Analysis: Nóirín O’Sullivan leaves a trail of questions in her wake at Disclosures Tribunal

Nóirín O’Sullivan was out through the gap yesterday afternoon, her three days of evidence at the Disclosures Tribunal completed, writes Michael Clifford.

She left behind a number of questions which Judge Peter Charleton will have to ponder before he comes to write his report.

Chief among these will surely be why the then commissioner of An Garda Síochána appeared to be only half tuned in to the O’Higgins commission of inquiry in 2015, which, she has claimed, was vitally important to the force. 

O’Higgins had been established to examine Sergeant Maurice McCabe’s complaints of malpractice and shoddy policing in Cavan/Monaghan.

The other outstanding question is why she did not insist that she, as head of the force, be represented at O’Higgins separately from all other parties. 

She would then have been in a position to represent the force in a corporate sense, and be fair to, and detached from, all the gardaí from the border counties who were witnesses to the commission.

Instead, she lined up beside some senior officers against some of whom Sgt McCabe had made some allegations.

By accident or design, this effectively gave an impression of the whole of the force being stacked against Sgt McCabe.

It also meant the commissioner was not able to cross-examine the senior officers on any matter. Ms O’Sullivan said she followed this course on the basis of legal advice from within the force.

Sgt McCabe’s counsel, Michael McDowell, honed in on this yesterday. He pointed out that Superintendent Noel Cunningham, against whom Sgt McCabe had made some allegations, was ill-disposed towards the sergeant.

There was history between them. Cunningham had investigated a historic allegation in 2007, shown to be without foundation, against Sgt McCabe by a daughter of a colleague whom Sgt McCabe had reported for ill-discipline. 

Sgt McCabe believed Cunningham had delayed in providing him with the DPP’s directions. Cunningham says the direction lay in his office for three weeks while he was deployed to another district, and he didn’t know it was there.

At O’Higgins, Supt Cunningham was among officers who had consulted with their counsel — shared with Ms O’Sullivan — to an extent that the counsel believed Sgt McCabe’s motivation in bringing forward complaints should be challenged. That in turn sparked the row that prompted Sgt McCabe to believe he was under threat from the commissioner and led all the way to the current tribunal.

Yesterday, Mr McDowell put it to Ms O’Sullivan that based on transcripts from the O’Higgins commission, Supt Cunningham was hostile towards Sgt McCabe.

“Had you a reason to believe that Supt Cunningham was so hostile towards Sgt McCabe that there was bad blood between them to the extent that Supt Cunningham believed Sgt McCabe was trying to undermine him,” asked Mr McDowell.

Ms O’Sullivan replied that she had never spoken to Supt Cunningham about Sgt McCabe.

That was a revealing statement. Sgt McCabe’s motivation — and arguably his integrity — was being attacked by a lawyer who had had consultations with Supt Cunningham, but also represented Ms O’Sullivan. As such, the commissioner was drawn into a row that was not of her making, and should not have had anything to do with the head of the force. That in turn prompted Sgt McCabe to believe the whole force from the top down was out to get him because of the whistleblowing.

She gave the go-ahead to tackle Sgt McCabe’s motives. “I was acting on advices (from her legal team),” she said. She did not attempt to inquire of Supt Cunningham what this was all about, that it better be good because it was putting her in what she described as an “almost impossible dilemma” of supporting Sgt McCabe in public and attacking him behind closed doors.

She did not meet with either the solicitor or senior counsel acting for both herself and Supt Cunningham before giving the go-ahead. She did not ask to view a controversial document — which turned out to be full of gross falsehoods — used as a basis to attack Sgt McCabe.

She appeared to have had no interest in the detail of what was creating for her an almost impossible dilemma. She says she wanted everybody’s evidence tested, but she could not have Supt Cunningham’s or other senior officers’ evidence tested.

She says she would never, ever have accused Sgt McCabe of being malicious, yet when informed that he had believed himself to be under threat as a result of her apparent instructions at the commission, she did nothing to intervene with him, put him right, or relieve the stress he was under.

There is no real evidence that Nóirín O’Sullivan initiated an aggressive legal strategy against Sgt McCabe that may or may not have been justified.

However, her testimony and the supporting documentation suggest that when such a strategy was adopted and found to have flaws, she did precious little to rectify the matter. The evidence tendered points to her role in the O’Higgins commission as being largely hands-off.

That, for a busy holder of office, is understandable on one level.

It’s also highly questionable in light of all that was at stake and all that did happen.

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