If the Disclosures Tribunal continues as it has begun the new year, it will be drama all the way, writes Michael Clifford.
The tribunal is inquiring into whether there was an attempt by elements inside or outside of An Garda Síochána to conduct a smear campaign against Sgt Maurice McCabe.
The current module is examining whether this might have occurred during the O’Higgins commission, the behind-closed-doors inquiry set up to investigate McCabe’s claims of malpractice in criminal investigations in Co Cavan.
O’Higgins sat between May 2015 and December 2015.
As such, this element of the tribunal’s investigation consists of an inquiry into an inquiry.
Yesterday’s opening statement included dramatic audio tape from O’Higgins.
It involved a row between Colm Smyth, counsel for then commissioner Nóirín O’Sullivan, and Michael McDowell, who was acting for Sgt McCabe.
The row centred on what McDowell had characterised as an ambush. He claimed his client was under the impression that he would have a minor role in O’Higgins investigations into malpractice but now Ms O’Sullivan’s legal team appeared to be out to question McCabe’s motives in complaining of the malpractice.
For nearly an hour yesterday morning, the audio of the exchanges was broadcast. In it, Judge Kevin O’Higgins makes a point that the commissioner now appears to be challenging McCabe’s motives for bringing forward the complaints of malpractice.
“You’re attacking his motivation and credibility,” the judge asks Mr Smyth.
“Right the way through,” Mr Smyth replies.
Mr McDowell then made a point that there will have to be some factual basis for attacking his client’s credibility.
“If there is no difference on facts, credibility doesn’t arise.”
The judge later asks Mr Smyth to check with the garda commissioner as to his instructions on attacking Sgt McCabe.
Yesterday’s opening statement included an email that was sent to Ms O’Sullivan in relation to this. The most interesting part of the notes was that Ms O’Sullivan was recorded as consulting with the Department of Justice on the matter.
“Commissioner sought time to talk to DOJ…then returned with instructions.” Why the commissioner of An Garda Síochána would be consulting with the Department of Justice on this will provide an interesting seam of exploration for the tribunal.
Yesterday’s opening statement went on to record that the outcome of the row at O’Higgins was the production of a letter from the chief state solicitor’s office outlining why Sgt McCabe’s motivation would be attacked.
This document went into the background of the allegations made by a daughter of a colleague of Sgt McCabe’s against him in 2006.
Essentially, the outcome of that allegation was an emphatic ruling by the DPP that not alone had Sgt McCabe no case to answer but the allegation itself didn’t even constitute a crime.
Sgt McCabe always maintained that the allegation had been associated with the fact he had reported the colleague over a disciplinary matter, although the colleague and his daughter denied this.
Now O’Higgins was told that there would be evidence that McCabe was motivated to make his complaints by a grudge of sorts. The basis for this grudge was laid out in a document presented to O’Higgins a few days later.
The document of 20 paragraphs prepared by the Chief State Solicitor’s office was read out yesterday.
The crucial paragraph was the penultimate one which described a meeting between Sgt McCabe and Supt Noel Cunningham, who was investigating his complaints.
“In the course of this meeting, Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaints against Superintendent Clancy was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him.” The tribunal heard that some days after the production of this document, Sgt McCabe produced a recording of the meeting. The transcript of the recording showed that he did not say anything as alleged in the CSSO document.
This is a crucial element of any alleged smear campaign against Sgt McCabe. The audio played yesterday had Mr McDowell reacting to the production of the document at O’Higgins.
“I have received a document that if it’s not adversarial I don’t know what it is, it is a remarkable document… I find this a despicable document, a conflation of falsehoods, evasions, and untruths,” the lawyer stated.
Yesterday, in her opening statement, tribunal counsel Kathleen Leader pointed out that there may have been a mistake in the document, where the line “complaints against Superintendent Clancy” should have read “complaints to Superintendent Clancy”.
The afternoon was taken up with further audio from O’Higgins and the reading of further transcripts. Also included were details of contacts between the garda commissioner’s office and the Department of Justice at the time that the row in O’Higgins was unfolding.
There were also details of how later in O’Higgins, the counsel for the garda commissioner stated that he had made “an error” earlier in suggesting his instructions had been to challenge Sgt McCabe’s “integrity”.
The challenge that he was now asserting he was instructed to make was on the sergeant’s “motivation and credibility” but not his “integrity”.
It is unclear how integrity could be separated from motivation in this instance.
The tribunal will hear from most of the main players in this affair in the coming weeks, including former commissioner Ms O’Sullivan, former minister Frances Fitzgerald and Maurice McCabe himself.
Hearings were supposed to have continued throughout this week but were adjourned until Friday morning because large volumes of documents received from the gardaí and the Department of Justice were only received in recent weeks.
Yesterday’s opening statement was one of broad brush strokes. The detailed evidence will tell the full story.
As with much else to do with how Sgt McCabe’s complaints were handled, and how he was treated, much of the focus will be on whether what occurred was a coincidence of errors or conspiracy.
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