We are no wiser today as to Garda Commissioner Nóirín O’Sullivan’s position on Maurice McCabe, but it’s enough to know she shared counsel with accused, says Michael Clifford
MOVE along, move along once more, there is nothing to see here. Garda Commissioner Noirin O’Sullivan moved, yesterday, to alleviate public disquiet over how she regarded, behind the closed doors of the O’Higgins Commission, whistleblower Maurice McCabe.
In public, she lauded Sgt McCabe for highlighting malpractice in the force. In the commission, she appeared to have instructed her counsel to attack the sergeant’s character, his motivation, and his credibility. Yesterday, she drew a line in the sand.
She most certainly didn’t address the key question in this business. Her position on Sgt McCabe is no clearer than it was nine days ago, when she first released a statement, or than it was the preceding Friday, when the Irish Examiner published the story of what went on. But her statement is probably enough to get her over the line with Fianna Fáil, the party that ultimately will decide her future.
There is a long tradition in Irish politics of dealing with controversies in An Garda Síochána in a manner that is most expedient. This time, expect the same, especially as Ms O’Sullivan is generally well-regarded in political circles.
The bigger issue — what treatment whistleblowers can expect in the force today — will be quietly pushed aside, until the next scandal surfaces.
In yesterday’s statement, the commissioner again hides behind legal privilege, in failing to address what exact instructions she gave her counsel with regard to dealing with Sgt McCabe as a witness.
She does say: “I can confirm that An Garda Síochána’s legal team was not, at any stage, instructed to impugn the integrity of Sergeant Maurice McCabe, or to make a case that he was acting maliciously”. Yet, as transcripts published in the Irish Examiner, and elsewhere, illustrated, this is in conflict with what the counsel, Colm Smyth, told Judge O’Higgins at the outset of the commission, in May last year. Repeatedly, Mr Smyth was asked whether he would be attacking McCabe’s character and motivation. Each time, he confirmed it.
— Irish Examiner (@irishexaminer) May 25, 2016
Mr Smyth said evidence would be presented to attack McCabe’s character. That evidence was an alleged admission by him, at a 2008 meeting, that he was motivated by a grudge against a senior officer.
Two days later, McCabe produced a recording of that meeting. There was no such admission. The matter was allowed to fade away.
Six months later, just before Ms O’Sullivan gave her evidence, Mr Smyth told the commission that he had made an error. His instructions were to attack Sgt McCabe’s “motivation and credibility”, but not his “integrity”. In light of the transcript of repeated confirmations, six months earlier, that was some error.
Yesterday’s statement rowed back further. Now, Ms O’Sullivan sees her instructions as having been to “appropriately test and cross-examine the evidence of all persons giving evidence to the commission, including Sergeant McCabe”. There is nothing about his motivation there. Neither is there acknowledgement that the inquiry is supposed to be inquisitorial, rather than adversarial.
Not only that, she suggests that this cross-examining of all persons is her “duty to all its (AGS) members and former members” in light of the allegations. Yet, who was cross-examined, apart from McCabe?
Most of those who were at the centre of the allegations were represented by the same counsel as the commissioner. She simply could not cross-examine them. If she was inclined to be even-handed with McCabe and those he accused of malpractice, how could she share representation with the latter?
As things were set up, it wasn’t the claims of one sergeant against some members of the force. It was Sgt McCabe against the force in total, from the commissioner down. This, in an era when the commissioner repeats her mantra that “dissent is not the same as disloyalty”.
What of the two officers who were apparently going to give evidence of that 2008 meeting in Mullingar? Since last May, the commissioner has been aware that the evidence, which the commission was told would be proffered, was false.
She did nothing about what must be a suspected attempt by two of her officers to bury the reputation of another officer whom she had publicly lauded. Yesterday, the commissioner referred to this matter in her statement.
“There has been a suggestion, in recent reportage, that two senior officers had sought to misrepresent, before the commission, the contents of a meeting they held with a sergeant in Mullingar in 2008.” Ms O’Sullivan must be aware that only one of the two officers referenced could be considered “senior”. The second officer was a sergeant. So why did she refer to that matter in this erroneous fashion? Was it to disparage the claim, or distance herself from it totally, even though she was represented by the same counsel as one of the officers in question?
She went on to state that, “in order to resolve any public disquiet, misplaced or otherwise, which may arise, and in the interest of fairness to all involved, I have requested the Minister for Justice, pursuant to her powers within the Garda Síochána Act, to refer that aspect to the Garda Síochána Ombudsman Commission”.
Expect a result from that quarter round about 2025. The manner in which this matter is to be investigated is at great variance with how, last year, a superintendent was suspended, arrested, and questioned over an alleged leaking of information to the media. Leaking, it would appear, is a greater crime than alleged misleading of a sworn inquiry in order to assassinate the character of a garda sergeant.
The commissioner also announced that she has appointed deputy commissioner John Twomey to examine the O’Higgins report and address any arising issues.
Here’s one issue the senior officer might address. In five instances in the report, Judge O’Higgins detailed attempts by fellow officers to blame McCabe for the malpractice he himself highlighted. Each time, the judge “preferred” McCabe’s evidence. He found McCabe to be never less than truthful as a witness. What about those officers whose evidence the judge rejected? Will deputy commissioner Twomey examine whether they were motivated to attempt to blacken McCabe because of his whistleblowing? Would such activity be rooted out by management that does not consider dissent to be disloyalty? Don’t hold your breath.
Anyway, as the main political parties will no doubt decide, it’s time to move on. The welfare of garda officers who want to do their job fully, by pointing out wrongs, is not the concern of this Dáil. Let’s leave that one to the future. Let’s leave it for the next scandal, the next victim of crime ill-served, the inevitable next time.
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