The question immediately arises as to why events at the O’Higgins commission are not being included in the terms of reference for the new Charlton commission into the smearing of Sgt McCabe’s character.
And that applies whether or not the forthcoming Charlton inquiry morphs into a public tribunal, as wished for by Maurice and Lorraine McCabe.
Last May, days after publication of the O’Higgins commission — which investigated McCabe’s claims of Garda malpractice — the Irish Examiner reported on what had transpired in the first days of the hearings.
On the second day of the hearings, in May 2015, Judge O’Higgins was told by counsel acting for Garda Commissioner Nóirín O’Sullivan that it was going to be their case that McCabe had brought his complaints out of a sense of malice.
The counsel, Colm Smyth SC, said he would be attacking McCabe’s integrity and motivation “all the way” through the inquiry.
“My instructions are to challenge the integrity certainly of Sgtr McCabe and his motivation,” Smyth told the judge.
Later, Judge O’Higgins asked: “In other words, that he made these allegations not in good faith but because he was motivated by malice or some such motive and that impinges on his credibility. If those are your instructions from the commissioner, so be it.”
Mr Smyth replied: “So be it, that is the position, judge.”
O’Higgins ruled that there would have to be some written basis on which to ground any such attacks against McCabe.
The following day, O’Higgins was presented with a document compiled by the chief state solicitor’s office (CSSO) on behalf of the Garda commissioner.
This outlined a sequence of events which, it was to be claimed, would show that McCabe was acting out of a grudge when he brought his complaints of malpractice.
The five-page document centred on the allegation that has come to light in recent days, dating from 2006. This involved the daughter of a garda who claimed that McCabe had rubbed up against her inappropriately at a birthday party some eight years previously, when she was six.
That was investigated and a file sent to the DPP with the recommendation that there was no evidence to pursue a prosecution. The DPP agreed, adding that even if there had been evidence it is doubtful that the complaint amounted to a criminal act.
The CSSO document then goes on to say that McCabe requested that the DPP’s directions be provided both to him and to the parents of the teenager, in order to clear up any misunderstandings.
The Irish Examiner understands that McCabe did in fact make such a request to his district officer, Supt Michael Clancy. The superintendent told him he would see if it was possible, but later informed him that it would not be. As was the case at the time, and remains so to a large extent, the DPP’s directions cannot be given to complainants or the subject of a complaint.
McCabe says he accepted the decision and left it at that. It wasn’t a major issue with him, but he would have appreciated the chance to clear the air between all parties.
Sometime after that, McCabe’s complaints of malpractice were made. Some of these included how Supt Clancy had handled certain criminal cases. (Last year, the O’Higgins commission ruled that Clancy had handled the cases correctly).
McCabe has always said that there was absolutely no connection between his complaints and the manner in which the allegation against him was handled.
At the O’Higgins commission, the position of Nóirín O’Sullivan’s counsel was the opposite. According to the CSSO document, in August 2008 McCabe met two officers in Mullingar about the complaints of malpractice he had made.
The CSSO document goes on to state that notes were taken at the meeting between McCabe and Supt Noel Cunningham and Sgt Yvonne Martin. These notes were countersigned by McCabe.
However, the document then states: “In the course of this meeting, Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaint against Superintendent Clancy was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him.”
Supt Cunningham’s solicitors have stated that the report prepared by their client of the meeting was in accordance with the transcript of Sgt McCabe’s recording and was prepared long before it was known that the meeting had been recorded. They have also stated that Supt Cunningham’s report was made available to the commission.
The CSSO document was handed into the commission. However, McCabe also produced a tape recording of the disputed meeting, which shows he said no such thing.
Judge O’Higgins was provided with the recording. He had it transcribed and later told the inquiry it showed that what McCabe was saying was accurate. The issue of McCabe’s alleged malicious motivation was never broached for the remainder of the inquiry.
Some weeks later, O’Sullivan’s lawyer told the judge his instructions had been to challenge “motivation and credibility”, not to attack his character.
McCabe maintains that the whole issue was just another attempt to smear him. O’Sullivan stated publicly at the time that she never issued instructions to attack McCabe and she supported his whistleblowing on malpractice.
Gsoc was appointed by the minister for justice to investigate the Mullingar meeting, and whether it represented an attempt to attack McCabe.
However, Gsoc’s remit is narrow. If the Charleton commission is intent on examining to what extent attempts were made to smear McCabe, it has to investigate what happened at O’Higgins.
- Was there an attempt to attribute malicious motives to McCabe, based on a disputed meeting?
- How did the chief state solicitor’s office come to compile a document that was shown to be at variance with the facts when McCabe produced his tape recording?
- Was the Garda commissioner involved in any such attempt?
- What transpired at the meeting?
- Why was the whole matter dropped after McCabe produced the tape recording?
- Why, until the matter became public did the commissioner not do anything to investigate the events around this meeting?