NÓIRÍN O’SULLIVAN SAT at the back of the public gallery when she arrived early at the Disclosures Tribunal at Dublin Castle yesterday morning.
George’s Hall was packed as proceedings got under way, and it meant that she had a long walk by the assembled members of the public, journalists and legal teams – all eyes on her – before she sat down at the top of the room to give evidence.
So far in this module, the Disclosures Tribunal has heard that Nóirín O’Sullivan was advised by her legal team to challenge Maurice McCabe’s motivation and credibility at the O’Higgins Commission in May 2015.
It has heard that she chose to stick with this advice and adopt this strategy.
It has also heard that adopting such a strategy went completely against her previous stance of listening to, and supporting, McCabe in the concerns he had since she had become commissioner just a year prior.
So why did she do it?
Regular viewers of O’Sullivan at the Public Accounts’ Committee will be aware that the former garda commissioner is, even under difficult questions, a confident speaker.
So it was yesterday.
She began her evidence with a synopsis of her career within An Garda Síochána and how she felt it was her personal responsibility to restore public faith in the gardaí when she became acting commissioner in March 2014.
“When I took up the role, my commitment to government, An Garda Síochána and to the people of Ireland was to take up the necessary reforms in An Garda Síochána,” she said.
When I took up the position, trust and confidence in An Garda Síochána had plummeted to an all-time low. It was imperative that we restore confidence. A lot of own members were punch drunk from being pilloried [in media].
At numerous instances yesterday, when it came to her recollection of a specific incident, she made Mr Justice Charleton aware that her job as garda commissioner was a busy one, and that she would be dealing with numerous serious situations at the one time.
“If I can put something in context,” she would say before explaining why she acted a certain way in a situation.
She said that, for example, at the time that the O’Higgins Commission was getting underway, her time was occupied with a major security operation prior to a visit from Prince Charles to Ireland.
The same week that she gave the directions to challenge McCabe’s motivation and credibility, a number of people were arrested on terrorism offences.
Repeatedly, she was conveying that, although the matters of the O’Higgins Commission were of the utmost importance, she was dealing with a number of vital matters at the same time.
Despite this, she was entirely convinced that she had adopted the right legal strategy to challenge McCabe, given the advice that was provided to her.
Let’s break this down.
The Tribunal has already heard that the gardaí were well behind in their preparations for the O’Higgins Commission.
When the counsel that were appointed to represent O’Sullivan and a number of other senior officers asked, they were given details about McCabe’s background and history.
These were conveyed through the senior officers against whom McCabe had alleged malpractice, and also the garda liaison officer to the commission, O’Sullivan’s “eyes and ears” Chief Superintendent Fergus Healy.
Details of the Ms D allegation against McCabe – which the DPP decided wasn’t worth pursuing, and which McCabe subsequently tried and failed to have the directions given to him and Ms D’s family – were given to counsel at this time.
On 14 May 2015, the day the commission started, Healy got through to O’Sullivan on the phone. He told her that, having considered all matters, counsel was advising that McCabe’s motivation and credibility be challenged.
Since she became commissioner, her policy had been to provide Maurice McCabe with every support he needed. Ken Ruane, the garda’s head of legal affairs, recently admitted to the Tribunal that this strategy for the commission completely went against that policy.
Nevertheless, she went with it.
When, on 15 May 2015, this strategy was being teased out and drew the fury of McCabe’s legal team, a “frantic” afternoon ensued.
O’Sullivan’s senior counsel, Colm Smyth, was asked by Mr Justice O’Higgins to confirm that this was indeed the instructions.
Her go-between, Chief Superintendent Healy, tried to get her on the phone several times beginning at around 3pm. As she was busy with these other matters, she didn’t get back to him for a period of time.
Counsel also hastily drafted a written record of its instructions to challenge McCabe.
When Healy got hold of O’Sullivan, phone records show they spoke for two minutes. Here’s what she said was discussed in that brief conversation:
My memory of it was that a legal argument had arisen at the commission. There was a requirement for me to reconfirm my instructions to counsel. My memory of what I asked him to do was it sounded like an adjournment would be a good idea.
Department of Justice
Phone records show that two minutes after her conversation with Healy, she spoke to Noel Waters, then-secretary general of the Department of Justice, for just under 15 minutes.
Here, the waters (excuse the pun) get muddy.
Waters had no recollection whatsoever of what was said in this phone call when he gave evidence to the Tribunal. In a meeting with Tribunal investigators in November 2017, O’Sullivan said she couldn’t remember what was said either.
Yesterday, however, while she couldn’t “remember the specifics of the phone call”, she said: “I believe I may well have said to him that an issue had arisen in relation to the O’Higgins Commission.
Not that I felt we were doing anything wrong… the integrity of the commission was important.
She also couldn’t clearly recall a conversation just a short time later with Deputy Secretary General Ken O’Leary. Although he has not yet given evidence to the Tribunal, he has provided a detailed note on his recollection of the phone call.
He said that O’Sullivan asked him if “anything occurred to [him] which she might need to be mindful of in addressing this [McCabe] issue with her legal advisors”. He told her she should take more time to consult with her legal team.
O’Sullivan said she certainly spoke to O’Leary but didn’t remember having such a “detailed conversation”. She remembered speaking about other matters but O’Leary had no note of this.
Tribunal counsel Kathleen Leader then put it to her: “What I’m saying to you is it’s very hard to believe you were discussing other matters when you don’t remember what was being said and he has a detailed account.”
Any doubts?
It was put to O’Sullivan that to make these calls to the most senior civil servants within the Department of Justice just after being told about the row at the O’Higgins Commission over her legal strategy would suggest she may have been having doubts about it.
The fact that she sought an adjournment to the commission on that date also suggested that she could have been reconsidering such a strategy.
O’Sullivan rejected the suggestion yesterday.
She said that she sought an adjournment because she “wanted ensure that there were necessary supports in place for Sergeant McCabe”.
The former garda commissioner also said that, while speaking to O’Leary, she was “not seeking instructions or seeking to consult”, despite his letter to the Tribunal suggesting this.
Leader then put to her: “It seems you were uneasy about the position that had been adopted, considering you went to him. Mr O’Leary seems to be under the impression you weren’t entirely happy, or confident… in relation to this stance?”
O’Sullivan, however, remained adamant it was the right course. She said:
I was very confident in taking that stance given advices I had received. If O’Leary is portraying me as being uncomfortable or uneasy, that’s not the case.
At the Tribunal yesterday, she said she was justified in challenging McCabe, although it hadn’t been an easy decision to make so.
Having originally outlined a number of ways in which she personally reached out to McCabe and provided supports to address his concerns, following this advice was difficult for her, she said.
She said that a “political narrative” had developed that An Garda Síochana was corrupt, and had been dogged with a number of issues for quite some time. The O’Higgins Commission was an opportunity to find “the truth” in a number of these matters, O’Sullivan said.
Here’s what she had to say about all of this:
My point of view was we needed to get facts before the commission. We needed to be assured we got back to the truth.
From the outset in April 2014, it was a matter of public knowledge I was supporting not only Sergeant McCabe but all members who wanted to speak up. That was always my approach.
This was the dilemma I was faced with. I was absolutely committed to supporting [him] in the workplace. [But] his evidence would have to be tested. I was very aware it may change Sergeant McCabe’s perception of me. I had to assure him that all supports were still continued. It was an impossible dilemma.
Just a few days after this legal strategy was made clear at the O’Higgins Commission, Maurice McCabe resigned from his position as sergeant in the traffic corps in Mullingar.
Squaring the choice to challenge McCabe’s motivation and credibility with her feelings on McCabe’s conduct invited more questions than answers at the Tribunal yesterday.
She said: “I would never ever consider Sergeant McCabe to be malicious… This was never about the man, but about the allegations being made.”
O’Sullivan made it clear on several occasions that McCabe was right to raise his concerns, and that he wanted him to know she supported him for doing so.
“There was never a suggestion there was any bad motivation on behalf of Sergeant McCabe,” she said.
He never acted out of bad motives, but his attitude changed.
She said that his “attitude changed” when he wasn’t given the DPP directions in the Ms D case, which he felt would exonerate him and clear his name.
McCabe had made a number of serious allegations of corruption and malpractice within the gardaí. Previous witnesses to the Tribunal agreed that he should be challenged on why he was making these serious claims.
Nóirín O’Sullivan said it was about challenging McCabe on “how he came to conclude” that it was the case that his allegations amounted to malpractice and corruption.
Counsel for Tribunal will continue questioning O’Sullivan this morning before she is cross-examined by Michael McDowell, counsel for Maurice McCabe.
She will no doubt be pressed on what exactly it was about McCabe’s motivation that should be challenged, if he didn’t have these bad motives.
It’ll then be up to Mr Justice Charleton to decide if, by challenging McCabe’s motivation, she was doing so on “unjustified grounds”.
If she’s saying that McCabe had no bad motives, that question may be answered already.
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