How can the Garda boss, with any degree of credibility, ask her officers to come forward when they see wrongdoing after the way Sgt McCabe was treated behind the closed doors of a commission of inquiry, writes Michael Clifford
This article was subject to the publication of the following apology ...
APOLOGY - SUPERINTENDENT NOEL CUNNINGHAM
In the Irish Examiner on 13, 17, 18 and 26 May 2016 we carried a number of articles referring to the O’Higgins commission and the actions or intended evidence of certain Garda Officers. In the course of these articles a reference was made to two Garda officers who attended a meeting in Mullingar with Sergeant Maurice McCabe.
One of the Garda officers who attended that meeting was superintendent Noel Cunningham. Insofar as there was any suggestion that, had it not been for Sergeant McCabe’s recording of the meeting in question, the two Garda Officers intended to give a false account of the said meeting, we unreservedly withdraw any such suggestion and accept that the report prepared by Superintendent Noel Cunningham of the meeting, was in accordance with the recording which subsequently came to light.
We acknowledge that Superintendent Cunningham is a person of the highest personal and professional integrity. We unreservedly apologise for the damage, hurt and distress which the articles in question caused to Superintendent Cunningham.
Last night’s statement from Commissioner Nóirín O’Sullivan falls short of a full response.
The commissioner issued a statement following concerns in the wake of the Irish Examiner story last Friday that her legal team at the O’Higgins Commission had alleged that Maurice McCabe was motivated by malice.
The allegation was conveyed to Kevin O’Higgins last May at the outset of the commission’s hearings. It was alleged that there would be evidence of malice from two officers who attended a meeting in Mullingar with Sgt McCabe in which he expressed malice.
When asked by Mr O’Higgins if he intended attacking Sgt McCabe’s motivation and character, Commissioner O’Sullivan’s lawyer replied, “right the way through”.
Sgt McCabe’s counsel Michael McDowell objected in the strongest terms.
“Attacking one of our own members of our force who is in uniform and on oath when in circumstances where in public she promoted him to a professional standards unit and in public she has indicated that she accepts that he was acting in good faith et cetera, et cetera, and in private she sends in a legal team to excoriate him.”
The attempt to blacken Sgt McCabe’s character was abandoned when he produced a tape recording of the meeting in question in which he expressed no malice whatsoever.
In his report, O’Higgins accepted totally Sgt McCabe’s bona fides and went on to say that the sergeant was due “not just the gratitude of the general public but of An Garda Síochána”.
was abandoned when he produced a tape recording of the meeting
where he expressed no malice whatsoever. Pictures: Collins
Yet this is much bigger than the apparently appalling treatment of one officer.
McDowell’s above submission encapsulates the commissioner’s current dilemma.
How can she, with any credibility, now ask any of her officers to speak out when they see something wrong if this is how one of them was treated for doing so behind the closed doors of a commission of inquiry? Without an explanation for why she acted as she did behind those closed doors of the commission she has no moral authority to ask any garda to ever stick his or her head above the parapet to expose wrongdoing.
Commissioner O’Sullivan’s statement last night did not fully address the issues now in the public domain. She said that, while precluded from commenting on the O’Higgins commission, “Like every member of An Garda Síochána, Sergeant Maurice McCabe’s contribution is valued and the service has changed for the better in response to the issues about which he complained. I want to make it clear that I do not — and have never, regarded Sgt McCabe as malicious.” That, however, does not explain what transpired at the commission last May. Despite her comments of being precluded by law, that position was challenged yesterday by the Labour Party’s Joan Burton who pointed out that the law in question prohibits revealing any “evidence given by a witness in private to a commission of investigation”. The submission by the commissioner’s lawyer was not evidence and therefore is not covered by the law in question.
The Morris Tribunal into garda malpractice in Donegal recognised the importance of whistleblowers within the force. Morris found that much of the malpractice and criminality that gripped small elements of the force in Donegal could have been avoided if somebody had listened and acted on the initial concerns of a rank-and-file garda.
This was subsequently recognised in the establishment of the confidential recipient system which opened up an avenue for gardaí to express their concerns outside the force. The system was exposed as having major flaws in how it dealt with Sgt McCabe, but it was an attempt to facilitate whistleblowers.
Wherefore now for the garda who sees something wrong? He or she will have noted how Sgt McCabe was treated. He or she will see that the price of standing up for what is right could mean not just the suspicion of colleagues, but implicit condemnation from on high.
Commissioner O’Sullivan has expressed the view that whistleblowers in the future will be listened to by management. Can such a view carry any weight in light of the revelations of what Sgt McCabe was subjected to at O’Higgins? Are regular officers to take the high moral stance as a nod and wink to appease those outside the force, in politics and among the citizens, while the old value system of circling wagons persists?
The commissioner has said she is statute barred from commenting on anything that transpired at the inquiry.
There is nothing to stop the commissioner clarifying her position on Sgt McCabe, which she did in her statement last night, but also on whether or not she had been misinformed about events that might have led her to form such an opinion.
She could also indicate whether any officer is being subjected to disciplinary action if she was misinformed about what transpired at that meeting in Mullingar referenced at the commission. After all, the commission was told that sworn evidence would be heard to the effect that Sgt McCabe had expressed malice.
She might also explain why she was, at the very least, so willing to go along with an attempt to impugn the character of Sgt McCabe in light of her public pronouncements about him.
Anything less than a full explanation will call into question the commissioner’s ability to continue to lead the force with moral authority. Anything less than a demand from the Government of an explanation will indicate a willingness to turn a blind eye to a major shortcoming in the force.
Questions also arise for Mr O’Higgins. Why did he make no reference to this attempt to impugn Sgt McCabe’s character?
There were at least five instances in the report where there were attempts to lay the blame at McCabe’s door for malpractice. In each case O’Higgins accepted McCabe’s version of events and rejected the alternative. Yet he drew no conclusion from this pattern.
We now know that there was also a specific attempt from the top of garda management to impugn McCabe, yet the combined evidence of that along with the pattern in individual cases didn’t prompt O’Higgins to draw any glaring conclusions.
What if McCabe had no record of the meeting in question? Would the evidence of the other two officers have been accepted, and fed into the final report? It would have been a very different report if so.
There is no mechanism for questioning O’Higgins, but the whole episode has left a shadow over the inquiry.
The garda commissioner is in a different position. She has issued a statement which has left most of the questions still hanging in the air.
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