O’Higgins report: McCabe’s allegations - Litany of failures led to devastating events

Sergeant Maurice McCabe’s complaints about Garda failures and malpractice centred on a number of key incidents of criminal investigations in the Cavan-Monaghan division, where injured parties were badly let down and where he felt his attempts to draw the attention of senior officers to the problems were not properly addressed.

Thu, 12 May, 2016 - 01:00

Caroline O’Doherty and Noel Baker

Most shocking and serious of all was the case involving Gerard McGrath, who savagely assaulted a female taxi driver in what Judge O’Higgins described as a “terrifying” attack in Cavan in April 2007, only to be charged with minor assault against DPP instructions.

That ensured he got bail and set in train a chain of devastating events. Within months, he attempted to abduct a five-year-old girl from her home in the middle of the night in Tipperary, and, despite being caught red-handed, was released, and, weeks later, murdered mother of two, Sylvia Roche-Kelly, in Limerick.

Judge O’Higgins lists 10 major failings in the handling of the case by Cavan gardaí alone, not least of which was the initial decision to charge McGrath with a Section 2 offence under the Non-Fatal Offences Against the Person Act, which constitutes a minor assault, rather than the more serious Section 3 offence the DPP had sought.

The garda responsible in a subsequent report stated that the Section 2 charge was instructed by the DPP. He later said he couldn’t say why he put this in his report. “I typed it in error,” he told the commission.

This charge was meant to be reviewed by a sergeant but, Judge O’Higgins said: “as appears to have been the practice, it was not reviewed in any meaningful way. Rather the matter was clicked as reviewed in a superficial sense.”

McGrath was released on station bail, and got continuing bail when he appeared in court. Even when the charge was later upgraded to Section 3, there were no fresh bail proceedings.

When a garda from Tipperary investigating the abduction case contacted the station to inquire about McGrath, he said he was told the incident was a “dispute with a taxi driver”, so he had no idea of how serious it was, and did not have details to give to a judge when McGrath applied for, and was granted, bail in that jurisdiction. It was while on bail this time that he murdered Mrs Roche Kelly.

By the time the original assault case came to court in January 2008, McGrath was already under arrest for the abduction and murder. The taxi driver told the commission she got a call from a garda telling her she needn’t be in court that day as the case would not proceed.

It did and was concluded, without giving her a chance to give evidence or a victim impact statement. The garda who told her not to come to court told the commission he had done so on the instructions of Sgt McCabe, who was going to get the case moved to the circuit court.

Sgt McCabe denied this and the commission believed him, but did not hold with Sgt McCabe’s complaint that the claims were meant to discredit him. “It can not be safely said that there was a deliberate attempt to wrongly implicate Sgt McCabe,” Judge O’Higgins said.

“However, Sgt McCabe’s fears in that regard, at that time, were perfectly understandable.”

The garda who made the claim did not explain it, saying only when he spoke to the victim, he relayed “what I presumed or assumed would have happened”.

Judge O’Higgins said the deficiencies in the case included the inappropriate charge brought against McGrath, communication failures, the failure to revisit bail when the charge was upgraded, the “inordinate delay” in furnishing a file to the DPP in the first place despite McGrath’s admission in a station interview of what he had done only hours after he had carried out the attack, the failure to keep the injured party properly informed of developments, and the failure to supervise the garda who had initially charged McGrath.

Judge O’Higgins said criticisms made of the Garda handling of the Tipperary case in a subsequent GSOC report was “unduly harsh” as he was “entitled to rely on what he was told”, which was that the incident in Cavan was a minor offence.

Sgt McCabe in his dossier said he felt that once the abduction and murder became known to his station, there was an urgent attempt to dispose of the assault case “as quickly as possible and at all costs”.

Judge O’Higgins said: “The commission can find no evidence to substantiate this complaint.”