The O’Higgins report into Maurice McCabe’s motivation in bringing forward complaints of malpractice in the force had this to say about the Cavan-based sergeant’s motivation: “Some people, wrongly and unfairly, cast aspersions on Sergeant McCabe’s motives; others were ambivalent about them.
Sergeant McCabe acted out of genuine and legitimate concerns, and the commission unreservedly accepts his bona fides.”
The Disclosures Tribunal is currently examining attempts to cast aspersions on Sgt McCabe’s motives behind the closed doors of the O’Higgins commission.
Yesterday, the State’s solicitor at the commission, Annmarie Ryan, continued with her evidence of what went on at the O’Higgins commission throughout the hearings that began in May 2015.
We now know that the legal team for the then Garda commissioner, Nóirín O’Sullivan, and senior officers were briefed three days before the hearings commenced.
The briefing cast Sgt McCabe as bearing a grudge of sorts, much of it associated with the fallout from the investigation of a discredited allegation made against him by a colleague’s daughter.
Late in the evening on the day before hearings commenced, the legal team concluded that Sgt McCabe’s motives should be introduced.
Casting aspersions on Sgt McCabe’s motives might have been justified if it could be backed up with evidence, but it might also call into question the actual complaints of malpractice.
On day two of the hearings, there was an attempt to introduce motivation, sparking a row between lawyers for the commissioner and Sgt McCabe.
Yesterday, Ms Ryan was asked about a note she made soon after the row erupted. “Political dynamite,” she noted.
There followed a flurry of activity with emails and calls between lawyers, senior gardaí, and officials in both the attorney general’s office and the Department of Justice.
Why did she think what was unfolding was political dynamite?
“We are all aware of what had gone on prior (to the O’Higgins commission),” she said. “There was a lot of media attention, balancing that with what I had heard and had sight of.”
Repeatedly, Ms Ryan said she couldn’t reveal some of these discussions as they were governed by legal privilege.
Ms O’Sullivan has waived her legal privilege for the sake of finding out the full picture at the tribunal. Others whom Ms Ryan represented include Superintendent Noel Cunningham, with whom Sgt McCabe had been in dispute some seven years previously.
The tribunal heard yesterday that a document purporting to be the evidence of Sgt McCabe’s ulterior motives was compiled for O’Higgins. The document suggested that Sgt McCabe had expressed to Supt Cunningham a grudge against another senior officer.
Sgt McCabe produced a recording of that meeting showing he hadn’t expressed any grudge, although Supt Cunningham’s notes from the meeting coincided with the recording.
The explanation, the tribunal was told last week, was due to a clerical error in the document.
Yesterday, it emerged that Supt Cunningham actually reviewed the document and gave it the go-ahead.
He says he didn’t spot the error, the tribunal heard, because he didn’t print it out but read it on the phone and has poor eyesight.
“I agree he has poor eyesight,” Ms Ryan said in the witness box.
In addition, Supt Cunningham signed off on the document but says it was done in a hurry and he wasn’t given a chance to read it.
An email written by Ms Ryan, produced yesterday, stressed about the document that it was “of the UTMOST importance that the content be as factually accurate as possible”.
Yet it turned out that it apparently wasn’t and gave Sgt McCabe the impression that elements in the gardaí were casting aspersions on his motives.
If that wasn’t bad enough from his point of view, a submission from the commissioner three weeks later repeated the allegation that he had expressed a grudge against the senior officer.
So while one error might be acceptable, and two, at a stretch, could be possible, here were three occasions in which the alleged error, which cast Sgt McCabe in such a negative light, was not spotted.
When the issue was put to Ms Ryan, she replied: “I wouldn’t expect that mistake (to be) made twice.”
Supt Cunningham will later give his evidence on how this sequence of errors could have occurred.
It recalls a previous module in which a series of errors were committed in Tusla, all of which cast Sgt McCabe in a negative and even nefarious light.
On that occasion, a tribunal lawyer made the point that while errors were possible, every single one of them appeared to go against Sgt McCabe.