A breakdown of the Charleton Tribunal

The Charleton Tribunal will explore the O’Higgins commission, the role of Tusla, and the alleged campaign of smearing Maurice McCabe’s good name, writes Michael Clifford.

The Charleton Tribunal is to establish the nature of communications between top-level gardaí, politicians and the media regarding Sgt Maurice McCabe.

There are three distinct threads to the inquiry into the smearing of Sergeant Maurice McCabe.

At least one of them will present major issues for the garda commissioner. If she is still in the job when evidence is heard about the attack on McCabe behind the closed doors of the O’Higgins commission, Nóirín O’Sullivan will come under serious pressure.

The terms of reference for the Charleton Tribunal reflected the public reaction to what has emerged in recent days about McCabe’s plight. The news that he was subjected to false reports of child sexual abuse, including the opening of files on four of his children, has appalled the general public.

Last Monday, Maurice and Lorraine McCabe issued a statement asking for a public inquiry. That’s what we now have, and its terms of reference are wide enough to address the McCabes’ main concerns.

Whether the tribunal will actually deliver justice is a moot point. For that to happen, it would have to be in a position to establish all the facts that it sets out to explore, and come to firm conclusions. Such an outcome is far from guaranteed.

The three threads that it will explore about the smearing of McCabe include the stuff at the O’Higgins commission, the creating of the file of false allegations of abuse in Tusla and its dissemination, and the alleged general campaign of smearing his good name.

The O’Higgins element should be straightforward. Behind the closed doors of the commission, the lawyer acting for the garda commissioner stated that it was his instructions to attack McCabe’s motivation in bringing complaints of malpractice.

When McCabe produced a tape recording of the meeting, that plank of attack ran into the sand. It shouldn’t take Charleton long to discover what exactly happened, who was involved, and what exactly the commissioner knew about the matter.

Nóirín O’Sullivan has said she knew nothing of an attempt to attack McCabe, and she wouldn’t have anything to do with any such effort. The evidence on the matter will be fascinating.

The Tusla issue is also straightforward. Three witnesses will be crucial in examining whether there was a conspiracy to stain McCabe with the most grievous crime against a child. There is the woman whom, according to the file that was created, made an allegation of abuse against McCabe.

There is the counsellor who created the file. And there is a third party with whom the counsellor was in direct contact, believed to be a garda. The evidence of all three, combined with the records in Tusla should be able to establish the facts pretty rapidly.

The third strand could present a few problems. This centres to a large extent around the allegations of superintendent David Taylor that when he was head of the garda press office he had been instructed to blacken McCabe’s name in the media.

Much of the evidence here will involve telephonic or electronic records. Most of the records will be the property of An Garda Síochana. Whether or not all records are still available will be a key issue for the tribunal.

Also crucial will be the evidence of politicians and whether they were briefed in a manner designed to damage Mr McCabe. Of particular interest will be the evidence of former minister for justice Alan Shatter.

The former chairman of the Public Accounts Committee John McGuinness has stated that he was briefed by then commissioner Martin Callinan that Mr McCabe was not to be trusted. Mr McGuinness put the briefing in the context of the “vile” stories that were circulating about McCabe at the time.

If it emerges that Mr Callinan was briefing members of the Cabinet, the repercussions would be enormous. Any suggestion that the garda commissioner was briefing ministers would deal a fatal blow to any trust that still remains between the police force and the elected government.

The other element that Mr Justice Charleton will be examining is the treatment of Garda Keith Harrison, another whistleblower, and in particular, his issues around the opening of a Tusla file on him.

Predictions were still being bandied about yesterday that this could all be done and dusted in nine months. Such talk brings optimism to a new level altogether.

The full terms of reference:

A

To investigate the allegation made in a protected disclosure under the Protected Disclosures Act 2014, on the of September 30, 2016, by Superintendent David Taylor, wherein he alleges that he was instructed or directed by former Commissioner Martin Callinan and/or Deputy Commissioner Nóirín O’Sullivan, to contact the media to brief them negatively against Sergeant Maurice McCabe and in particular to brief the media that Sergeant McCabe was motivated by malice and revenge, that he was to encourage the media to write negatively about Sergeant McCabe, to the effect that his complaints had no substance, that the gardaí had fully investigated his complaints and found no substance to his allegations and that he was driven by agendas.

The terms of reference for the Charleton Tribunal reflected the public reaction to what has emerged in recent days about McCabe’s plight.

B

To investigate the allegation of Superintendent Taylor in his protected disclosure, that he was directed to draw journalists’ attention to an allegation of criminal misconduct made against Sergeant McCabe and that this was the root cause of his agenda, namely revenge against the gardaí.

C

To investigate what knowledge former Commissioner Callinan and/or Commissioner O’Sullivan and/or other senior members of the Garda Síochána had concerning this allegation of criminal misconduct made against Sergeant McCabe and whether they acted upon same in a manner intended to discredit Sergeant McCabe.

D

To investigate the creation, distribution and use by Tusla of a file containing false allegations of sexual abuse against Sergeant Maurice McCabe that was allegedly sent to gardaí in 2013, and whether these false allegations and/or the file were knowingly used by senior members of An Garda Síochána to discredit Sergeant McCabe.

E

To investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe at the commission of investigation into certain matters in the Cavan/Monaghan district under the chairmanship of Mr Justice Kevin O’Higgins.

F

To investigate whether senior members of An Garda Síochána attempted to entrap or falsely accuse Sergeant McCabe of criminal misconduct. G To investigate such knowledge which former Commissioner Callinan and Commissioner O’Sullivan had concerning the matters set out in [A], [B], [C], [D], [E] and [F] above.

H

To investigate contacts between members of An Garda Síochána and: Media and broadcasting personnel, members of the Government, Tusla, Health Service Executive, any other State entities, or any relevant person as the sole member may deem necessary to carry out his work relevant to the matters set out in [A], [B], [C], [D], [E] and [f] above.

I

To examine all records relating to the telecommunications interactions used by Superintendent Taylor, former Commissioner Callinan and Commissioner O’Sullivan, in the period from the July 1, 2012 to May 31, 2014 to ascertain whether there are any records of text messages or other telecommunication interactions relating to the matters set out at [A], [B], [C], [D], [E] and [F] above and to examine and consider the content of any such text messages or other telecommunication interactions.

J

To examine all electronic and paper files, relating to Sergeant Maurice McCabe held by An Garda Síochána and to consider any material therein relevant to [A], [B], [C], [D], [E] and [F] above.

K

To investigate whether Commissioner O’Sullivan, using briefing material prepared in Garda Headquarters, influenced or attempted to influence broadcasts on RTÉ on the 9th of May 2016, purporting to be a leaked account of the unpublished O’Higgins Commission Report, in which Sergeant McCabe was branded a liar and irresponsible.

Former minister for justice Alan Shatter said at the time of the penalty points scandal: ”Whereas I absolutely accept it was perfectly right for him to raise issue of major public concern but, insofar as he made allegations for which there was no evidence and were unfounded, he wrought havoc in the lives of a number of people.”

L

To investigate whether a meeting took place between former Commissioner Callinan and Deputy John McGuinness on January 24, 2014, in the carpark of Bewley’s Hotel, Newlands Cross, Co Dublin and to examine and consider the circumstances which led to any such meeting, the purpose of any such meeting and matters discussed at any such meeting.

M

To investigate such knowledge which Commissioner O’Sullivan had of the meeting referred to in [L] above.

N

To investigate contacts between members of An Garda Síochána and Tusla in relation to Gda Keith Harrison.

O

To investigate any pattern of the creation, distribution and use by Tusla of files containing allegations of criminal misconduct against members of An Garda Síochána who had made allegations of wrongdoing within An Garda Síochána and of the use of these files, knowingly by senior members of the Garda Síochána, to discredit members who had made such allegations.

P

To consider any other complaints by a member of the Garda Síochána who has made a protected disclosure prior to February 16, 2017, alleging wrong-doing within the Garda Síochána where, following the making of the protected disclosure, the garda making the said protected disclosure was targeted or discredited with the knowledge or acquiescence of senior members of the Garda Síochána.

And to adopt a modular approach to this inquiry so that the matters set out at (A) – (O) inclusive shall be inquired into in the first instance, and thereafter upon consultation with the Sole Member the Government shall, if requested by the Sole Member, take steps to appoint another judge to continue and conclude the work of the tribunal namely the matter at (P) above as the second module.


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