‘Degree of confidence’ in Nóirín O’Sullivan has been further hit

The tribunal hasn’t even started hearing evidence yet but the McCabe letter puts the Commissioner on very shaky ground, writes Cormac O’Keeffe.

CONFIDENCE in Nóirín O’Sullivan has been recently assessed as a matter of degree.

With the dramatic letter on behalf of Sgt Maurice McCabe, that “degree of confidence” — as first articulated by Policing Authority boss Josephine Feehily — has been cut even further.

As revealed in the Irish Examiner yesterday, lawyers acting for the Garda whistleblower have written to Tánaiste and Justice Minister Frances Fitzgerald demanding that the commissioner be removed from her post for the duration of the Disclosure Tribunal.

The letter argues that Ms O’Sullivan’s continued presence as the police chief would undermine the tribunal. Reasons include:

Her role as serving commissioner would discourage any garda from giving evidence that could be even perceived to be any way damaging to her reputation if such evidence did exist;

Her access to full Garda resources in preparation for what is a personal case;

The setting up of a hand-picked liaison group in Garda HQ to deal with all tribunal related issues;

The experience at the O’Higgins Commission, where the commissioner and senior gardaí were represented by the same counsel and an officer had a watching role for Ms O’Sullivan, which gave her unique access to all evidence tendered.

There are concerns regarding the commissioner’s knowledge of, and access to, documentation that will be supplied to the Charleton inquiry and that this could taint or influence what is submitted and in turn the work of the tribunal.

While some may see good grounds in the arguments, it is unclear what Sgt McCabe and his lawyers expect from the justice minister as regards how the Government could get Ms O’Sullivan to step aside.

Do they want the Government to initiate a formal process, outlined in legislation, to remove her permanently?

Hardly, given they just want her to step aside. And the Government could hardly initiate removal just after establishing a public inquiry to examine an alleged smear campaign against Sgt McCabe, including a claim that Ms O’Sullivan knew about the campaign.

Do Sgt McCabe and his lawyers hope the Tánaiste or the Taoiseach will resile from expressing full confidence in the commissioner (as they have done so far?).

Both of them have said she is entitled to due process and the right to put her side of the story to the tribunal. They can hardly do a U-turn unless some explosive evidence lands on their lap (who knows at this stage?).

The only other mechanism is for the Taoiseach and the Tánaiste to use shadowy means — à la midnight visits — to lean on the commissioner. Given the previous time something like this was done — ousting Martin Callinan, which led to the Fennelly inquiry — the Government would be taking a risk.

It remains to be seen if the lack of desired response to the letter could result in any ratcheting up of the issue, including potentially in the High Court. One seasoned source said: “The how of it [the removal] isn’t the purpose of this letter. What it does do, without a doubt, is put more pressure on the commissioner to stand aside and it puts more pressure on the Government and on Fianna Fáil to move their position. This letter puts it back on the Taoiseach and the Tánaiste to express full confidence in her and it also puts pressure on the Policing Authority. It puts pressure on the lot of them.”

He added: “If the political support goes from Fine Gael or Fianna Fáil, I’d say that’s it for her.”

When the tribunal was announced, Ms O’Sullivan could have decided to take a sabbatical, citing the greater good of the organisation and the unfettered operation of the tribunal, while stressing her innocence and determination to fight the claims.

But she dug her heels in and publicly said she wasn’t going anywhere.

She may have done so because to have stood aside amid all the allegations would have been seen as a tacit acceptance of guilt and perhaps she felt that confidence in her would be irreversibly shot.

But that confidence has been eroding since — particularly when the very careful Josephine Feehily said the authority has “a degree of confidence” in the Commissioner and will be monitoring the situation very closely.

With the McCabe letter, that degree is narrowing — and the tribunal hasn’t even started hearing evidence yet.