A false allegation of rape remained on a file on garda whistleblower Sgt Maurice McCabe until 2017, the Charleton tribunal heard today, reports Gerard Cunningham.
The allegation was forwarded to the Garda Commissioner in May 2014 by Assistant Commissioner Kieran Kenny (now retired) after he received a report from Chief Supt James Sheridan.
The DPP directed in 2007 that no prosecution should be made against Sgt McCabe following an allegation of inappropriate touching by Ms D in 2007. A Tusla file on Sgt McCabe was subsequently opened after Ms D sought counselling in 2013, to which allegations from an unrelated case were incorrectly added. The tribunal is looking into whether Sgt McCabe was the target of a smear campaign.
A subsequent report from Chief Supt Sheridan, sent to Mr Kenny after Tusla discovered the error, was not forwarded to Garda HQ.
Mr Kenny said that when he first received the letter from Chief Supt Sheridan of the Tusla notification, he was aware of the previous 2006 investigation.
"It was a notification of child sexual abuse and I knew it to be a serious allegation," Mr Kenny said.
"I wasn’t sure if this was an extension of what had been previously alleged. I wasn’t sure," he said.
On 16 May 2014, Mr Kenny wrote to the Garda Commissioner’s office reporting the allegation, and enclosing correspondence from Chief Supt Sheridan.
On 23 May, Chief Supt Sheridan wrote to the assistant commissioner again, to report that Tusla had realised that they had sent incorrect allegations, and that no further garda investigation was necessary. Tusla asked for copies of documents containing the error to be retracted and destroyed, and the original copy to be returned to HSE
"The word destroy was the first word that jumped out at me," Mr Kenny said.
"My personal opinion is when a document is generated it’s a record, and I don’t see any circumstances where I would allow a document to be destroyed," Mr Kenny said.
Mr Kenny said the document should be appropriately filed, not destroyed.
The former assistant commissioner said that he thought that the Garda Commissioner had been informed of the false allegation, and he was unaware this had not happened until he reviewed materials he was sent by the tribunal in 2017.
Tribunal barrister Pat Marrinan SC said this was "another extraordinary error and failure in relation to Sgt McCabe that the tribunal is investigating."
"Sitting in the file in Garda HQ was an active file," Mr Marrinan said. "Whoever would read that file would read the notification of abuse and discern that Sgt McCabe was being accused of a rape offence."
Mr Marrinan said because the error was not reported to Garda HQ, the Garda Commissioner was "left with the view that this was a rape offence that had been investigated in 2007 and no prosecution directed."
Mr Marrinan said that there was a file on Sgt McCabe at Garda HQ which ran to 3500 pages.
"I expected that my office would deal with matters as I was always under the impression that the matter had gone to the commissioner’s office," Mr Kenny said.
Mr Kenny said minutes of a meeting with Chief Supt Sheridan and Supt Leo McGinn in Mullingar on 16 July 2014 were not a transcript, but covered "themes" discussed at the meeting.
Mr Kenny said that at the meeting he was seeking "assurance and clarity". He said that as the error had been made by Tusla, and "the onus to address that matter with Sgt McCabe rested with the HSE or TUSLA."
The Mullingar meeting also discussed a GSOC review of the original garda investigation in 2006.
Mr Kenny said he could not recall how he first learned that Insp (later Supt) Noel Cunningham had been reluctant to lead the investigation in 2006 as he served in the same division as Sgt McCabe.
Mr Kenny said when he took up the post of regional commissioner in 2009, he was aware of Sgt McCabe "from the media, his involvement in penalty points issues, and his role in highlighting deficiencies in investigations”.
The tribunal continues.