The publication last night of emails from the trawl of documents in the Department of Justice has thrown up serious questions about Frances Fitzgerald’s knowledge of the attack on Sgt Maurice McCabe at the O’Higgins commission.
We already knew she was informed in May 2015 of the legal strategy being adopted.
Last night it emerged in damning documents that she was also made aware in July 2015 that the Garda commissioner had an “aggressive stance” towards Sgt McCabe at O’Higgins.
She did nothing about it.
She did nothing about it. Her advice was that evidence at the commission was bound by a confidentiality law.
However, that wouldn’t have prevented her asking the most basic question of the garda commissioner: Are you going after a man whom you and I have both praised for his valued contribution to the An Garda Síochána? That’s the only conclusion that can be reached following the publication of correspondence last night.
The trawl uncovered an email prepared to respond to a query from RTÉ reporter John Burke on July 4, 2015. By then, the O’Higgins commission was well under way behind closed doors.
The attempt to question Sgt McCabe’s motives in May of that year had passed with the garda sergeant producing a recording of a contentious meeting.
Thereafter, an aggressive approach was indeed adopted by counsel for the gardaí towards Sgt McCabe for the remaining 29 days of hearings, which ran until November of that year.
Quite obviously, Burke was asking his question based on solid information. He asked whether, at a recent session of the O’Higgins commission, had “the garda commissioner raised questions over the motivation of Sgt McCabe for bringing certain matters regarding alleged garda misconduct to attention”.
This was a reference to events of May 15 when counsel for Nóirín O’Sullivan indicated he would question McCabe’s motivation.
The briefing informing Ms Fitzgerald of the press query was written by the deputy secretary in the department, Ken O’Leary. He framed Burke’s question as asking: “Was it the garda commissioner who had instructed counsel to adopt an aggressive stance towards Sgt McCabe at the O’Higgins commission?”
Ms Fitzgerald was due to appear on RTÉ the following day. O’Leary suggested that the minster refuse to comment, on the basis that the O’Higgins hearings were bound by confidentiality.
He also suggested she could say “both the garda commissioner and myself have made it clear that Sgt McCabe is a valued member of the force”.
One obvious question Ms Fitzgerald may have asked her deputy secretary is: “How can I say that the garda commissioner considers Sgt McCabe a valued member of the force if she is adopting an aggressive attitude towards him at O’Higgins?”
She might also have asked the obvious: “Why is the garda commissioner adopting an aggressive stance towards Sergeant McCabe?”
There is no record that she asked either question. When the whole matter became public in May 2016 she gave every impression that that was the first she was hearing about attempts to undermine and even destroy McCabe’s character.
Ten months after the RTÉ inquiry, the Irish Examiner broke the story about the attack on McCabe on Friday, May 15, 2016. The following Tuesday in the Dáil, Ms Fitzgerald responded to questions about the story saying that neither she nor her department had “any involvement in the approach taken by the garda commissioner” at O’Higgins.
She went on to say: “The duties of confidentiality on the commissioner imposed by the [O’Higgins] commission of investigation are not overridden by any duty of the commissioner to account to me in relation to the commission.”
We now know that is not accurate. Ms Fitzgerald had been informed of the strategy and had been informed that the commissioner’s counsel was taking an “aggressive stance” toward Sgt McCabe.
Whatever about Ms Fitzgerald’s defences about failing to proactively protect Sgt McCabe in 2015, her apparent position that she first learned of all this in 2016 now has virtually no credibility at all.
The other element to the July 2015 query from RTÉ’s Burke illustrate the toll that the aggressive stance had taken on McCabe. Burke asked whether McCabe had recently “requested that he be released from his new role heading up the traffic unit in Mullingar”. Again he was acting on solid information.
The briefing from the deputy secretary to the minister confirmed that, some weeks previously, Sgt McCabe had “indicated to his authorities in Mullingar that he no longer wanted to stay in his post in the traffic unit. Apparently he blamed the commissioner for this though he said he could not be more specific as he was bound by confidentiality.”
In fact, McCabe’s request to move was as a direct result of what he saw as an attack on him at O’HIggins over his motivation in May that year.
As detailed in the book I wrote, A Force For Justice: The Maurice McCabe Story, Sgt McCabe left the O’Higgins hearings on that May day absolutely distraught at what he perceived as an all-out attack on his character by the commissioner.
The book records: “He drove to the station in Mullingar, where he met the local superintendent. There had been an earlier discussion that Sgt McCabe might take control of the traffic unit in Mullingar. Now he told his superintendent he couldn’t do it.
“To his mind, he had just heard that the garda commissioner was questioning his motives, attacking his character. How could he accept a form of promotion under those circumstances? How could he trust anything to do with the guards after that? He still loved being a guard, but he was coming to hate being in the guards?”
As with the question over the aggressive stance towards Sgt McCabe, this issue of his employment status should have rang alarm bells for Frances Fitzgerald. Why was he blaming the commissioner for his decision?
But, for whatever reason, Ms Fitzgerald appears to have been amazingly incurious about what was happening to the garda sergeant behind the closed doors of the O’Higgins commission.