Details of legal exchanges at O’Higgins commission emerge

Further details surrounding legal exchanges at the O’Higgins commission between representatives for Garda Commissioner Nóirín O’Sullivan and for garda whistleblower Sgt Maurice McCabe have emerged.

Documents quoted by RTÉ on Tuesday night claimed the commissioner's barrister had corrected an error made on his part regarding his client's intention to focus on Sgt McCabe's integrity during the commission of investigation.

Controversy emerged over a report in the Irish Examiner last week that Ms O'Sullivan's barrister, responding to a question by Mr Justice Kevin O'Higgins, had intended to attack the motivation and character of Sgt McCabe.

A statement from the commissioner on Monday night moved to dismiss the reports, saying she wished to “make it clear that I do not, and have never, regarded Sgt McCabe as malicious”.

On Tuesday night, RTÉ reported details of an exchange between Ms O'Sullivan's senior counsel Colm Smyth SC and Mr O'Higgins.

The documents reportedly showed that early in the hearings Mr Smyth had said his “instructions from the commissioner” were “to challenge the integrity . . . of Sgt McCabe”.

However, on the morning Ms O’Sullivan was to give her evidence, Mr Justice O’Higgins sought further clarification and Mr Smyth informed him his “instructions at all times were to challenge the motivation and credibility of Sgt McCabe”.

He said “it was an error on my part” when he had earlier stated he was to challenge Sgt McCabe’s “integrity”.

The challenge to Mr McCabe’s motivation and credibility related specifically to allegations of corruption he had made regarding senior officers, allegations which were ultimately rejected.

Mr Smyth also told the judge, according to RTÉ, that the commissioner had never said Sgt McCabe was motivated by malice and that he had never used that language.

"I never used the words mala fides. Those were the words that in the first instance came from Mr [Michael] McDowell [Mr McCabe's legal representative] and they were introduced by yourself in interpreting what my instructions were," the quoted documents said.

At the time of the hearing in autumn 2014, Ms O’Sullivan had made supportive comments about Sgt McCabe in public and asked him to join a Garda professional standards unit audit investigating some of his allegations about the termination of penalty points.

She said in general terms the Garda had changed for the better because of Sgt McCabe’s complaints. “Dissent was not the same as disloyalty,” she said.

Mr Justice O’Higgins investigated allegations of inaction and corruption made against some gardaí in the Cavan-Monaghan division and senior officers leading the force at the time.

It found no evidence of garda criminality or corruption but strongly criticised the manner in which certain investigations were carried out.