Frances Fitzgerald: ‘I had no involvement in any legal strategy’

Confusion has arisen over when Tánaiste and former minister for justice Frances Fitzgerald, first knew of the strategy to attack the credibility of Garda whistleblower Sgt Maurice McCabe, who exposed widespread Garda malpractice and the quashing of penalty points by some members of the force.

It emerged last year that the legal team appointed by then Garda Commissioner Nóirín O’Sullivan was instructed to question Sgt McCabe’s motivation and credibility at the O’Higgins Commission, which was set up in February 2015 to examine allegations of Garda malpractice.

The strategy pursued against Sgt McCabe is being examined by the disclosures tribunal, chaired by Mr Justice Peter Charleton.

Mr Varadkar subsequently told the Dáil Ms Fitzgerald only became aware of the strategy when it became public in 2016.

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On Monday night it emerged Ms Fitzgerald knew of a legal clash at the O’Higgins Commission over this strategy in May 2015 but not the detail.

On Tuesday more detail emerged from an interview to RTÉ's News at One radio programme on Tuesday in which the Tánaiste said she had received an email from a department official detailing a conversation the official had with a person in the Attorney General's office.

This email suggested that a criminal charge against Mr McCabe had been raised at the tribunal on the basis that it had not been properly investigated.

What follows is the full transcript of Ms Fitzgerald's interview with RTÉ's News at One on Tuesday.

Transcript

“Taoiseach [LEO VARADKAR]was absolutely right to say, he was absolutely truthful to say that I did not have hand, act or part in the legal strategy - which is still before the Charlton Tribunal, to undermine the whistleblower Sgt Maurice McCabe.

“That’s what I told the Taoiseach and what he said to the House and that’s absolutely truthful.

“I had no involvement in any legal strategy either by the Garda Commissioner or An Garda Síochána. Why would I set up an O’Higgins Commission of Inquiry and then seek to work with one party to that in relation to their legal strategy? It didn’t happen and I was not aware of it and it was post the event that any information in relation to it came out.

“I had no part in the formulation of any legal strategy, far from it.

“Let me be clear, what emerged last week from and what the department [OF JUSTICE]were referencing yesterday was that there was a conversation between an official in the Department of Justice and the Attorney General’s office, an officer in the Attorney General’s office told an official in the department in a telephone conversation, that an issue had arisen in the Tribunal in relation to the approach that the counsel for An Garda Síochána were taking and that the counsel for Sgt Maurice McCabe had objected very strongly to that because it was raising an issue about a serious criminal complaint which his counsel felt had nothing to do with the current situation.

“This was then put in an email by the official who had taken the phone call, the department discovered that email last week and I was informed towards the end of the week in relation to this.

“The department discovered an email last week when they were trying to answer various questions that had come in, they found an email that had details of this conversation that had been sent to me at that point and that it specifically said that there was no function for me getting involved in a commission of investigation and anybody’s evidence before it that it would actually be a criminal act by me if I was to get involved in that.

“When I spoke to the Taoiseach what I explained was that all of the information that came out in May 2016 about Garda witnesses, about tapes, all that was leaked, I had absolutely no knowledge about any of that until May ‘16. That was what I had said to the Taoiseach and that was what he was commenting on when he spoke in the Dáil.

“I don’t remember that particular email, one of reasons I don’t recall is because it specifically said I had no function in relation to evidence before a tribunal given by any party.

“I spoke to the department and saw what was in it, but the point is, it specifically said I had no role in relation to it, what I did do, is from the moment I became Minister for Justice I did absolutely everything to make sure that any discussions I would have with the Garda Commissioner in relation to whistleblowing was about making sure that whistleblowers were protected, supported, that the way they were dealing with in An Garda Síochána, they brought transparency to. My constant focus and anytime anything was raised in the Dáil was to discuss and say you’ve got to look after whistleblowers.

“I was not party to what was going on at the O’Higgins Commission - the O’Higgins Commission was private and as Minister I remember saying at the time when there was part information leaked, that I couldn’t comment on part information, when I didn’t have the full facts. What I said was that I would set up, and what I did, was set up the Charlton Tribunal which is now examining specifically that legal strategy but I didn’t know about that legal strategy.

But that tribunal is now examining precisely what the approach was to evidence and to the approach that the gardaí took. The Charlton [TRIBUNAL]is the place where anybody with any information, any TD, or any member of the public has information about this issue, it should go there now. The Department of Justice is also part of those terms of reference.

What I did as Minister when I got the Guerin report . . . I set up the O’Higgins Commission. Every act I took as Minister was to support whistleblowers and then when this issue about the legal strategy which we’ve yet to hear, from the Charlton Tribunal precisely what that legal strategy was, I had set it up as a specific term of reference in the Charlton Tribunal.

What I was saying was it (leaks) was part of the story and as Minister for Justice I couldn’t operate on the basis of leaks that were coming out. Important to remember that there is a Tribunal sitting at the moment to examine specifically the issue of that strategy and whether there was a strategy in place. I cannot assume what that strategy was. What is referenced in the email is an event at the Tribunal in relation to a disagreement between the two counsels and the details around that. That’s what’s referenced, it’s not about an overall strategy.”

In relation to Fianna Fail’s justice spokesman Jim O’Callaghan’s comment about incuriosity ... “as a barrister he should know very well that when it comes to evidence before a tribunal it would be illegal for me to become involved in the evidence of anybody that is appearing before a commission of investigation or a tribunal.

“What I can do is tell the truth about what happened and that’s what I’m doing right now, that’s what I’ve done all along, and I am the person who has taken the action to ensure that a tribunal with the strongest powers that the State could have is examining this very issue.

“Every act I took as Minister for Justice was to support whistleblowers. I’m absolutely clear about that. There is plenty of evidence in relation to that.

“I did not discuss the details of this with the Attorney General because it wasn’t my role to be discussing anyone’s strategy at the tribunal.

“I do not have evidence that the State were arguing that Maurice McCabe had a grudge. The information that was shared from the Attorney’s office at that point was about the disagreement of the two counsel down at the tribunal. I was told that they were disagreeing about the fact that a serious criminal charge which Sgt McCabe had denied had been raised.

“It wasn’t for me to get into the details in relation to it, there has subsequently been detail in relation to the criminal charge but was reported to me was the allegation that a serious criminal complaint against Sgt McCabe which he had always denied, had not been properly investigated by the Garda Síochána, that was the allegation.

“That is the only detail in relation to the specifics of the complaint against the two of them. The allegation had been that a serious complaint against Sgt McCabe which he’d always denied, had not been properly investigated and that was the source of the disagreement between the two counsel.

“I did not know anything about the tape until it came out in May ‘16. If you look at my speech when the O’Higgins Commission came out, I was very clear that I wasn’t going to second guess what Judge O’Higgins had to say.

“I accepted the O’Higgins Commission report and I acted on it on terms of a whole lot of the issues that were highlighted. Many issue in relation in how to those very serious cases had been investigated. There was a whole series of action.

“In fact I referred many of these issues to the Policing Authority who subsequently took up this range of issues.

“Regrets? What I did was support whistleblowers during my time as Minister for Justice and constantly worked to ensure they were supported and protected.

“I met Maurice and his wife, I listened to what they had to say, it guided me in the actions that I took, I always wanted to do right by Maurice McCabe.”