Smearing of McCabe could have involved criminal offences

The way in which a wrongful child abuse allegation against Sgt Maurice McCabe was spread could have involved criminal offences, legal experts say.

It has been alleged that Sgt McCabe was subjected to an organised smear campaign, but there is no offence of criminal defamation in this jurisdiction and the campaign, if it occurred, is not in itself a crime.

However, there are other possible criminal offences that might be relevant to the McCabe case. Perverting the course of justice, a matter treated seriously in the courts, is a common law offence (ie not statute-based) and includes the offence of knowingly making a false report that could lead to a criminal investigation.

Four years ago the former UK cabinet minister Chris Huhne and his ex-wife Vicky Pryce were each jailed for eight months for perverting the course of justice after Huhne admitted asking Pryce to take his speeding points to avoid losing his licence. Pryce was convicted for having agreed to do so.

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The judge e said the point-swapping was “all too easy to do” but it amounted to the serious criminal offence of perverting the course of justice.

In 2009, Rebecca McLoughlin, then 26 and of Sea View Park, Sligo, was sentenced to three years for perverting the course of justice after she pleaded guilty to lying to gardaí about events surrounding a car crash in which her friend died.

She had maintained initially that her friend was driving the car when in fact she was the one behind the wheel at the time of the fatal crash. She admitted the truth four years later.

False report

In terms of statute law, section 12 of the Criminal Justice Act 1976 makes it an offence to knowingly make a false report or statement tending to show that an offence has been committed.

A legal expert, who did not wish to be named, said the offence could apply to a person who “put it about” that a criminal allegation had been made against someone, if the person concerned knew at the time that the allegation was untrue. The offence carries a penalty of up to five years in jail.

There is an offence in Irish law of conspiring with others to bring about the commission of a serious offence, irrespective of whether the offence is actually committed. If two or more people conspired together to bring about a criminal act, they would be guilty of conspiracy as well as the other crime.

It is an offence under the Garda Síochána Act 2005 for a member of the force to “publish” information that could cause harm and which “constitutes an unwarranted and serious infringement of a person’s right to privacy”. Publish is understood to mean disclose in other than a confidential way. The offence can be punished with up to five years in jail.

Alleged leaking

The investigation into former head of the Garda press office Supt

David Taylor

, who has been told he will not be prosecuted over the alleged leaking of information, was concerned with this aspect of the 2005 Act.

The Act allows for the disclosure of information to certain named parties including TDs and senators when relevant to the proper discharge of their functions, or if the disclosure is authorised by the Garda Commissioner. However, these qualifications would only apply to disclosures made during the proper discharge of a garda’s duties.

The series of events affecting Sgt McCabe, as alleged or reported, could also involve lesser offences under the Official Secrets Act, or data protection legislation, legal experts said.