Comment: Disclosures Tribunal may, or may not, be the result of typo

The Disclosures Tribunal, it would appear, may have been established because of a clerical error.

This expensive form of inquiry, which many thought was consigned to history, may actually be the result of a typo. Or maybe not.

Last February Maurice and Lorraine McCabe issued a public statement through their solicitors, demanding a public inquiry into alleged attempts to smear Maurice’s character.

They wanted a public inquiry on the basis of what they believed had transpired at a private inquiry in 2015. This was the O’Higgins commission into Sergeant McCabe’s complaints of malpractice.

Therein, the McCabes believed there was an attempt to accuse Maurice of what a tribunal lawyer has characterised as “blackmail” in a document referred to here as ‘The Letter’.

This alleged attempted was thwarted, they believed, only when McCabe produced a recording from a disputed meeting in Mullingar dating from 2008.

In February 2017, the Government had announced the establishment of a commission of investigation — the same model used in the O’Higgins commission — to investigate alleged attempts to smear McCabe’s character. Then a story broke about a false allegation of child rape against the sergeant that had been generated in Tusla, the child and family agency.

There was political and public outrage. The Government intended to place that matter in the commission of investigation until the McCabes issued their statement setting out why they would not be happy with another private inquiry.

They said in the statement: “Our experience of the O’Higgins commission of investigation is too fresh in our minds to allow for a repetition. Although that commission investigated a number of serious instances of malpractice in the policing function in Bailieboro and upheld Maurice’s complaints in respect of all of them, the public has never been made aware that, throughout the proceedings before that commission, Maurice, at the hands of the legal team representing the current commissioner, was cast in the role of culprit and/or defendant, and as a person making those complaints in bad faith and without cause.

“When challenged in that respect, that legal team sought and obtained confirmation from the present commissioner that they did so on her personal instructions.” Under the circumstances, the Government had little choice but to accede to their request. Quite obviously the couple — and presumably their advisers — were under the impression that there had been an attempt to target McCabe at O’Higgins which had never fully been explained.

Roll forward to the opening of the current module of the tribunal into what happened at O’Higgins.

On January 8, the tribunal was told that The Letter contained an error. This error led Sgt McCabe to believe he was being accused of blackmailing his district officer at the time, Michael Clancy.

How could such an error have occurred at a statutory inquiry? And how could the perception that it hadn’t been corrected persist right up to recent weeks?

The letter detailed some history between Sgt McCabe and three senior officers in the Cavan area. It dealt with the fallout after the daughter of a colleague of Sgt McCabe — whom he had reported for ill-discipline — made a historic allegation. The DPP found the allegation had no credibility nor was even of a criminal nature.

Sgt McCabe wanted the DPP directions to be given to the girl’s father.

In a meeting about the matter, according to The Letter, he told Superintendent Noel Cunningham that he had made complaints “against” his district officer, Superintendent Mick Clancy, to get the DPP directions given to the girl’s family in order to clear up the matter. This was the “blackmail” referenced at the tribunal.

In fact, Sgt McCabe had referenced making complaints “to” Supt Clancy, which put a whole different complexion on the matter. Sgt McCabe produced a recording of the meeting which coincided with a report of it done by Supt Cunningham at the time. This version was in conflict with The Letter submitted to the O’Higgins commission.

Sgt McCabe believed they were out to get him. Following questioning of Supt Cunningham after the production of the recording, he said he disagreed with The Letter and that it should have read “to” rather than “against”.

So who made the error? During Supt Cunningham’s examination he was asked had he seen The Letter. “No, I haven’t seen any letter of the 18th May as it has been referred to,” he said.

Yet, he had been one of three senior gardaí who provided the factual detail for The Letter, according to the State solicitor acting for them, Annmarie Ryan.

She told the tribunal that she sent him a draft of The Letter on Saturday, May 16, 2015 to check it for factual accuracy. The lawyer who drafted the letter said that accuracy was of the “utmost” importance.

Supt Cunningham has told the tribunal he didn’t print out the draft and didn’t have his glasses with him when he read it on his phone. He has poor eyesight.

Ms Ryan also said she got Supt Cunningham to sign off on the letter the following Monday morning but says he wasn’t given a chance to read it then.

The senior counsel acting for the officers and the Garda commissioner, Colm Smyth, told the tribunal that the error was not made by lawyers. “It was not a mistake of counsel,” he said. “As far as I’m concerned we did what we did within the instructions.” He was responding to a question from Sgt McCabe’s lawyer, Michael McDowell, who said he wouldn’t call it an error but a “mis-statement”.

This error or mis-statement was compounded a few weeks later by a submission to O’Higgins that repeated the effective charge of blackmail against Sgt McCabe. Attention was drawn to it at the next sitting of O’Higgins when Supt Cunningham gave evidence.

So who made this devastating “error” and how could it have been made?

Supts Cunningham and Clancy are both claiming privilege on their legal advice, which is their right. However, the situation means it will be nearly impossible to find out who was responsible and how it could have happened. We do know from the McCabes’ statement last February that the correction was certainly never resolved as far as they were concerned.

Whatever the answer, it has led all the way to Dublin Castle and the kind of tribunal that was supposed to have been largely consigned to history.

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