in the preceding paragraph, was a bid by him to have the full DPP directions conveyed to him and the complaining party. This is recorded in a report of the meeting prepared jointly by Sergeant Martin and Superintendent Cunningham.”
The idea that Sgt McCabe had attempted to engage in a blackmail situation with Supt Michael Clancy about the DPP’s directions was effectively dismissed on Day 5 of the commission (June 24, 2015) after Judge O’Higgins brought the commission’s attention to a transcript of this Mullingar meeting – after Sgt McCabe produced a tape of the meeting – which showed paragraph 19 of the CSS letter was incorrect.
Judge O’Higgins also drew attention to the fact that a report of the meeting, submitted to the commission by Supt Noel Cunningham also didn’t support paragraph 19 but, instead, matched Sgt McCabe’s tape.
This is the “another document” referred to by Mr Keena above.
It should be noted solicitor Annemarie Ryan, from the Chief State Solicitor’s Office told the tribunal she gave Supt Cunningham’s report into the commission and Mr McDowell on the morning of Monday, May 18, 2015, along with the CSS letter.
But Mr McDowell was adamant this didn’t happen.
it was also the evidence of the Garda legal team representing Ms O’Sullivan and other gardai at the O’Higgins commission that they didn’t see Supt Cunningham’s report until June 24, 2015.
Supt Cunningham also told the tribunal that he handed in a second copy of his report of the meeting on June 9, 2015 – ahead of the submissions on June 11, 2015 – and yet, still, the submissions were wrong.
Sgt Martin, the tribunal heard, had no input into the CSS letter and wasn’t party to the legal consultations which took place before the O’Higgins commission. The tribunal heard she didn’t even know about the letter.
But how did these falsehoods/inaccuracies end up featuring in the CSS letter?
And what was Noirin O’Sullivan’s knowledge of them before and after they were made?
Ms O’Sullivan told the tribunal that she saw the O’Higgins commission as an opportunity to get to “the truth”.
She also said she knew that legal consultations were taking place between gardai and her legal representatives in the run-up to the O’Higgins commission.
Mr O’Sullivan told the tribunal her liaison officer at the commission Chief Supt Fergus Healy told her about the consultations but, she said: “We didn’t go into the specific detail of the information that was imparted.”
However, Ms O’Sullivan did say she presumed Ms D’s allegation was discussed at the consultations because she was aware the DPP’s directions, in respect of the allegation, were discussed.
She also told the tribunal that it wouldn’t have surprised her to know the D allegation was being discussed at the consultation.
“It wouldn’t surprise me, but I think what is important to say is that there was always a sensitivity, and there remains a sensitivity, around anything to do with the matters that the DPP had adjudicated on and had found there was no basis for a prosecution.”
This comment about “sensitivity” is interesting when one considers Ms O’Sullivan, at this point, had known for several years that there was no basis for a prosecution in relation to the Ms D allegation since 2008 – when she first learned of the Ms D allegation from her time working in Human Resources – yet, the tribunal was told, Ms O’Sullivan didn’t respond to the entirely false allegation of rape supposedly made by Ms D against Sgt McCabe in a referral which was presented to her as real in May 2014, and she didn’t spot that the Ms D allegation had gone from “dry humping” to anal, digital and vaginal rape.
Ms O’Sullivan appeared to put distance between her and those who gave information to the legal team.
“Obviously I wasn’t present at the consultation, so I am not sure what questions counsel felt that they needed to explore to get the background that they needed to inform them…
“I hadn’t got possession or knowledge of the factual matters because obviously I had not, for appropriate reasons, been present at the consultations or interviewed any of the witnesses, so I didn’t know what the factual matters that they had were and that counsel had been exposed to that.”
The tribunal heard that Chief Supt Healy called Ms O’Sullivan on the night of May 14, 2015 to seek her instructions.
Ms O’Sullivan did not make any note of the call.
But Chief Supt Healy did.
The tribunal has seen that, in his note, Chief Supt Healy had the words:
“Permission/instructions to use Cunningham inve [investigation].”
Ms O’Sullivan said what she understood her counsel to be seeking was “an in-depth understanding of what were the reasons or what was the rationale, why Sergeant McCabe, or the basis, maybe that is a better way to put it, the basis on which Sergeant McCabe believed that these incidents, combined together, led to corruption and malpractice, and, most importantly, what evidence did he have.”
In May 15, 2015 – when the legal row erupted and CS Healy had to seek confirmation of Ms O’Sullivan’s instructions for Mr Smyth, Ms O’Sullivan said she initially told CS Healy that she’d rather an adjournment.
She was adamant that she wasn’t having second thoughts about her instructions but instead:
“I wanted to make sure that there were necessary supports in place for Sergeant McCabe.”
Asked who she would have spoken to if she had got an adjournment, Ms O’Sullivan said she would have spoken to CS Healy and her legal team.
“I didn’t want to discuss the advices or the instructions; I wanted to understand what was the issue, in more detail, that had arisen at the Commission.”
This is somewhat confusing.
If Ms O’Sullivan was keen to know what had arisen, she would have learned what Mr Rooney told the commission that afternoon – which was that Sgt McCabe wanted the DPP’s directions “challenged”.
If this occurred, it should have set off alarm bells for her – given Ms O’Sullivan knew, since 2008, that the DPP categorically ruled there should be no prosecution in respect of the Ms D allegation against Sgt McCabe.
Is it plausible that Ms O’Sullivan would have been told of the legal argument without being told what Mr Rooney told the commission – which sparked the legal row in the first place?
It was put to Ms O’Sullivan at the tribunal that it might have been useful for her to go down to the commission that day.
“I would have very much welcomed the opportunity to go down to the Commission, because I think it would have — we may not even be here now.”
Solicitor at Chief State Solicitor’s Office Annemarie Ryan, in her evidence, said she actively sought to have a consultation with Ms O’Sullivan that weekend but Chief Supt Healy told her Ms O’Sullivan was unavailable.
Chief Supt Healy told the tribunal he did attempt to arrange a consultation between the two women but Ms O’Sullivan said she was too busy/otherwise engaged.
Ms O’Sullivan categorically stated she was never informed of such a request.
In respect of the CSS letter, Ms O’Sullivan said she had nothing to do with it.
Kathleen Leader BL, for the tribunal, pointed out to Ms O’Sullivan that this suggests Ms O’Sullivan gave the go-ahead to something that was being done in her name – without full knowledge of the facts.
In response, Ms O’Sullivan said:
“My opinion was at that time that the expertise that was there between the legal team and the people that had the best knowledge of it, there was such an urgency on presenting this document for Monday morning, that they were the best people to deal with it.”
After suggesting she could have just read over the CSS letter, Ms O’Sullivan said:
“I felt it was appropriate to leave it to the legal team.”
Ms O’Sullivan went on to say the following about the CSS letter:
“I don’t believe that even in what was put forward, that there was anything improper or anything suggesting an improper motive on behalf of Sergeant McCabe in it.”
More on the O’Higgins module of the tribunal can be read here and here
Mr Keena referred to the discrepancy between Sgt McCabe and Supt Taylor’s evidence in regards to the use of texts in the alleged smear campaign.
Sgt McCabe says when he met Supt Taylor in September 2016, Supt Taylor told him he would have sent hundreds “if not thousands” of texts about Sgt McCabe and the Ms D allegation – which would have been composed by Mr Callinan and sent to journalists and other senior gardai.
Supt Taylor says he wasn’t talking about the texts in terms of the alleged smear campaign but about media updates concerning Sgt McCabe.
It was this meeting in September 2016 which gave rise to the two men making protected disclosures – with Sgt McCabe making his several days before Supt Taylor.
Mr Keena wrote:
On October 4th , [Mick] Clifford, in the Examiner, reported that protected disclosures had been made by two (unidentified) members of the force, alleging a smear campaign and saying that O’Sullivan had known about it. The report was published around the same time as the disclosures were being received by the Department of Justice.
Speaking at the Charleton tribunal, Conor Dignam SC, for Garda Headquarters, said the editorial in the Irish Examiner that day included the following phrase: “Today’s revelations about an organised campaign driven by senior garda management to undermine a whistleblower”. This put the matter, Dignam said, as something that was being revealed, rather than alleged.
Mr Keena didn’t mention it but, the matter of the Irish Examiner’s editorial about the protected disclosures, which Mr Clifford said he didn’t write, was put to Mr Clifford when he gave evidence.
He told the tribunal:
“Revelation” was used, and I take your point. To me the revelation was that this disclosure had gone in rather than the content of the disclosure.”
Mr Clifford also said:
“In terms of publishing that and feeling justified in publishing it, there are a couple of things in that regard that I would say: First of all, this is — in publishing that, it’s a process whereby it goes through the editorial hierarchy inside in the Examiner, which backed up my decision that this was in the public interest and that this should have been published.
“Then you are talking about the substance of the issue. In the first instance, this was unprecedented. You had a superintendent in An Garda Síochána nominally of good standing, was making a protected disclosure about what was occurring within the force.
“That of itself was completely unprecedented. Equally so, who he was incriminating in there. In the first instance he was incriminating himself. I don’t know even since the protected disclosure or anything of that nature has come in, have we ever had a scenario whereby somebody making it was incriminating and incriminating himself to the extent
that he was admitting that he was involved in a smear campaign to effectively brand Sergeant McCabe as a paedophile and to do so for no other than to ingratiate himself to his boss or further his career. That is that element of it.
“The second element: The other person he incriminated was former Commissioner Callinan, somebody with whom he had a very good relationship, whom he looked up to and whom he regarded as something of a mentor.”
Asked by Mr Dignam what steps he took to verify the protected disclosures, Mr Clifford said:
“No, I wasn’t in a position to do so, Mr Dignam. It would have involved, for example, approaching Nóirín O’Sullivan and Martin Callinan and asking them were they involved in a campaign. I was reporting the lodgement of this protected disclosure.”
Mr Keena also wrote:
“In the Dáil, Sinn Féin’s Mary Lou McDonald called for O’Sullivan’s resignation. Clare Daly did the same, saying: “The tánaiste and minister for justice and equality [Frances Fitzgerald] has . . . the protected disclosures of two senior gardaí outlining systematic, organised, orchestrated campaigns not just to discredit a whistleblower but to annihilate him, with the full involvement of the current and former Garda commissioners.”
“It is worth noting that McCabe’s basis for making his claim was what he was told by Taylor, so there was in fact only one source for the serious allegations against O’Sullivan and Callinan, something which was known to Daly, who had met both men.”
For Ms Daly’s part, when Indepedents 4 Change TD Mick Wallace gave evidence, he said himself and Ms Daly were calling for Ms O’Sullivan’s resignation long before the protected disclosures were reported upon and they were calling for her resignation over a myriad of issues.
And in terms of the allegations concerning the circulation of the Ms D allegation, it’s worth noting that Mr Wallace told the tribunal his parliamentary assistant Chris Oonan answered an anonymous call in 2014 in which the caller told him about the Ms D allegation while, long before the protected disclosures, Paul Williams’ articles about Ms D and Sgt McCabe were published in April/May 2014 – again two years before the protected disclosures.
Ms Daly said she was aware of a whispering campaign against Sgt McCabe but her first firm knowledge of the Ms D allegation came about via Paul Williams’ articles.
Mr Keena also wrote:
In a radio interview on RTÉ that day, Daly said “inaccurate personal information was given out about him [McCabe] in the most horrific ways. Text messages sent to the gardaí, people in the media told ‘Oh, you don’t want to be talking to him, you know all about him’, hint, hint, hint, with some more graphic details with it. Politicians who I think need to come clear on this got the message about this as well.”
McCabe, Wallace, Clifford and Daly have all said they were told, or it was indicated to them by Taylor, that the alleged smear campaign involved texts. McCabe said he went back the day after he met Taylor to check that he had been told “hundreds” of texts may have been involved. He was, he said, told the number of texts may have been in the thousands.
Yet Taylor, in his sworn evidence, has said he never claimed to anyone that the alleged smear campaign involved texts.
This is just one of the many examples of the “diametrically opposed” positions that several people have taken at the tribunal.
For more on Supt Taylor’s conflicting evidence, see here.
The smear campaign:
Mr Keena also wrote:
“In his evidence Taylor said he had spoken with 12 named journalists as part of smear campaign. Conor Lally, crime and security editor with The Irish Times, was one of those named. On Thursday. Taylor’s counsel, Michael O’Higgins SC, said 10 of the journalists had denied Taylor’s claim, and two had asserted journalistic privilege. Lally is one of those who denied Taylor’s claim.”
Mr Keena failed to mention the evidence of former Irish Mirror journalist Cathal McMahon who told the tribunal that he had heard of the rumour about Ms D, went to Supt Taylor, Supt Taylor confirmed it to him and then encouraged him to travel to Cavan to meet Ms D.
Supt Taylor curiously claims he never told Mr McMahon to travel to Cavan but said he was someone he negatively briefed which, bizarrely, Mr McMahon disagrees with.
Mr Keena also didn’t recount the evidence of John Kierans, editor of the Irish Mirror, whom the tribunal heard told Mr McMahon not to pursue the story as he was suspicious of it.
Mr Kierans also told the tribunal that, after making his own inquiries, he learned that Supt was “peddling” the Ms D matter to several newsrooms in Dublin.
Mr Keena also wrote:
“Michael O’Higgins [senior counsel for Supt Taylor] acknowledged that no independent evidence had been produced to Charleton to support charges that O’Sullivan had known of the campaign his client said he was ordered by Callinan to conduct. He also acknowledged that Taylor’s credibility was a significant issue. His client’s claims were “capable” of being believed, he said. Whether they should be was a matter for the chairman, he said.”
In respect of this, it may be worth recalling the questioning of Ms O’Sullivan by Kathleen Leader BL, for the tribunal, when Ms O’Sullivan made her second appearance at the tribunal for the most recent module when Ms Leader suggested there was a “theme” emerging from Ms O’Sullivan’s evidence.
Specifically Ms Leader was referring to Ms O’Sullivan’s non-recollection of any mention of the Ms D allegation in her company between 2008 up to the O’Higgins Commission of Investigation in 2015.
Ms O’Sullivan was appointed Assistant Commissioner in Human Resources Management in October 2008 and, as a consequence, she learned of the Ms D allegation against Sgt McCabe the following month in a report from Chief Supt Terry McGinn.
The report stated:
“Ms D alleged that when she was six years old she was indecently assaulted on one occasion by Sergeant Maurice McCabe when he was visiting her house while off duty. An investigation file on the matter was prepared by Inspector Cunningham and submitted to the Law Officers for direction, who directed on 11th April 2007 that there was no basis for a prosecution. In May 2007 Sergeant McCabe was informed by Inspector Cunningham that there would be no prosecution in the matter.”
In 2009, she became Assistant Commissioner Crime and Security and in 2010, Ms O’Sullivan became Deputy Commissioner of Operations.
In 2011, Martin Callinan became Garda Commissioner so, from then, Ms O’Sullivan started reporting to Mr Callinan.
[Supt Dave Taylor was appointed head of the Garda Press Office in July 2012, after having been a Detective Inspector attached to Liaison Protection Section and in September 2013, Andrew McLindon was appointed Director of Communications]
Ms O’Sullivan told the tribunal she became aware of the penalty points controversy in 2012 and she was aware that Mr Callinan had appointed then Assistant Commissioner John O’Mahoney to carry out an internal investigation into the wiping of points – on foot of complaints made by Sgt McCabe and then Garda John Wilson.
She was also aware that Mr Callinan had sent a direction to Sgt McCabe and Garda Wilson to stop accessing Pulse in December 2012.
In late 2013/early 2014, Mr Callinan was preparing for his then forthcoming appearance – on Thursday, January 23 at the Public Accounts Committee in respect of the penalty points matter. Ms O’Sullivan sat next to Mr Callinan at that five-hour meeting. [This is the meeting where Mr Callinan made the “disgusting” remark]
Before the meeting, there had been correspondence between Mr Callinan and the chairman of the committee Fianna Fáil TD John McGuinness – in which Mr Callinan, after taking legal advice from the Attorney General, raised his concerns about documentation concerning the penalty points matter being given to Mr McGuinness and the PAC.
[Mr McGuinness wrote back to Mr Callinan and told him all sensitive information had been redacted and that the PAC had taken its own legal advice]
Ms O’Sullivan told the tribunal she was aware of all of this.
Ms O’Sullivan said she was also aware of correspondence between Mr Callinan and the then Data Commissioner Billy Hawkes about the same.
Around this time, there was talk of Sgt McCabe appearing before the PAC which was unprecedented and Mr Callinan was strenuously against this.
Asked if, around this time, she got the impression Mr Callinan was getting “frustrated” with Sgt McCabe, Ms O’Sullivan said:
“I never believed that Commissioner Callinan was personalising it to Sergeant McCabe, but he was certainly concerned about the issues that were being raised and the manner in which they were being raised and the, as I say, the potential impact it would have on confidence in the organisation and the potential impact it could have on individual members of the public.”
As part of the preparations for Mr Callinan’s appearance at PAC, there were several meetings held which Ms O’Sullivan and Mr McLindon attended.
The pre-PAC meetings were held on January 6, 9, 14, 16, 21 and 22. Of these meetings, Ms O’Sullivan didn’t attend the meeting of January 6 as she was on annual leave.
The tribunal heard that, after Sgt McCabe and Supt Taylor made their protected disclosures, Ms O’Sullivan told Mr Justice Iarlaith O’Neill – who was carrying out a scoping exercise into the disclosures – that there was never any discussion about a campaign to undermine Sgt McCabe at the pre-PAC meetings.
Asked if there were discussions about Sgt McCabe and whistleblowers, Ms O’Sullivan said:
“..It wasn’t about Sergeant McCabe personally, it was more about the issues that Sergeant McCabe was bringing into the public domain, as opposed to Sergeant McCabe personally.”
In addition, Ms O’Sullivan had said to the tribunal’s investigators:
“…the matters referring to Sergeant McCabe related to his forthcoming appearance before the PAC and the appropriateness or otherwise of him appearing in uniform. In addition, other matters during conversations would be data protection concerns.”
Ms O’Sullivan also told the tribunal that she didn’t take any notes at these meetings.
Ms Leader referred to a note made by Assistant Commissioner Jack Nolan at one of the meetings – on January 9.
It mentioned ‘Wilson/McCabe issues’.
Ms O’Sullivan this would have referred to data protection issues and concerns over whether Sgt McCabe would have appeared at PAC wearing his uniform or not.
In a note by Mr Nolan – from the January 21 meeting, two days before Mr Callinan’s appearance – Mr Nolan noted:
“Start Sergeant McCabe 2006.”
Ms Leader suggested to Ms O’Sullivan this was a reference to the Ms D allegation.
Ms O’Sullivan says she’s no memory of the Ms D allegation ever having been referred to at the pre-PAC meetings.
Mr Nolan also made reference to “motivation of whistleblowers” and question mark over those words.
Ms O’Sullivan said she didn’t know what that referred to and suggested it might have been a question Mr Nolan was asking himself.
Ms Leader and Ms O’Sullivan then had this exchange:
Leader: “And on the next page we have the word “motivation”, which appears again in the O’Higgins Commission matter, the motivation of whistleblowers and Sergeant McCabe’s name listed underneath it. So in essence, according to Assistant Commissioner Nolan, we have matters relating to Sergeant McCabe from 2006 more or less topping and tailing that meeting, if you understand what I’m saying to you?”
O’Sullivan: “No, Chairman, I see the note, but I can only give you what my recollection of the meeting is, and I have no memory of it being introduced at the meeting.”
Ms Leader also raised the notes of Mr McLindon from the same meeting, on January 21, 2014.
He noted at the top of his notes:
“2006 first incident, sergeant serving”
[Mr McLindon accepted in his evidence that this was likely about the Ms D allegation. Mr Callinan also conceded this but says he couldn’t recall it being discussed.
[Mr McLindon also told the tribunal that, around this time: “...there was a general talk that that (the Ms D allegation) was part of Sergeant McCabe bringing forward the penalty points issues, but it was a… I wouldn’t be able to say officer X had that view or officer Y had that view. And it wasn’t necessarily, I would call it, a generally-held view. It was a view held by certain people. But I can’t, to be honest with you, recall the individuals
[Mr McLindon also said: “My impression was that it was relatively well-known at the upper echelons of the organisation, because that’s the way kind of the rumour mill works in Garda HQ, that it goes up the chain, if you like.]
Again, Ms O’Sullivan told the tribunal that she has no memory of the Ms D allegation being discussed at the pre-PAC meetings.
“If it was discussed, sometimes I may be in and out of a meeting, sometimes I may be late to a meeting, I can’t say on 21st January at what stage of the meeting that I arrived or whether I was there for the entire meeting, but I certainly have no recollection of the matter being, the Ms. D matter being discussed.”
Ms Leader put to Ms O’Sullivan perhaps she forgot the Ms D matter was discussed or that it was discussed so much, that she “simply switched off”.
Ms O’Sullivan said she wouldn’t have forgotten such a thing and, as for the latter suggestions, Ms O’Sullivan was adamant when she said:
“No, Chairman, that isn’t the case. Because from the time I was in HRM in 2008 right up to the beginning of the O’Higgins Commission, I don’t ever remember those matters being discussed again in any detail anywhere.”
Ms Leader suggested this was “unrealistic” given the level of knowledge of the Ms D allegation in political and media circles – as told to the tribunal.
But Ms O’Sullivan repeated:
“And from my knowledge, I was aware of the matters in 2008 from the file that we have read and the synopsis I was provided with and the update from Chief Superintendent McGinn and again, I was not aware of those matters until such time as the O’Higgins Commission commenced.”
The tribunal also heard how, when Mr Callinan made his “disgusting” remark at the PAC on January 23, 2014, Ms O’Sullivan passed him a note.
Ms O’Sullivan said, in this note, she asked him to clarify the comment because the “sense in the room was palpable” as a consequence of the remark.
[This note hasn’t been found for the tribunal]
Ms O’Sullivan also said she told Mr Callinan, after the meeting, that he should clarify the remark.
In relation to the claims made by Fine Gael TD John Deasy, Fianna Fáil TD John McGuinness and the Comptroller and Auditor General Seamus McCarthy – and what they claim Mr Callinan said to them on the day of his appearance before PAC – Ms O’Sullivan said she did not hear these comments being made.
Ms Leader put it to Ms O’Sullivan that it’s Mr Callinan’s evidence that both Mr McGuinness and Mr McCarthy who raised the Ms D matter with him – and not the other way around.
Ms Leader said, one way or the other, there is an agreement between Mr Callinan and the two men that the Ms D matter was discussed.
Ms Leader again put it to Ms O’Sullivan that it was a bit “unrealistic” to think she never heard any talk about the Ms allegation from 2008 (when she first learned about it) until the O’Higgins Commission of Investigation.
But Ms O’Sullivan said: “I have no memory and no recollection of hearing anything about the Ms. D allegation from the time I was in HRM  up to the preparation of the O’Higgins hearings .”
Asked if it’s possible she was purposefully excluded from any conversations about Ms D, Ms O’Sullivan said she didn’t know but, again, she didn’t hear anything between 2008 and 2015.
Ms O’Sullivan said she was involved in an informal meeting with Mr Callinan after the PAC meeting finished on January 23, 2014, and at this meeting it was discussed that they would send a letter to Mr McGuinness proposing that Mr Callinan would appoint a superintendent of Sgt McCabe’s choosing to look into Sgt McCabe’s issues – as something of a means to avoid Sgt McCabe from appearing before PAC.
The letter stated: “I would formally request that the Committee of Public Accounts would postpone its decision to invite Sergeant McCabe to attend before you.”
The idea of appointing a Supt of Sgt McCabe’s choosing was Ms O’Sullivan’s idea, the tribunal heard.
And she said it was her understanding that Sgt McCabe would be going before PAC “one way or the other” and that it was about whether he would appear in public or private.
Ms Leader pointed out that the latter point [private V public] wasn’t in the letter at all.
But the letter was never sent and, instead, Mr Callinan met Mr McGuinness in a carpark off the Naas Road the following day.
In relation to the meeting between Mr McGuinness and Mr Callinan on Friday, January 24, 2014 – a day after Mr Callinan’s appearance before the PAC – Ms O’Sullivan said she never knew about this meeting until Mr McGuinness mentioned it in the Dáil in May 2016.
[It was Mr Callinan’s evidence that he also never mentioned the meeting to Ms O’Sullivan]
Ms Leader put it to Ms O’Sullivan that she spoke to Mr Callinan on the phone numerous times on the day of the carpark meeting:
Mr Callinan called Ms O’Sullivan at 3.30pm and they spoke for 7 minutes 12 seconds.
Mr Callinan called Ms O’Sullivan at 5.30pm and they spoke for 6 minutes – at this time, Mr Callinan would have probably left the carpark meeting.
Ms O’Sullivan called Mr Callinan at 6.30pm for a short call, she called again after 6.30pm and they spoke for 9 minutes and then she called him again at 9.55pm for a very short time.
Ms Leader put it to Ms O’Sullivan: “So former Commissioner Callinan has said these were to discuss security issues, but I’m suggesting to you that — where did you think that letter, the draft letter of the 23rd had disappeared to, if it was never actioned on or anything of that nature?”
Ms O’Sullivan replied saying “..events often overtake letters or draft letters or draft proposals that would be on the table. And as it transpired, the meeting went ahead with Sergeant McCabe and I don’t know where the letters went to. But it wouldn’t be unusual that events would overtake proposals…”
Ms Leader suggested that, given her level of involvement in the PAC hearings and what happened thereafter it wasn’t really a “satisfactory” answer.
Ms O’Sullivan said:
“I wasn’t in Dundalk that day and I wasn’t informed of the fact that, or consulted in relation to Commissioner Callinan meeting Deputy McGuinness and I wasn’t told about it afterwards either.”
Moving on to February and March of 2014 – when journalists were calling to the D house – Ms Leader put the evidence of Alison O’Reilly to Ms O’Sullivan [Ms O’Reilly claims Debbie McCann, of the Irish Mail on Sunday, told her that Supt Taylor and Ms O’Sullivan confirmed the Ms D story to her].
Ms O’Sullivan, who said she does know Ms McCann’s father retired detective superintendent John McCann, was adamant that she did not give Ms McCann, or anyone else, any information about Ms D.
As for Paul Williams’ first article on Ms D in the Irish Independent – on April 12, 2014 – Ms O’Sullivan said she “vaguely” remembered reading it.
Asked if she knew they concerned Sgt McCabe – as he wasn’t named as the person being referred to – Ms O’Sullivan said: “Not necessarily at that time. But subsequently I would’ve become aware it was in relation to that issue, yes.”
She added: “I can’t remember the exact sequence, Chairman, but I would have been aware that that issue — shortly after that, it became evident that the person at the centre of that was going to meet with the leader of one of the parties..”
“…Also, I believe in or around that time I was aware, or subsequently became aware, that there had been a complaint made to GSOC.”
Following on from that, Ms O’Sullivan was asked if she could recall discussing the articles with anyone in An Garda Siochana and she said “no”.
She said: “…What I would do is, we would go through the press articles and I would read them and just distill them down for myself into what were the issues arising for us. There didn’t appear to me to be anything that needed to be done with that particular article because there wasn’t sufficient detail in relation to it.”
Paul Williams’ first article on Ms D, as mentioned above, was published on April 12, 2014.
The day before, April 11, 2014, was the day Ms O’Sullivan held her first management meeting as Garda Commissioner, following on from Mr Callinan’s stepping down in March 2014.
It was held in Waterford Garda Station and notes of the meeting recorded Ms O’Sullivan saying:
“Number of reports over next 12 months. None will be good. John Cooke report, Roma report. Agenda is racial profiling in the media. Seán Guerin’s report. Need to be ready for this. Manage bad news and build on good news”.
Sean Guerin’s report investigated complaints made by Sgt McCabe about policing in Baileboro.
Meanwhile, Ms Leader referred to texts between Ms O’Sullivan and Mr Williams – whose billing records show they weren’t in contact by phone from April 28, 2013 until February 21, 2014 – on the evening of April 12, 2014, the day of Mr Williams’ first article on Ms D was published.
The tribunal didn’t see the text and when asked if it was about his article, Ms O’Sullivan said “no”.
She said: “I can’t recall what the text was about, but I certainly didn’t text him about the article in the Independent.”
Ms O’Sullivan said it was most likely to be about personal security arrangements for Mr Williams.
Ms Leader then turned to another management meeting on May 9, 2014 in which Sgt McCabe and the then published Guerin report were being discussed – as well as the idea of “embracing whistleblowers”.
[May 2014 was also the month that Supt Taylor was moved out of the Garda Press Office]
And then five days after the May 9 management meeting, Ms O’Sullivan received the false rape allegation in her office – but she can’t recall reading it.
As part of the documentation on the referral, there was a letter from Chief Supt Jim Sheridan stating:
“The allegations have been the subject of a previous Garda investigation, that Ms. D has made a complaint based on the allegations set out in the attached referral form to Micheál Martin, that he has subsequently referred the matter to An Taoiseach, Mr. Enda Kenny, and the Ombudsman, and, in the circumstances, he is recommending that we await further communication from the parties listed above prior to commencing a review of the investigation.”
Ms Leader put the following to Ms O’Sullivan:
“…Did this not come, or why didn’t it, if it didn’t – you are, the week before, discussing reaching out to Sergeant McCabe, to managing the outcome of the Guerin investigation, you are looking ahead to a commission of investigation arising out of the Guerin investigation. Linked in with that is Superintendent Sheridan telling you that Ms. D had gone to Micheál Martin and who had referred the matter on to the Taoiseach, who has some control over the terms of a commission of investigation, and also a complaint to GSOC, so what was your reaction to receiving this at that particular time?“
Ms O’Sullivan repeated that she couldn’t recall the matter being brought to her attention but accepts the evidence of her private secretary Supt Frank Walsh that he showed it to her and she did read it and, as a consequence, told him to write to Assistant Commissioner Kieran Kenny about it.
Judge Charleton stepped in and said to Ms O’Sullivan:
“In terms of — we are all familiar with, if you like, a ladder of sexual assaults, and when you are at the top of the ladder – I know it’s kind of wrong to classify these things, but there has to be some method of doing it – if you are at the top of the ladder, you — say you are on step 10.
“The DPP decided vis-á-vis the D allegation that it wasn’t even at the ladder. Nothing happened that, if it happened at all, would have constituted even an assault or a sexual offence. But here, someone has taken off someone else’s clothing, there has been digital penetration and it is ascribed through the Commissioner of the Northern Region to Sergeant McCabe. Now, that moves us on to the ladder and it moves us up to maybe step 9 of the ladder in terms of sexual assault. That’s why this is important and that’s why Ms. Leader is asking you about your reaction to it.“
Ms O’Sullivan said:
“As I said, I have no memory of seeing this document. I have read the superintendent’s evidence; I’m not in a position to dispute it, but I have no memory of seeing this document. And taking the Chairman’s point, it was something that I would have been very conscious of, if I had seen a document like this, I would have read it in its entirety and I would have been aware from my 2008 synopsis of events that there was a difference in the allegation that was made and then I would direct a different type of action.”
Ms Leader then read out correspondence from June and July 2014 between the Assistant Commissioner Kieran Kenny and Supt Frank Walsh – which Supt Walsh sent to Mr Kenny on behalf of Ms O’Sullivan about this false rape referral (which had been presented to her as a real allegation by Ms D – even though both Mr Kenny and Mr Sheridan knew this was not the case).
In a response to Supt Walsh, Mr Kenny said that it was decided that Supt Sheridan would contact the HSE about it and that Mr Kenny would contact the Head of Legal Affairs at An Garda Siochana Ken Ruane.
Supt Walsh responded to Mr Kenny saying the content of his letter had been noted by Ms O’Sullivan.
Either way Mr Kenny, the tribunal heard, did not contact Mr Ruane and Mr Sheridan did not contact the HSE.
[It should also be said that, at this time, Mr Kenny was attending management meetings about the Guerin report and An Garda Síochána’s preparation for the then pending O’Higgins Commission of Investigation. Mr Kenny was actually the first liaison officer appointed to the commission]
In addition, Mr Williams had three other articles published over April and May of 2014 with the May 3, 2014 article headlined: “[Enda]Kenny to set up probe into Garda sex abuse claim.”
On August 7, 2014, along with Asst Commissioner Kieran Kenny, Ms O’Sullivan met with Sgt McCabe to discuss his workplace issues – and the false rape allegation was never divulged to him.
And all this time, it’s Ms O’Sullivan’s evidence that she didn’t discuss the Ms D allegation with anyone.
Ms Leader then had this exchange with Ms O’Sullivan:
Leader: So did you make a decision just to park the Tusla notification?
O’Sullivan: No, Chairman. Absolutely not.
Leader: Well, another, maybe, reasoning for the matter being left as it was is, maybe you decided that too much attention had been given to the D allegation in or around the time of the Public Accounts Committee and you were happy just to leave it there, to give it no attention at all?
O’Sullivan: No, Chairman, that is not the case. My entire focus was on making sure that there were supports in place for Sergeant McCabe and that Sergeant McCabe, and not just Sergeant McCabe, and I think this is very important: in terms of what I was trying to change in the culture of An Garda Síochána was in terms of being able to make sure that people knew that they could be empowered to speak up and that they would be supported, and that, from the very top, that all of the assistant commissioners and the executive directors knew that that was the stance that we were going to take and that that would continue.”
Leader: All right. Well, maybe that supports the theory that perhaps you wanted the D matter to be left where it was in 2006 and 2007 and not deal with the matter again other than to leave it there?
O’Sullivan: No, Chairman, I am not sure how it supports that proposition.
O’Sullivan: As far as I was concerned, from the knowledge I had in 2008, the D matter had been directed upon by the Director and — who said that there was no basis for a prosecution. So the matter did not arise again. As I say, in this correspondence, if I had seen it and read it in detail, I would have instructed or directed a different action, which was to contact the HSE and make sure that the matter was clarified immediately.
Leader: Well, I think the information you had was that there were consultations to happen with the HSE, that certainly would seem to be the case from the letter of the 28th July 2014?
O’Sullivan: Yes, but I wouldn’t have allowed it just to continue to be notified in the normal course, I would have directed that immediate contact be made and the matter be clarified immediately.
Leader: Yes. Well, I suppose another possibility is that you decided that the matter should be dealt with at the Commission of Investigation and you were leaving it until then to leave the Commission deal with all matters in relation to Sergeant McCabe and his motivation?
O’Sullivan: No, Chairman, that is not the case. My understanding of the Commission of Investigation was always as a result of the recommendations of the Guerin Report and the matters that would be dealt with by the Commission of Investigation would relate to the complaints that Sergeant McCabe made in relation to practices in Bailieboro.
Leader: So the matter was just left, in any event, in your office, in July 2014?
O’Sullivan: Yes, Chairman, the file only came to my attention when we were seeking to reply to a request from the Department in February 2017.
Leader: Yes. And that was as a result of Sergeant McCabe’s questions that he had put to the Minister, is that correct?
O’Sullivan: Yes, Chairman, that is correct.
Ms Leader, raising the point that Mr Kenny was the initial liaison officer for her at the O’Higgins Commission of Investigation, put it to Ms O’Sullivan:
So we again have the same personalities involved in the O’Higgins Commission involved in the management meetings dealing with the aftermath of the Guerin investigation, and the same person who was liaising with you and your office with regard to the Tusla notification and indeed meeting Sergeant McCabe in August 2014?
Ms Leader said it’s “really inconceivable that the two of you [Ms O’Sullivan and Mr Kenny] wouldn’t have had a conversation around the Tusla notification”.
But Ms O’Sullivan said: “Assistant Commissioner Kenny never mentioned it to me, Chairman, and it wasn’t discussed between us at all.”
Leader pressed on: “You see, it would suggest that people are dealing with things on different spheres, that for some reason the Tusla notification was totally taken out of everything got to do with Sergeant McCabe, Guerin and O’Higgins, and what I’m suggesting to you is, that cannot be credible?”
Ms O’Sullivan said when she located the Tusla file in 2017, it was “allocated a different file number so it wasn’t attaching to any file relating to Sergeant McCabe and it was a completely different file heading”.
It was at this point that Ms Leader put it to Ms O’Sullivan that a theme was emerging in her evidence.
Ms Leader said: “…From January of 2014 your evidence to the Tribunal has also been that you never heard mention of the D allegation, whether it be in the pre-PAC meetings or anything former Commissioner Callinan may or may not have said to you, do you understand what I’m saying? It seems to be just wiped from everything, bar the mention of it in 2008?”
Ms O’Sullivan repeated the Ms D allegation was never discussed in her presence between 2008 and 2015.
The Tusla Files:
Mr Keena, in his Irish Times article, referred to the false Tusla referral and Katie Hannon’s reporting of the same on Prime Time the night after Mr Howlin made his comments in the Dáil.
Mr Keena reported:
The Oireachtas eventually charged the tribunal it established to examine whether the false Tusla file had been used by senior Garda officers to discredit McCabe.
As a result, it appears, of separate claims made by another Garda whistleblower, Keith Harrison, the tribunal was also charged with examining whether there was a “pattern” of false Tusla reports being created and their being used by senior gardaí to target whistleblowers.
No evidence to support either of these enormously serious suggestions has been produced at the tribunal, though there are continuing concerns expressed by McCabe about how the Garda dealt with the false reports it received in relation to him following the “clerical error” made by the counsellor and the creation of the false file. The tribunal may express a view on this matter in its final report.
Mr Justice Charleton has already dismissed Harrison’s claims against Tusla as being “without any validity”.
The issue of a pattern of Tusla files being used against Garda whistleblowers was not explored during the tribunal’s sittings and no one has argued at the tribunal that there is any evidence to support such a scenario.
It should be noted that Mr Keena didn’t mention – and it hasn’t been widely reported – that when Independents 4 Change TD Mick Wallace gave evidence to the tribunal, it was put to him by Conor Dignam SC, for An Garda Siochana, that he “championed the cause” of Mr Harrison.
Mr Wallace replied:
“We highlighted the fact that Garda Harrison was, when he also — when he got into difficulties with An Garda Síochána, the manner in which he was treated by them left a lot to be desired. And if you — if you check, you’ll find that at no stage did we say one word about how Tusla had handled him.
“And he came in here in the wrong module and paid a price for it, because Tusla were found, if they had behaved any different they would have been negligent and they were right to behave as they did. But it wasn’t our doing.
“And on the night that the terms of reference for this Tribunal were being set up, we actually went to the Minister for Justice for that night, Frances Fitzgerald, and we told her that it was a mistake to put Harrison in that module.
“Now, but did we — did we raise issues about his treatment in An Garda Síochána? Yes, we certainly did. And we would still insist that he was poorly treated by An Garda Síochána after he falling foul of them.”
Finally, Mr Keena’s summing up of the Disclosures Tribunal allowed for one final omission.
The fact that, over a February 2017 article, Sgt McCabe is suing The Irish Times for defamation.
Tomorrow: Maurice McCabe And The Sunday Times
Yesterday: Maurice McCabe And The Irish Times: Part 1
Tuesday: Maurice McCabe And RTÉ
Charleton evidence raises questions about damaging claims made (Colm Keena, The Irish Times)
Previously: How Did He Get Here?