Frances Fitzgerald’s 2015 dilemma must be seen in context of the forces of the State lined up against McCabe, but should she have questioned why he was targeted, asks Michael Clifford
ELECTION or no election, a far more important process concerning the strength of our democracy is now scheduled to begin on January 8.
This will be an inquiry at the Disclosures Tribunal into whether and to what extent the most powerful elements of the State were involved in attempts to destroy a citizen. And not just any citizen, but a garda who was engaged in doing a public service.
Last Friday, the schedule for the tribunal changed. The next phase of inquiry was to be the “media” module, examining any smear campaign against Sergeant Maurice McCabe through the Garda Press Office.
The element examining attempts to smear McCabe at the O’Higgins Commission — which is at the centre of the current political impasse — was to follow. Now that schedule has been flipped.
A statement from the tribunal on Friday noted: “The order in which the tribunal proposes to pursue that work is to commence with the O’Higgins Commission issue.”
Lawyers who have been assisting the tribunal were surprised at the change of schedule. That change was announced on the same day a political storm evolved into a full-blown crisis, following Fianna Fáil’s decision to vote no confidence in Frances Fitzgerald.
The statement also set out that the Oireachtas had noted that “a public inquiry is the most appropriate way to investigate” the matters of “public disquiet”.
During an interview on RTÉ’s Six-One news of Friday, the Taoiseach referenced the tribunal statement approvingly. The exact basis on which the chair of the tribunal, Judge Peter Charleton, decided to flip the schedule, and announce a commencement date for hearings, is unknown.
But whatever the basis, the tribunal and its urgency to investigate the matter of what happened at the O’Higgins commission has been constantly referenced by Government ministers since Friday.
What it means is that, should an election be avoided, the hearings commencing on January 8 will be under intense scrutiny. But even if there is an election, the hearings should demand the full attention of anybody interested in how a democracy functions.
So what is to be investigated?
O’Higgins was set up to examine McCabe’s complaints of malpractice in Cavan/Monaghan. The hearings behind closed doors commenced on May 14, 2015.
The following day, two separate historic meetings — which had nothing to do with the complaints of malpractice under investigation — were introduced to the commission. They both harked back to a complaint made by a daughter of a colleague of McCabe’s in 2006. McCabe had reported the colleague over a disciplinary matter. Ten months later, the daughter — known as Ms D — made a complaint that eight years previously, McCabe had abused her in some way.
The complaint was investigated and found to be lacking in any credibility.
The local State solicitor said that if the incident had even happened, it amounted to “horseplay”. The DPP’s office said there was no credible evidence that it had happened, and even if it had, it did not constitute a criminal offence.
Despite that, elements within the force had tried for years to use the allegation to discredit McCabe. Nobody had dared publicise it, as that would have attracted a huge libel action. But it was spread like manure in vicious rumours to attempt to portray McCabe as harbouring a grudge against the force.
At O’Higgins, two meetings were cited as evidence that McCabe bore a grudge over the affair, despite being completely cleared. The first concerned a meeting between McCabe and the retired chief superintendent for Cavan/Monaghan, Colm Rooney, in 2007.
Rooney claimed that McCabe was displeased at the meeting over the directions of the DPP on the allegation from Ms D.
Independent TD Mick Wallace introduced this meeting to the Dáil last week.
“Chief superintendent Colm Rooney said Maurice was angry and vicious and wanted the DPP to overturn the directions from the Ms D file, not realising that Maurice had already seen them, agreed with them, and wouldn’t be looking for them to be overturned,” Wallace told the House.
As Wallace pointed out, McCabe knew the directions at the time of that meeting and the directions couldn’t have been more favourable to him.
So why was he being portrayed as “angry and vicious” and wanting the directions changed?
The second meeting occurred in Mullingar in 2008. The commission was told there would be evidence that McCabe expressed a grudge at this meeting over the handling of the DPP directions. Then he produced a recording of the meeting, which proved no grudge had been expressed.
If McCabe had not had the resources to protect himself, a sworn inquiry would have operated on the basis that at two separate meetings, McCabe expressed anger or a grudge over the fall-out from the Ms D allegation.
That would have called his motives into question. It would have portrayed him as duplicitous and scheming. The complaints he made would have been examined in a different light, most likely diluting the significance of the malpractice.
Also, it would have introduced into the public domain the discredited allegation from 2006, allowing those opposed to him to wrap it in slime, smother the facts and falsely present him as somebody with questions to answer over an alleged grievous crime.
If the scenarios, as originally laid out by the legal strategy, had been seen through, it could have destroyed a man, particularly one who had been under intense pressure since first making his complaints in 2008.
The legal strategy pursuing this scenario was known to the then garda commissioner Nóirín O’Sullivan, the chief state solicitor’s office, Attorney General’s office, the Department of Justice, and most likely the minister for justice of the day, Frances Fitzgerald.
The tribunal must assess who knew what and when and how informed they were about the detail of what was going on.
Frances Fitzgerald’s dilemma back in May 2015 must be seen in the context of the range of forces of the State lined up against McCabe.
As the elected person in Government, should she have had the courage and curiosity to at least question why a citizen whom she had publicly praised was being targeted in this manner?
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