Former Justice Minister Frances Fitzgerald with former commissioner Nóirín O'Sullivan Eamonn Farrell/
discrediting mccabe

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

Nóirín O’Sullivan’s legal strategy to discredit McCabe at the O’Higgins Commission will be under the microscope.

IT ALMOST BROUGHT down the government in the dying embers of 2017, and 2018 will kick off trying to get to the truth of it all directly.

The Disclosures Tribunal had originally arranged to look into matters relating to the allegations of Superintendent David Taylor next but, after the political turmoil of recent months, it is no coincidence that Mr Justice Peter Charleton will look at the alleged smear of Maurice McCabe at the O’Higgins Commission next.

This week, we’ll get to hear from former Garda Commissioner Nóirín O’Sullivan. Next week it’ll be former Minister for Justice Frances Fitzgerald. After that, it’ll be McCabe, himself.

So what’s this part of it all about?

The Tribunal has already looked into how a copy and paste error led to the placing of false allegations about McCabe on a Tusla file, and how the matter was brought to the attention of the gardaí.

Now, it’ll be examining something different altogether, as per the Tribunal’s terms of reference: “To investigate 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.

In 2015, the O’Higgins Commission examined allegations of garda misconduct in the Cavan-Monaghan district brought to light through claims from McCabe.

Mr Justice Kevin O’Higgins found that McCabe was never less than truthful in his evidence but may have been prone to exaggeration at times. He found that McCabe acted out of genuine and legitimate concerns, and the commission unreservedly accepted his bona fides.

Each of the parties involved had representation at this commission, including Garda Commissioner Nóirín O’Sullivan who was represented by the same counsel as many other senior gardaí. This included gardaí about whom McCabe had made allegations of corruption and incompetence.

It later emerged that part of O’Sullivan’s legal strategy was to challenge the motivation and credibility of McCabe at the commission.

The Disclosures Tribunal will now look at if this strategy to challenge McCabe’s motivation and credibility relied on the allegation of sexual abuse made by Ms D (which the DPP decided should not be pursued), and also the copy and paste error.

The O’Higgins Commission looked at numerous examples of alleged garda malpractice that McCabe had brought to light, and the commissioner’s legal term had instructions to challenge McCabe’s motivation for making these claims.

During the commission, counsel for the garda commissioner directly asked McCabe if he had a “personal grievance” with the gardaí, for example. Counsel told the judge that, “as far as the commissioner was concerned at all stages”, the instruction was to challenge McCabe’s motivation and credibility.

tribunal counsel garda comish This is one example of an exchange during the O'Higgins Commission. Disclosures Tribunal Disclosures Tribunal

As regard to the original claim of sexual assault made against McCabe in 2007, which the DPP chose not to prosecute on, counsel for the Disclosures Tribunal said in June:

Any fair-minded person applying the presumption of innocence and looking at the allegation in context would not have mentioned the matter again. Indeed Sergeant McCabe was fully entitled, insofar as he could, to leave it in the past and consign it to history.

Mr Justice Charleton will now hear from a variety of witnesses, including barristers, senior gardaí and civil servants within the gardaí, to try to establish if O’Sullivan’s legal strategy relied on these false sexual abuse allegations.

How did it almost bring down the government?

Well, that all came to light in the last few months. After initially saying that it was not the case, then-Minister for Justice Frances Fitzgerald later admitted being informed of the legal strategy being taken by Nóirín O’Sullivan.

An email was sent to her back in May 2015 around this legal strategy.

The email concerns a row between McCabe’s and O’Sullivan’s legal teams and mentions an allegation that “a serious criminal complaint against Maurice McCabe – which he had always denied – had not been properly investigated by the Garda Siochána”.

The fact that she was sent the email would suggest that Fitzgerald knew about these legal efforts to discredit McCabe.

All of this snowballed into a huge scandal for the government towards the end of the year, with the opposition tabling motions of no-confidence in Fitzgerald.

The government consistently said that it would have been “absolutely inappropriate” to try to influence the legal strategy in any way but the opposition thought otherwise.

Sinn Féin’s Mary Lou McDonald said there were questions over the Tánaiste’s “competence and judgement” given the email sets out the former Garda Commissioner’s strategy “to undermine and attack the credibility”. Solidarity–PBP TD Paul Murphy described the strategy as a “disgusting attempt to blacken the name of Maurice McCabe”.

After marathon discussions between Taoiseach Leo Varadkar and Fianna Fáil leader Micheál Martin, Frances Fitzgerald finally relented herself and resigned as Tánaiste.

Fitzgerald will appear before the Tribunal herself, as she falls under the remit of the Tribunal to investigate “contact between members of An Garda Síochana [...] members of the government” in relation to matters before the Tribunal.

The government had repeatedly said that it wanted these matters to be dealt with by the Tribunal.

It’ll soon get its wish.

What can we expect over the next few weeks?

In all, a full 25 witnesses are due to appear before the Disclosures Tribunal in the next two weeks, alone.

There are a few names that stand out, so here’s when they’re due to appear:

  • Nóirín O’Sullivan – Tuesday 9 and Wednesday 10 January
  • Frances Fitzgerald – Tuesday 16 January
  • Sergeant Maurice McCabe – Thursday 18 January

These dates are, of course, subject to change if other witnesses go over the scheduled time.

The O’Higgins Commission will make a reappearance later on in the Tribunal’s proceedings, when it looks at the leaked account of the commission’s report in a number of RTÉ broadcasts in May 2016.

In looking at the O’Higgins Commission, the Tribunal will not go over the specific allegations of garda misconduct from that commission again.

According to counsel for the Tribunal, to do so would be an exercise in “futility [in] spending huge sums on a public re-examination of work that has already” been done.

Simply put, it will examine if the legal strategy from the garda commissioner at O’Higgins was informed by the false allegation of sexual abuse, and what the government knew about it.

Whatever comes out here will be vital to what comes after, when the Tribunal takes a deeper look at claims made by Superintendent David Taylor, that former Garda Commissioner Martin Callinan directed him to smear McCabe in the media.

Establishing what exactly what was known about McCabe and the allegations against him in the highest ranks of An Garda Síochana will be essential in informing Mr Justice Charleton’s eventual conclusions.

Read: Did Martin Callinan order a smear campaign on McCabe? And did Nóirín O’Sullivan know about it?

Read: ‘This is utter nonsense’: How Justice Charleton eviscerated Garda Keith Harrison’s claims