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 from January and February 2018.
THE THIRD MODULE of the Disclosures Tribunal looked at a particular scandal which almost brought down the government last winter.
Only Frances Fitzgerald’s resignation late in the day staved off the looming general election.
So what was it all over? It’s a tricky web to untangle, but the main crux of it hinges on a few points:
In the eye of the storm, and with the opposition baying for blood, Fitzgerald stepped aside. Then, in January, the Disclosures Tribunal started looking into all of this.
For something that almost toppled a government, however, the substance here doesn’t turn out to be as explosive a scandal as you might think.
The task at hand
Regarding what the Tribunal was actually asked to do here, the term of reference for this module was to “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'Higgins Commission]“.
It was also tasked with looking at contacts between gardaí and, among others, members of government and state entities in relation to this topic.
Firstly, the idea that O’Sullivan “inappropriately relied” on the “false allegations of sexual abuse” against Maurice McCabe was roundly debunked on the very first day the Tribunal sat on this topic on 8 January.
Having looked at the matter in great depth, counsel for the Tribunal said it could “rule out that anyone ever intended on behalf of Commissioner Nóirín O’Sullivan to say [McCabe] had once abused a child”.
“There is nothing we can point to that this was ever close to happening,” they said.
McCabe’s team also accepts that neither O’Sullivan, nor anyone acting on her behalf, had sought to use false allegations of sexual abuse against him.
As for “unjustified grounds”, that is still the bone of contention for Mr Justice Charleton to make a judgement on.
Motivational grounds
The O’Higgins Commission was an investigation set up to examine allegations of garda malpractice in the Cavan-Monaghan division that McCabe had brought to light. Its hearings were held in private.
Its role was to look at cases where gardaí may have got it wrong, and establish the facts. It wasn’t a criminal trial. It wasn’t supposed to be an “us vs them” situation.
However, McCabe had made allegations of corruption against a number of senior gardaí, including a superintendent, a chief superintendent, an assistant commissioner and former commissioner Martin Callinan.
The gardaí’s legal team at the commission represented Nóirín O’Sullivan and a number of these senior officers about whom McCabe had made allegations.
Before the commission got under way in May 2015, however, O’Sullivan never even met with her counsel at all. She was informed what was happening by her “eyes and ears” Chief Superintendent Fergus Healy who acted as her go-between and relayed information to her.
The Tribunal heard of a haphazard approach from the gardaí in getting its legal strategy in place from the time the commission was set up by government in February 2015 until its first hearings in May.
It was behind schedule. A legal team was only set up weeks before the first hearings at the commission. Gardaí sent through discovery to its solicitors a week before hearings began. This discovery was so disorganised that the solicitor who received them sent them back.
After a number of consultations with the senior gardaí involved in these matters, the legal team advised that certain background matters be put to McCabe, and namely that his motivation and credibility for making these allegations be questioned.
Healy, the commissioner’s “eyes and ears”, conveyed this advice to Nóirín O’Sullivan and she gave to go-ahead for this strategy to be adopted.
Senior counsel Colm Smyth told the Tribunal that it wasn’t wrong to question McCabe’s motivation at the private hearings.
“I had a duty to defend the interests of my client, regardless of the consequences for myself,” he said. “My conscience will remain clear.”
Defending the stance before Mr Justice Charleton, herself, Nóirín O’Sullivan would repeat a similar mantra during her evidence to the Tribunal.
She said: “And from the outset that is what we were doing, was testing the evidence and the validity and veracity of all of the allegations that were made.
What had changed and what had led Sergeant McCabe to conclude that all of these incidents combined amounted to corruption and malpractice on behalf of individual members of An Garda Síochána.
Counsel for the Tribunal put it O’Sullivan that this was a “unique interpretation of motivation”.
Getting it all wrong
It’s fair to say that McCabe and his legal team were appalled by this strategy.
When it became clear that this was the stance being taken by O’Sullivan and the gardaí, Michael McDowell SC – for McCabe – expressed his displeasure.
In a nutshell, a row erupted over counsel for the gardaí’s line of questioning on day two of the commission on 15 May 2015. Colm Smyth SC said that his instructions were to challenge McCabe’s credibility and motivation for making these allegations against the gardaí.
Mr Justice O’Higgins asked if he was suggesting McCabe had “bad motives” or was “motivated by malice”, and Smyth agreed but it was decided that they would come back after the weekend with clarity on what basis they were challenging McCabe.
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”.
So, after the war of words, the garda commissioner’s legal team came back on 18 May with an email detailing their instructions. This email, however, contained a grave error.
This email detailed factors on which counsel had been instructed to challenge McCabe’s motivation for making allegations.
From the Chief State Solicitor’s Office, but compiled by O’Sullivan’s counsel to the O’Higgins Commission, it outlined aspects of the D case and contained this line about an August 2008 meeting:
Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaints about Superintendent Clancy was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him [in the Ms D case where McCabe was exonerated of sexual abuse].
So counsel for the garda commissioner were seeking to challenge motivations and credibility partly on the basis of something he hadn’t actually said.
McCabe had never said he was making complaints about Superintendent Clancy in that meeting to try to force getting the DPP directions, and he was able to produce a transcript to back it up.
At the O’Higgins Commission, McDowell was irate. He said:
“I have received a document which, if it is not adversarial, I don’t know what is. I have to say it is utterly and completely inexplicable. I find this a despicable document.
It’s a conflation of falsehoods, invasions and untruths. My client will deal 100% with all allegations made against him of impropriety of any kind. What he’s not prepared to be is ambushed in bad faith by a commissioner who is not a witness on this tribunal.
And furthermore, the garda who met with McCabe in August 2008 – Noel Cunningham – had never stated that this was why McCabe was making complaints.
Having put out olive branches of support to McCabe since she had become commissioner the previous year, here O’Sullivan was allowing his credibility to be challenged.
It was put to her at the Tribunal that this was hypocritical, but she denied this was the case.
Perhaps tellingly, when the head of garda legal affairs Ken Ruane was giving evidence to the Tribunal, he said: “I certainly envisaged that the reaching out that occurred to Sergeant McCabe – in January, February, March, April – I didn’t see how that could continue.
It was going to create significant difficulties in that respect. With hindsight, perhaps I should have contacted the commissioner and said ‘you really need to think about this’.
And justice for all…
So, where does Frances Fitzgerald and the Department of Justice fit into all of this?
Well, when the row erupted between Smyth and McDowell at the O’Higgins Commission on 15 May, a flurry of calls and texts began with gardaí and officials at the department to share the information.
Officials in the Attorney General’s office were also informed at the time.
An email explaining what was going on was sent by senior civil servant in the department, Michael Flahive, and it was forwarded to Fitzgerald’s private secretary. This forwarded note asked the secretary to inform the minister, who replied some days later to say the Minister had “noted” it.
Fitzgerald said that she wouldn’t agree that this email informed her about O’Sullivan’s legal strategy.
The email contains the following lines: “Counsel for the Garda Síochána has raised as an issue in the hearings an allegation made against Sergeant McCabe which was one of the cases examined by the independent review mechanism (IRM).
Presumably the Garda Síochána are raising the matter on the basis, they could argue (and Sergeant McCabe would deny), that it is potentially relevant to motivation…. the Garda Commissioner’s authorisation had been confirmed (although I understand separately that this may be subject to any further legal advice).
Current and former officials at the Department of Justice, as well as Fitzgerald, were a united front in their defence of the approach they took at the time, i.e. do nothing.
Then-secretary general of the department, Noel Waters, told the Tribunal that he had no recollection of being informed about it – despite a 15-minute conversation with Nóirín O’Sullivan that day where neither of them can remember what was said – but believed his department took the right approach.
He told the Tribunal: “We had no role to interfere. Compromising the entire process would have been political dynamite too.”
Fitzgerald said that she had no role in an independent commission, and that it wouldn’t have been appropriate to get involved. She said she made a “conscious decision” not to get involved.
When transcripts of the day showing O’Sullivan’s counsel agreeing that it was his instructions to say McCabe was motivated by malice were leaked and made public a year later, it became a major headache for Garda HQ and the department alike.
Fitzgerald said that O’Sullivan assured her she had never accused McCabe of malice or questioned his integrity. In May 2016, when controversy was building around it, O’Sullivan actually asked Fitzgerald to tell the Dáil what the legal strategy was.
The former minister told the Tribunal she had clear legal advice from the Attorney General that she should not release the garda commissioner’s legal advice, as it would set a bad precedent.
Aside from that then, she maintained she had “no hand, act or part” in the garda commissioner’s legal strategy at the O’Higgins Commission.
She may not have, but everything points to her knowing about it. And, considering it almost brought the government down and cost Fitzgerald her job, merely knowing about it rather than acting as part of it has proven just as costly.
Justified?
In cases before the courts, it is not uncommon for counsel to challenge the motivation of a witness.
That is counsel’s job – to protect the best interests of their client and put the best case forward on their behalf.
Does the same logic in this case apply here, though?
Appointed at a very late stage, counsel for O’Sullivan wanted to know what motivated McCabe to make these claims and, with the fallout from the D allegation and his subsequent complaints about garda management, they felt it was a strong basis on which to challenge him.
This was no criminal trial though. At the outset of this module, it was said that the O’Higgins Commission’s role was to look at cases where gardaí may have got it wrong, and establish the facts.
Smyth, however, would say that in every case that was being looked at, McCabe was the “accuser” and that if this amounted to corruption from his clients, then McCabe should be challenged on this.
Nóirín O’Sullivan called it “an impossible dilemma” on numerous occasions at the Disclosures Tribunal.
By all accounts, she had little involvement in the behind-the-scenes events that led to up to this decision being made, bar giving it the final go-ahead.
But she did give this go-ahead. She said she had to balance protecting the officers about whom the allegations had been made and protecting Sergeant McCabe. And, largely, these allegations of corruption against the senior officers were either withdrawn by McCabe or judged to be “unfounded” by Mr Justice O’Higgins in his final report.
On the third day of hearing evidence from O’Sullivan, Mr Justice Charleton made this important distinction, when referencing how she had to balance the senior officers potentially being annoyed and frustrated at McCabe’s allegations.
He said: “But attacking someone’s credibility can be dangerous because then the person becomes important and the facts become less important.
Do you think it might have been possible for you to say, look, I know you’re all annoyed about this and I know you feel he’s made all kinds of allegations against you, some of which may be unfounded, but if there’s proof, after all this is a judge and there’s no point in us going after him or why he made them, surely at the end of the day the whole question is, is there anything to back this up?
And if there is not, I think anybody could depend on Mr Justice O’Higgins to say, look, you can think what you like, but if there’s nothing there, there’s nothing there, which is supposed to be the judicial mindset; in other words, that the whole deployment of anything to do with credibility maybe was a bad idea?
Here, he is saying that O’Sullivan could have reached out to McCabe to explain what was going on – and how it was all about getting to the truth – instead of McCabe hearing from her own barrister that his integrity was being questioned.
But the fact is she didn’t. And it further damaged her relationship with the whistleblower, blowing any chance to develop more positive, less adversarial interactions with McCabe.
This module contains familiar characters and fascinating insights into goings-on behind the scenes between gardaí and government, most certainly.
But, for a scandal that almost brought down the government, it’s little more than a footnote in the wider narrative of the alleged smear campaign against Maurice McCabe.
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