ANYONE WHO SHOWED up at the packed public gallery in Dublin Castle expecting to see Nóirín O’Sullivan give evidence would have been disappointed.
Again, the witness list for the Disclosures Tribunal was changed, with previous witnesses taking longer than expected. The new list had the former garda commissioner appearing on Thursday.
After yesterday, it is now more likely to be Friday, or even next Monday, before we get to hear from her.
The entirety of day 43 at the Disclosures Tribunal was taken up with the evidence of Annmarie Ryan, a solicitor at the Chief State Solicitor’s Office.
Challenging McCabe
Let’s recap for a second.
At the O’Higgins Commission, which looked at allegations from McCabe of corruption and malpractice in the Cavan-Monaghan division, counsel for Nóirín O’Sullivan sought to challenge McCabe on his motivation for bringing this to light.
The Tribunal has already heard from the gardaí’s head of legal affairs Ken Ruane that preparation on putting together a legal team for the commission was left very late.
It heard that on 11 May, three days before the commission started, “background information” on McCabe was given to Nóirín O’Sullivan’s counsel.
This included the Ms D allegation against McCabe, which the DPP found to be not worth pursuing. Ms D’s father was a colleague of McCabe’s.
McCabe, wishing to have his name cleared, complained to a senior officer about Mr D in a bid to have the DPP directions given to both parties in a bid to exonerate him. This request was denied.
Switching position
In depth yesterday, the Tribunal heard from Annmarie Ryan, a solicitor at the Chief State Solicitor’s Office who was assigned very late on to represent Nóirín O’Sullivan at the O’Higgins Commission.
She described how the issue of challenging McCabe’s motivation and credibility was first raised at a meeting on the evening of Wednesday 13 May 2015, the day before the commission started.
After evaluating the case, the barristers who’d be representing O’Sullivan said that this was their advice.
Then, at some point between that evening and Friday, the commissioner gave the green light for this strategy to be taken.
By adopting this strategy, as Ruane said under cross-examination, it was going against the method of dealing with whistleblowers up to that point in 2015 which was to show that their concerns would be listened to and not attacked.
It is important to note that in all of these meetings that discussed and ultimately decided the gardaí’s legal strategy, Nóirín O’Sullivan wasn’t even there.
Her instructions were conveyed by her “eyes and ears” Chief Superintendent Fergus Healy, who was the garda liaison officer for the O’Higgins Commission.
O’Sullivan has notified the Tribunal that she has waived her privilege from the O’Higgins Commission. In the opening statement of the Disclosures Tribunal back in June, counsel called it an “exceptional approach”.
In effect, all conversations with say, a solicitor, that would normally be covered by client-lawyer confidentiality would be free to be discussed by the likes of Ryan at the Tribunal.
But, by not being present at any of these meetings where the crucial decisions were made regarding the decision to challenge McCabe, her waiving of privilege in this regard is actually not as significant as it seems. As the same legal team represented many other officers, their privilege is still protected.
“I was very unhappy”
The first that Ryan said she knew that this was the legal strategy that had been adopted was that Friday afternoon, 15 May 2015, during the O’Higgins Commission hearings.
Acting as solicitor for O’Sullivan, she said that she was “unhappy with the entire situation”. Later that day, Ryan said it was important to speak to O’Sullivan herself.
“I knew it was a highly sensitive matter,” she said. “I wanted a consultation with the commissioner. I said to Fergus [Healy] to put the pressure on to see where we stood. I had nothing in writing from the commissioner.”
In notes of the day, Ryan would describe what happened as “political dynamite” and, when questioned about this, she said she knew this could mean “trouble”.
When the row kicked off between O’Sullivan’s counsel Colm Smyth and McCabe’s counsel Michael McDowell, calls were urgently made to seek further instructions from O’Sullivan about what should be done next.
After speaking to Healy, it was Nóirín O’Sullivan’s instruction to “in light of the objections being raised by McCabe’s SC and in order to consider the matter further for us to if possible seek adjournment or if not possible to go ahead and pursue questioning as advised by counsel”.
This is important.
After giving the go-ahead, through Healy, to follow counsel’s advice and challenge McCabe’s credibility, here she is asking for a delay. She’s asking for time to take a look at this again. If that time is not given, the instruction is to stick to the challenging McCabe line.
We know that at this time, O’Sullivan rang the secretary general of the Department of Justice Noel Waters. We don’t know what was said in this 15-minute conversation, because he had no recollection of it when giving evidence.
She was playing for time and, it appears, seeking advice. Seeking an adjournment would grant a period to look over the strategy and see if it is the one they should pursue.
The adjournment was not granted, so the instructions were to stick with what they already had.
Clarification
By Ryan’s account, she spent most of that weekend trying to clarify these instructions and the basis for which they would seek to challenge McCabe.
By 9.45pm on the Saturday night, these had been compiled. The details of the infamous “despicable” email have already been given to the Tribunal.
In an email sent around by counsel Michael MacNamee at that time, he said: “It is of the UTMOST importance that the content be as factually accurate as possible such that there are no mis-statements and nothing that cannot be backed up by oral or documentary evidence.”
As we now know, there was an error contained within that document. We didn’t get a full explanation yesterday for how it was made, but there were some details on why it wasn’t spotted.
One section details how McCabe made an allegation “against” a senior garda over the refusal to hand over the aforementioned DPP directions. This was based on a meeting between McCabe and Superintendent Noel Cunningham in August 2008.
Both men’s accounts said that McCabe made an allegation “to” a senior garda over the refusal to hand over the DPP direction.
Ryan told the Tribunal that the document containing this error had a “lot of circulation”. Noel Cunningham saw it, but he said he didn’t spot the error.
Yesterday, a statement read out from him said that he didn’t notice the error because he was reading the lengthy document on his phone, has “poor eyesight” and was reading it in a hurry.
Mr Justice Charleton, in one of his numerous interjections yesterday, said “studies show if you read something on a screen, you pay less attention to it”.
Ryan affirmed that no one spotted the error until it came up at the O’Higgins commission, itself. The error was even repeated in submissions sent by the legal team again on 11 June.
Justified?
Ryan stressed on numerous occasions that asking why the route of challenging McCabe was chosen was a question for Colm Smyth and the other barristers involved.
In one exchange, however, she made what amounted to a defence of following the strategy of attacking McCabe’s motivation from the perspective of counsel.
Referencing an internal garda investigation into the matters in Cavan-Monaghan that were before the O’Higgins Commission, Ryan said: “There had been a detailed investigation carried out by Byrne and McGinn.
My understanding from all consultations was that report had dealt with numerous allegations made by McCabe and indeed had agreed with many of these. A lot of these allegations had been upheld.
On allegations of corruption, Byrne and McGinn found there was no corruption. These allegations were still being made at the O’Higgins Commission [years later]. [There was] no evidence to back up any of these matters. [McCabe] was given the opportunity to withdraw allegations. Some of them were withdrawn.
The rationale was that some allegations made by McCabe, which the O’Higgins Commission would later find were incorrect regarding corruption of senior officers, should be challenged.
Both McCabe’s counsel McDowell and Mr Justice Peter Charleton himself questioned this at the Tribunal yesterday.
The judge said that the O’Higgins Commission was looking into matters of fact – i.e. if x mistake was made in y investigation.
It was not looking at why McCabe had highlighted them. It was looking at whether the things that happened in a certain number of cases amounted to malpractice or incompetence from the gardaí.
Referencing the decision made to challenge his credibility, Mr Justice Charleton asked: “Was there no one asking ‘why are we doing this?’. How could it possibly affect the outcome? The terms of reference did not ask to look at language used about Sergeant Maurice McCabe.”
McDowell also asked: “Was there any legal consideration about whether motive was in any way relevant to issues being considered by Mr Justice O’Higgins?”
Getting ready for McDowell
The garda legal strategy was more solid by November 2015, when Nóirín O’Sullivan was due to give evidence at the O’Higgins Commission.
They were gearing up for an expected cross-examination from Michael McDowell about why the decision was made to attack Maurice McCabe.
In May 2015, McDowell had remarked that if this was to indeed be the strategy, then he’d like to cross-examine her about it.
“I don’t think she will enjoy the experience,” he said.
In meetings involving O’Sullivan before she appeared, notes from Ryan made reference to what her defence of the strategy might look like.
This would have involved saying that she, as commissioner, had a duty of protection to all gardaí, including McCabe but also those about whom he made allegations of corruption.
One of the notes says: “Whistleblowers may not always be right, but we must listen to them.” Ryan said she wasn’t sure but this may well be a quote from O’Sullivan, herself.
Her barrister Smyth was also ready to object to this line of questioning.
In any case, McDowell did not ask O’Sullivan about this.
“We were surprised at that,” Ryan said.
The matter was raised however by Mr Justice O’Higgins who asked Smyth for clarification on his instructions just before O’Sullivan was to give evidence that day.
Martin Callinan
As pointed out here, we are going to hear an awful, awful lot more about former garda commissioner Martin Callinan after this module ends.
In terms of whistleblowers, he is well remembered for this comment about whistleblowers before the Public Accounts Committee:
On a personal level, I think it’s quite disgusting.
The Tribunal heard yesterday, as part of its preparation for the expecting onslaught from McDowell, that it would be said that Callinan’s “disgusting” remark was not aimed at individual whistleblowers.
Almost there
So far, listening to the witnesses appearing before this module of the Disclosures Tribunal has been like getting a drip, drip feed of information.
Each person has information, they provide details but just when it seems we’re about to arrive at the answers, we hit a sudden stop.
These people were involved in the process whereby Nóirín O’Sullivan’s legal strategy was to impugn Maurice McCabe’s credibility at the O’Higgins Commission… up to a point.
Again, we got more information yesterday that would point us towards the answers without every really providing them.
The questions that still remain are how did the “for/against” error get made, how much input did Nóirín O’Sullivan have in the whole process, and why did she choose to back these efforts to impugn McCabe?
Every day, the Tribunal gets closer but, with the list of when witnesses are scheduled to appear changing constantly as current witnesses go over time, we’re still some degree away from getting the full picture. Or the fullest picture possible.
Toward the end of proceedings yesterday, Mr Justice Charleton asked Michael McDowell how much longer he’d need to cross-examine the witness.
“About an hour, chairman,” McDowell replied.
“I don’t want you back here for a third day,” Charleton said, addressing Ryan, although she now will be. “I’m sure you don’t want to be either.
I want to move on with things.
Based on what we’ve heard so far, and with the questions still to be answered in this matter, the evidence of three people will be crucial.
The “eyes and ears” for the commissioner, Chief Superintendent Fergus Healy, is one. Colm Smyth, who acted as senior counsel for O’Sullivan, is another.
The last, of course, is Nóirín O’Sullivan, herself.
Whether that’s this week or next, it’s likely there’ll be standing room only at the back of George’s Hall in Dublin Castle when these questions are finally put to her.
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