THE significance of tomorrow’s opening statement from the Disclosures Tribunal should not be lost on anybody interested in public affairs. Tribunals had been consigned to the grave for the last decade. The only reason for this resurrection is the plea from a garda and his family to have facts established in public, as they have lost faith in the State’s capacity to do it behind closed doors.
The tribunal was established following a statement from Maurice and Lorraine McCabe referencing a public inquiry as the only vehicle in which they would have faith.
That statement came days after it emerged that Sgt Maurice McCabe had been wrongly portrayed in the child and family agency Tusla as an alleged child abuser. No such allegation had ever been made against him, yet it was current within the agency for more than six months in 2013 and 2014.
The allegation may also have found its way into the ranks of An Garda Siochana. The McCabes believe it may have been used to smear Maurice at a time when he was making allegations of malpractice — since confirmed — by senior officers.
To plumb ever-further Kafkaesque depths, Maurice McCabe was never informed of the error once it was discovered in May 2014. Tusla didn’t write to him. His employer, An Garda Síochána, never told him. It was only after a further cock-up committed by a Tusla employee in December 2015 that he first became aware of what had gone on.
That any citizen could be the subject of such a grievous error is an appalling vista. That it happened to a man who at the time was effectively taking on Garda management and, to a certain extent, discommoding government, is nothing short of chilling.
Ordinarily, establishing what had happened would be the job of a commission of investigation. This model was brought into being in 2004, in the wake of fatigue at the length and cost of various tribunals that were ongoing at the time.
It conducted its business behind closed doors, cutting down on huge legal costs. Largely, the model also ensured the work could be completed quicker than a public tribunal.
The commission model has proved to be largely successful. Until the Irish Examiner first published the details of the Tusla debacle on February 9 last, there had been plans to have a commission investigate allegations that Sgt McCabe had been smeared in a general sense by garda management.
The public outcry following the Tusla story, allied to the McCabes’ demand for a public inquiry, changed all that.
The McCabes had good reason to have lost faith in the commission of investigation model at work behind closed doors.
In 2015, the O’Higgins Commission, which was investigating McCabe’s complaints of malpractice, was told that there would be evidence attacking McCabe’s motivation in making his complaints. This case was introduced by counsel for the Garda commissioner, and committed to paper in a document prepared by the Chief State Solicitor’s Office.
The case was blown out of the water when McCabe produced a recording of a meeting cited in the CSSO document. Yet there was no further investigation at the commission as to how a counsel for the Garda commissioner, and the chief law agency of the State, could have been instructed to inform a statutory inquiry that its chief witness was not acting in good faith.
Arguably, what had unfolded could have amounted to an attempt to undermine and mislead a statutory inquiry and have had devastating consequences for McCabe. It certainly merited further investigation. Yet nothing was done.
There was no reference to the incident in the final report, and it only surfaced through the media, initially in the Irish Examiner.
McCabe and his legal advisers were aggrieved at the outcome. And, in the statement issued last February, Maurice and Lorraine referenced what had occurred behind the closed doors of O’Higgins: “For those reasons, we have consistently submitted that any further inquiry into these matters must be a public inquiry.”
“Now that the truth has emerged of the false and shocking campaign to vilify us and discredit us, there is no reason to have any secret or private inquiry under the 2004 Act.”
Hence the Government reluctantly changed its plans for a commission of investigation and established a tribunal instead.
The Disclosures Tribunal will examine what occurred at O’Higgins and allegations of a smear campaign by Garda management, but first, it will deal with the Tusla matter.
Tomorrow's statement will provide a roadmap on how the Tusla module will be addressed.
The following questions will be among those that the tribunal will attempt to answer over the coming months:
- How did the false allegation that McCabe had “digitally penetrated” a young girl come to be documented in August 2013?
- When did anybody in the Gardaí first become aware of the allegation?
- Who within An Garda Siochana was aware of it?
- Was the allegation in any way used to smear Maurice McCabe’s character?
- How was the error discovered?
- Why was the error not discovered until May 2014?
- On what basis were files opened on Maurice McCabe’s children in April 2014, citing them as possibly being at risk from him?
- Why was Maurice McCabe never informed about the error?
- Were the data protection laws observed in how both Tusla and An Garda Síochána handled the matter?
- How was it that a Tulsa employee wrote to Maurice McCabe in December 2015, outlining the erroneous allegation and instructing that he would be investigated over it, despite the error having been discovered some 19 months earlier?