Thursday 21 June 2018

Department of Justice was 'hand in glove' with Garda force after O’Higgins report

Nóirín O’Sullivan Photo: Gareth Chaney, Collins
Nóirín O’Sullivan Photo: Gareth Chaney, Collins
Shane Phelan

Shane Phelan

A former senior Government official has admitted the Department of Justice was "hand in glove" with An Garda Síochána after the publication of the O'Higgins Commission report because they didn't want Nóirín O'Sullivan to resign.

Former department deputy secretary general Ken O'Leary told the Disclosures Tribunal officials did not believe there was anything in Mr Justice Kevin O'Higgins' report which would have warranted her removal.

The commission, which sat in private in 2015, examined complaints Sgt Maurice McCabe made about malpractice in the Cavan/Monaghan Garda division.

However, he said the leaking of part of a commission transcript, which gave rise to media reports stating the commissioner had instructed her legal team to accuse Sgt McCabe of malice, had led to “a feverish climate” where her position was being questioned.

Following those reports, Mr O'Leary did the first draft, and was consulted on further drafts, of a letter which Ms O'Sullivan later sent to then Justice Minister Frances Fitzgerald to explain what had happened.

At the time, May 2016, Ms O'Sullivan feared for her position as Ms Fitzgerald had not expressed confidence in her.

The commissioner told the tribunal last week she felt the letter was the most important of her career.

Mr O’Leary said Ms O’Sullivan was being “traduced” as a result of the leak, in circumstances where she could not defend herself due to the private nature of the commission.

He said the department had to rely on the official O'Higgins Commission report, which did not contain criticism of the commissioner.

Based on this report, the department's view was that the public interest would not be best served by Ms O'Sullivan's position being put at risk.

Mr O'Leary said he knew the exchange of drafts "looked a bit odd".

There had been a meeting, attended by gardaí and department officials, where the matters were discussed and he took the view that “to move the process along” he would commit the points discussed to paper.

The tribunal heard there were around 15 drafts of the letter in total before it was finally delivered to Ms Fitzgerald ahead of a debate in the Dáil.

Public relations consultant Terry Prone was sent a draft by Ms O’Sullivan during the drafting process.

Mr O’Leary said he did not know what involvement Ms Prone had.

Tribunal counsel Pat Marrinan said commentators might say the department and the gardaí were “hand in glove” on the issue.

Mr O’Leary accepted this was the case and that this was “for very good reason”.

“It wasn’t because of loyalty or whatever. It was because there was no proper basis for questioning the commissioner’s position,” he said.

Mr O’Leary said he knew from previous Garda controversies that things could go anywhere, referring to the sudden retirement of Ms O’Sullivan’s predecessor, Martin Callinan.

Ms O’Sullivan was being pilloried, he said, and it was obvious that a sensible person might say they weren’t putting up with it any more and leave.

Mr O’Leary was also questioned about phone conversations he had with Ms O’Sullivan on May 15, 2015.This was the day a row broke out at the commission over the commissioner’s legal strategy to challenge the credibility and motivation of Sgt McCabe for making complaints.

The tribunal has previously heard lawyers for Ms O’Sullivan and other senior officers were briefed that Sgt McCabe had begun making complaints against senior colleagues after he was refused access to the full DPP directions in the Ms D case.

Ms O’Sullivan was not involved in this briefing.

The Ms D case was an investigation which cleared Sgt McCabe of an allegation of sexually assaulting the daughter of a colleague.

Mr O’Leary said he believed the context of the call was that the row over the legal strategy might come into the public domain and that Ms O’Sullivan wanted to alert him to that possibility.

The tribunal has previously heard there had been an expectation that Sgt McCabe might seek a judicial review in relation to legal strategy, something which would have led to the matter receiving media coverage in open court. Ultimately, this did not occur.

Mr O’Leary said Ms O’Sullivan had not asked for direction from him, but was using him as “a sounding board”.

He said he would have told her the department could not get involved in any way in the legal approach adopted by the commissioner.

According to a written statement he gave to the tribunal, Ms O’Leary said to the best of his recollection there was a discussion of the need for sensitivity in relation to protecting the position of Sgt McCabe as well as a number of individuals against whom serious allegations had been made.

He also said they discussed the likely adverse reaction of the commission to the introduction of matters which it might consider inappropriate.

Also discussed was the overall duty of the commissioner to assist the commission in whatever way possible to establish the facts of what the commission had been established to investigate.

Mr O’Leary did not inform Ms Fitzgerald of the discussion with the commissioner.

He said he had an uneasiness about doing so as the minister could not establish a commission of investigation and then get involved in the legal advice of a participant of the commission.

However, he saw a route through which the minister could be appropriately informed when an official at the Attorney General’s office contacted the department after learning of the row at the commission.

An email was sent for the minister’s attention to her private secretary by the department’s assistant secretary Michael Flahive, alerting her that the Attorney General’s office had been in contact.

That email made it clear that there was no issue arising for the minister.

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