Nóirín O’Sullivan raised Maurice McCabe strategy with Department of Justice twice in one day

Former Garda commissioner Nóirín O’Sullivan called the Department of Justice twice in one day to discuss a strategy to discredit whistleblower Sgt Maurice McCabe at the O’Higgins Commission set up to investigate his allegations of corruption and malpractice in the force.

She made the calls after being contacted by a colleague, Supt Fergus Healy, who was acting as her liaison with the commission, to tell her that her legal representatives had advised taking the approach of attacking Sgt McCabe’s credibility and motivations and they were seeking the go-ahead to do so.

She sought time to make some calls and contacted the Department of Justice, subsequently calling her colleague back to tell him the legal team should proceed as they advised.

The senior official with whom she spoke at the Department of Justice, then deputy secretary Ken O’Leary, agreed the calls took place but said he made it clear to the then commissioner that the department could not become involved and could not give a view.

However, Mr O’Leary did say: “I suggested that she would have to be guided by her legal advice.”

It was the second day of the behind-closed-doors hearings of the O’Higgins Commission in May 2015 and a row had broken out between Sgt McCabe’s barrister, Michael McDowell, and barrister for the commissioner, Colm Smyth, over the line of questioning Mr Smyth was pursuing.

Audio recordings of the exchanges were played at the Disclosures Tribunal which yesterday began investigating whether false allegations of sexual abuse or any other unjustified grounds were inappropriately used by Ms O’Sullivan to discredit Sgt McCabe at the 2015 commission.

In the recordings, Mr McDowell objected strenuously to the manner in which Mr Smyth was questioning another Garda witness. Mr McDowell said “crude and inept” attempts were being made to make his client responsible for the failings complained of.

“I am shocked that is it coming from counsel instructed by the commissioner,” he said, insisting that it be made clear as to whether this indeed was the commissioner’s instructions.

Justice O’Higgins said Mr McDowell had raised important matters and he quizzed Mr Smyth in depth about whether his instructions were to attack the credibility, motivations and integrity of Sgt McCabe.

“Those are my instructions, judge,” he replied. He added: “I mean, this isn’t something that I am pulling out of the sky, judge, and I mean, I can only act on instructions.”

Justice O’Higgins returned to this point repeatedly as the hearing continued and each time, Mr Smyth confirmed that those were his instructions.

However, he returned on the third day to say he had made an error and that he was only instructed to challenge the credibility and motivation of Sgt McCabe, and not his integrity.

By this time, Mr McDowell’s list of concerns about the way the hearings were proceeding had grown. He said a commission was not meant to be an adversarial forum — a point Justice O’Higgins had to remind Mr Smyth of several times the previous day.

But that morning he had received a “despicable document” prepared on behalf of the commissioner, setting out how it was intended to continue in challenging Sgt McCabe. “If it is not adversarial, I don’t know what is,” he said.

“If allegations are going to be made on behalf of the commissioner, I will require the commissioner personally to be available for me for cross-examination and I don’t think she will enjoy the experience,” he said.