Controversy continues to fester for Government
Published 19/05/2016 | 02:30
Much confusion has been created by claims there is a contradiction between what Garda Commissioner Nóirín O'Sullivan has said in public about Sgt Maurice McCabe, and her instructions to her legal team representing her at the O'Higgins Commission.
More hysterical critics of the commissioner have called for her head on a plate.
But a close examination of the facts presents a different scenario - that Ms O'Sullivan was correct in instructing her counsel to challenge the motivation and credibility of Sgt McCabe in relation to his allegations of corruption and malpractice against five senior garda officers, including former commissioner Martin Callinan.
Barristers are hired by their clients to probe into the reasons why serious allegations are levelled by an accuser.
They must establish the background to those claims and determine as far as possible whether the accusations are credible and accurate.
In this particular case, the allegations, if accepted by the O'Higgins Commission, could have led to the sacking of four high-ranking, senior officers.
Mr Callinan was forced to step down after a late-night visit to his home by a senior Department of Justice official.
The hullabaloo over whether Ms O'Sullivan was accusing Sgt McCabe of malice in bringing his complaints is a smokescreen, which has been ended by the disclosure of part of the transcript of the inquiry.
This, in fact, shows that Mr Justice O'Higgins accepted that counsel for the commissioner had never used the word "malice" but it had been introduced into the discussion by Mr Michael McDowell, who represented Sgt McCabe, and the judge himself.
The recently-published report showed there was "not a scintilla of evidence" to support allegations against any of the five officers and all of them were vindicated by the findings. Those findings surely validate the decision by the commissioner to provide those instructions.
If the allegations had been left unchallenged, Judge O'Higgins would likely have had little option but to find the five guilty of the claims.
It is established clearly in the transcript that the challenge was in relation solely to the corruption and malpractice allegations. It would have been hypocritical in the extreme to adopt a similar stance in relation to complaints by Sgt McCabe about the Garda's Cavan-Monaghan division, in particular the Bailieboro district.
Those complaints had been previously aired by Sgt McCabe and fully investigated by two officers, appointed by then commissioner Callinan.
Where it was deemed appropriate, action was taken against members of the force.
In the light of the findings of the garda investigation, it is hardly likely that Ms O'Sullivan would have taken the view that Sgt McCabe was acting out of malice in lodging his Cavan-Monaghan complaints.
In her second public statement, on Tuesday evening, she could not have been more emphatic: "I want to make it clear that I do not, and have never, regarded Sgt McCabe as malicious."
That statement left little room for ambiguity.
What is needed now is for the Commissioner, Justice Minister and their legal advisers to find a more liberal interpretation of the legislation governing commissions of inquiry.
This would allow Ms O'Sullivan to explain why there is no contradiction between her earlier comments on Sgt McCabe and her instructions to her senior counsel.
The longer they wait, the more this controversy will continue to fester.