Update 3.30pm: A senior civil servant had told the Charleton tribunal that it would not have been in the public interest if former garda commissioner Nórín O'Sullivan stepped down from her post following the publication of the O'Higgins report in 2016, writes Gerard Cunningham.
The Charleton tribunal is examining whether unjustified grounds were inappropriately relied upon by the former garda commissioner to discredit whistleblower Sgt Maurice McCabe at the O'Higgins Commission of Investigation.
The commission, which sat in private in 2015, investigated complaints made by Sgt McCabe about certain policing matters and about serious allegations against senior officers including then Garda Commissioner, Martin Callinan
"There was nothing in his [Justice O'Higgins] report that called the position of the garda commissioner into question," Ken O'Leary, assistant general secretary at the department of justice, told tribunal barrister Pat Marrinan SC.
Mr O'Leary also said that if the O'Higgins report had said the commissioner relied on inappropriate strategies to do down Sgt McCabe it “would be a different thing”.
He said the commissioner "was publicly being traduced in circumstances where of its nature she couldn't defend herself." Commissions of investigation hearings were private, and the commissioner could not comment on any leaks from it, or on her legal advice, he said.
Mr O'Leary said a document he prepared in May 2016 was not a draft letter for the commissioner to send to the department, but a "stream of consciousness" setting out issues he thought were current.
"It was not a draft in the normal sense of what we thought the commissioner would say," Mr O'Leary said.
Mr Marrinan noted that the commissioner had signed off on a final version of the same documents following inputs from several other people.
Mr O'Leary agreed with Mr Marrinan that the Department of Justice and the garda commissioner could be said to act "hand in glove", but he said that the phrase was "a bit pejorative”.
"It was for a very good reason, we had to take a public interest view and our view was the public interest was not going to be served by the commissioner's position being put in jeopardy at that time," Mr O'Leary said.
He said this was not because of loyalty, but because the department took the view there was no proper basis for questioning the commissioner, since there was nothing in the O'Higgins Commission report which called her position into question.
Mr O'Leary said Ms O'Sullivan was being "pilloried in public", and having to find a new commissioner would cause "disruption".
"If O'Higgins said the commissioner relied on inappropriate strategies to do down Sgt McCabe that would be a different thing," Mr O'Leary said.
Mr O'Leary said that when he received a telephone call from the garda commissioner on 15 May 2015 informing him that Michael McDowell SC had objected to questioning at the Commission of Investigation, he had not made a note of the call at the time.
Mr O'Leary said that if he had known at the time he would appear before a tribunal, he would have loved to have an exact note of the conversation.
"If we were recording every phone call with the garda commissioner, we just wouldn't be getting work done...that's not the real world in which we have to operate," Mr O'Leary said.
Mr O'Leary said he thought that although phone records showed only one call that afternoon, he thought there was a second telephone call with Ms O'Sullivan, so he might have been called from someone else's phone in the commissioner's office.
"I thought so any misunderstandings be avoided I better say to her that the department couldn't become involved in what approach she took at the Commission," Mr O'Leary said.
On the same afternoon, solicitor Annmarie Ryan informed her superiors in the Attorney General's Office of the developments at the O'Higgins Commission, and this information was forwarded eventually via email to the Department of Justice. Mr O'Leary said that he felt forwarding this information was a better route to advise the minister of the issue.
"If the Attorneys felt it right to advise us, we would have felt it right to advise the minister," Mr O'Leary said.
Earlier: A former senior official at the Department of Justice says they were supportive of Noirin O’Sullivan after the publication of the O’Higgins report, because they didn’t want to lose another garda commissioner.
Ken O’Leary says in the wake of O’Higgins there was a danger that the Commissioner might step down “given the way she as being pilloried in public... a sensible person might say ‘look I am not putting up with this any more’” #DisclosuresTribunal #iestaff— Elaine Loughlin (@Elaine_Loughlin) January 29, 2018
Ken O’Leary has told the Disclosures Tribunal today that the O’Higgins report did not call into question the position of the Garda Commissioner, but that the mechanics of the Inquiry meant she could not defend herself.
The Tribunal heard there were about 15 drafts of a letter prepared by Mr O’Leary and Noirin O’Sullivan in the wake of the publication of the report.
Mr O’Leary also said that he accepted that the Department of Justice and the Garda Commissioner had a very close relationship.
More on site throughout the day as we get it ...
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