Decision to challenge McCabe credibility 'entirely justified', Tribunal hears

The Disclosures Tribunal heard submissions about the O’Higgins Commission module today.

Updated 9.30pm

FORMER GARDA COMMISSIONER Nóirín O’Sullivan remained responsible for the actions of her legal team at the O’Higgins Commission of Inquiry, lawyers for whistleblower Sergeant Maurice McCabe told the Disclosures Tribunal.

Lawyers for O’Sullivan’s counsel at the commission, however, have said that their actions were “entirely justified”.

Michael McDowell SC, for Sergeant McCabe, said that whatever was done at the O’Higgins Commission by the legal team acting on behalf of garda commissioner O’Sullivan was in effect done by the commissioner, on whose authority they acted.

In the third module, the tribunal examined whether unjustified grounds were inappropriately relied upon by the former garda commissioner O’Sullivan to discredit Sergeant McCabe at the O’Higgins Commission.

The commission, which sat in private in 2015, investigated complaints made by Sergeant McCabe about certain policing matters and about serious allegations against senior officers including then Garda Commissioner Martin Callinan.

McDowell said that clarification had been sought and confirmed twice on 15 May 2015, the second day of hearings at the commission, that the legal team was acting on the commissioner’s instructions in challenging Sergeant McCabe’s credibility.

He also said that O’Sullivan had confirmed in her evidence that she had read the transcripts of the commission’s hearings, and so she was aware of her legal team’s actions.

‘Scandalous and unwarranted’

The barrister said that it was scandalous and unwarranted for the commissioner’s legal team to argue in a submission to the commission that Sergeant McCabe was motivated by the fact he had been the subject of a garda investigation following allegations of abuse in 2006. The DPP directed no prosecution, in that case, saying there was no evidence a crime was committed.

McDowell said there was no doubt that there was a general strategy to discredit Sergeant McCabe as a witness at the commission.

He said there were “sustained attempts” to lay responsibility on Sergeant McCabe as a member in charge for incidents which occurred in Bailieboro garda station, including a computer seized as evidence which had gone missing from garda custody.

“At a point where Sergeant McCabe was making complaints about penalty points, this was suddenly launched against him as a disciplinary process,” McDowell said.

McDowell said it was remarkable that Annmarie Ryan, an experienced and competent solicitor in the service of the state, was not facilitated by the garda commissioner when she sought a meeting on 15 May 2015 after questions arose over the commissioner’s instructions to her legal team.

Ryan was left with the very clear impression that such a consultation was impossible, McDowell said, although O’Sullivan had given evidence that she would have made herself available for any meeting.

This was contradicted by the evidence of Chief Superintendent Fergus Healy, who gave evidence he was told O’Sullivan was not available for a meeting at the time due to other commitments, McDowell said.

McDowell said that O’Sullivan’s actions were contradictory, as on the one hand, she gave evidence she valued Sergeant McCabe and sought to protect him in the vulnerable position he found himself, while at the same time her counsel was challenging him before the O’Higgins commission.

These contradictions would have been resolved if O’Sullivan had taken the step of meeting with solicitor Annmarie Ryan and other legal counsel.

“Entirely justified”

The allegation that former garda commissioner Nóirín O’Sullivan used unjustified grounds to discredit a garda whistleblower is a result of leaks demonstrated to be false, lawyers also said today.

Barrister Paul Sreenan SC appeared on behalf of Colm Smyth SC, Michael MacNamee BL and Garrett Byrne BL, who represented An Garda Síochána at the O’Higgins Commission.

Sreenan said that his clients had represented not only O’Sullivan, but also Chief Superintendent Michael Clancy, Superintendent Noel Cunningham, Chief Superintendent Colm Rooney and former garda commissioner Martin Callinan.

Sreenan said his clients were “entirely justified” in challenging the credibility and motivation of Sgt McCabe before the commission, in order to vindicate the good name of their clients.

Allegations had been made of corruption against senior garda officers, and they were entitled to defend their good names. The O’Higgins report had found no evidence of corruption, and had said the allegations were deeply hurtful to his clients, Sreenan said.

Sreenan said it was not put to Smyth that the same approach would have been taken toward Sergeant McCabe if the commission had held its hearing in public. Sergeant McCabe’s barrister Michael McDowell had now raised this in his closing submission.

Sreenan said that in answer to a question the chairman has asked at the end of hearings in February, there was no proper basis for this term of reference to the disclosures tribunal.

Mr Justice Charleton had asked: “Was there any proper basis to ask the tribunal to investigate this particular module, or was it entirely based on leaks and on conjecture?”

Sreenan today said the term of reference of this module came about as a result of leaks from the O’Higgins commission “which have now been demonstrated to be false”.

Patrick McCann SC, on behalf of the Department of Justice and former minister Frances Fitzgerald, said that officials in the department behaved lawfully and appropriately in leaving questions of legal strategy to the garda commissioner, and in maintaining an appropriate distance from the operations of the independent O’Higgins Commission.

On behalf of John Barrett, the civilian human resources director of An Garda Siochana, Tony McGillycuddy told the tribunal his client came forward at an early stage and made a statement to the tribunal. Barrett had at all times tried to carry out his work with diligence and enthusiasm.

Read: ‘It would be hard to invent a story like that’: Maurice McCabe finishes evidence at Tribunal

More: ‘Horrific’, ‘destroyed me’, ‘bury him’: An emotional Maurice McCabe gives his side of the story

Gerard Cunningham