On Tuesday, former Garda commissioner Nóirín O’Sullivan faced her second day giving evidence at the Charleton tribunal.
The current module of the tribunal is tasked with establishing if O’Sullivan used “unjustified grounds” to try to discredit the Garda whistleblower Maurice McCabe.
This part of the tribunal focuses almost exclusively at what happened at the O’Higgins commission, an inquiry established in 2015 to investigate accusations by McCabe of serious malpractice and corruption in the Cavan-Monaghan Garda division.
The tribunal is examining whether the then commissioner instructed her lawyers to impugn the character of McCabe at the commission and whether this was an inappropriate strategy
What made today noteworthy?
It was O’Sullivan’s second day in the witness box and her first day being questioned by counsel for McCabe, Michael McDowell SC.
McDowell also acted for McCabe during the O’Higgins commission and was the person who demanded then to know if his client’s integrity was under attack.
McDowell had earlier indicated he would spend most of the day questioning O’Sullivan and that she would not enjoy the experience. He was right on both counts, although the former commissioner retained her calm for most of the session, only occasionally showing flashes of anger or annoyance.
Did O’Sullivan tell her lawyers to attack McCabe’s integrity?
O’Sullivan has spent the last two days strenuously denying she had any intention of going after the whistleblower’s integrity. She said when she took over as acting commissioner in March 2015 she “set the tone from the top” that whistleblowers would be supported, even if their allegations turned out to be wrong.
She said she took several steps to protect McCabe after he came forward, including appointing a superintendent of his choosing to liaise with him and ensure his welfare. She also met McCabe in 2014 and 2015.
However, she said she also had a duty to “test” his “motivation” in making the allegations. She called this an impossible dilemma- on one had she had to protect McCabe, on the other she had a duty to vindicate the rights of the gardaí he had accused of wrongdoing. This was especially so given that some of McCabe’s allegations were withdrawn or found not to be supported by the evidence, she said.
What’s the difference between going after McCabe’s motivation and going after his integrity?
In basic terms, questioning McCabe's integrity would mean accusing him of embellishing or fabricating allegations because he held a grudge against senior gardaí. In late 2006, McCabe was accused of sexually assaulting a colleague's child. The matter was referred to the Director of Public Prosecutions which ruled that no crime had been committed.
Despite this McCabe continued to be accused of the crime in public by relatives of the complainant. In an effort to address this, McCabe requested that the DPP’s decision not to prosecute be circulated to the parties involved. Senior gardaí in the Cavan-Monaghan division refused this request, stating it was against policy.
O’Sullivan’s lawyers in the O’Higgins commission intended to suggest that he was embittered by this and this caused him to embellish or fabricate certain corruption allegations.
O’Sullivan said she just wanted to question his motivation. She said it was “never about the man, but about the allegation he was making.” She said it was about challenging McCabe on how he came to conclude that the incidents he detailed in his accusations amounted to corruption.
What did McCabe’s counsel have to say about this?
On Tuesday McDowell repeatedly presented O’Sullivan with transcripts from the O’Higgins commission showing Garda lawyers stating they had instructions to challenge McCabe’s integrity. It was only in November 2015, five months after the start of the commission, that her lawyers “clarified” that they only wanted to test his motivation.
O’Sullivan refused to put the blame on her lawyers for misinterpreting or contravening her instructions. “They did what they were instructed by me to do, and followed through on their advices that they had conveyed to me,” she said.
However, confusingly, she also continued to maintain she had never given them such instructions. She said she was never even aware such a legal strategy was on the cards.
So where did the lawyers get their instructions?
That is not at all clear. We do know O’Sullivan’s solicitor at the commission, Annemarie Ryan, had urgently requested a meeting with the commissioner after the legal strategy was challenged on May 15th, 2015. No consultation occurred. O’Sullivan claims she would have made herself available for an urgent consultation but that she was never told one was required.
What’s next?
O’Sullivan will continue being questioned by McDowell on Wednesday morning. After that, barrister Shane Murphy SC, who is representing Garda HQ and O’Sullivan, will have a chance to ask her questions.
Lawyers for the Department of Justice will also likely have some questions for her.
