AFTER WHAT THE Tribunal’s own barristers called a “confusing” start to proceedings for this module on Monday, the Disclosures Tribunal went behind the scenes on two very separate strands of the Maurice McCabe saga yesterday.
First, we had the man who up until recently was the most senior civil servant in the Department of Justice. Then, we had the head of legal affairs from An Garda Síochana.
Over the course of five hours, the Tribunal heard details of emails sent from Nóirín O’Sullivan to Frances Fitzgerald. It heard about letters written by the Department of Justice, on behalf of the garda commissioner and intended for the Minister for Justice. It also heard about how a senior figure in the gardaí told colleagues they were “going after” McCabe.
The first witness was Noel Waters, who has just recently retired as secretary general of the Department of Justice.
His answers were for the most part not very illuminating. ”I have no recollection of that,” or a version of this statement was a constant mantra Waters used throughout the proceedings.
He didn’t remember a 15-minute phone conversation with Nóirín O’Sullivan on the day it all kicked off at the O’Higgins Commission. He didn’t remember department officials notifying him about the ensuing row via email. He didn’t remember if he spoke to Minister Fitzgerald about it.
It was the documents put to him, however, that provided the most detail.
The emails
This part of the Disclosures Tribunal is looking at two things: if then-Garda Commissioner Nóirín O’Sullivan’s legal strategy at the O’Higgins Commission relied on the allegation made by Ms D against Sergeant Maurice McCabe, and the contacts between government and the gardaí about this strategy.
At that commission, which looked into allegations of garda malpractice in Cavan-Monaghan which were highlighted by McCabe, O’Sullivan’s legal team were directed to challenge McCabe’s motivation and credibility.
They were directed to challenge McCabe on his desire to be given the DPP direction from the Ms D allegation, which may have indicated McCabe had been motivated to complain about garda malpractice because he wasn’t given these directions.
Yesterday, the Tribunal looked at these very contacts between O’Sullivan, her legal counsel, the Department of Justice and Frances Fitzgerald.
After the O’Higgins Commission report was published in May 2016, a set of three emails were sent by Nóirín O’Sullivan to Frances Fitzgerald.
These emails were found on O’Sullivan’s iPad from her gmail account, the Tribunal heard.
In these emails – sent to a misspelled email address at first – O’Sullivan details the legal advice given to her on 15 May 2015 on challenging McCabe at O’Higgins.
“You may choose to put this on the record in the house,” O’Sullivan said. “If you do, I would request that you state I volunteered this is in the public interest.”
Incredibly, in attempting to forward it to Waters, Frances Fitzgerald also sent it to a misspelled email address.
“nawaters@justice.ie was not my email address,” Waters told the Tribunal yesterday.
This email was sent to Fitzgerald by O’Sullivan on the morning of 18 May 2016.
O’Sullivan was in effect asking the Tánaiste to detail the legal advice the gardaí had in the Dáil. She also suggested to Fitzgerald that she express confidence in herself, the garda commissioner.
At Leaders’ Questions later that day, Fitzgerald roundly rejected going into these sorts of specifics when requested to do so by opposition TDs.
She said: “It is going down a dangerous path to suggest that instructions be put in the public domain.
I stated also that it is imprudent and a dangerous precedent for such discussions to be thrown into the public domain as it will affect the reputations of persons – I already made the point about reputation – as they have no comeback and the person who made allegations in giving instructions would have no comeback either.
As an interesting aside, Garda Chief Administration Officer Joe Nugent told the Policing Authority that “no sensitive emails” relating to her role as commissioner were found on this gmail account, the Irish Times reported last month.
On message
The desire for both the Department of Justice and the gardaí to stay on message when it came to these issues was clear, as one curious incident was highlighted in a letter from Nóirín O’Sullivan to then-Minister for Justice Frances Fitzgerald.
This was in late-May 2016, and the letter involved her legal approach at the O’Higgins Commission and the garda approach to whistleblowers.
this letter, from Garda Commissioner O’Sullivan to the Minister for Justice was drafted by a senior civil servant in the Department of Justice itself.
Mr Justice Charleton interjected to say that the “garda commissioner was expressing views to the department that were already written by the department seems an empty exercise”.
If the person who’s having a dialogue is telling the other person what to say, how could you know what their genuine views are?
Then, in a digression worthy of a Flann O’Brien novel, the judge riffed on how this story sounded like the plot of an old Myles na gCopaleen tale.
Waters told the Tribunal that it wouldn’t be unusual for drafts of letters or speeches like this to be provided upon request. Again, however, he had no recollection of the process that went into the drafting of this letter.
He went on to say that he believes the right action was taken by the Minister and officials at the Department of Justice when they were informed of the legal strategy in May 2015, i.e. didn’t interfere.
“On the basis of what I said, nothing further was to be done with it,” he said.
I’ve reflected on that question – it’d be writing history backwards. I have to say truthfully I’m not sure any different action would be taken [if we were to do it again]. This was a matter for the commissioner and her legal team.
“Political dynamite”
Waters maintained on several occasions that he had no recollection of reading the email notifying him of the gardaí’s legal strategy against McCabe. He also maintained he couldn’t recall speaking to Nóirín O’Sullivan on the phone on the afternoon of 15 May 2015, when a row was erupting at O’Higgins.
Michael McDowell, representing McCabe, pressed the former secretary general on what he could remember from that time.
He said he was already aware of the independent review mechanism, where a legal team reviews past garda conduct in cases where they may have been issues with an investigation, on the Ms D allegation against McCabe and they were satisfied it was handled correctly before May 2015.
Waters disagreed with McDowell that the Ms D allegation was common knowledge in the department, but said it would have been known by certain people there. He also said he “imagined” Frances Fitzgerald would also have been aware of the allegation.
McDowell said that, bearing in mind he knew about the Ms D allegations, alarm bells should have gone off when they received notification that counsel for O’Sullivan would be discussing McCabe’s failure to secure the DPP directions in a bid to challenge his motivations.
“This was something that was decided that was totally wrong appearing before the commission,” McDowell said. “It was something of significance. Confidential information being given to the commissioner, yourself… why wouldn’t you have read [this email]?”
Water reiterated that he had “no recollection of it” and that he “simply can’t say”. He said that he assumed that he had taken comfort in the fact that the DoJ official that notified him about it said no further action was warranted.
In a note from Annmarie Ryan, from the State Solicitor’s Office, she describes the events of that day at the O’Higgins Commission as “political dynamite”.
If someone was describing these efforts to challenge McCabe in those terms, McDowell argued, the Department of Justice should have felt it was a huge development.
Waters replied: “We had no role to interfere. Compromising the entire process would have been political dynamite too.”
“Shocked, disappointed and extremely concerned”
After Waters, next came Kenneth Ruane, the head of legal affairs at An Garda Síochana.
The Tribunal adjourned for the weekend less than an hour after he began giving evidence, but there was still new information highlighted.
Firstly, it appears that An Garda Síochana was not well prepared for the O’Higgins Commission.
Only a month before it was due to begin, there was still no legal team in place.
In a letter dated 15 April 2015, a solicitor for the O’Higgins Commission sent a strongly worded letter to a senior garda:
[We are] shocked, disappointed and extremely concerned to read that you have only now seem to have realised the need to arrange for legal advice in relation to representation and in relation to the review of the documents you are obliged to disclose.
The continuing delay by An Garda Síochana in fully complying with the commissions directions is impacting greatly on the work of the commission and its preparations for the May hearing. This cannot be allowed continue.
Ruane said that he had expressed concern about this delay, and had sought instructions from Nóirín O’Sullivan on 30 March 2015.
At no time was he aware of the plan to challenge McCabe’s credibility at the Tribunal, he said.
“We are going after him in the commission”
Perhaps the most striking revelation came just before the end of proceedings yesterday.
Ruane had mentioned that, between the establishment of the O’Higgins Commission and its first hearings, meetings were regularly held between senior members of An Garda Síochana.
According to the garda’s head of HR John Barrett in a statement to the Tribunal, the following words were said in one of those meetings:
We are going after him in the commission.
This was allegedly said by Cyril Dunne, the garda’s chief administrative officer. For his part, he denies having said this, and both Barrett and Dunne are yet to appear before the Tribunal.
Ruane told the Tribunal that he hadn’t discussed this with the commissioner, and was not aware of any plan to challenge him.
He also said he would provide his notes from these various meetings to the Tribunal.
Ruane will continue to give evidence next Monday, as will Annmarie Ryan from the Chief State Solicitor’s Office.
This part of the Tribunal is trying to get to the bottom of how and why it came to be that O’Sullivan’s legal strategy was to attack McCabe’s motivation and credibility.
As per the terms of reference, however, {e} says it must “investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe” at the O’Higins Commission.
It is clear from all sides, including McCabe’s, that no one is alleging that O’Sullivan’s legal strategy sought to accuse McCabe of actually being guilty of some sort of sexual assault.
McDowell even said yesterday that their grievance is all about how the issue was brought up at the O’Higgins Commission to “demean” and “embarrass” McCabe while challenging his motives.
So that rules out the sexual abuse element of the terms of reference.
It is the aftermath where he tried and failed to secure the DPP’s directions for both himself and the D family and the subsequent challenging of his credibility based on that fact that is up for discussion.
So the Tribunal will continue to investigate whether these “unjustified grounds” were used going forward.
Yesterday may not have answered that question, but the plot has thickened considerably.
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