Senior civil servants at the Department of Justice are expected to be called to give evidence to the Charleton tribunal over the Department’s failure to disclose relevant emails concerning Sgt Maurice McCabe.
The tribunal has now received the emails which show former tánaiste and minister for justice Frances Fitzgerald knew about a legal strategy by An Garda Síochána to discredit Sgt McCabe after he made accusations of garda misconduct in the Cavan/Monaghan Division.
Following the events of recent days, chairman Mr Justice Peter Charleton is now likely to widen the inquiry’s remit to include why Department of Justice officials failed to hand over all relevant emails when ordered to do so earlier this year, senior tribunal lawyers say.
Last February the judge said any “phone, computer, electronic records or paper records, relevant to the terms of reference”, must be handed over by March 13th.
At the time the department conducted a trawl of its archives and handed over 230 documents it believed relevant to the investigation.
On Monday, it disclosed that another “trawl” which took place over the weekend had turned up three additional emails, mentioning Sgt McCabe, which were not part of the initial tranche handed over to the tribunal.
Political crisis
Last week lawyers for the tribunal wrote to the Department seeking statements concerning an email dated May 15th, 2015 – which had just emerged and started a political crisis – outlined the legal strategy being taken against Sgt McCabe.
Now, with the emergence of several more undisclosed documents, the Tribunal may require up to 20 Department officials to provide their version of events, it is understood.
Last week Mr Justice Charleton moved up the module dealing with the McCabe legal strategy to early January, a sign to some observers of how seriously he is taking the disclosure failure.
It is up to the judge to decide if the officials must give evidence at the tribunal or if written statements will suffice.
Last night the Department of Justice failed to respond to a list of questions from The Irish Times relating to why the emails were not handed over earlier in the year.
Senior legal sources say Mr Justice Charleton is likely to take a dim view of department explanations that the emails were simply missed in the initial trawl.
He has made it clear he will not tolerate any attempt to mislead or delay the tribunal, a position that has been taken seriously by participants to date.
“He always has one eye on the mess of previous tribunals and how long they dragged out and the lies they heard. Woe betide anyone who tries to put on a repeat performance,” one tribunal barrister said.
‘Mainly tough’
The Supreme Court judge is regarded as “tough but fair, but mainly tough”, said a solicitor. Another compared him to Robert Mueller, the special counsel investigating Russian attempts to influence the US election. “He even looks a bit like him.”
Several lawyers describe a “take-no-prisoners” approach by the judge. For example, unlike in previous inquiries, witnesses giving evidence in private session are not allowed to read each other’s statements. Instead they are questioned separately and their answers compared later.
The consequences for any failure to disclose relevant documents could be severe. Failing to fulfil a discovery order is a serious matter which could result in a finding of contempt if it is found the tribunal was misled.
It will also be open to Mr Justice Charleton to state in any interim or final report that the department did not fully co-operate with the inquiry it helped to set up.
“Quite where that leads is not clear,” a solicitor said. “He can refuse to give them their legal costs but since their legal costs are paid by the exchequer it’s the bloody taxpayer who loses. It would be like robbing Peter to pay Paul.”
