The Disclosures Tribunal has now finished its witnesses, after almost 100 days of hearings. Over the course of the last 12 months it heard evidence on four modules, with this one running throughout July 2017.
IN MANY WAYS, the Tusla module is the most straightforward one in the whole Maurice McCabe saga.
There’s little disagreement in what happened.
A catalogue of mistakes and failures meant that Maurice McCabe was accused of digitally penetrating a child, and it was the job of the Disclosures Tribunal to find out how it happened.
No one had ever alleged McCabe done it, but he was accused of it anyway.
The Tribunal heard from well over 40 witnesses, including a number of social workers, who described an overworked, pressurised system were mistakes were not always spotted, and the correct actions not taken.
Tusla has held its collective hands up, acknowledged they got it wrong, and wrong, and wrong again, with regional service director Linda Creamer telling the Tribunal “we are genuinely sorry for the McCabe family to go through such stress”.
But it just so happened that a case that Tusla got badly wrong happened to be against one of the most well-known men in Ireland at the very time he was whistleblowing on deficiencies within An Garda Síochána, and also while a smear campaign was allegedly being conducted against him.
Tribunal barrister Pat Marrinan SC had this succinct summary for how this case was handled:
You see, this is yet another error. And every error that is made is to the detriment of Sergeant McCabe, do you understand? There isn’t an error in his favour. Nobody made a mistake by which he benefited, do you understand?
Speaking to TheJournal.ie last December, Tusla CEO Fred McBride said: “In the McCabe case, I’m afraid that there were things that we handled badly.” The agency has also apologised to McCabe for what happened.
But what exactly happened? And how does it fit into the wider context of the alleged smear campaign?
Litany of errors
The whole saga originates in 2006, when the daughter of a colleague of Maurice McCabe – who has been named only as Ms D throughout proceedings – alleged that he had sexually abused her when she was a child in the 1990s.
She claimed that McCabe had tickled her and touched her inappropriately during a game of hide and seek. The matter was investigated and a file was sent to the Director of Public Prosecutions.
A file from the investigating officer, Inspector Noel Cunningham, said: “Taking all the matters into consideration, including the question of whether the event, if it happened, constituted a breach of the criminal law, it is felt there is no ground for criminal prosecution.”
The DPP agreed. In its directions, it said: “Even if there wasn’t a doubt over her credibility, the incident that she describes does not amount to a sexual assault or indeed an assault.”
Over six years later, Ms D attended a number of counselling sessions with Rian (a HSE counselling service) in the summer of 2013.
When counsellor Laura Brophy was writing a report based on her sessions with Ms D, using a Microsoft Word template, she mistakenly put in allegations from a completely separate case.
In that separate case, a woman identified as Ms Y made allegations of digital penetration. The file on Ms D even included Ms Y’s name. But the mistake was not spotted by Brophy or anyone else at the time.
Michael McDowell SC, for McCabe, told the Tribunal that these errors “set in train an appalling injustice as far as Sergeant McCabe was concerned”.
That report stays on file, and is then reviewed by Tusla social worker Laura Connolly on 30 April 2014.
She created records for each of McCabe’s children, containing the erroneous allegations on the file. She didn’t notice that there were two different names on the report – Ms D’s and Ms Y’s.
She told the Tribunal: “That was an oversight on my part and human error.”
Soon after, a referral is sent from the HSE on the back of Connolly’s records to gardaí and the it quickly becomes known what McCabe is now wrongly accused of when the referral arrives at Bailieborough Garda Station in Cavan on 7 May.
Ms D told the Tribunal that she received a call from her father – a serving garda – on 14 May to ask “what in the hell” she had told the counsellor.
She said: “And he said that he had been shown a referral from the HSE and within that referral there was reference to digital rape.
I became livid, I got upset, I stressed to my father that I had never used those words, I had never made that allegation, and that all I had ever said to Laura Brophy was what I had always said.
Ms D rang Laura Brophy to tell her what happened. Brophy said Ms D was emotional and upset, and told her there was a report in Bailieborough Garda Station to the effect that she had been raped.
“I immediately apologised and said I would try to resolve this, that I would contact social services,” she said. She said she spoke to Eileen Argue, a social work team leader, who told her she would get the files recalled and replaced with accurate information. Argue told the Tribunal she couldn’t remember any of the events of May 2014.
Despite Brophy’s desire to correct the mistake, the error remained on file and would do so for years. While a clarification was put on the file about the mistake, the pages containing the false allegations remained on it.
When the file was reviewed by social worker Kay McLoughlin in 2015, she did not see an email in it which outlined how the allegation of digital penetration from an unrelated case had been added to the file.
The false allegation was repeated in six documents in the file and, of the remaining 19 documents, a number of them were devoted to correcting the error, including an explanation of how it happened.
McLoughlin told the Tribunal: “I did not review the file fully. I had no cause to know an error had been made in it. I failed to appreciate that there was a significant error on the file and I failed to review the file thoroughly.”
Due to this failing, a decision was made to write to McCabe with these erroneous allegations in them.
He received the letter in the first week of January 2016, and he told the Tribunal that it floored him.
“I felt horrific, horrific,” he said. “This one was just incredible, to open a letter like that and to be accused of what I was accused of.”
McCabe had his solicitor write to Tusla, who calls the allegation of digital penetration “a new and entirely false” one and says it can be easily demonstrated that no such claim was ever made.
It’s not till six months later that Tusla withdraws the allegation, and apologises to McCabe.
Malicious?
At every stage, different social workers or figures who had a role in this always denied there was any collusion with the gardaí, and apologised at the Tribunal for the errors that went into ultimately sending McCabe a letter containing an accusation he’d abused a child.
Tusla area manager Gerard Lowry told the Tribunal there wasn’t “any coordination, liaison or collusion” with gardaí in creating the files.
Kay McLoughlin denied being a “puppet” of the gardaí and that if she’d felt in some way biased, she wouldn’t have dealt with the case.
If the gardaí’s interference can be ruled out, then what happened?
Social worker Clair Tobin made this pertinent point when she gave evidence to the Tribunal: “Stuff wasn’t put in the file where it should be. It’s not unique to this file, unfortunately. This is not just files in the Cavan region. People fail to put things on files unfortunately. The things that weren’t put on this file were quite significant.”
The concept of an overworked, understaffed social work team is a depressingly familiar one across the country, and the string of errors that culminated in McCabe being sent this letter is not an isolated event.
Hiqa later investigated the McCabe case, and expanded its scope to look at how Tusla handles all cases of alleged abuse against children.
The report, published earlier this month, was damning of Tusla right around the country, citing common failures everywhere it looked.
It found inconsistencies in practice around the screening of allegations of child sexual abuse and making preliminary enquiries into these allegations. Hiqa also found that in some cases, people were not told than an allegation of abuse had been made against them and others were given only limited information.
Tusla has apologised to McCabe and acknowledged Hiqa’s findings, and said it got things wrong in this case.
The Tribunal was tasked with looking at whether gardaí used false allegation to discredit McCabe. At the same time these mistakes were being made, rumours about McCabe were flying around media and political circles, and an alleged smear campaign was being run against him.
If it is a coincidence, it’s an extraordinary one.
But the evidence given to the Tribunal suggests that may have just been that as a catalogue of errors resulted in this false allegation being put on McCabe’s file.
And, crucially, Maurice McCabe has accepted it was a genuine error.
Speaking at the Tribunal in February, McDowell said the error from Brophy, however unintentional, should never have occurred, and the document should have been carefully checked or subjected to review before it was sent out.
“If any of those checks had happened, the sequence of events which followed would not have happened,” McDowell said, adding it didn’t stack up that McCabe’s file was randomly selected for review then in April 2014.
He added to the judge: “I am asking you to reject the suggestion that it was a purely random act, and prefer the explanation that Tusla as an organisation said, we better get our act together.”
A terrible set of errors, and none in McCabe’s favour, leave it likely that Mr Justice Charleton will savage Tusla while stopping short of suggesting a conspiracy in his final report.
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