O’Higgins row: Little between questioning integrity and ‘credibility’

A number of senior practising barristers have said they see little difference between questioning someone’s integrity and questioning their “credibility and motivation”.

The distinction between the two terms is implicit in Wednesday’s statement from Garda Commissioner Nóirín O’Sullivan in relation to the O’Higgins commission.

While most said integrity and credibility were similar notions, one source did not agree.

This source also said that it was, in his view, correct and necessary that the main witness before the commission, Sgt Maurice McCabe, should have had his credibility and motivation tested. “Otherwise there is no point in having the commission.”

There was an important difference between scepticism and cynicism, with the former being normal in courts and tribunals, the barrister said. “You are not starting out with the conclusion that the witness lacks integrity, but it is necessary that it is tested.”

This source also said it should not be the case that the issues of credibility and integrity were treated as being synonymous. Integrity raised issues about a person’s character that questions of credibility did not.

However, other barristers did not agree. One said he would not question someone’s credibility and motivation unless he had express instructions from his client to do so.

Being told to question someone’s credibility and motivation was definitely “upping the ante”, and constituted a “carte blanche to be pretty bloody aggressive”.

This source did not see much distinction between questioning someone’s integrity and their “credibility and motivation”.

Another said that “if you are questioning motivation, you are questioning the basis for making the allegation, and that goes straight to integrity”. In reality, there was no distinction, especially in the circumstances of the commission.

Another barrister said a witness could be challenged that he or she was wrong, without it being suggested that they were contriving to be wrong. There was a very significant difference between the two. If going down the line of questioning a witness’s motivation, the client would be consulted for specific instructions, the barrister said.

Another remarked that he was not sure if there was a very clear distinction between questioning a person’s integrity and questioning their “credibility and motivation”.

If it was going to be put to a witness that he or she was lying rather than giving evidence that was mistaken then that would “very probably” be cleared with the client, the source said.

A number of the barristers contacted said that in their view the instructions as to how to approach the examination of Sgt McCabe probably did not come directly from the Garda Commissioner.

It was most likely, one said, that there was a senior officer acting as a liaison, while another said the instructions were probably coming from the Chief State Solicitor’s office.

In her statement, Ms O’Sullivan reiterated that she did not instruct her lawyers to impugn Sgt McCabe’s integrity, or to accuse him of malice.

However, on the question of “motivation and credibility”, the Garda Commissioner said: “Having regard to the nature and seriousness of the allegations, and the duty to assist the Commission in its task of establishing the facts and truth, I cannot see how it would be in any way unreasonable, improper or avoidable to appropriately test and cross-examine the evidence of all persons giving evidence to the Commission, including Sergeant McCabe.”