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The Garda Commissioner, the transcripts, the tape and the unanswered questions

Garda Nóirín O’Sullivan and Justice Minister Frances Fitzgerald had a difficult night.

Annual Cross Border Organised Crime Seminar - Belfast Source: PA Archive/Press Association Images

SEVEN DAYS SINCE a judge found that many victims of crime in Cavan were failed by gardaí because of deficiencies, resources and problems with management, the fallout for one senior figure has reached crisis point.  

Nóirín O’Sullivan is now under pressure to comment further on her treatment of the garda whistleblower who brought these failings into the public spotlight. 

The O’Higgins report, in fact, is starting to raise more questions than it answers.

None more so than whether the Commissioner planned to attack the ‘integrity, motivation and credibility’ of Sergeant Maurice McCabe as the inquiry began.

After issuing a statement on Monday evening to confirm she had never regarded Maurice McCabe as malicious, O’Sullivan is being called upon to reveal what instructions she gave her legal counsel ahead of the O’Higgins Commission.

In public, she has continually praised McCabe’s contribution to the force and confirmed her support for him.

However, it has now emerged that at one stage there was an intention to argue to Justice O’Higgins that the sergeant made his concerns about work in the Cavan-Monaghan district because of a grudge he held against a senior officer.

RTÉ’s Prime Time last night revealed further details of transcripts from legal submissions to the inquiry by the Commissioner’s legal team.

They show that a change in tack was employed by senior counsel following an admission that an error was made when stating there were instructions to challenge McCabe’s integrity.

Timeline

According to the programme – and transcripts published today in the Irish Examiner – during a May 2015 exchange with Justice O’Higgins, senior counsel Colm Smyth said he had instructions from his client to “challenge the integrity certainly of Sergeant McCabe and his motivation”. 

The judge questioned the use of the word integrity, stating:

In other words that he made these allegations not in good faith but because he was motivated by malice, by some such motive and that impinges on his integrity. If these are your instructions from the Commissioner, so be it.

Smyth replied: “So be it. That is the position judge.”

Later during that hearing, he added: “This isn’t something I am pulling out of the sky, Judge. I can only act on instructions.”

To which the judge replied: “But you are attacking his motivation and you are attacking his integrity.

Smyth, then: “Right the way through.”

Prime Time’s political correspondent Katie Hannon also reported on how Smyth took a recess and came back to say his instructions were confirmed.

The following exchange then took place, she said.

Judge: “Very good. Your instructions as I understand them are that Sgt McCabe acted as he did for improper motives.”

Smyth: “Yeah.”

Judge: “Okay and that his integrity is being challenged in that respect?”

Smyth: “In that respect.”

Judge: “Okay. Fine. So be it.”

What happened next?

Garda whistleblower at committee hearing Sergeant Maurice McCabe Source: Niall Carson/PA Wire

As was revealed in the Irish Examiner last week, McCabe produced a tape recording of a 2008 meeting he had with two garda officers in Mullingar following his initial disclosures.

It was from this meeting that the accusation he was acting through malice emerged. It was alleged that his complaints about practices in the Cavan-Monaghan division came about because of a grudge against one senior officer.

The recording, however, shows that no motivation was discussed in what has now been described as a cordial meeting.

This was then introduced as evidence to the inquiry.

As a result, during a hearing in November, O’Higgins asked for clarification on the Commissioner’s intentions with regard to the whistleblower. Prime Time reported that Smyth claimed he had made an error in terms of mentioning integrity.

As far as the Commissioner was concerned at all stages I had instructions to challenge Sgt McCabe in relation to motivation and credibility.

“Well that is the clarification I sought,” replied O’Higgins, according to the transcripts read out last night.

So the position now is that his motive is under attack, his credibility is under attack from the Commissioner. But not his integrity.

Full confidence?

Dublin shootings Source: PA Wire/Press Association Images

Following the fresh revelations about the legal team’s approach towards Maurice McCabe, the Justice Minister was asked multiple times last night to express full confidence in Commissioner O’Sullivan.

In response, she claimed that it was “illegal to publish these transcripts”.

“For me to comment on them, I don’t know whether they are partial. I don’t know whether they are full. I think it is undermining of the full report when we select out certain transcripts. I do have to make that point.”

She refused to comment on whether the approach taken by the legal team, saying she didn’t think it was appropriate for her to do so. 

What I have to say to you is that you are asking me to second guess the Commission by your question. What we have is O’Higgins who was in the unique position to hear everything … and in his final report, he does not include the particular points you have made.

“In relation to the Commissioner, can I say what I have to go by is what she has said in her statement last night where she says that Sergeant Maurice McCabe’s contribution is valued and the service has changed for the better in response to the issues about which he complained.

She was asked again and again by Miriam O’Callaghan whether she had full confidence in O’Sullivan:

Fitzgerald:

Well all of the evidence that I have in relation to the job that the Commissioner is doing in terms of the modernisation and reform, in terms of the changes of the issues that were identified in this report and indeed the many other reports is that she is taking those recommendations forward and dealing with them.

O’Callaghan: “Is that a yes?”

“That is a yes in terms of her leadership of An Garda Síochána. Obviously cultural change is necessary to be protected. You don’t change a culture overnight.”

“If these transcripts are all fully accurate… Do you still have full confidence in the Commissioner?”

“I might have to go back to the point…

“That’s a yes or a no….”

“These are transcripts that are taken out of context … when the full was written… they did not feature.”

“…If they prove to be correct?…”

“I couldn’t possibly answer a question put like that. It would be completely wrong of me to comment on selective pieces of evidence that did not feature in the final version of the report.”

Dáil questions

Fitzgerald was also grilled during a Dáil sitting yesterday as a number of TDs called for the resignation of Commissioner O’Sullivan.

In an impassioned speech, Clare Daly told the minister that if the Commissioner didn’t resign “she’s going to take you with her”.

TD Mick Wallace added to Daly’s remarks saying “you’re not going to change how you do policing until you change the hierarchy”.

Again, the Justice Minister claimed that there were legal constraints in what she could say about the new details.

However, this morning , Fitzgerald shifted her position stating in the Dáil that she would welcome further comment from O’Sullivan if it is legal for her to do so.

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Responding to Micheál Martin’s claim that last night’s programme had escalated the situation, she said, “If the commissioner sees fit to make further comment that would be helpful.”

The Fine Gael deputy also told Martin he was quoting “illegal transcripts”. She said the publication of the transcripts “robs the Commissioner of defending her good name” and undermines the integrity of the commission of investigation.

“Of course the Garda Commissioner will want to clarify as much as she can, as will I,” she added, with the now oft-repeated caveat that these are only partial transcripts that did not appear in the final report.

She also tried to turn the tables again.

Fitzgerald said O’Sullivan, like any other citizen, is entitled to legal privacy.

“What if we were to ask Sergeant McCabe’s instructions to be put in the public arena – how would feel about that?” she asked her predecessor Joan Burton.

It is imprudent for such discussions to be thrown into the public domain.

However, with the wide dissemination of the transcripts from the O’Higgins commission hearing, it is unlikely the Commissioner or Minister can continue to shirk these questions.

Related: How can you have good policing in a ‘deplorable’ garda station full of trainees?

Read: Calls for Noirín O’Sullivan to resign as Garda Commissioner

More: A shocking, sobering report leaked and then selectively reported upon by our national media

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