Saturday 1 October 2016

Fitzgerald's paralysis over McCabe row puts her credibility on the line

Published 24/05/2016 | 02:30

Tánaiste and Justice Minister Frances Fitzgerald at the Annual Garda Memorial Day, for members of An Garda Síochána killed in the line of duty, at Dublin Castle on Saturday. Photo: Mark Condren
Tánaiste and Justice Minister Frances Fitzgerald at the Annual Garda Memorial Day, for members of An Garda Síochána killed in the line of duty, at Dublin Castle on Saturday. Photo: Mark Condren

It is now more than a week since Garda Commissioner Nóirín O'Sullivan issued a clarifying statement on her attitude to whistleblower Sergeant McCabe that, in actual fact, clarified nothing.

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Having insisted she "does not - and have never - regarded Sgt McCabe as malicious", she pointedly failed to explain why her barrister was seemingly instructed to impugn his motivation and credibility at the commission of inquiry.

According to transcripts leaked from the inquiry, it was the Garda Commissioner who gave those instructions.

"I have instructions from the commissioner judge … my instructions are to challenge the integrity of Sgt McCabe and his motivation," said Colm Smyth SC, addressing the commission in May.

In an effort to dispel any doubt about the nature of those instructions, the proceedings were even adjourned to allow Mr Smyth to leave the room and check them, which he did, informing the commission the same instructions had been "reconfirmed".

Those transcripts have been in the public domain for more than a week now, yet Justice Minister Frances Fitzgerald seems content to wait indefinitely for the Garda Commissioner to explain the apparent contradiction between her public support of Sgt McCabe and instructions given in private to her legal team.

Asked on Sunday when the public could finally expect to hear that clarification, Ms Fitzgerald said the commissioner would release a statement in her own sweet time.

She said it was "entirely up to the Garda Commissioner" when she chose to clarify the matter and that she would do so "in the appropriate form".

Is this the best the Justice Minister can do? Does she not feel it is incumbent on the Garda Commissioner to address this ongoing controversy, which has cast a shadow over An Garda Síochána, at the earliest opportunity?

If the Garda Commissioner was able to issue a lengthy statement last week insisting that "dissent is not disloyalty" and Sgt McCabe's "contribution is valued", what is stopping her issuing a terse statement confirming or denying the veracity of the transcripts that have been released?

Both the commissioner and the Justice Minister have claimed that legal constraints, precluding them from discussing evidence heard at the inquiry, have complicated matters.

Ms Fitzgerald has even claimed that publishing the transcripts is illegal - which is odd, given that every single media outlet in the country appears to have different legal advice.

Meanwhile, a number of legal experts, including DCU law lecturer Dr Tom Hickey, have pointed out that legal submissions are not evidence and that, therefore, neither the commissioner nor the minister are precluded from commenting on the matter.

If the commissioner persists in maintaining she is statute-barred from commenting further, then she is open to the charge that she is using the law in a self-serving attempt to avoid answering difficult questions.

Apart from the question of the legal instructions given to her barrister, the commissioner's position may yet be untenable if it transpires she has done nothing to investigate claims that two gardaí prepared a report in which they alleged Sgt McCabe was motivated by a personal grudge.

Addressing the commission in May, Mr Smyth said his instructions, that Sgt McCabe's motivation and credibility were in issue, would be supported by evidence.

That evidence was supposed to be testimony from two gardaí who met Sgt McCabe in 2008 and alleged he confessed, at that meeting, to making complaints in an attempt to settle a score against a senior garda.

However, when Sgt McCabe produced a recording of that meeting, irrefutably contradicting those accusations, those gardaí were never called to give evidence and that charge simply fell away.

In any properly functioning police force, where whistleblowers are truly valued and protected, claims that gardaí fabricated evidence to destroy the reputation of a fellow officer would be investigated immediately.

It beggars belief that the Justice Minister, to date, has been unable to confirm whether or not that investigation was launched last year after Sgt McCabe produced a tape proving his innocence.

Is the minister satisfied that garda whistleblowers apparently need to record conversations with colleagues, and store them for up to seven years, to protect themselves against attempts to misrepresent those discussions?

While the Justice Minister has been eager to highlight procedural changes in the manner in which garda whistleblowers are treated, she has done nothing to assuage concerns that the culture in the force, referred to in the O'Higgins report as a "corporate closing of the ranks", remains as toxic as ever.

Instead of addressing the issues that have come to light in the leaked transcripts, Ms Fitzgerald has clung to Ms O'Sullivan's insistence that she never regarded Sgt McCabe as malicious like a shipwreck victim to some flotsam.

Mr Smyth may never have used the word "malice" to describe Sgt McCabe's motivation, but he did repeatedly state he had instructions to question his integrity, motivation and credibility. It is those specific instructions the Garda Commissioner urgently needs to address.

Ms Fitzgerald has also decried the fact that the 360-page O'Higgins report has been virtually ignored as the media continues to focus on legal submissions made by the commissioner's counsel during the hearings.

However, if she really wants the media to move on, and give the O'Higgins report the attention it deserves, there is an easy way to do that: Ensure the Garda Commissioner issues a statement that puts the matter to bed.

Regrettably, there has been no indication about when, or even if, this statement is likely to be issued by the commissioner and little apparent interest from the minister in her doing so.

In the absence of this clarification, Ms Fitzgerald, and a succession of cannon-fodder Fine Gael TDs, have given repeated media interviews in which they rigidly stuck to briefing notes seeking to downplay the furore and depict it as little more than media hysteria.

Speaking in the Dáil last week, Labour TD Joan Burton suggested those briefing notes read as follows: "If pursued on this matter, keep repeating exactly the above".

How much longer can the minister adhere to her prepared script, disavowing any ability to comment on the controversy, before her credibility is left in tatters?

Irish Independent

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