Friday 28 April 2017

Tribunal told of concerns over legal representation for Garda Commissioner and other senior officers

Sgt.Maurice McCabe. Photo: Tom Burke
Sgt.Maurice McCabe. Photo: Tom Burke
Shane Phelan

Shane Phelan

Major flashpoints emerged at the Disclosures Tribunal with concerns expressed about Garda Commissioner Nóirín O’Sullivan, her predecessor Martin Callinan, and other members of the force being represented by the same legal team.

Lawyers for garda whistleblowers Sergeant Maurice McCabe and Superintendent David Taylor raised concerns that this could cause “a conflict of interest”.

Michael McDowell SC, for Sgt McCabe, said the arrangement could limit the ability of some officers to give evidence independently.

A second major flashpoint also emerged today, with disagreements between the tribunal chairman, Mr Justice Peter Charleton, and lawyers for three media groups in relation to journalistic privilege.

Mr Justice Charleton said journalists should first indicate if they know anything of value to the tribunal before the issue of journalistic privilege could be discussed.

However, lawyers for Independent News & Media, the Irish Times and Associated Newspapers said they wanted issues around privilege clarified first.

The tribunal, which is investigating allegations that a smear campaign against Sgt McCabe was orchestrated by senior gardaí, met today to hear applications from potential witnesses for legal representation.

Mr Justice Charleton said people whose reputation may be affected by the tribunal were entitled to apply for legal representation and that he would issue determinations next week on who can be represented.

Conor Dignam SC, instructed by the office of the Chief State Solicitor, applied for representation for Garda Commissioner Nóirín O’Sullivan, former commissioner Martin Callinan, and other members of the force, save those who opt for their own representation.

He confirmed he was also representing three officers, of chief superintendent and assistant commissioner rank.

These officers were written to by the tribunal about public comments they made where they denied there was any cause for concern in relation to allegations Sgt McCabe made about policing issues in the Cavan/Monaghan division.

The O’Higgins report found that there were in fact issues of concern.

Mr McDowell SC, instructed by solicitor Sean Costello, applied for representation on behalf of Sgt McCabe.

He also said he may be objecting to “the appropriateness of such a broad representation”, as outlined by Mr Dignam.

“There can be a conflict of interest and there can be a process issue in that the commissioner is assembling instructions for a wide variety of people. There can be a question of her having a conflict of interest in that context,” said Mr McDowell.

“I have a deep concern about the garda commissioner and former commissioner Callinan being represented by the same person and a deep concern that the process that has been established to gather evidence by a single team for this tribunal will have a serious effect on the capacity of individual members of An Garda Síochána to be independent in their testimony before this tribunal.”

Mr McDowell’s concerns about a potential conflict of interest were echoed by barrister John Ferry, who applied for representation for Supt Taylor.

Applications for legal representation were also made on behalf of former justice minister Alan Shatter, RTÉ and a number of its employees, whistleblower garda Keith Harrison, Tusla, Fianna Fáil TD John McGuinness, and a number of individual garda officers.

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