Sergeant Maurice McCabe threatened to bring a High Court action to injunct the O’Higgins report after receiving a draft copy that made no mention of the attempt to attribute to him a motive of malice for raising his concerns about garda malpractice.
The Irish Examiner revealed on Friday that counsel for the Garda commissioner Nóirín O’Sullivan told Mr O’Higgins that evidence of a meeting between Sgt McCabe and two other officers would show that he was motived by malice.
When Sgt McCabe produced a tape recording of the meeting in question, the matter was dropped and the whole affair was not included in the final report.
The Irish Examiner has learned that the failure to include the attempt to impugn Sgt McCabe’s character in the draft report was one of the main reasons he threatened to take legal action.
However, after making a robust submission to the commission, and considering the possibly ruinous financial implications of going to the High Court, he decided not to proceed.
Fianna Fáil leader Michael Martin contacted Sgt McCabe over the weekend following the publication of Friday’s story. Mr Martin is expected to raise the matter when the Dáil resumes today.
Last night Commissioner O’Sullivan released a statement after pressure to clarify matters. In relation to Sgt McCabe she said: “Like every member of An Garda Síochána, Sergeant Maurice McCabe’s contribution is valued and the service has changed for the better in response to the issues about which he complained. I want to make it clear that I do not — and have never, regarded Sergeant McCabe as malicious.”
Commissioner O’Sullivan reiterated her stance in relation to instructions given to her legal team.
“The witnesses who gave evidence before the commission did so on the expectation that their evidence, except as may be included in the final report, would remain private,” she said.
“Accordingly, I have been advised that I cannot discuss the details of any proceedings before the O’Higgins Commission.”
However, Labour leader Joan Burton has said there is nothing in law to prevent the Garda commissioner from clarifying the instructions she gave her legal team at the O’Higgins Commission of Investigation.
She said there was serious public disquiet about the claim that, although in public Ms Sullivan had said Sgt Maurice McCabe had the full support of garda management, she had instructed her lawyers in the commission’s private sessions to attack Sgt McCabe’s motives and character.
“It was a very serious matter if this was true and it was even more serious if the lawyers’ instructions had been changed mid-stream, but only in the face of irrefutable evidence to the contrary,” said Ms Burton.
“It is simply not true to say that the law prevents the garda commissioner from responding to this allegation. The governing law is the Commissions of Investigation Act 2004. It is true that section 11 (3) of the Act prohibits a person from disclosing or publishing any evidence given by a witness in private to a commission of investigation.
“But lawyers are not witnesses. And their statements to a commission are not evidence. So this prohibition does not apply.
“In this case, the reported statements of the Garda lawyers appear to directly contradict the official public stance of the Commissioner towards Sergeant McCabe, as outlined to an Oireachtas committee in May 2014. The Dáil and the public are entitled to know how she can reconcile this apparent contradiction.”
Ms Burton said that, where the Garda Síochána and officials of the Department of Justice were represented at the investigation by the lawyers from the office of the chief State solicitor, the extent to which tactics were known to or approved by the department and the minister needed to be clarified.
A spokesperson for the minister for justice said she was prevented under the Commission of Investigations Act from commenting on “any claims made relating to what may or not have been said at private hearings of the commission”.
© Irish Examiner Ltd. All rights reserved