The hearings have just got under way, but already the matter appears to be boiling down to the usual question. Big misunderstanding or actual conspiracy?
On Monday during the opening statement, the early money was going on a misunderstanding. The issue centres on what transpired at the O’Higgins commission of investigation, set up in 2015 to investigate McCabe’s claims of malpractice in the force.
On day two of the commission, an allegation was made that Sgt McCabe’s motives in bringing forward his claims were dubious. It was suggested that he was motivated by the fallout from an allegation that he had inappropriately touched the daughter of a colleague of his with whom he was in dispute.
Sgt McCabe was emphatically cleared of any impropriety, but he appeared unhappy with the way some aspects of the matter were dealt with.
A suggestion arose that he had expressed a grudge against his district officer, Supt Mick Clancy over the matter at a meeting some seven years earlier with a colleague, Inspector Noel Cunningham. A 19-paragraph letter was furnished to O’Higgins setting out the basis for this claim. Sgt McCabe produced a recording that was at odds with the document, but coincided with a report Cunningham had made of the meeting. Thereafter McCabe believed that if he hadn’t produced the recording, there would have been an attempt to ascribe to him the expression of a grudge at the meeting, as per the letter. He believed that that in turn would be used to discredit his claims of malpractice.
On Monday, counsel for the tribunal Kathleen Leader suggested that the letter actually contained an error, which would explain why there had been the reference to McCabe expressing a grudge against Clancy.
Ms Leader said it appeared that Insp Cunningham “never maintained that Sergeant McCabe had made complaints against Superintendent Clancy…. rather what was inserted into the letter of the 18th May 2015 was an error made by someone other than Superintendent Cunningham [he has since been promoted from inspector].” That conclusion pointed towards an error, or a misunderstanding, albeit one that had major repercussions for Sgt McCabe.
Yesterday afternoon counsel for Sgt McCabe, Michael McDowell, provided a different take on the facts.
“Ms Leader said an error was made in ascribing to Noel Cunningham the view that he [McCabe] made allegations against Michael Clancy,” he said.
“And the tribunal will know that Noel Cunningham was shown the 19-paragraph letter and signed a copy of it and was asked for his agreement of the contents.”
Mr McDowell said that Mr Cunningham did the same in respect of a submission that was made to O’Higgins some three weeks later.
In other words, if there was an error made about the meeting, then Insp Cunningham should have spotted it as he had signed off on the letter.
It may well be the case that he missed it, but McDowell is suggesting he must also have missed it in the submission three weeks later, which he also signed off on.
In addition, Monday’s opening statement included a transcript of an exchange between McDowell and Insp Cunningham at the O’Higgins commission.
Mr McDowell asks Insp Cunningham if he had been furnished with a copy of the letter, to which Insp Cunningham replies he has it now.
“Had you it before,” Mr McDowell asks.
“No,” Insp Cunningham replies… “I don’t remember seeing it.”
That exchange took place three weeks after the letter was furnished to O’Higgins. This gives rise to the question as to how, if stated yesterday, Insp Cunningham signed off on the letter, could he not have seen it?
This, and related matters, will have to be teased out in the coming weeks. While some of it may appear complicated, the question of whether it was all conspiracy or misunderstanding is vital in light of what was at stake.
Sgt McCabe had made serious allegations of policing malpractice that were ultimately shown to have been justified. He has been praised by Judge O’Higgins, among others, for doing a service to the State.
Either he was the subject of a terrible misunderstanding that wrongly left him with the impression that elements were out to destroy him for bringing his complaints. Or he was justified in his impression that that was the case. Judge Charleton will have to listen to all the evidence and make his mind up. He has an unenviable task.