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Heroes and villains: Why nothing is clear-cut anymore at the Disclosures Tribunal

Mr Justice Peter Charleton has a tricky task ahead to untangle the web that was O’Sullivan’s strategy at the O’Higgins Commission.

Image: Rollingnews,ie

AND SO THAT’S almost a wrap for this module of the Disclosures Tribunal.

Where Mr Justice Peter Charleton compiled a report on the claims of Garda Keith Harrison barely a month after hearings were over in November, the complexities of this part will surely take far longer to tease out.

And again, unlike Harrison’s case, it will not be so easy to dismiss certain claims and evidence as “utter nonsense”.

The Disclosures Tribunal has just heard over a month of evidence from witnesses digging into the very minute details of legal strategies, claims and counterclaims related to the O’Higgins Commission of Investigation in 2015.

This is the third module of the Tribunal, which has already looked into the HSE/Tusla errors that placed a completely erroneous and serious allegation on Maurice McCabe’s file and the case of Harrison. After this we’ll hear about former garda press officer David Taylor and his claim that then-commissioner Callinan ordered him to brief the media negatively about McCabe.

The key question at the heart of this module is whether Nóirín O’Sullivan inappropriately used unjustified grounds to challenge McCabe’s credibility and motivation at the O’Higgins Commission.

The intricacies will need to be unpicked, gaps will need to be filled where those involved can’t recollect what transpired, and the most credible accounts of certain situations will need to be identified.

What has this bit been all about?

The O’Higgins Commission

The O’Higgins Commission, set up in 2015, looked at allegations made by Maurice McCabe on examples of alleged malpractice and corruption from the gardaí in the Cavan-Monaghan division in the mid-2000s.

These covered how gardaí across a number of ranks, up to the most senior levels, handled particular cases.

These allegations had already been the subject of an internal garda investigation at the beginning of this decade (called the Byrne-McGinn report), and the Guerin Report in 2014.

The Byrne-McGinn report upheld 11 of Sergeant McCabe’s more than 30 complaints. It also noted, however, that “no malice on the part of Sergeant McCabe is established in the making of his various complaints”.

Sean Guerin noted in his report that the time he spent with McCabe during his inquiries “led [him] to no different conclusion”, but Guerin also recommended an investigation with further powers to investigate, and that became the O’Higgins Commission.

Findings

In his lengthy final report, Mr Justice Kevin O’Higgins had plenty to say about Maurice McCabe.

Mr Justice O’Higgins found that McCabe was “never less than truthful” but may have been “prone to exaggeration”. He acted out of “genuine and legitimate concerns” but also made “unfounded” and “hurtful allegations”.

He “performed a genuine public service at a considerable personal cost” but his “unfounded” complaints meant some people “were made to live for many years under the strain of those allegations”.

Motivation

This report was published in May 2016 but, barely a few weeks later, media outlets began to report about the legal position that had been adopted by the garda commissioner, and other senior officers, at the commission to challenge McCabe’s allegations.

Extracts of transcripts were put into the public domain, and showed Mr Justice O’Higgins asking Nóirín O’Sullivan’s barrister Colm Smyth what his instructions were about how he was approach McCabe.

One of these transcripts was from 15 May 2015, on the second day of the commission. In it, Smyth said that his instructions from O’Sullivan were to challenge McCabe’s credibility and motivation.

Political chaos ensued with calls for O’Sullivan to step down as commissioner. At the time in the Dáil, Fianna Fáil leader Micheál Martin said it “goes to the core of how whistleblowers and people who had made assertions and allegations in good faith are treated”.

When the Disclosures Tribunal was set up in February 2017, it was tasked with looking at numerous aspects of the relationship between An Garda Síochana and Sergeant Maurice McCabe.

Mr Justice Charleton had to listen to weeks of evidence in the past month with the brief to establish if the garda commissioner inappropriately used unjustified grounds to challenge McCabe’s motivation and credibility.

Here is, in the main players’ own words, how the events took place:

Supporting McCabe

Nóirín O’Sullivan was particularly keen to emphasise that, after becoming commissioner in 2014, she set about putting in place numerous supports for Sergeant McCabe.

Giving evidence to the Tribunal, she said: “[On 25th May 2014] I took it upon myself to make contact – he had left his telephone number with my private secretary – and I took it upon myself to make contact directly with Sergeant McCabe in an attempt to address his issues.

I made it another imperative was to make sure that we were supportive of people that had the courage to speak up in the workplace, and indeed whistleblowers… the reason that I met with Sergeant McCabe was to make sure that Sergeant McCabe, and indeed his legal advisors, knew that I was absolutely committed to that imperative.

She would go on to reiterate these supports given on several occasions during her evidence.

These supports were also mentioned by Ken Ruane, the garda’s head of legal affairs.

He said: “So I would agree with you; from January, February March, April (2015) there were a lot of meetings and I recall particularly on the 25 February, Chief Superintendent Barry O’Brien and the Executive Director of HR, Mr [John] Barrett, had met with Sergeant McCabe to try and resolve certain issues that were going on in the workplace.

I can tell that you there were discussions about establishing an expert panel of mediators to deal with workplace issues, appointing contact persons. The focus of all of those meetings were seeking to reach out to Sergeant McCabe and particularly Mr Barrett had taken a very keen interest from February on in trying to resolve workplace issues.

Official garda policy, from the very highest level, was to listen to and address the concerns of whistleblowers, including Sergeant McCabe.

By the time that the O’Higgins Commission started, however, a decision had been made to instruct the garda commissioner’s legal team to challenge McCabe’s credibility and motivation for making all of the claims he was making.

Challenging McCabe

So why was this approach taken?

At the Disclosures Tribunal we heard from a number of people on how this came to be.

It included Annmarie Ryan, appointed to represent O’Sullivan from the Chief State Solicitor’s office, Chief Superintendent Fergus Healy, appointed to be O’Sullivan’s “eyes and ears” at the commission, Colm Smyth SC, her senior barrister and O’Sullivan, herself.

A general theme of their evidence was that, such was the seriousness of many of the allegations that McCabe was making, that his evidence had to be tested.

A letter written by Maurice McCabe back in 2012 highlighted some of the claims that he was making against others within the force.

In it, he makes allegations of cover-ups, gross negligence and corruption.

mcabe transcripts 2012

mccabe transcripts 2012 2 Source: Disclosures Tribunal

Some witnesses stressed that, given that these matters had already been the subject of an internal garda inquiry and the Guerin Report, that many of the people involved had had this hanging over them for many years.

Ryan told the Tribunal: “There had been a detailed investigation carried out by Byrne and McGinn.

My understanding from all consultations was that report had dealt with numerous allegations made by McCabe and indeed had agreed with many of these. A lot of these allegations had been upheld.
The allegations of corruption, that the Byrne and McGinn Report had found that there was no corruption against senior members at the time, were still being made or before the evidence in the O’Higgins Commission, and there still, in 2015, there was no evidence there to back up any of these matters

John Barrett, the head of HR at the gardaí, said that he was told the day before commission began hearings that they were “going after” McCabe. He claims it was said by Cyril Dunne, the chief administrative officer at the gardaí.  Dunne, for his part, denies ever saying this.

Chief Superintendent Healy said at several instances that his understanding was that it was important to get to the “truth” of these matters, including why McCabe had made these allegations.

Nóirín O’Sullivan said that a “political narrative” had developed that An Garda Síochána was corrupt, and had been dogged by these claims for some time. The O’Higgins Commission was an opportunity to find “the truth” in a number of these matters, she said.

“My point of view was we needed to get facts before the commission,” O’Sullivan said. “We needed to be assured we got back to the truth.”

Legal advice

Colm Smyth was part of the team of barristers appointed a mere fortnight before the O’Higgins Commission started to represent Nóirín O’Sullivan, and the senior gardaí about whom McCabe had made allegations.

Here’s what he told the Tribunal  about what happened when he opened the “core booklet” of the commission for the first time and saw what McCabe was alleging in one of the main documents.

“Certainly when you open this core booklet the first document that sprung out to us is this proven facts document, as it has been headed… setting out very serious allegations,” he said.

And on any reading of it, it was very serious. There was allegations of suppression of documentation relating to wrongdoing in Bailieboro; suppression of a document in relation to a senior officer in respect of an inquiry he carried out in relation to wrongdoing; there was supporting of support for corruption, to save themselves; there was even reference to breach of prisoners’ civil and human rights.
This is the first document that really caused us considerable alarm as to what we were getting into here in relation to this… we were on read alert… it was quite clear from that proven facts document was that Sergeant McCabe on any reading of it was in the role of an accuser in relation to these men that we were representing.

As a result of this reading of the situation, and after being given background to McCabe, the advice from Smyth and colleagues was to challenge McCabe’s motivation for making these very serious allegations.

Stressed

It was also pointed the stress that some of those about whom McCabe had made accusations were under.

Healy said: “I think it was fairly evident from their demeanour that everybody was under a lot of stress.

I remember one particular person telling me that they had lost a lot of weight as a result of all of the issues that they had been through.

Ryan made similar allusions. She said: “I have to say that the clients I was dealing with, I would describe them literally like a deflated person. They were under enormous stress…

And I have to say, some of them were under this stress dating back since 2008. They had come through an internal investigation, they had dealt with the Guerin report, they were now before the O’Higgins Commission and they just wanted an end to it.

Contradictions

Maurice McCabe, of course, had had to contend with allegations against him too.

Namely, the D allegation in 2006.

The daughter of a Mr D, a colleague of McCabe’s, made a formal allegation that McCabe had sexually assaulted her when she was a child.

The matter was investigated by Superintendent Noel Cunningham, and the DPP decided that, even if what was being alleged was true, it didn’t constitute a sexual assault or even an assault.

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.

This was denied to him. He made a complaint to Superintendent Clancy for both he and the D family could get those DPP directions in February 2008. This was also denied.

Cunningham met with McCabe in August 2008, where McCabe said that’s why he had made the complaints to Clancy. At the O’Higgins Commission, it emerged that McCabe had secretly recorded the conversation.

The superintendent told the O’Higgins Commission that McCabe’s attitude “completely changed” after the allegation was made against him by Ms D.

McCabe said so himself, commenting in a letter: “I am a very dedicated member of An Garda Síochána and each officer I have worked with can vouch for this.

I am married with five children and this scurrilous allegation has ruined my life forever. I am a completely changed person in that I don’t trust anyone anymore.

The D allegation, and the subsequent fallout from the allegations he was making about the conduct of colleagues within the force, obviously had a very damaging effect on him.

Coupled with his increasingly public status as a whistleblower, the spectre of this allegation lingered for quite a long time and, years and years after it happened, it was appearing again at the O’Higgins Commission, an investigation into very specific allegations concerning garda cases, but not the D one.

“My career is gone”

To see it written in a letter by Nóirín O’Sullivan’s counsel that he was motivated to make allegations against gardaí simply because he wasn’t happy about not being given the DPP directions in the D case was clearly not a pleasant experience.

By all accounts he didn’t react well when it became clear that O’Sullivan’s instructions were to challenge his motivation, credibility and, what was believed at the time, his integrity.

Believing that his integrity had been attacked at a time when he was being offered supports on one hand would have been a very serious matter for the garda who had very publicly spoken out about things that were wrong within the force.

Mr Justice O’Higgins did put it to Smyth that his instructions were to challenge McCabe’s integrity. This was later clarified on day 29 of the commission, a full five months later, that his instructions were to challenge the motivation and credibility of McCabe only.

O’Sullivan sidestepped questions about how McCabe would feel about it at the time, but it undoubtedly had an effect. He sought to resign his position as Sergeant in the traffic corps in Mullingar at the time.

At the O’Higgins Commission, his meetings with the commissioner are referenced, and McCabe was asked: “Has it ever been suggested to you by her in those meetings that you were actuated by malice?”

McCabe answered: “No, never. I heard it here on Friday in relation to my role. My career is now gone because of that.”

At a time when he was being offered supports and told his concerns were being listened to at the highest levels of An Garda Síochana, he believed that O’Sullivan’s instructions were to challenge his integrity at the same time.

By seeking to protect other members of the force in this way – as she says she was doing and without any pressure from these senior officers to do so – it would not be unreasonable for McCabe to feel, as his barrister Michael McDowell suggested, that he was being alienated by the person who very publicly backed him before.

Justified?

In cases before the courts, it is not uncommon for counsel to challenge the motivation of a witness.

That is counsel’s job – to protect the best interests of their client and put the best case forward on their behalf.

Does the same logic in this case apply here, though?

Appointed at a very late stage, counsel for O’Sullivan wanted to know what motivated McCabe to make these claims and, with the fallout from the D allegation and his subsequent complaints about garda management, they felt it was a strong basis on which to challenge him.

This was no criminal trial though. At the outset of this module, it was said that the O’Higgins Commission’s role was to look at cases where gardaí may have got it wrong, and establish the facts.

Smyth, however, would say that in every case that was being looked at, McCabe was the “accuser” and that if this amounted to corruption from his clients, then McCabe should be challenged on this.

Not as simple as that

Nóirín O’Sullivan called it “an impossible dilemma” on numerous occasions at the Disclosures Tribunal.

Ken Ruane, the head of legal affairs, offered the opinion that choosing this legal strategy was jeopardising all that had gone before in terms of reaching out to McCabe as a whistleblower.

He said: “I certainly envisaged that the reaching out that occurred to Sergeant McCabe – in January, February, March, April – I didn’t see how that could continue.

It was going to create significant difficulties in that respect. With hindsight, perhaps I should have contacted the commissioner and said ‘you really need to think about this’.

Ruane went on to say that it was “certainly inconsistent with the position that had been adopted”.

For her own part, O’Sullivan said she didn’t see a contradiction in supporting McCabe publicly but choosing to challenge his credibility at the behind-closed-doors commission.

By all accounts, she had little involvement in the behind-the-scenes events that led to up to this decision being made, bar giving it the final go-ahead.

But she did give this go-ahead. She said she had to balance protecting the officers about whom the allegations had been made and protecting Sergeant McCabe. And, largely, these allegations of corruption against the senior officers were either withdrawn by McCabe or judged to be “unfounded” by Mr Justice O’Higgins.

But simply challenging McCabe’s motivation and credibility in matters as delicate such as this in a very binary, adversarial way was bound to have serious consequences.

McCabe was the very public face of whistleblowing on wrongdoings within An Garda Síochána. Politicians rallied to support him.

Public opinion of him as having the courage to stand up and speak out about these things, as well as what O’Sullivan referred to as a public perception of corruption in the force, was never going to be helped if her legal strategy was known in public.

When it was put in the public domain in May 2016 that McCabe was challenged by O’Sullivan’s legal counsel, there were calls for her to resign. These calls rarely abated amidst various garda crises over the subsequent 16 months.

On the third day of hearing evidence from O’Sullivan, Mr Justice Charleton made this important distinction, when referencing how she had to balance the senior officers potentially being annoyed and frustrated at McCabe’s allegations.

He said: “But attacking someone’s credibility can be dangerous because then the person becomes important and the facts become less important.

Do you think it might have been possible for you to say, look, I know you’re all annoyed about this and I know you feel he’s made all kinds of allegations against you, some of which may be unfounded, but if there’s proof, after all this is a judge and there’s no point in us going after him or why he made them, surely at the end of the day the whole question is, is there anything to back this up?
And if there is not, I think anybody could depend on Mr Justice O’Higgins to say, look, you can think what you like, but if there’s nothing there, there’s nothing there, which is supposed to be the judicial mindset; in other words, that the whole deployment of anything to do with credibility maybe was a bad idea?

Here, he is saying that O’Sullivan could have reached out to McCabe to explain what was going on – and how it was all about getting to the truth – instead of McCabe hearing from her own barrister that his integrity was being questioned.

For her part, O’Sullivan again repeated that bringing out these background matters about McCabe, and why he may have made these allegations, was for the purpose of “putting all the facts before the commission… to ensure that Mr Justice O’Higgins got to the truth of the matters”.

O’Sullivan never even met her legal counsel before the commission got underway, and it wasn’t until over a week after McCabe was first informed of this strategy that she even met Smyth.

She was at pains to emphasise that she was more or less detached from these proceedings, distancing herself from the actual challenging of McCabe. Her counsel did get it wrong by mentioning integrity, and O’Sullivan repeated again and again that she supported McCabe and didn’t seek to undermine him at the commission.

Reaching a conclusion

Very little about this is black and white.

Casting heroes or villains in a story such as this does not do justice to how tricky, complex and even confusing aspects of all this are.

The cast of characters is wider than just the garda commissioner and the whistleblower. All of them played a role – however big or small that may have been – in the events.

Mr Justice Peter Charleton is now faced with the task of deciding if Nóirín O’Sullivan used unjustified grounds to challenge Sergeant Maurice McCabe at the O’Higgins Commission.

It will not be easy.

Read: Nóirín O’Sullivan says McCabe had no ‘bad motives’, but chose to challenge his motivation

Read: ‘You really need to think about this’ – what Garda legal head says he should’ve said to Nóirín O’Sullivan

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About the author:

Sean Murray

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