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Dublin: 9 °C Thursday 22 March, 2018

Maurice McCabe and Nóirín O'Sullivan: How counsel got it so wrong in 'despicable' email

The Disclosures Tribunal delved deep into Bailieboro and the O’Higgins Commission yesterday.

Sergeant Maurice McCabe
Sergeant Maurice McCabe

A VERY CLEAR itinerary had been set out for the Disclosures Tribunal’s next phase to begin yesterday – but that was immediately thrown out the window when proceedings began before a packed room in Dublin Castle.

There would be no evidence from witnesses given at all, so what was it that made the assembled solicitors, barristers, journalists and members of the public stick around?

Simply put, the Tribunal wanted to begin its module looking at what the scandal that almost brought the government down at the end of last year is all about.

It spent around four hours doing so, going into the in-depth minutiae of the plan from Nóirín O’Sullivan’s legal team to challenge McCabe’s credibility at the O’Higgins Commission.

It’s very convoluted but it hinges on a few crucial points.

Namely, why did O’Sullivan’s legal team challenge McCabe’s credibility on the basis of something he was supposed to have said, despite no one at the meeting where he was supposed to have said it hearing him say it?

It may sound confusing. The Tribunal’s barrister even called it confusing several times during yesterday’s hearing.

Here, we break it all down for you.

Voices from the past

Bizarrely, the main revelations at the Tribunal were things that had already been said. Crucially, though, it was the first time many people were hearing them.

Counsel for the Tribunal spent yesterday detailing an opening statement, one which was hoped would clarify what it had received to date and what would be looked at over the next few weeks, namely the O’Higgins Commission.

The O’Higgins Commission was an investigation set up to examine allegations of garda malpractice in the Cavan-Monaghan division. Its hearings were held in private.

Its role was to look at cases where gardaí may have got it wrong, and establish the facts. It wasn’t a criminal trial. It wasn’t an “us vs them” situation.

Or was it?

Many of the instances of alleged malpractice had been highlighted by Garda Sergeant Maurice McCabe, and his motivation for highlighting these was challenged by counsel for the garda commissioner at the commission.

In the first week of proceedings of the O’Higgins Commission on Friday 15 May 2015, an enormous row erupted involving Colm Smyth SC, representing then-Garda Commissioner Nóirín O’Sullivan, Michael McDowell SC, representing Maurice McCabe, and Mr Justice Kevin O’Higgins, himself.

9768 Disclosures Tribunal_90517710 McDowell with McCabe Source: Leah Farrell/

The Tribunal yesterday was all set to hear this exchange and, when the play button was pushed, incomprehensible chatter reverberated around the large Dublin Castle room.

“The orchestra clearly is just tuning up,” Mr Justice Charleton remarked dryly.

When the right audio file began to play, those in attendance heard a lengthy and often indignant series of exchanges.

Here’s a summary of what went on:

  • Smyth begins to ask Chief Superintendent Colm Rooney, who had been in charge of Cavan-Monaghan, about how McCabe had sought an appointment with him because he was angry about a decision from the DPP.
  • Smyth is interrupted. McDowell asks him if he is trying to call into question McCabe’s motivation and character. He calls Smyth’s tactics “childish and unworthy”. McDowell emphasises that McCabe was not the complainant here, and it was not up to the O’Higgins Commission to question his integrity. It was merely to establish the facts of how some cases were dealt with inappropriately.
  • O’Higgins says that the credibility of a witness can be questioned only if the facts of what he is saying are disagreed with. He asks Smyth what his instructions were on challenging McCabe.
  • Smyth says his instructions were to challenge McCabe’s motivation and his credibility in mounting these allegations of corruption and malpractice.
  • O’Higgins asks if the position from the garda commissioner’s legal team is that McCabe was acting “not in good faith” in making allegations against gardaí because he was “motivated by malice or some such motive”.
  • The commission is adjourned, and the legal position of the garda commissioner is to be clarified after that weekend.

At the same time as this is going on, Nóirín O’Sullivan rings officials at the Department of Justice and also the gardaí’s own legal advisor – making all of these parties aware of what is going on.

Ms D

In late 2006, a Ms D, whose father was a colleague of McCabe’s, made an allegation against him that he had touched her inappropriately as a child.

Inspector Noel Cunningham, someone who’d known McCabe for many years, was assigned to investigate it. By all accounts, it wasn’t a job he relished.

He was directed to do so by a senior officer despite raising an objection. Nonetheless he looked into it.

He suggested that it didn’t warrant a prosecution. Even if what Ms D was alleging was true, the DPP then said, it wouldn’t have constituted an assault.

The DPP recommended that no further action be taken.

Once Ms D found out that there was to be no prosecution, she stated that she wished to confront McCabe. She did. And so did her mother, in a very public manner in October 2007.

Ms D confronted him at Bailieboro Garda Station, saying that he had ruined her life.

Soon the word got around of the allegation and McCabe, it appears, was determined to have his name fully vindicated.

He wanted to get that DPP report out in the open so both he and the D family could see that it showed he had no case to answer.

McCabe made a complaint to Superintendent Michael Clancy, who headed the division in February 2008 about Mr D, in the hope that it would open the door for the DPP judgement to be released.

At some point in June/July 2008, McCabe had a meeting with Chief Superintendent Rooney who told him that it isn’t garda policy to release DPP instructions.

Cunningham, now a superintendent, met McCabe in August 2008 at Mullingar Garda Station. Sergeant Yvonne Martin was also present at this meeting.

Unbeknownst to Cunningham and Martin, McCabe was secretly recording the conversation.

22092 Cunningham_90518412 (1) Noel Cunningham arriving at the Disclosures Tribunal Source: Leah Farrell/

He made it very clear to Cunningham in the meeting that he made a complaint about Mr D to Superintendent Clancy because he wanted the DPP’s instructions given both to him and to the Ds.

Cunningham doesn’t, and hasn’t ever, disputed this. It is for this reason that he hasn’t been included as a witness during this module of the Tribunal.

In his notes about the meeting, in his evidence to O’Higgins and in his own evidence last summer to the Disclosures Tribunal, he said that his understanding was that McCabe was motivated to make the complaint to Clancy about the D affair simply to get access to the DPP’s instructions and have them circulated to the D family.

On the fact of McCabe recording the interview, Cunningham told O’Higgins that McCabe’s attitude “completely changed” after the allegation was made against him by Ms D.

“He said he didn’t trust anybody anymore,” Cunningham said. “[But] he made it clear that the reason he made the allegations was on the instruction of Clancy to have the DPP’s directions.”

“Got it wrong”

15/9/2014. New Garda Members Former Garda Commissioner Nóirín O'Sullivan Source: Eamonn Farrell/

Somehow, some way, the account of this meeting between Cunningham and McCabe became misconstrued. Counsel for Tribunal yesterday called it a “very serious error”.

So what happened?

After the war of words between Michael McDowell and Colm Smyth at the O’Higgins Commission on 15 May 2015, the garda commissioner’s legal team came back on 18 May 2015 with an email detailing their instructions.

This email details factors on which counsel has been instructed to challenge McCabe’s motivation for making allegations.

From the Chief State Solicitor’s Office, but compiled by O’Sullivan’s counsel, to the O’Higgins Commission it outlined aspects of the D case and contained this line about the August 2008 meeting:

Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaints about Superintendent Clancy was to force him to allow Sergeant McCabe to have the full DPP directions conveyed to him.

So counsel for the garda commissioner were seeking to challenge motivations and credibility on the basis of something he hadn’t actually said.

McCabe had never said he was making complaints about Superintendent Clancy in that meeting.

At the O’Higgins Commission, McDowell was irate, the audio of what he said back in May 2015 reverberating around the room yesterday.

He said: “I have received a document which, if it is not adversarial, I don’t know what is. I have to say it is utterly and completely inexplicable. I find this a despicable document.

It’s a conflation of falsehoods, invasions and untruths. My client will deal 100% with all allegations made against him of impropriety of any kind. What he’s not prepared to be is ambushed in bad faith by a commissioner who is not a witness on this tribunal.

In what drew a laugh from those in attendance, McDowell also said at the time that given these efforts to discredit McCabe he would have to cross-examine Nóirín O’Sullivan, herself.

“I don’t think she will enjoy the experience,” McDowell said.

Furthermore, Cunningham never said McCabe said he was making an allegation against Clancy for this reason. So where did this come from? How did counsel for Nóirín O’Sullivan come to rely on this as part of its attempts to challenge McCabe?

As counsel for the Disclosures Tribunal put it yesterday: “The matters discussed at the August meeting did not concern complaints against Superintendent Clancy. That letter to the O’Higgins Commission [...] was wrong.”

In May 2015, however, Smyth reiterated this stance amid McDowell’s anger. He said that McCabe was motivated to make allegations against other gardaí based on the fact he was seeking that DPP clarification.

Smyth would go on to ask McCabe at O’Higgins if he had a “personal grievance” with the gardaí and if that was motivating allegations he was making.

This exchange also took place:

Smyth: In the course of that meeting, you advised Superintendent Cunningham that the only reason you made a complaint against Superintendent Clancy was to force him to allow you to have the full DPP direction conveyed to you.
McCabe: That is absolutely false.

“To” and “against”

While this was the position of counsel for O’Sullivan in May 2015, it seems that the position had shifted considerably down the line.

Smyth would later tell the O’Higgins Commission that the letter from the Chief State Solicitor’s Office should have referred to allegations McCabe had made “to” Clancy and not allegations “against” Clancy.

“‘Against’ is not the correct word,” Smyth told the commission.

So Cunningham had never said the word “against” was used, so that email dated 18 May 2015 with those instructions contained an error made by someone other than him.

Smyth said in a statement to the Disclosures Tribunal: “A misunderstanding which came from clients, other than O’Sullivan, resulted in an inaccuracy related to an interaction with McCabe in August 2008 in Mullingar.”

This is a crucial mistake upon which much of this module in the Tribunal rests.

This part is investigating “whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O’Sullivan to discredit Sergeant Maurice McCabe” at the O’Higgins Commission.

So, the allegations may not have been relied upon per se, but it certainly seems to have relied upon how McCabe reacted to it and what his motivations would have been having been accused of that.

Ruling things out

Counsel for the Tribunal said yesterday that, having looked at these matters in some detail so far, they could “rule out that anyone ever intended on behalf of Commissioner Nóirín O’Sullivan to say [McCabe] had once abused a child”.

“There is nothing we can point to that this was ever close to happening,” they said.

This extremely convoluted story does not even take into account the other aspects of this affair, namely what Tánaiste Frances Fitzgerald and the Department of Justice knew about all of this.

Almost like an afterthought, after five solid hours of delving into the depths of Bailieboro and the O’Higgins Commission, the Tribunal heard what it had been told by some key players on the government side of the equation.

An email from Michael Flahive, an assistant secretary in the Department of Justice, to Fitzgerald’s private secretary on 15 May 2015 about the row that day at O’Higgins gets a few of the basic facts wrong but says that the garda commissioner’s approval of the stance of challenging McCabe was confirmed.

In a statement, Fitzgerald herself reiterated her mantra that was given before the Dáil on numerous occasions that it would have been “totally incorrect” to interfere in what legal route the commissioner was taking.

She also denied having any knowledge of the legal strategy being pursued, despite confirming receipt of the email about it.

Crucially, senior department official Ken O’Leary, in a statement to the Tribunal, recalls a conversation with Nóirín O’Sullivan on the weekend of 15 May 2015.

While he says neither he nor his department can interfere, and she should seek counsel from her legal advisers, she should “take more time” to consider the matter.

Questions to answer

0193 Disclosures Tribunal_90517189 Mr Justice Peter Charleton Source: Leah Farrell/

Counsel for the Tribunal said yesterday that it must not have been easy for Maurice McCabe after Ms D’s allegation.

“The aftermath can fairly be described as nightmarish,” they said. In this whole nightmarish saga, the Tribunal must look to find the truth to a few crucial questions in the next few weeks.

Where on earth did the claim that McCabe admitted at the August 2008 meeting that he made an allegation against Superintendent Clancy come from, when no one at the meeting said it happened?

What did Nóirín O’Sullivan know about these claims, and why were her directions to attack McCabe’s credibility and motivations on this basis?

How much did the Department of Justice, and then-Minister Fitzgerald, know about all of this?

Those used to watching O’Sullivan addressing PAC hearings may not be holding out too much hope for startling revelations, but Mr Justice Charleton closed with this tantalising line in reference to the recent information the Tribunal has received:

There are some gems in those boxes… Precious stones.

As for what these gems are, we’ll just have to wait and see.

Read: Disclosures Tribunal hears counsel for former Commissioner ‘got it wrong’

Read: The Tribunal will look at the scandal that almost brought the government down this week

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