Chief Superintendent Fergus Healy said that Garda counsel at the O’Higgins inquiry had recommended challenging Sgt McCabe’s motivation and credibility after forming the view that the “triggering factor” for his complaints about poor policing and corruption stemmed from his unhappiness at not getting the directions of the DPP released in relation to a case involving him.
Counsel for the Disclosure Tribunal Kathleen Leader said the strategy adopted by counsel for then-commissioner Nóirín O’Sullivan was that Sgt McCabe had been effectively seeking to “blackmail” senior officers in making his series of complaints.
She said this position was based on a fundamental error — contained in a legal document compiled for the O’Higgins commission by counsel and gardaí over the weekend May 15-18, 2015 — that Sgt McCabe had made a complaint “against” Supt Michael Clancy in order to seek the release of DPP directions, instead of a complaint “to” the superintendent regarding the release.
Cross-examined by Ms Leader, Chief Supt Healy, who was Ms O’Sullivan’s liaison officer at the O’Higgins inquiry, said it was “hard to believe that such a small word made such a huge difference”, but said that it had.
The Disclosure Tribunal, chaired by Mr Justice Peter Charleton, is examining whether unjustified grounds were inappropriately relied upon by the former commissioner to discredit Sgt McCabe at the O’Higgins commission, which was investigating complaints from the whistleblower about policing and corruption in Cavan/Monaghan.
Chief Supt Healy said that in consultations, legal counsel for the commissioner was “at pains” to establish what was the “triggering factor” behind Sgt McCabe’s allegations.
He said that arising out of counsel’s reading into their brief and hearing from gardaí about Sgt McCabe’s perceived unhappiness in not securing release of DPP’s directions, the counsel had “sought instruction to pursue motive and credibility issues”.
Ms Leader questioned Chief Supt Healy about what information he relayed to Ms O’Sullivan in phone calls to her on May 15, 2015 after he was directed to urgently seek and confirm her instructions on the matter of challenging Sgt McCabe’s motivation and credibility.
Chief Supt Healy said he told the commissioner that the counsel were advising they challenge Sgt McCabe’s motivation and credibility and said she was “inclined to give instructions to that effect”.
Pressed by Mr Justice Charleton on what the commissioner knew before issuing her instructions, Chief Supt Healy said he told her about the refusal to circulate the DPP’s instructions and how that was the “lynch pin that started all these issues” and the “spark that lit the fuse”.
Chief Supt Healy pointed out that the commissioner would have had “prior knowledge of all of these issues over a number of years”.
Asked by Michael McDowell SC, for Sgt McCabe, if he had any discussion with the commissioner about the “sensitivities” of attacking Sgt McCabe’s credibility and motives or whether it was “wise to go down this road”, he said that, to his recollection, he hadn’t.
Questioned about the mistakes in the legal document drafted over that weekend in May 2015, Chief Supt Healy said he was “in the dark” about them and that he was “depending on other people” to be accurate.
Chief Supt Healy said the first meeting of their lead barrister, Colm Smyth SC, with Ms O’Sullivan was on May 21, 2015.
He said that the “main concern” of the commissioner was in relation to the allegations of corruption made by Sgt McCabe, which he said was “a very serious issue for her”.
He said Mr Smyth shared this view, but that he felt they would not “stick” — allegations which Mr Justice O’Higgins subsequently adjudged to be “unfounded” and “unsupported by evidence”.
Chief Supt Healy said the prospect of the commissioner having to answer “very difficult” questioning from Mr McDowell about the motivation strategy when she was due to give evidence on November 4, 2015 “rang alarm bells” in his head and he feared another “eruption” like there was on May 15.
He said he was “relieved” when this did not happen, after Mr Justice O’Higgins ruled on the motivation issue.
He said there was a “significant media and political storm” when there were newspaper articles (in the Irish Examiner) about the O’Higgins commission in May 2016 and that he was called to Garda HQ and “basically grilled” in a meeting about what had gone on at the commission.
Ms O’Sullivan is due to commence her evidence on Monday morning.