The plan to attack McCabe was sidelined due to his recording, but what could have happened, writes Michael Clifford

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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.

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THE transcripts published in this newspaper today show what transpired on Day Two and Day Three of the O’Higgins Inquiry in relation to the claim that Garda Commissioner Nóirín O’Sullivan instructed her counsel that Sergeant Maurice McCabe acted with “malice”.

Last night, RTÉ reported that, at a much later stage, counsel for the commissioner, Colm Smyth SC, made a clarification on his earlier comments.

That included the correct assertion that Mr Smyth had never used the word “malice”. This, as shown by the earlier transcripts, is correct. The word was used by Judge O’Higgins in attempting to clarify what was being alleged.

According to last night’s report the later transcript also shows that Mr Smyth said he had made an error in asserting his instructions were to attack McCabe’s integrity. He confirmed that he was instructed to “challenge motivation and credibility”.

One might well ask how exactly McCabe’s motivation could be challenged without attacking his integrity.

Notwithstanding Mr Smyth’s later assertion, there was no slip of the tongue in the earlier proceedings. Repeatedly Judge O’Higgins asked and sought clarification on whether McCabe would be attacked.

“The integrity?” O’Higgins asked.

“His motivation and his credibility in mounting these allegations,” Mr Smyth responded.

And on another occasion: “My instructions are to challenge the integrity certainly of Sergeant McCabe and his motivation.”

And again: “His motivation and his credibility in mounting these allegations of corruption and malpractice,” Mr Smyth said.

Later, Judge O’Higgins asked: “In other words, that he made these allegations not in good faith but because he was motivated by malice or some such motive and that impinges on his credibility. If those are your instructions from the commissioner, so be it.

Mr Smyth replied: “So be it that is the position, judge.” Crucially, Mr Smyth went on to say: “Yes, as the evidence will demonstrate, judge.”

There is no reason to doubt Mr Smyth’s later assertion that he made an error in interpreting his instructions. He acted honourably to make that clarification.

But something else did change in the days after this earlier exchange.

The evidence changed. The evidence that was to go to attacking McCabe’s motivation was a meeting he held with two officers in Mullingar in 2008 at which he was alleged to have expressed “malice” towards a senior officer as the motivation for pursuing his complaints.

That was blown out of the water when McCabe produced a transcript of the meeting in question. It related a cordial meeting where no such malice — or bad faith — was expressed.

There was no further attempt to use that meeting as a means to attack McCabe’s motivation. Whether the later exchange was informed by this fact is a matter for conjecture.

Whether or not the word “malice” was used is not the central point. The central point is that the commission was informed that the meeting in question would go towards attacking McCabe’s motivation and then when the tape recording appeared, that line of attack was abandoned.

One wonders what fate would have befallen McCabe if he hadn’t recorded that meeting. His motivation — and by extension his integrity — would have been undermined. The report may well have had a very different outcome.

There would, in all likelihood, never have been any argument subsequently over whether the word “malice” was used. Neither would it have been necessary for Mr Smyth to clarify his earlier submission.

It is entirely possible that Commissioner O’Sullivan was misinformed about the contents of the disputed meeting. If so, she was placed in an invidious position.

Such a scenario would have left her attacking Sergeant McCabe, whom she had publicly lauded and promoted. It would have also left her unintentionally presenting a case to the commission which was based on a falsehood.

She may well have asked the officers in question why this issue was only apparently surfacing for the first time at the commission, some seven years after the meeting took place.

Yet, if that were so, there is no record of her taking any action against the two officers who would have put her in that position. The Irish Examiner understands she has had no contact with Sergeant McCabe since the above events at the commission. She certainly hasn’t lifted the phone to apologise or explain to him what exactly happened.

Last night, on RTÉ it was also stated that, in the later transcript, Mr Smyth clarified that his instructions to attack Sergeant McCabe’s motivation was only in relation to the sergeant’s claims of corruption against five senior officers.

 According to transcripts, the Commissioner’s lawyer said he wasacting on her instruction on ‘malice’ claims. Picture: Eamonn Farrell
According to transcripts, the Commissioner’s lawyer said he was

acting on her instruction on ‘malice’ claims. Picture: Eamonn Farrell

This is not clear in the earlier transcript where he specifically stated that his instructions were to attack McCabe’s “motivation and his credibility in mounting these allegations of corruption and malpractice.”

Notwithstanding that, the counsel did act in good faith and honourably throughout.Equally, the later transcript does to some extent explain why Judge O’Higgins did not include in his report the earlier attempt to attack Sgt McCabe’s motivation.

However, the question remains as to what would have happened if Sergeant McCabe had not produced a tape recording of the meeting.

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