THE SENIOR BARRISTER representing the garda commissioner and other senior officers at the O’Higgins Commission into garda practices in the Cavan-Monaghan division told the Charleton tribunal his legal team was “on red alert” once they saw the allegations being made by whistleblower Sergeant Maurice McCabe.
The allegations were contained in a core booklet outlining the main issues the Commission would investigate, which was circulated to all parties before it began hearings in May 2015.
The tribunal is looking at whether former commissioner Noirin O’Sullivan inappropriately relied on unjustified grounds to discredit Sergeant McCabe at the O’Higgins Commission of Investigation.
Colm Smyth SC was the counsel for O’Sullivan and senior gardaí at the commission.
Giving evidence at the Charleton tribunal today he said the booklet of allegations brought “considerable alarm as to what we were getting into here”.
Smyth said it was clear his clients had serious issues to address in reference to that document. “We were on red alert,” he added.
Smyth said Sergeant McCabe “on any reading was the accuser” in relation to the men he was representing.
He said that some of the officers were “in a very bad way in relation to the strain they were under”.
“We considered there was nothing more serious could be said about a member of An Garda Síochána than that he was corrupt,” Smyth said.
If any of these allegations stuck with them it would have severe consequences not just for them but for their family, and for future generations.
O’Sullivan’s final evidence
Completing her evidence on her third day at the tribunal, former commissioner Nóirín O’Sullivan told the Charleton Tribunal that she had done nothing that would threaten the role of garda whistleblower Sergeant Maurice McCabe.
The tribunal has heard how McCabe resigned his position as sergeant-in-charge of the traffic division in Mullingar on 18 May 2015, while the garda commissioner’s legal team had told the O’Higgins Commission they were instructed to question his credibility and motivation in making complaints.
Sergeant McCabe told a senior officer he felt “under threat” and “if anything was to go wrong they would be down on him like a ton of bricks”.
Michael McDowell SC, for Sergeant McCabe, asked O’Sullivan if she had any knowledge of “bad blood” between Supt Noel Cunningham and McCabe, and that Superintendent Cunningham believed the sergeant was trying to “undermine” him.
“I never spoke to Supt Cunningham in respect of his view of Sergeant McCabe,” O’Sullivan said.
McDowell said there was a “manifest conflict of interest” in the fact that the same legal team represented Cunningham, who “had an extremely hostile attitude to McCabe”, and the garda commissioner.
The witness said her advice was for a single team to represent all serving and former gardaí, and she would have been advised if a conflict arose. O’Sullivan said she was not present at the consultations between the legal team and Cunningham.
“I’m not in a position to say what instructions were given or what factual input was given by other people,” said O’Sullivan.
She said there was no conflict of interest, adding “If any conflict arose I would have been advised to revisit representation”.
On the second day of hearings at the O’Higgins Commission, 15 May 2015, a legal row erupted when McDowell on behalf of McCabe asked lawyers for the garda commissioner to confirm that instructions they were acting from came from her.
The inquiry had adjourned in order to contact the commissioner, and during that Friday afternoon O’Sullivan also spoke to officials in the Department of Justice.
O’Sullivan said that by the time she spoke to Department of Justice assistant secretary Ken O’Leary on the afternoon of 15 May, she had already confirmed her instructions to her legal counsel. She said she updated O’Leary on events, but did not seek advice from him.
The tribunal has previously heard that Annmarie Ryan, a solicitor in the Chief State Solicitor’s Office, was seeking a meeting with the commissioner following the debate over the commissioner’s legal instructions.
The garda liaison at the commission, Chief Superintendent Fergus Healy, has said he was told the commissioner was too busy to arrange a meeting that weekend.
O’Sullivan said she was always busy, but no matter what she was doing she would make herself available to consult with her legal teams.
“I’m not sure where Chief Superintendent Healy got the impression that I was too busy for a consultation because that would never be the case,” O’Sullivan said.
“The desire of Ryan to have a consultation with me was never conveyed to me either verbally or in writing on the Friday or over that weekend,” she said later.
O’Sullivan said she was “very surprised” when she was told that Sergeant McCabe had resigned as sergeant-in-charge of the Mullingar traffic unit. McCabe told his superintendent he felt “under threat” from the garda commissioner at the O’Higgins inquiry.
“I don’t believe there was an attack launched on Sergeant McCabe. I don’t believe there was an attack launched on anybody. There was legal argument,” Ms O’Sullivan said.
I certainly didn’t feel I had done anything which would amount to a threat to Sergeant McCabe in his role as a sergeant in charge of traffic in Mullingar.
O’Sullivan denied she was being starved of information or kept in the dark, and said that her liaison officer Healy kept her informed of events at the Commission of Investigation as they unfolded.
She said she was told that the judge had ruled McCabe’s motivation was peripheral at the Commission, and she considered the issue closed.
The former commissioner said she did not give instructions to withdraw any suggestions at the Commission that Sergeant McCabe acted in bad faith in making complaints about garda misconduct and malpractice, because she had never given such an instruction.
Notes taken by Chief Superintendent Healy of a meeting between the Commissioner and her legal team on 3 November 2015 before she was due to begin her evidence at the inquiry contained a note “(Mal Fides) Bad Faith – would the commissioner consider withdrawing?”
“It’s not my note and I don’t know what was in the mind of the person who was writing it,” Ms O’Sullivan said.
The former commissioner agreed with Patrick McCann SC for the Department of Justice that in her calls on 15 May 2015 to department officials, she would have discussed several other issues in addition to the O’Higgins Commission, including arrangements relating to the pending visit of the Prince of Wales and an security security situation, and a planned commemoration the following day.
Attorney general’s office
Earlier Richard Barrett, a senior official in the Attorney General’s office, described how he was informed that there had been a dispute at the O’Higgins Commission when the garda legal team was challenging Sergeant McCabe’s motivation.
Barrett said he got the information “at second or third hand” after solicitor Annmarie Ryan contacted the Attorney General’s office.
Ryan spoke to another official, Michael Dreelan, who in turn spoke to Barrett. He in turn then updated an official in the Department of Justice.
In an email at the time, Barrett said that it was “prudent” of Ryan to inform the Attorney General’s office of the development. He wrote that it was “not proposed to second guess the advices of counsel below or the decision of the garda commissioner”.
Barrett said that during the setting up of the commission of investigation, he was aware of one conversation or series of conversations” about whether the “Ms D” case should be part of the Commission’s terms of reference.
“I wasn’t sure where it came from and the idea evaporated,” Barrett said.
A historic allegation of abuse made by Ms D against Sergeant McCabe was investigated in 2007, and the DPP recommended no prosecution, saying there was no evidence any crime had taken place.
Barrett said there was no contact between the Attorney General’s office and the Gardai once a legal team had been appointed, and the office was not aware what instructions had been given to the legal team.
Barrett said his concern was that if the legal arguments at the commission led to a judicial review, this would put the Ms D case in the public domain, and create “an unnecessary slur” against Sergeant McCabe.
The Tribunal will continue with evidence from Colm Smyth tomorrow.
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