The ball is squarely back in Nóirín O’Sullivan’s court — Tánaiste and Justice Minister Frances Fitzgerald firmly knocked it there yesterday.

What is not yet clear is whether the Garda commissioner will play ball, and where the game will be held.

There can be little doubt she is under considerable pressure to ‘clarify’ matters.

She might have thought her statement on Monday night, in response to the Irish Examiner story on the ‘malice’ claims, might have dampened the fire.

While refusing to comment on the transcripts — claiming she was legally prohibited from doing so — she stated: “I want to make it clear that I do not, and have never, regarded Sergent McCabe as malicious.”

Since that statement, the issue has been taken up in the Dáil twice. And yesterday the Irish Examiner published partial transcripts from that May 2015 meeting between her legal counsel and Mr Justice Kevin O’Higgins.

On a number of occasions, her lawyer, Colm Smyth SC, told Mr Justice O’Higgins he was under instructions to challenge the “integrity” of the whistleblower.


While it was Mr Justice O’Higgins who introduced the word “malice” to try to describe what they were claiming was the sergeant’s motivation, Mr Smyth confirmed that was his position.

At one stage he said: “I mean this isn’t something that I am pulling out of the sky, judge, and I mean I can only act on instruction.”

Again the judge asked was he “attacking his [McCabe’s] motivation and... his integrity”. Mr Smyth replied: “Right the way through.”

Mr Smyth said they would be giving evidence to this effect, referring, apparently, to two officers who met Sgt McCabe in 2008.

Sgt McCabe subsequently produced a recording of that meeting to the commission and the evidence was dropped.

Also on Tuesday, RTÉ produced transcripts from a subsequent meeting, in November, at which Mr Smyth said the commissioner was challenging Sgt McCabe’s “motivation and credibility”, not his integrity, and that that was a failure on his part.

He clarified that these challenges were in relation to Sgt McCabe’s complaints of “corruption and malpractice”, made against five named senior officers.

The O’Higgins report found that “those hurtful complaints were unfounded”.

On Tuesday night, on RTÉ’s Prime Time

, Ms Fitzgerald was asked three times did she have full confidence in the commissioner. While she said she backed Ms O’Sullivan, her replies were not clear and unequivocal.

Yesterday, Ms Fitzgerald told the Dáil there was “no doubt” the commissioner would seek to clarify the issues as much as possible, which “would be helpful”.

She added: “I have no doubt, within the legal constraints, that she will say as much as possible when she is questioned in the future on these issues.”

Among the questions might be:

  • What were Ms O’Sullivan’s instructions to her counsel?
  • Why were those instructions given?
  • Was it based on what the two officers said?
  • Why did her counsel repeatedly state at the May meeting that Sgt McCabe’s integrity would be challenged?
  • Why the contrast in this legal approach and her public statements of Sgt McCabe?
  • What instructions did she give after May and before the November meeting?
  • Did the production by Sgt McCabe of recordings of the 2008 meeting cause her to change her instructions?

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The next issue is where this questioning will take place. Ms Fitzgerald said the Policing Authority would be a “very appropriate forum”.

Ms O’Sullivan is scheduled to appear before the Policing Authority next week. It will meet on Thursday morning, before a meeting with the commissioner in the afternoon.

The authority has already said it will discuss the O’Higgins report, but yesterday said it had “no comment” on whether the transcripts will be included. That will be a matter for the authority itself to discuss and decide on Thursday morning.

It is most likely it will be discussed. Whether the authority will raise it with Ms O’Sullivan is not clear — but one would expect it will.

Given that meeting is in private, it is unlikely to quell public concern unless chairwoman Josephine Feehily and/or Ms O’Sullivan give interviews after.

The next public meeting with the Garda boss won’t be until the end of June.

Outside of the authority, there are signs the Oireachtas Justice Committee will call her in. But the committee will only be formed next week, so it will be a further week, at least, before that is likely to happen. And Ms O’Sullivan might continue to argue that the law prohibits her from answering relevant questions.

The Dáil is next week due to discuss the O’Higgins report, at which Ms Fitzgerald will again be under fire.

All of which might point to another statement from the commissioner, a press conference, or a selective interview. Watch this space, as they say.

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