The Charleton tribunal’s inquiry into whether an unfair effort to discredit Sgt Maurice McCabe was made at the private hearings of the O’Higgins Commission in 2015 has inevitably brought into focus the motives behind McCabe’s series of complaints about fellow gardaí.
These complaints started in 2007 and by the time the commission sat in 2015 they had sparked a controversy that was convulsing not just An Garda Síochána but the political system also.
Just last November the Government almost fell in a dispute as to whether the then minister for justice Frances Fitzgerald knew about the legal strategy being pursued by the then commissioner Nóirín O’Sullivan at the commission hearing.
The tribunal is examining a number of matters most of which have a focus on whether an attempt was made by senior Garda management to smear the whistleblower, who was causing so much controversy, during the O’Higgins Commission.
In its current sittings, the Disclosures Tribunal, which is also known as the Charleton tribunal, is examining whether “false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe at the Commission of Investigation into Certain Matters in the Cavan/Monaghan district under the Chairmanship of Mr Justice Kevin O’Higgins”.
The chairman Mr Justice Peter Charleton has already observed that there is no evidence that it was ever intended to accuse McCabe of sex abuse at the commission hearings. However it is clear from the evidence that Garda HQ did want to raise matters relating to the sex abuse charge. The issue, therefore, appears to be whether this was appropriate in the circumstances.
McCabe had been accused in late 2006 by the daughter of a Garda colleague of sexual abuse some years earlier, when she was a minor. The matter was investigated by Supt Noel Cunningham and the Director of Public Prosecutions agreed with his view that no charges were warranted.
DPP policy
McCabe later learned that the DPP had expressed the view that the disputed claims, even if true, would not have constituted a crime. He wanted this finding released to the family of his accuser, Ms D. However Garda officers refused this request, saying it was contrary to DPP policy. McCabe was aggrieved. There is no dispute over these matters.
Around this time McCabe, who was the station sergeant at Bailieboro, made a series of complaints about low standards of policing in the Cavan/Monaghan Division and these were investigated by Assistant Commissioner Derek Byrne and Chief Superintendent Terry McGinn. They agreed with some of the complaints, and not with others.
McCabe also made complaints about matters to do with the Pulse system. He also alleged that he was the subject of victimisation and bullying. He also made complaints against Supt Cunningham, Chief Supt Michael Clancy and Chief Supt Colm Rooney. He made a complaint against Assistant Commissioner Byrne. He eventually made a complaint against then commissioner Martin Callinan saying he should not have allowed Clancy be put on a promotions list, given the matters McCabe had alleged against him.
When the O’Higgins Commission was established, the legal team led by Colm Smyth SC represented the then commissioner and some officers above the rank of superintendent. It was representing senior officers against whom McCabe had made very serious allegations and who believed McCabe’s complaints were “triggered” by what had happened in relation to Ms D and the non-release of the DPP’s findings.
After being briefed by, among others, Rooney and Clancy, both of whom were involved with the non-release of the DPP’s findings on the Ms D sex abuse claim, Smyth and his legal team came to the view that they would have to challenge McCabe’s motivation and credibility.
O’Sullivan evidence
The evidence to date is that O’Sullivan was asked to give the go ahead for this, and did so by way of a telephone conversation, after the commission hearings had already begun. In general, the impression created by the evidence so far is that O’Sullivan was distant from what was happening at the commission hearings, and was inclined to follow her legal team’s advice.
Michael McDowell SC, who acts for McCabe at the tribunal and acted for him at the commission hearings, argued strongly at the commission that there was no basis for attacking his client’s motivation as there was no dispute over fact involving the evidence to be given by McCabe.
According to him, the main focus of the commission was the complaints about operational matters in Cavan/Monaghan in 2007, most of them investigations with which McCabe had no involvement. Therefore, it was unfair to try attack McCabe.
Either the complaints about standards of policing were correct or incorrect. McCabe’s motives for making the complaints were not relevant to that question.
At the tribunal, Shane Murphy SC, for the acting Garda Commissioner Dónall Ó Cualáin, said that the legal team at the commission had to raise the matter of McCabe’s motivation, as he was the “accuser” in relation to all the matters being investigated.
There was a “pyramid” of complaints from McCabe over the years, starting out with the operational matters in Cavan/Monaghan, and ending up with the complaint against then Commissioner Callinan, Murphy said.
The commission had a role, he argued, in considering serious complaints made against five senior officers, including former Commissioner Callinan, and this was supported by the fact that Mr Justice O’Higgins, in his report, said that these accusations were unfounded. This ruling, he argued, came about because McCabe’s complaints had been tested. Questioning McCabe’s motivation was reasonable and legitimate.
In response McDowell quoted Mr Justice O’Higgins from his report where he said: “Some people, wrongly and unfairly, cast aspersions on Sergeant McCabe’s motives; others were ambivalent about them. Sergeant McCabe acted out of genuine and legitimate concerns, and the commission unreservedly accepts his bona fides. Sergeant McCabe has shown courage, and performed a genuine public service at considerable personal cost.”
McDowell wanted to know if the acting Garda Commissioner is no longer accepting the commission’s finding, something which Ms O’Sullivan said she did in full did back in 2016 when the report was published.
At the commission hearings Mr Justice O’Higgins ruled that while it could be put to witnesses that McCabe had a “grievance” against the Garda arising from matters unconnected to the policing matters that were being inquired into, counsel and witnesses were not to go into the detail about the Ms D allegation and the dispute over the release of the DPP’s findings. McCabe rejected the suggestion he had a grievance.
The tribunal’s inquiry into the legal strategy used at the commission hearings is complicated by a document submitted by O’Sullivan’s legal team during the commission hearings to justify attacking McCabe. This contained a false allegation which the Garda legal team later blamed on an editing mistake.
False accusation
In the document it was stated that McCabe had admitted that he made a complaint against Chief Supt Clancy to “force” him to release the DPP’s finding in the D case. This accusation of a complaint made in bad faith was put to McCabe at the commission hearings by Smyth, when attacking McCabe’s credibility. McCabe rejected the charge as absolutely false.
The charge was shown to be untrue during the commission hearings. The issue to light after McCabe revealed he had taped the meeting with Noel Cunningham at which the alleged admission was supposedly made. However the tape accorded with the report that Cunningham had drafted at the time of the meeting, which occurred in 2008, years before the commission was established.
Cunningham’s report had been given to the commission at the same time as the document where the untrue allegation against McCabe was recorded. Therefore, according to the solicitor who acted for O’Sullivan’s legal team, Annmarie Ryan, the mistake would have been discovered when the 2008 report came to be considered.
It appears the word “against” was inserted in the document rather than the word “to”, by mistake. The effect of this was to change a factual record stating that at one stage McCabe had made a report to Clancy supporting his argument that the DPP decision should be released, to an untrue statement that he had submitted a document “against” Clancy in an effort to secure the release of the DPP’s finding.
The incorrect allegation against McCabe was shown to a number of parties, including Cunningham, who failed to spot the error before the document was given to the commission. He has told the tribunal that he failed to spot the error when he reviewed the document on email on his phone. There is no dispute over the fact that the run up to and early stages of the commission hearings was pressurised and intense for Ms O’Sullivan’s legal team.
It remains a matter for Mr Justice Charleton to express a view on how he thinks the incorrect allegation was introduced to the commission’s proceedings.
There is nothing whatsoever to date to show any involvement by O’Sullivan with the document, and it is on her that the terms of reference in relation to the legal strategy used at the commission hearings are focused.
She is due to give evidence on Monday.
