GSOC’s Maurice McCabe inquiry hits legal barrier

A Garda watchdog investigation into the treatment of whistleblower Sergeant Maurice McCabe has been stopped in its tracks because of a legal roadblock.

The Garda Ombudsman is trying to obtain documentation in connection with the O’Higgins Commission, which investigated complaints by Sgt McCabe about policing in the Cavan-Monaghan division.

Justice Minister Frances Fitzgerald directed GSOC to carry out an investigation last June regarding matters connected to transcripts from the O’Higgins Inquiry, in which it was claimed the Garda Síochána would question the “motivation and credibility” of Sgt McCabe.

More than four months on, GSOC has not started its public interest investigation, initially because it was unable to access relevant documentation from Garda Commissioner Nóirín O’Sullivan.

The commissioner — who originally called for GSOC to investigate the matter — cited legal restrictions under the Commission of Investigations Act 2004 regarding disclosure.

A further request from GSOC to the Department of Justice — which holds the records of the O’Higgins Commission — has been referred to the Attorney General to see if the legal obstacle can be overcome.

University of Limerick Law Professor Shane Kilcommins told the Irish Examiner it was “difficult to see how it would be possible” for the watchdog to obtain the documentation, given the strict legal prohibition against disclosing evidence that was held in private.

Last May, the Irish Examiner published transcripts from the O’Higgins inquiry in which counsel for Ms O’Sullivan told the chairperson that he was instructed to “challenge the integrity certainly of Sergeant McCabe and his motivation” and that he intended to introduce evidence to that effect.

Mr Smyth said he would question the “motivation and credibility” of Sgt McCabe. Asked if he was he suggesting Sgt McCabe was “motivated by malice”, Mr Smyth responded: “That is the position.” However, the evidence was never presented to the commission.

Mr Smyth subsequently clarified to Judge O’Higgins that he never used the word “malice” and that his instructions were not to challenge the “integrity” of Sgt McCabe, but his “motivation and credibility”.

The “transcripts” scandal engulfed Ms O’Sullivan in controversy.

After growing political and public disquiet, Ms O’Sullivan, on May 25, called on Ms Fitzgerald to request GSOC to investigate certain matters relating to this issue.

After further consultation with the commissioner, the Tánaiste referred the matter to GSOC on June 19.

A spokesperson for GSOC told the Irish Examiner: “The Ombudsman Commission sought documentation related to the matter arising from the O’Higgins Commission, which GSOC was asked to investigate, from the Garda Commissioner.

“The Garda Commissioner was not in a position to give us the documentation because of the terms of the Commission of Investigations Act.”

The spokesperson added: “We are continuing to try and progress the matter.”

Speaking at the Oireachtas Justice Committee on October 12, Ms O’Sullivan said the GSOC investigation was ongoing and declined to comment, other than to say that the organisation fully cooperated with GSOC investigations.

A Department of Justice spokesman confirmed GSOC chair Judge Mary Ellen Ring had put in a request to them to access the documentation — which had been referred to the Attorney General.

Asked could GSOC access the documentation it is looking for, Prof Kilcommins said: “It is difficult to see how this would be possible since investigations established under the legislation are conducted in private.”

He said it was a “criminal offence” to contravene this under the Commission of Investigation Act and there were only “very specified and limited exceptions”.