Did the commissioner of An Garda Síochána wrongly attempt to discredit a Garda whistleblower behind the closed doors of a statutory inquiry?
The question is deadly serious, but at times its essence is in danger of getting lost in the machinations of the Disclosures Tribunal.
Two weeks into this module of the tribunal, there are times when it appears as if Maurice McCabe is on trial.
His motives, his alleged utterances, how he changed in the wake of a life-altering experience, are all parsed in the context of why he brought forward allegations of serious malpractice in the force.
That’s nobody’s fault. Natural justice demands no less, as the question at the heart of the tribunal is a deadly serious one for all involved, including the other senior officers at the O’Higgins commission, which was held in private.
At this stage, a few matters have crystallised. Evidence has been heard about the run-up to and opening days of O’Higgins.
At a consultation to brief lawyers on May 11, 2015, three days before the scheduled opening, a picture was painted of Sgt McCabe that was less than flattering.
The lawyers were briefed that there had been an allegation from the daughter of a colleague back in 2006, (known as Ms D) which had been dealt with by the DPP, who said no crime was committed.
Sgt McCabe, though, was unhappy at how the matter was dealt with, as he had to work with the girl’s father.
The gardaí believed he bore a grievance since then. A note from state solicitor Annmarie Ryan stated that the meeting was told that Sgt McCabe said to a senior officer: “I will bring this job to its knees.”
He had said no such thing. Chief superintendent Fergus Healy, who was the commissioner’s liaison officer, told the tribunal that he may have said that (about McCabe) but it wasn’t a direct quote.
“Well, it was kind of a thing that was known, you know, within Garda management, that had happened.”
It was pointed out to Ms Ryan at the tribunal that nothing good was said about Sgt McCabe at the meeting.
All of this was supposed to be background material, to give the lawyers a picture of the man who had made allegations about poor standards of policing and accountability.
None of it was within the terms of reference of O’Higgins, which had been set up on foot of a non-statutory inquiry, prompted by revelations in the Dáil by Fianna Fáil leader Micheál Martin.
Two days later, Colm Smyth, the senior counsel for Nóirín O’Sullivan and other senior officers, concluded that Sgt McCabe’s motivation should be challenged based on the fall-out from the historic allegation.
The reasons for pursuing motivation were that Sgt McCabe had made allegations of corruption — as defined by the Garda charter — against senior officers. During the subsequent O’Higgins hearings, these allegations were withdrawn or dismissed.
Two days into the hearings, the motivation issue exploded. A row blew up at O’Higgins when Sgt McCabe’s counsel, Michael McDowell, objected to a line of questioning. He wanted some basis on which Sgt McCabe’s motivation would be challenged.
That was a Friday. Over the weekend, a document was prepared. The tribunal was told it had “three authors”, the superintendents Noel Cunningham and Mick Clancy, and retired chief superintendent Colm Rooney.
All had dealt with Sgt McCabe in relation to the Ms D allegation and its fall-out.
Mr Clancy wasn’t physically present to contribute at that time.
The actual document was prepared by the commissioner’s legal team. In an email, Ms Ryan stated that it was of the UTMOST (her caps) importance that the content of the document be
As it turned out, it contained a crucial error that changed its meaning. This concerned a line that suggested Sgt McCabe had told Supt Cunningham in 2008 that he made complaints “against Superintendent Clancy” rather than “to Superintendent Clancy”.
Tribunal lawyer Kathleen Leader suggested the error had Sgt McCabe engaging in “blackmail” of Supt Clancy to have the DPP directions released to Ms D’s family in order to illuminate how emphatically he had been cleared.
A draft was sent to Supt Cunningham, but he didn’t spot the error. He told the tribunal he didn’t print it out but read it from his phone and has poor eyesight.
This was a document to be submitted to a statutory inquiry, outlining an issue Ms Ryan had noted was “political dynamite”.
That was the Saturday night. On Monday morning, Supt Cunningham signed off on the document. He claims he wasn’t given a chance to read it.
When Sgt McCabe saw the document, he remembered the meeting in question, and produced a recording he had made of it, which was at variance with the document, but coincided with Supt Cunningham’s report in 2008.
The error was compounded in a submission three weeks later which also suggested that Sgt McCabe had been guilty of the blackmail. There were also other errors in the document, that Judge Charleton characterised as a “charge sheet” which had a “string of errors”.
The error about the 2008 meeting was eventually addressed by Supt Cunningham in evidence, but nobody apologised to Sgt McCabe for casting aspersions on his integrity in the document.
Yesterday, the matter of apology was put to Supt Healy, who was in the witness box.
“I don’t recollect that any thought was given to it or not,” he said. “Certainly now I would have to apologise for it. It would be completely wrong not to.”
That was the first occasion since the matter arose on May 15, 2015, that anybody apologised to Sgt McCabe for an erroneous allegation that he attempted to blackmail a senior officer.
He will testify as to what effect it had on him when he gives evidence, most likely early the week after next.
The tribunal’s terms of reference specify inquiring into whether a false allegation of sexual abuse was used against Sgt McCabe at O’Higgins.
On Thursday, Judge Charleton surmised that it is now accepted that such an allegation was not used. Now he has to examine whether anything else was used to attack Sgt McCabe at O’Higgins.
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