The tribunal’s inquiries into the veracity of former Garda press officer David Taylor’s statement that he was ordered to negatively brief reporters about Maurice McCabe have uncovered much ire towards the whistleblower, writes Michael Clifford.
How far, if at all, did Garda management go in trying to silence a whistleblower? That is what the Disclosures Tribunal has been examining in its final module.
The specific terms of reference are tailored around a protected disclosure made by Superintendent David Taylor in September, 2016.
In this, he claimed to have been part of a smear campaign that used a discredited allegation against Sergeant Maurice McCabe to deflect from McCabe’s claims of malpractice.
But, in the course of its inquiries, the tribunal has discovered other evidence that may reflect on how Garda management regarded the turbulent sergeant.
The module also focused on the media’s role in an alleged smear campaign. There was precious little published or broadcast in the time in question — 2013 to 2014 — which would suggest that the media were smearing the whistleblower.
But a smear campaign can involve the “chill” effect (exercising influence over the media to refrain from publishing anything at a time when garda management was discommoded by McCabe’s highlighting of malpractice).
Inquiries can often head down dark alleys, where unpalatable truths are unearthed. In this vein, Judge Peter Charleton may reach some conclusions that affect not just the gardaí, but also elements of the media.
Alternatively, he may well conclude that the media performed its function well in how it dealt with Maurice McCabe and the fallout from his story.
Dave Taylor’s life was in some disrepair in September 2016. He had been suspended in May of the previous year, arrested, and questioned. He was suspected of being involved in the wholesale leaking of official Garda information to reporters.
Taylor was head of the Garda press office for two years, from July 2012. He had been close to commissioner Martin Callinan before the latter’s resignation in March 2014. Callinan’s successor, Nóirín O’Sullivan, had him transferred to traffic.
Taylor was reportedly “bitter” at the move. Soon after, he became the focus of an investigation into the leaking of the names of two Roma children to the media, in 2013. His phones were seized in December, 2014.
An analysis showed that in the preceding four months — when he was long gone from the press office — he’d had 11,000 contacts with journalists.
He was arrested in May, 2015 and a file prepared for the DPP. O’Sullvan’s husband, Detective Superintendent Jim McGowan, was part of the team investigating him.
The DPP recommended no prosecution, but the investigating gardaí referred the file back to the prosecutor’s office for further examination.
That was where things stood in September, 2016. After a meeting with Maurice McCabe that month, Taylor made his disclosure.
In it, he alleged that he’d been part of a campaign to blacken McCabe’s character in 2013-14, when McCabe had been complaining about malpractice in road-policing.
Taylor said he’d been acting on orders from Martin Callinan, and that then deputy commissioner, Nóirín O’Sullivan, was aware of the campaign. Both have denied it.
Taylor supplied very little by way of detail of the campaign, save for a list of reporters he claimed to have briefed. That list was subsequently expanded, when tribunal investigators uncovered other evidence.
At the tribunal, Taylor’s credibility was put through the ringer. Counsel for the gardaí, Michael O’Higgins suggested he was pursuing an agenda against O’Sullivan, because she had moved him out of a job he loved.
Taylor denied this. His credibility, however, has been severely battered.
Possibly a factor in his favour is that he has incriminated himself in what he says was a campaign to blacken McCabe.
He has also softened his position since his protected disclosure. In February, 2017, the disciplinary action against him was halted. Judge Charleton has expressed surprise at this move.
There is precious little evidence to link Callinan and O’Sullivan to a smear campaign, as alleged by Taylor.
The tribunal sought fifteen phones from the two former commissioners and from Taylor, but was only able to retrieve three. The other twelve were lost, given to charity, or are obsolete.
A number of witnesses have said that Martin Callinan had told them that Sergeant McCabe was under investigation for child sexual abuse.
The State’s Comptroller and Auditor General, Seamus McCarthy, told the tribunal that he was approached by Callinan, ahead of a Public Accounts Committee meeting in January, 2014.
McCarthy said that Callinan said of McCabe:
Callinan accepts there was a conversation, but denies saying any such thing.
The then chair of the PAC, John McGuinness, told of a meeting he had with Callinan in a hotel carpark on the Naas Road, the day after the meeting referenced above.
“Mr Callinan stated to me that Mr McCabe had sexually abused someone and that he was not a credible person. Mr Callinan stated that an investigation into Mr McCabe’s activities was underway… (he) then asked me was I aware that Mr McCabe had sexually abused family members.”
Callinan denies all this. At the tribunal, he accused McGuinness of issuing “falsehoods”.
The tribunal also saw notes that McGuinness had scribbled down on his way home from that meeting.
Fine Gael TD John Deasy told the tribunal that prior to the PAC meeting, Callinan had spoken to him about McCabe in “disparaging” terms.
RTÉ journalist, Philp Boucher Hayes, gave evidence that the previous December, Callinan had told him that McCabe had “psychological issues”.
The journalist also said Callinan told him he could tell him “horrific things… the worst kind” about McCabe. The former commissioner denies all this.
The tribunal adduced evidence that Sergeant McCabe was the focus of some unusual attention from garda management in 2013-14, when he was highlighting garda malpractice.
In early 2013, Assistant Commissioner John O’Mahoney, who was heading up the internal investigation into McCabe’s complaints, received a strange email from a colleague.
Assistant Commissioner Derek Byrne related that his office had received calls from a Bernard McCabe, “who reported that he is an uncle of the whistleblower — his words — and that he has a lot of information about him and wishes to meet with a member of AGS to pass on the information”.
O’Mahoney contacted the head of the National Bureau of Criminal Investigation and told him to find out what Mr McCabe had “to offer”.
It turned out that Mr McCabe had a beef with his nephew. He told the top cops that Maurice had fixed drink-driving cases. This was investigated and found to be without any foundation.
Two senior detectives visited Bernard McCabe again, five months later. And in 2016, an assistant commissioner visited him.
Why such senior policemen were dispatched to a “cottage in the middle of Ireland, by a lake, to talk about heaven knows what,” as judge Charleton put it, is a mystery.
McCabe’s counsel, Michael McDowell, suggested they were trying to “dig up dirt” on the whistleblower.
In mid-2013, a file was compiled on Sergeant McCabe that examined every complaint or disciplinary issue that arose over the course of his career. He had an exemplary record.
Nothing arose, but the creation of such a file was highly unusual.
Prior to Martin Callinan’s appearance at the PAC, in Janaury, 2014, a note was made in a preparatory meeting about the allegation dating from 2006. What this had to do with the road-policing issues due to be discussed is not obvious.
Nóirín O’Sullivan was asked about the note, but she said she had no recollection of the matter ever being raised at the meeting.
Both O’Sullivan and Callinan insisted there was no calumny towards McCabe. The only problem with him was his decision to bring his complaints to the Public Accounts Committee.
He did this after despairing at what he considered to be a whitewash in the internal garda investigation. His position was subsequently vindicated by both the Comptroller and Auditor General and the Garda Inspectorate, which produced very critical reports on the malpractice.
At the PAC, Callinan said the actions of the whistleblowers were “disgusting”. He told the tribunal that this was because their complaints were brought outside the force to an Oireachtas committee. It was put to him that ‘disgusting’ was a “strong” word to use in that context.
The “disgusting” term was, therefore, all about the process being disgusting.
The main thrust of Taylor’s allegation is that he briefed reporters negatively about McCabe, using the 2006 allegation. This, he claimed, he did on instructions from Callinan.
He says the briefings were done in such a way as to suggest there was “no smoke without fire”, despite McCabe being cleared of any wrongdoing.
He provided the tribunal with a list of nine reporters he says he briefed. Most of the nine were crime correspondents. All of those on the list either deny being briefed in the manner described by Taylor, or are claiming journalistic privilege on any interaction with him.
One reporter on the list was RTÉ’s John Burke. When questioned by the broadcaster’s counsel, Taylor admitted he’d never met Mr Burke. He said he briefed Mr Burke, who is not a crime reporter, over the phone. Mr Burke denies this.
Taylor is vague on any specifics. He merely says he threw the briefings into conversations with reporters at crime scenes, or press conferences, or such gatherings. Asked about what reaction he received from reporters, he indicated there was no real reaction.
Counsel for the tribunal, Diarmuid McGuinness, put one reporter’s denial to Taylor in the witness box.
“Does that cause you, in any way, to question your own recollection in the matter, as to whether you might be mistaken, ‘maybe I got it wrong about the list’?”
“No,” Taylor replied.
“Because you obviously seem to have a lack of recollection about whether others were briefed on top of the 11 — or there’s nine in this list, actually?”
“Well, I spoke to a lot of journalists in my time as press officer and afterwards,” he replied.
“But it certainly leaves open the view, or possibility, perhaps, that you’re not sure who you spoke to about this”
“I am sure,” Taylor said.
“You are sure?”
It turned out he wasn’t that sure. Tribunal investigators uncovered evidence of extensive contact between Taylor and two other reporters, Debbie McCann, of the Irish Daily Mail, and Eavan Murray, of The Sun, both of whom travelled to Cavan to interview Miss D.
When confronted with this, Taylor added their names to “the list”.
Then, in recent days, the first direct corroboration of Taylor’s negative briefing claims emerged.
Former reporter with the Daily Mirror, Cathal McMahon, told the inquiry he had heard about the Miss D allegation in early 2014.
He says he rang Taylor, who confirmed it to him and suggested he could go up to Cavan to meet Miss D. McMahon’s editor, John Kerins, binned the idea.
This was Taylor’s chance to stand up with the truth in his arms. Yet, his counsel told the tribunal that while Taylor was now adding Mr McMahon to “the list” of those he briefed, he denied that he ever told him to travel to Cavan.
His position deals further blows to his credibility. His story has changed in various ways since his own dark days of September, 2016.
The TD, Mick Wallace, referenced this in his evidence. He was asked about a meeting he had in Taylor’s house, in which Taylor allegedly told him that text messages formed part of the smear campaign. In evidence, Taylor has disputed this.
“I have seen what Superintendent Taylor said in here,” Wallace told the tribunal.
“And it’s clear that he couldn’t have told the truth in his living room and in here, as far as I’m concerned. And did he tell more the truth in his living room or in here? That’s for judge Charleton to decide. But if you were looking for my opinion on it, I think he told us more the truth in his living room that he did in here.”
There is much for Judge Charleton to chew over.
The key witness has major credibility issues. But in the course of the tribunal, an awful lot of stuff has tumbled out which suggests that attitudes towards the Garda whistleblower may have been very hostile.
What form that hostility took will be at the heart of deliberations by the chairman of the tribunal.
In the beginning, there was “the allegation”, which may have prompted Maurice McCabe to blow the whistle on garda malpractice. That matter, however, is outside the terms of reference of the Disclosures Tribunal.
Another school of thought is that the allegation was repeatedly used, inflated, and distorted to deflect from the sergeant’s claims of malpractice. “It’s not us, it’s him that is the problem,” is a common tactic.
The allegation was made on December 6, 2006. It came from Miss D, the daughter of a colleague of McCabe’s. The sergeant had been involved in the disciplining of the girl’s father, Mr D, earlier that year.
There were other incidents of conflict between them, in the preceding two years, since McCabe had taken up his position as sergeant-in-charge at Bailiboro station, in Co Cavan.
Miss D alleged that eight years previously, when she was six, McCabe had touched her inappropriately in the sergeant’s house at a family event.
The allegation was investigated by Inspector Noel Cunningham. He recommended no prosecution. In contacts with the HSE, Cunningham was recorded in notes as saying Miss D had “credibility issues” and that “she’s spinning different stories”.
In 2005, Miss D had been in contact with the HSE services over an entirely separate matter, that also involved an allegation of sexual impropriety. During those contacts, she never mentioned the historic allegation against McCabe.
The local state solicitor examined the investigation file into her allegation against McCabe. He noted that “the allegation itself is unclear and amounts to horseplay and no more… in a house full of children, with four adults in proximity”.
The DPP’s office returned the file in April 2007, noting, “Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault, or indeed an assault.”
McCabe has always claimed the allegation was connected to his work. Mr D and his daughter deny that it had anything to do with Mr D’s sour relationship with McCabe.
In 2008, McCabe made his complaints of malpractice. An internal garda inquiry upheld some of his complaints, and dismissed others.
In 2015, the O’Higgins commission re-examined a number of these complaints. O’Higgins made a number of criticisms of the internal inquiry and upheld McCabe’s complaints, effectively vindicating him.
In 2012, McCabe and former garda, John Wilson, complained of the widespread fixing of speeding tickets by senior officers. An internal garda inquiry dismissed many of the claims and pointed to a few procedural issues.
Three later inquiries, from the Comptroller and Auditor General, the Garda Inspectorate, and Gsoc painted a much harsher picture of the malpractice, again effectively vindicating McCabe.
The three modules of the Disclosures Tribunal can be traced back, in one form or another, to the allegation and the fallout from it.
The Tusla module looked at how a false allegation accusing McCabe of child rape was generated in the child and family agency.
This had its genesis in a visit by Miss D to a counsellor in July, 2013, at which she revealed the original allegation. Through no fault of Miss D’s, there followed some horrendous errors within the agency, which gave saw the false allegation legs.
Miss D told the tribunal that she attended the counsellor because she had become upset at publicity around McCabe’s claims of malpractice, which cast him in a positive light.
But McCabe’s name was certainly not in the media at that time. She may have heard it locally in Cavan.
The second module concerned the O’Higgins commission, which in 2015 looked into McCabe’s claims of malpractice in criminal investigations.
At the inquiry, some officers from the Cavan area, against whom McCabe had made allegations, claimed he was motivated by the fallout from the Ms D allegation. One claim about his motivation came from Chief Superintendent Colm Rooney.
He said McCabe came to him in an angry state in mid-2007, demanding that the DPP’s directions on the case be altered.
The only problem with this was that in mid-2007, McCabe knew the directions and knew that those directions could not be more favourable to him. Why, then, would he want them changed?
When confronted with this, Rooney later moderated his evidence. Later, after it was put to him that McCabe was aware of the DPP direction at that time, Chief Supt Rooney said he had interpreted McCabe’s anger from his body language, as opposed to anything he said or indicated.
The commission asked for some basis on which McCabe’s motivation would be questioned. Counsel for the senior gardai produced a document purporting to link McCabe’s motivation to the fallout from the Miss D allegation.
At the tribunal, Judge Charleton described this as a “nonsense” document and a “charge sheet”.
At the commission, O’Higgins ruled it inadmissible. Some saw the affair as an attempt to deflect from the substance of McCabe’s allegations, which were upheld by O’Higgins.
The final module has concerned an alleged smear campaign against the sergeant in 2013-14.
This originated with Taylor’s protected disclosure. In that disclosure, he claimed that he briefed reporters about the allegation, indicating that there was “no smoke without fire”, as far as the allegation was concerned.
There has been evidence that the Miss D allegation was included in briefing papers ahead of a Public Accounts Committee meeting in 2014, at which Callinan was appearing.
What the allegation could possibly have to do with an investigation into corruption in road-policing is anybody’s guess.
The tribunal has also heard claims that the former commissioner went much further, describing McCabe as a “kiddie fiddler”, who abused his own children. (Callinan denies this).
If the tribunal rules that Callinan did make these utterances, it suggests the most scurrilous strategy imaginable in attempting to deflect from McCabe’s claims of malpractice.
From McCabe’s point of view, one of the most positive aspects to the tribunal’s work has been that it has laid bare all the details of the Ms D allegation.
Without the exposition of all the details and background, the whole episode would continue to be fertile ground for anybody wishing to discredit McCabe and blacken his character. And all because the man was pointing out what was wrong within the force.
h2]20 questions for the judge[/h2]
On Friday June 22, the last day of direct evidence at the tribunal, Judge Charleton laid out a number of questions he needs to address.
“When a judge goes back into his room or her room, the first thing that is done is to say: ‘Well, what do I have to answer in this case? What do I have to actually decide?’ ”
To that end, he listed the following 20 questions.
1. What kind of talk, communication, or innuendo can fairly be said to come within the terms of reference? What is the full extent of any calumny or detraction against Sergeant Maurice McCabe that should be regarded as proven as a matter of probability?
2. To what extent are political, journalistic, and Garda rumours or talk necessarily to be considered?
3. Is there any truth in the protected disclosure of Superintendent David Taylor? Is he a witness whose evidence in any respect can be accepted? Should it, as a matter of prudence, be subject to a corroboration/caution warning?
4. Is it possible to tell from a false denial, for instance, but not limited to Supt Taylor or to any journalist, that the opposite to an assertion is in fact the truth?
5. Is what Supt Taylor claims to have been done on behalf of former Garda Commissioner Martin Callinan an understatement of the reality of what he in fact did? Did he do whatever he did at the behest of Mr Callinan or did he do it with the acquiescence or any knowledge by then deputy Garda Commissioner Nóirín O’Sullivan?
6. To what extent, if at all, is the account of Sgt McCabe as to what he was told by Supt Taylor reliable and accurate despite any contradiction by Supt Taylor and his wife, Michelle Taylor?
7. To what extent do Sgt McCabe’s reports of Supt Taylor in relation to phones or electronic devices influence Supt Taylor’s creditworthiness? Should a preference be made or what might be the effect of making a preference for Sgt McCabe’s protected disclosure?
8. Of what relevance are the allegations of Supt Taylor as to his phones and the seizures thereof? That includes all electronic devices.
9. Of what relevance are the allegations of Supt Taylor as to Ms O’Sullivan, Detective Chief Superintendent Jim McGowan, Chief Superintendent Francis Clerkin, and his false High Court application?
10. Why were the disciplinary proceedings against Supt Taylor withdrawn and what are the terms of that withdrawal and the termination of the High Court proceedings?
11. Is there any inference to be drawn from changes of phones, loss of computers or phones, or failures to remember pin numbers by Mr Callinan, Ms O’Sullivan, or Supt Taylor? Is there any other phone or computer evidence of relevance?
12. To what extent, if any, can the allegations of TD John McGuinness, journalist Philip Boucher-Hayes, Comptroller and Auditor General Seamus McCarthy, and TD John Deasy be relied on, and, even though merely guided by the rules of evidence and not bound by them, is this tribunal in a position to say that they corroborate or support each other?
13. If these are to be believed or accepted as probable, what is the full extent of the allegation of calumny against Sgt McCabe? Is Supt Taylor reducing his role and if so, does this factor lessen or completely dissolve his credibility?
14. What led to the visits of journalists Debbie McCann, Eavan Murray, and Paul Williams to the home of Miss D? In that regard, has journalistic privilege been properly and honestly relied on and is there any evidence proffered by these parties that is reliable? What in truth happened? Did the visits have any Garda inspiration?
15. To what extent, if any, does the evidence of the D family members remain relevant?
16. To what extent is any incorrect invocation of journalistic privilege such as to give rise to any inference, and if so, what inference does any incorrect invocation of journalistic privilege give rise to?
17. What is the relevance of question 5 as to any incorrect or dishonest invocation of journalistic privilege?
18. To what extent do journalistic clashes, seven of them now today, apart from that between Alison O’Reilly and Debbie McCann, require to be resolved or even recorded in a report to the Houses of the Oireachtas? And if so, Why?
19. To what extent does the Tribunal have to report on or comment on political involvement or the actions of any individual public representative?
20. Going through the terms of reference, the parties might be so kind as to precisely and concisely give an answer to what each party regards as having been supported by probable evidence.