There's a scene in William Shakespeare's A Midsummer Night's Dream where Quince, in reference to a play within the play, says: "We must have a wall in the great chamber . . . for Pyramus and Thisbe . . . did talk through a chink in the wall . . ."
There was a feeling of a probe within a probe at the Charleton tribunal on Tuesday, when the Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters following Resolutions, to give it its formal title, was examining the goings-on at the O’Higgins Commission of Investigation [into] (Certain matters relative to the Cavan/Monaghan Division of An Garda Síochána), to give it its formal title.
In the process, Michael McDowell, senior counsel at the tribunal for Sgt Maurice McCabe, quoted at length what Michael McDowell, senior counsel for Sgt McCabe at the commission, said at that inquiry.
“This is me talking now,” Mr McDowell said at one point, just to make sure that former Garda commissioner Nóirín O’Sullivan was up to speed, as he read her a long screed of what he had said to Mr Justice Kevin O’Higgins, way back when.
Again and again, Mr McDowell returned to the forensic process of probing Ms O’Sullivan’s instructions to her legal team at the commission.
Did she not okay the lawyers to attack Sgt McCabe’s integrity and argue that he was motivated by malice? If not, were they then disobeying her?
No, insisted the former commissioner, with equal tenacity. Her instructions were to challenge Sgt McCabe and examine what it was that, in all the shortcomings he had highlighted, cumulatively amounted to corruption.
A man in the audience piped up. Was there not an audio record of what was said at O’Higgins and could this not be checked?
Mr Justice Peter Charleton looked down and listened.
“I don’t mean to be rude,” he said gently, “but you are not entitled to ask questions. But to answer, we have access to all audio recordings.”
Prospect loomed
Suddenly, the prospect loomed that we might have to start listening to O'Higgins all over again. "But," said the man (who turned out to be Conor Dowling, chief editor and chief executive of CK Press media, an online venture), "but . . ."
“I’m going to rise,” said Mr Justice Charleton, rising faster than an Apollo rocket, adjourning proceedings for 10 minutes to allow tribunal staff have a little chat with Mr Dowling.
Earlier, Ms O’Sullivan spoke in a calm, assured voice as she answered Kathleen Leader BL, a counsel for the tribunal.
Journalist Michael Clifford's report in the Irish Examiner in May 2016, to the effect that her instructions to her legal team at the O'Higgins commission were to question Sgt McCabe's integrity and accuse him of acting out of malice in making accusations against the Garda, unleashed a storm – a "vortex" of "moving sands", said Ms O'Sullivan.
The resultant media and Leinster House storm saw her position become politicised, “in a way that was unacceptable to me”.
Only once in her direct evidence did her voice seem to falter. That was when she lamented the “deliberate and selective leaks [that] were designed to do maximum damage to my position and my reputation”.
An appearance by then tánaiste and minister for justice Frances Fitzgerald on RTÉ's Prime Time in which she pointedly did not, when asked, express confidence in the commissioner, prompted a revealing episode between the ex-commissioner and the department.
It involved Ms O’Sullivan seeking a statement of confidence from the minister, and the department responding by drafting what was in effect a report by the commissioner to the minister.
‘Last chance saloon’
Numerous officials in the department, in Ms O'Sullivan's office and also the PR consultant Terry Prone became involved in writing and editing drafts. They were passed between players, with the subject line of one email version stating "last chance saloon".
The episode was critical for Ms O’Sullivan. “I was completely isolated,” she said. If her minister did not have confidence in her, “then that took me to a place . . .” her voice trailed off.
Mr McDowell’s cross-examination involved an early spat with the chairman.
As Mr McDowell read from transcripts of the O’Higgins commission, the former commissioner was unable to answer because she did not have a copy.
Mr Justice Charleton chipped in to assist, by reading for her.
My commitment to Sgt McCabe and, by extension all other people in the organisation who wanted to speak up, was absolutely resolute
“I’m entitled to cross-exam without interruption,” snapped Mr McDowell.
“Do you know what, Mr McDowell,” said an evidently hurt Mr Justice Charleton, shaking his head, “that’s a dreadful thing to say.”
Mr McDowell said Ms O’Sullivan’s suggestion, in her submission to the O’Higgins commission, that her predecessor retired because of Mr McCabe was “a dark lie”.
Her assertion that victims of crime had been let down by Sgt McCabe was “wholly false”, said Mr McDowell.
Seeming to check her emotions for a second time, Ms O’Sullivan said she was not a hypocrite. She had deployed great efforts to support Sgt McCabe and make sure her support for whistleblowers was known.
“My commitment to Sgt McCabe and, by extension all other people in the organisation who wanted to speak up, was absolutely resolute. I was setting the tone from the top.”
Pyramus and Thisbe may have talked through a chink in the wall. But there was no chink in Ms O’Sullivan’s wall.
