Minister and Garda Commissioner meet on O’Higgins report

Garda Commissioner Nóirín O'Sullivan and Minister for Justice Frances Fitzgerald met yesterday to discuss the growing controversy over the findings of the O'Higgins commission into Garda malpractice and the commissioner's attitude to the Garda whistleblower, Sgt Maurice McCabe.

Government Ministers are pressing for further information from the commissioner about her past attitude to Sgt McCabe and the reasons for it.

Publicly Ms O’Sullivan has praised Sgt McCabe, but leaked transcripts from the commission’s hearings show that she instructed her counsel to attack his motivation and credibility.

Yesterday in the Dáil Ms Fitzgerald said she had already said she believed the commissioner would put further information in the public arena, where it was feasible and legal to do so. “That remains my position,’’ she said.

However, while the two women and their officials discussed the O’Higgins report and the leaked transcripts yesterday, there was no statement from the commissioner, nor is one expected imminently.

However, political sources said Ms Fitzgerald expected to go into the Dáil next Tuesday or Wednesday and report on her discussions with the commissioner on the subject. It is expected the commissioner will have provided more information by then.

Growing nervousness

However, it is understood that further discussions will be necessary before further information is forthcoming from the commissioner.

There is growing nervousness in Government circles about the fallout from the O’Higgins report and the leaking of transcripts. Several senior sources, including Cabinet Ministers, who spoke privately yesterday, expressed apprehension about how events will play out in the coming weeks.

“This is not going away,” said one Minister.

Government sources also acknowledged there had been a discernible distancing between the Cabinet and the commissioner in recent days. Ministers, including the Taoiseach, have emphasised they support the commissioner, but also that they expect her to provider further information. They believe this is a problem for the commissioner, not for the Government.

A Dáil debate is likely to be scheduled for next week and the Oireachtas justice committee is certain to ask the commissioner to appear before it soon after it is constituted, most likely next week.

Management failures

The commissioner is also scheduled to appear before the

Policing Authority

next week, where she is likely to be questioned on management failures and other matters highlighted in the report.

There is understood to be a high level of concern at the findings of the report in the authority.

Political sources stressed that the commissioner is expected to provide further information “if it is legal and feasible”.

The legal position on the disclosure of the evidence taken by the commission seems clear.

While the Act only prohibits the disclosure of “evidence”, the definitions in the Act are broad, encompassing statements and submissions of the type that have been already partially leaked. So it is not open to the commissioner to provide further, fuller transcripts.

However, the question of her instructions to her counsel – which is what the repeated requests for more information in the Dáil have centred on – is much more open.

Legal sources say that nobody can be forced to divulge their private consultations with their lawyers; legal privilege is a cornerstone of the justice system.

But just because nobody can be forced to reveal their instructions to their lawyers doesn’t mean that they cannot do so, should they wish.

In other words, legal sources say, if the commissioner wants to tell us what she told her lawyers – and why – she can.