On February 8th, 2017, the then-leader of the Labour Party, Brendan Howlin, made a comment that would have left him open to being sued for defamation had it not been said in the Oireachtas.
The comment was about the then-garda commissioner Nóirín O’Sullivan and what Howlin said he had just been told by a journalist.
"The journalist told me that they have direct knowledge of calls made by the garda commissioner to journalists during 2013 and 2014 in the course of which the commissioner made very serious allegations of sexual crimes having been committed by [Sergeant] Maurice McCabe," Howlin told the then-taoiseach, Enda Kenny.
At the time the Oireachtas was considering establishing a commission of inquiry to examine whether attempts had been made within An Garda Síochána to blacken McCabe’s name by spreading entirely false and untrue allegations about him.
O’Sullivan had already said publicly that she had not known of, or been party to, any campaign to spread false allegations about McCabe.
Howlin’s public comment meant it was now being said that she had been directly involved.
The Labour Party leader said he was making his comments in the context of the proposed establishment of an inquiry. “I’m making no allegation.”
But the Ceann Comhairle, Sean O’Fearghail, said he did not think the comment was appropriate.
“To raise the question of the commission is perfectly legitimate, absolutely so, but you have just recounted a story, a dúirt bean liom go ndúirt bean léi story.”
What Howlin was saying, O’Fearghail said, was “extremely dangerous.”
Ten days later the Oireachtas decided to establish the Disclosures Tribunal to examine claims that McCabe and others had been the subject of targeting with the consent of senior gardaí, because they had made whistleblowing reports.
The tribunal has to-date published four reports and is currently sitting in private to consider ongoing aspects of its terms of reference.
No evidence has ever been produced to support what Howlin said in the Dáil about O’Sullivan.
Howlin’s comment “had a very devastating consequence for me,” the former commissioner told The Irish Times, in her first interview about the whistleblower controversies that culminated in her resignation in September 2017.
“I was personally very aggrieved about it. And I also felt that it had a huge impact on my family and people close to me, because this became stated as a statement of fact.”
A claim that O'Sullivan was privy to a campaign to discredit McCabe using false claims against him had been made in a protected disclosure in 2016 by Garda whistleblower David Taylor.
In a Disclosures Tribunal report published in October 2018, Mr Justice Peter Charleton found that former garda commissioner Martin Callinan, along with Taylor, had been involved in a "campaign of calumny" against McCabe.
McCabe subsequently sued Callinan in the High Court. The case was dropped along with a number of others taken by McCabe and his family against the State as part of a settlement in 2019. The amount paid to McCabe to settle the cases was not disclosed.
The then-minister for justice, Charlie Flanagan, said it was the clear wish of the Government to settle the cases “as quickly as possible to the satisfaction of Mr McCabe, without the need for litigation”.
In his report Charleton said the tribunal was convinced that Taylor “pursued a scheme that somehow evolved out of his cheek-by-jowl working relationship with commissioner Callinan” to smear McCabe.
However the judge found there was “no credible evidence” that O’Sullivan had played “any hand, act or part” in any campaign conducted by Callinan and Taylor.
O’Sullivan removed Taylor from his position as head of the Garda Press Office when she took over from Callinan after Callinan resigned in March 2014.
Taylor, the judge said, was “suffused in bitterness against” O’Sullivan because of his being moved. His “viciousness towards her” was compounded by the fact that, soon after his transfer to a new role, he found himself under investigation.
Not only did Taylor make false allegations against O’Sullivan that ended up being aired in the Dáil, he also made false allegations against her husband, James McGowan, then a detective inspector.
Smear campaign
The tribunal heard of how Taylor told McCabe during two meetings in September 2016 that he had been ordered by Callinan to conduct a campaign to smear McCabe, and that O’Sullivan knew about this.
During this time the then-deputies and now MEPs, Mick Wallace and Clare Daly, met McCabe and Taylor to discuss what Taylor was claiming.
McCabe made a protected disclosure on September 26th, 2016, to the minister for justice, Frances Fitzgerald, and Taylor did the same four days later. McCabe's disclosure contained what he had been told by Taylor.
On October 4th, journalist Mick Clifford in the Examiner revealed that two protected disclosures had been made alleging a smear campaign against a whistleblower by senior Garda management.
Questioned in the Dáil the next day, the taoiseach, Leo Varadkar, told the Sinn Féin leader Mary Lou McDonald that he still had "absolute confidence" in O'Sullivan and Fitzgerald. "I do not have any reason not to."
Daly said the taoiseach could get away with his expression of full confidence in Fitzgerald and O’Sullivan “if this was an isolated incidence of mistreatment of whistleblowers”.
She then mentioned whistleblower Nicky Keogh who, she said, more than two years on from having made his protected disclosure, was out sick and "surviving on just over €200 a week."
Keogh had had “five internal investigations drummed up against him”, she said. “Meanwhile the superintendent who stood over all that is on the promotions list.”
This was a reference to Pat Murray, who at the time was in for promotion to the rank of chief superintendent, and who was subsequently promoted to that rank.
Daly said another Garda whistleblower, Keith Harrison, was also out from work "surviving on a pittance with a young family".
Both the Garda and the child and family agency, Tusla, were involved in activities that, Daly implied, were forms of harassment set in train because Harrison had made a protected disclosure.
“This has all happened on garda commissioner O’Sullivan’s watch,” she said.
“How many examples does the taoiseach need presented to him of the gulf between the public statements of the garda commissioner and her private actions in terms of dealing with whistleblowers, before he will act?”
Fitzgerald, Daly said, now had “the protected disclosures of two senior gardaí outlining systematic, organised, orchestrated campaigns not just to discredit a whistleblower but to annihilate him, with the full involvement of the current and former garda commissioners.
“What in God’s name does the taoiseach need another investigation for? Is it not patently obvious that it is beyond time for the commissioner to go?”
All of the allegations against O’Sullivan that Daly cited have now been dismissed by the tribunal.
Charleton, in a report published just over a year after Daly’s comments, dismissed Harrison’s claims of being targeted by the Garda and Tusla in the wake of having made a protected disclosure.
"All of the allegations of Garda Keith Harrison and Marissa Simms [Harrison's partner] examined by the tribunal are entirely without foundation," the judge said.
“The allegations which they made must have taken a considerable emotional toll on several of the multiple persons accused by them of very serious misconduct.”
A different judge, Mr Justice Sean Ryan, who took over from Charleton as tribunal chairman in late 2018, wrote the report that dealt with Keogh's claims that he was also targeted after he made a protected disclosure.
In his report, published in July 2021, Ryan considered how it could be that Keogh could have made more than 20 complaints about being targeted, all of which had been found by the tribunal to be untrue.
Stress, alcohol abuse, Garda shortcomings, and the additional stress that may have been experienced by Keogh because his complaints had been put into the public domain, were among the factors canvassed by the judge as possible explanations.
The public airing of Keogh's concerns had occurred initially by way of deputy Luke "Ming" Flanagan, who spoke about them in the Dáil with Keogh's consent.
“We felt it would be better if it was out in the open, and it would be harder to do a cover-up on it,” Keogh told the tribunal.
Keogh’s case was taken up by Daly and Mick Wallace after Flanagan was elected to the European Parliament.
During the taking of evidence from Keogh, the tribunal heard of his heavy drinking and the stress he felt as he contemplated making a protected disclosure.
“Wonder how von Stauffenberg felt when he wanted to take down Hitler”, he wrote in his diary in 2014, referring to the German army officer who was part of a failed attempt to kill Hitler in his headquarters on the Eastern Front in 1944.
The tribunal heard that during April 2015 Detective Supt Declan Mulcahy made a note of a phone conversation he had with Keogh during which Keogh referred to "taking Nóirín O'Sullivan down".
Keogh accepted in evidence that Mulcahy's note was accurate, and agreed he might have also said that he was going to take down the then-minister for justice Alan Shatter.
Asked by Ryan if the comment was just a drunken statement, or if it reflected his state of mind, Keogh replied: “Probably a bit of both.”
In a diary entry for May 13th, 2014, Keogh recorded: “Clare Daly and Mick Wallace called to the house to tell me not to give up. CD [said] don’t worry, we will get them in the end.”
Protected disclosure
In his May 2014 protected disclosure, Keogh alleged serious Garda wrongdoings in Athlone. The disclosure was made in good faith, Ryan said, and there was “no question that it was frivolous or vexatious.”
Keogh told the tribunal that in the wake of his disclosure he was targeted. He claimed that O’Sullivan had told his superintendent over the phone in April 2015 that Keogh was to be isolated.
“I was confidentially advised that Supt Pat Murray told other guards in Athlone station to “pull away from” and alienate me. I cannot name this source inter alia because Supt Pat Murray is still the superintendent in Athlone and Nóirín O’Sullivan is the commissioner of An Garda Síochána.”
Both O’Sullivan and Murray rejected Keogh’s allegation and the tribunal did not allow it be explored in evidence because there was no evidence to support it.
The judge noted that the allegation was extremely damaging to O’Sullivan, was intended as such, and that Keogh had no basis for making it.
When Murray went forward for promotion, Keogh complained that this was inappropriate in the circumstances.
Both Daly and Wallace mentioned Murray by name in the Dáil and at Oireachtas committee hearings, asking questions about his promotion application.
“This is an individual who has harassed and bullied a Garda whistleblower to an awful degree for a long time,” Wallace said of Murray in the Dáil on December 15th, 2015, airing a claim that has since been rejected by the tribunal.
Murray told the tribunal he believed there “was an orchestrated and planned effort to undermine my position and career. I believe Garda Keogh and his political supporters and some elements of the media had an unhealthy fixation with me”.
The tribunal rejected Keogh’s claim that there was a connection between his protected disclosure and Murray being promoted, or that Murray had targeted Keogh because he was a whistleblower.
Keogh had become stressed, irrational and “even at times paranoid” after he made his protected disclosure, the judge said.
“The overall verdict has to be that the officers under scrutiny in this case emerge as conscientious members of An Garda Síochána concerned to do their duty.”
In his report on McCabe in October 2018, Charleton reported on whether “false allegations of sexual abuse or other unjustified grounds were inappropriately relied upon by commissioner O’Sullivan to discredit Sgt Maurice McCabe” at the O’Higgins Commission.
The commission, which reported in May 2016, sat in private and examined a range of allegations by McCabe, many of which it upheld.
Charleton dismissed the claim that there had been an attempt by O’Sullivan, through her legal team, to use false allegations of sexual abuse to discredit McCabe at the commission.
This false claim was the backdrop to the resignation of Frances Fitzgerald as tánaiste and minister for business, enterprise and innovation, in November 2017, ten months after the Oireachtas had established the Disclosures Tribunal.
Fitzgerald resigned just hours before a no-confidence motion from Sinn Féin was to be voted on. The vote threatened to bring down the then-minority government.
The crisis centred around whether Fitzgerald had known at the time about the alleged legal strategy being pursued by An Garda Síochána at the commission.
At the time, Charleton noted, all that the politicians, the public, and the media “had to go on” were selectively leaked “snippets” of a transcript from O’Higgins, and some email material about a dispute at the commission.
“This had somehow transmogrified over time into an allegation that Maurice McCabe had been maliciously accused before the O’Higgins Commission of multiple and false sexual assault offences with a view to damage his credit-worthiness”, that O’Sullivan had authorised this, that Fitzgerald had been informed, and had “stood back and allowed it to happen”.
“A reading of the [commission] transcript shows that nothing of the kind alleged against commissioner O’Sullivan ever happened,” Charleton said.
The eruption of a political controversy based on a false belief that Fitzgerald had known about a non-existent plan by O’Sullivan to maliciously accuse McCabe at the confidential commission hearings of things he hadn’t done, brought about the sudden end of Fitzgerald’s Dáil career.
“It was vicious, and incredibly upsetting,” she told The Irish Times. “To depart from the standards of fairness and decency has long-term consequences… It matters what happens to people.”
Decency, human rights, and proper procedure “matter to the quality of our democracy, they matter to the quality of our discourse. Where do we want to go in Ireland on these things?”
Confidential matters
Under the Protected Disclosures Act 2014, a garda acting in good faith can make serious allegations against identified individuals without fear of being sued for defamation.
Under the Garda Síochána Act 2005, members of the force can discuss confidential matters with members of the Oireachtas.
The Constitutional provisions on the separation of powers mean that Oireachtas members cannot be held to account in the courts for what they say in the Oireachtas, and the media can report defamatory comments made in the Oireachtas without fear of being sued.
Both Fitzgerald and O’Sullivan said it is almost impossible to defend yourself when you are faced with multiple false allegations in the Dáil, that often presume malice, and that are extensively discussed in the media.
In his comments on the protected disclosures law, Charleton said it provides for the anonymity of the “discloser”.
However in the case of the McCabe and Taylor disclosures, they were “promptly disclosed to public representatives and journalists working in the media.”
This “constituted not just the ignition switch but the accelerant used to inflame public opinion in relation to the matters concerned,” he said.
Under whistleblower law, the recipients of disclosures are guilty of an offence if they disclose their content to third parties.
The confidentiality of the disclosures has to be protected at all costs, Fitzgerald told The Irish Times. This “constrains you totally” in terms of responding if the allegations in the disclosures are put into the public domain.
In his report on Keogh, Mr Justice Sean Ryan suggested that the Oireachtas consider whether the parties who receive a disclosure should be released from their obligations to confidentiality in cases where the whistleblower has publicly disclosed his or her identity.
The lawful entitlement of members of the force to discuss confidential Garda matters with members of the Oireachtas led to Keogh’s claims being raised in the Dáil.
“It is not suggested that either the whistleblower or the deputies acted unlawfully or in bad faith. The problem was that the allegations could not be answered by the persons accused in the forum in which they were raised,” Ryan said.
Many of the officers affected were identifiable to their colleagues, and some were directly named, he said.
“Obviously the deputies had no means of evaluating the legitimacy of the whistleblowers’ complaints, which were very strongly disputed.
“Great harm can be done to a person who is subjected to criticism in Dáil Éireann on the basis of allegations he or she maintains are wrong.”
The Standing Orders of the Dáil “are intended to protect private citizens from being publicly criticised under conditions of privilege,” the judge noted.
Having your good name destroyed is not a small thing, said O’Sullivan. “It is a huge thing.”
