BEFORE ANY OF the daily slew of tourists arrived at Dublin Castle, solicitors and barristers silently filed into a spacious, and not very heavily populated, room on the site this morning.
Few words were exchanged among them before all rose as Justice Peter Charleton entered the room to begin the first day of the Disclosures Tribunal.
The hastily set-up public hearing aims to establish the truth behind the garda whistleblower controversies and will touch on many of aspects of Irish life, including our national police force, the child protection agency, the media and the State.
The well-respected Supreme Court judge presiding over it – Peter Charleton – has an arduous job ahead of him, to unpick the web of details that make up the controversies surrounding An Garda Síochana, Tusla, and the emergence of false claims of sexual abuse.
Confident and assured, Charleton showed he was up to the task in a series of feisty exchanges this morning, as applications were made on behalf of those who wish to be represented at the tribunal.
The Disclosures Tribunal was established last month and has moved quickly to its current point. It will concern the smear campaigns alleged to have been initiated by senior garda management against whistleblowers such as Maurice McCabe and Keith Harrison.
Justice Charleton has now set about seeking statements from all involved parties to get things moving since the latest scandals concerning false sexual abuse allegations made against McCabe came to the fore in February.
The purpose on day one of the tribunal was not to hear any evidence, but to hear applications from parties who wished to be represented at the Disclosures Tribunal.
Justice Charleton heard applications from counsel representing former garda commissioner Martin Callinan, his successor Nóirín O’Sullivan, former Justice Minister Alan Shatter, garda whistleblowers Maurice McCabe and Keith Harrison, a number of newspapers and others.
Throughout this morning’s proceedings, Charleton adopted a strong, assured and authoritative tone, giving an early indication as to how this potentially lengthy tribunal will run.
An experienced criminal lawyer and judge, Charleton wrote a book called Lies in a Mirror: An Essay on Evil and Deceit in 2006 where he drew on his own experiences in the law to ask what is it that opens up the worst of human conduct. He even jokingly referred to the seven people who’d bothered to read his work at today’s hearing.
He began by saying that people whose reputation may be damaged in any report by the tribunal are entitled to apply for legal representation at the tribunal. He said that he would rule on who was entitled to representation at a later date.
He subjected the counsel of media organisations to fierce scrutiny on the topic of journalists getting representation at the tribunal, rebuked the counsel for Callinan and O’Sullivan for not having read a letter relating to the tribunal, and told counsel for another garda that he would leave the room if they continued speaking.
Concerns raised
The first counsel to put forward applications of representation at the tribunal was there on behalf of former garda commissioner Martin Callinan and current commissioner Nóirín O’Sullivan.
Of course, it’s been an interesting few weeks for An Garda Síochana with non-existent breath tests and erroneous convictions for driving offences dominating the agenda.
The whistleblower controversy has not gone away for commissioner O’Sullivan, however, with she and colleagues expected to be asked what information they had on allegations against McCabe and if they played a role in any smears made against his name.
Today, it was also indicated that it was “likely” that other members of An Garda Síochana could seek representation at a later stage but Charleton said that “now is the time” for anyone whose reputations may be affected in the course of a tribunal to come forward.
When counsel made the point that they’d only seen a letter sent by the tribunal with relevant information to this point yesterday, Charleton pressed: “But the letter is two weeks old. Why haven’t you seen it yet?”
Next up was former Tánaiste Michael McDowell, who made a submission on behalf of garda whistleblower Maurice McCabe, and argued that there was a conflict of interest in Callinan and O’Sullivan, as well as potentially other gardaí, being represented by the same person.
“It is a matter of deep concern,” McDowell said, adding that he knew Charleton would not make a ruling on the matter today but had just wanted to “flag it” on the first day of proceedings.
A legal team representing the commissioner and gardaí together could impact the ability of individual gardaí to give evidence to the tribunal independently, it was argued.
Representatives of Superintendent David Taylor, the former head of the garda press office who had been suspended for 22 months, raised similar concerns to Charleton, saying that there was a conflict between members of senior gardaí being represented by one counsel when Taylor, as a serving member of the force, is represented by another.
Charleton noted these concerns, but didn’t give a clear indication on what decision he would take on the matter.
Terms of reference
Another bone of contention between Charleton and several legal representatives today centred on the terms of reference, and certain parties could be included in other aspects of the tribunal’s investigation than the one that applied simply to them.
Basically, the terms of reference all fall under specific headings that the tribunal must investigate. Some are very specific and refer to specific events or persons (such as one which focuses on a specific broadcast made by RTÉ), while others are more broad (such as what information Callinan and O’Sullivan had on the McCabe allegations).
While some of the terms of reference, all of which can be read here, refer to specific people, there were cases where submissions were made on behalf of some people to be included under some terms that did not explicitly refer to them.
For example, term L of the terms of reference reads: “to investigate whether a meeting took place between former commissioner Callinan and Deputy John McGuinness on 24 January 2014 in the car park of Bewley’s Hotel, Newlands Cross, Co Dublin”.
Counsel for McGuinness however, made applications for representation under terms A, B, C, F and G, which focus on, among other things, what extent Callinan and O’Sullivan had information on allegations against Maurice McCabe and if this information was passed on to journalists.
While counsel for McGuinness said he had an “interest” in these terms, Charleton didn’t completely rule out McGuinness’ inclusion under the other terms of reference.
Similarly, counsel for Keith Harrison, the whistleblower whose case is relevant to terms N and O, asked for inclusion for D, H, and G.
Charleton raised doubts about how Harrison’s case would be relevant to investigating matters related to McCabe.
Journalistic privilege
The question of journalists appearing before the tribunal was another sticking point at today’s proceedings.
Counsel on behalf of Associated Newspapers, Independent News and Media and the Irish Times all made applications for representation at the tribunal.
At stages appearing incredulous, Charleton pressed each of them in turn as to what information journalists would provide to the tribunal.
Journalists must make clear, he said, if they have information of relevance to the tribunal before the issue of journalistic privilege, and the protection of sources, could be discussed.
“I need to know if they have any information of relevance to this tribunal,” Charleton said. “I’m not interested in if they “may” have information.”
He added that it wouldn’t be “logical” of “fair to the people of Ireland” to think otherwise on the matter.
He said the issue of journalistic privilege could be discussed only when they made clear that they had information of relevance to the tribunal.
Counsel for INM made the argument that the situation was far more nuanced than to simply give a yes or no answer to the question of if journalists had information of relevance, but Charleton refused to budge on the issue.
He said that if they had relevant information but could not reveal their sources, the matter could be discussed and a ruling made, signalling in a very clear manner how business will operate moving forward.
Today’s hearing lasted just over an hour. In total 12 applications for representation were made.
The first module of the tribunal will look at the response of Nóirín O’Sullivan, her predecessor Callinan and others at the highest command level to disclosures made by Sergeant Maurice McCabe.
In particular, the manner in which his character may possibly have been “undermined by calumny or detraction” will be investigated.
It has not yet been announced when the tribunal will begin to hear evidence.
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