At issue here was the controversial document prepared for the O’Higgins commission which suggested McCabe had been intent on blackmailing a senior officer. The document had been prepared as a basis on which McCabe’s motivation in bringing forward his complaints of malpractice would be challenged.
That document formed one of a number which were the basis for stories — first published in the Irish Examiner — which showed what had transpired at behind the closed doors of the O’Higgins commission.
At the outset of this tribunal it was stated the document was in error. A statement that McCabe had made complaints “against” his district officer should have read “to” his district officer.
The error ascribed a dark motive to McCabe, and amounted to a “gross falsehood”, according to his lawyer, Michael McDowell. It led McCabe to produce a recording of a meeting from 2008 which appeared to be in dispute.
Yesterday, the counsel acting for Nóirín O’Sullivan and senior officers, Colm Smith, reiterated that a mistake had been made in the offending document. He was asked why nobody had apologised to McCabe for a document that cast him in such a light.
“It was remiss of me not to apologise to Sgt McCabe for that matter,” Mr Smith said, “It was done on the explicit instructions of the client.” He didn’t say which client instructed him or his junior counsel in this manner. He is constrained in that regard.
Ms O’Sullivan has waived legal privilege, but the other officers haven’t. These included Supt Michael Clancy, Supt Noel Cunningham, who attended the meeting that was the subject of the recording, and chief super Colm Rooney. None of these have waived legal privilege, as is their right.
However, that means the tribunal may not get to the bottom of how the error occurred or even why Sgt McCabe had not been told about it, or have it explained to him to relieve him of the notion he was under threat from senior management.
Another extraordinary document was produced at the outset of yesterday’s proceedings. McDowell objected to the production of a document compiled in 2010 as part of the Garda’s internal investigation into McCabe’s complaints of malpractice.
The author — ex-Assistant Commissioner Derek Byrne who oversaw the investigation — describes McCabe in it as a “paranaoic who has lost control of his station”, according to Mr McDowell.
That was one outcome from the internal investigation. It could be read as part explanation as to why the complaints were brought forward, or maybe it was just a passing reference to a garda who happened to have highlighted malpractice.
Another outcome from that investigation was a notice from the local chief super to all stations that said the investigation found no malpractice or poor policing, but only uncovered a few “minor procedural” issues.
So which was it? Was there nothing to see there, or was the place out of control? Or did it matter what the explanation was as long as the majority of Sgt McCabe’s complaints could be filed away as largely groundless?
Five years later, the O’Higgins commission looked at most of the complaints that were the focus of the internal inquiry and found numerous incidence of shoddy policing, malpractice and poor or absent supervision. Judge O’Higgins said McCabe was “a man of integrity whom the public can trust in the exercise of his duties”.
There was nothing about nothing to see here in O’Higgins, nothing about paranoia.