Thursday 16 August 2018

Disclosures Tribunal: ‘Deliberate leaks were designed to do maximum damage to my reputation', O’Sullivan claims

Former Garda commissioner Noirin O’Sullivan arrives to give evidence at the Disclosures Tribunal in Dublin Castle
Former Garda commissioner Noirin O’Sullivan arrives to give evidence at the Disclosures Tribunal in Dublin Castle
Shane Phelan

Shane Phelan

Former Garda Commissioner Nóirín O’Sullivan has claimed what she described as the “deliberate, selective leaking” of part of a transcript from the O’Higgins Commission was designed to “do maximum damage” to her.

The Disclosures Tribunal heard a political “frenzy” occurred in May 2016 following the publication of a newspaper report which claimed Ms O’Sullivan’s legal team had been instructed to accuse whistleblower Maurice McCabe of malice at the commission.

Ms O’Sullivan told the tribunal this was completely untrue and that a three minute portion of the commission’s proceedings had been leaked, giving an inaccurate picture of what had occurred.

While Ms O’Sullivan gave instructions to challenge Sgt McCabe’s motivation and credibility, she maintains she never suggested any bad faith on his part or sought to question his integrity.

The report and subsequent follow-ups in the media led to her facing calls to consider her position.

“Deliberate and selective leaks were put into the media in a situation where I could not respond and to do the maximum damage to my position and reputation,” she said.

The tribunal heard then Tánaiste and Justice Minister Frances Fitzgerald declined to say whether she had confidence in Ms O’Sullivan when she was asked this a number of time during an interview on RTÉ’s Prime Time.

The morning after the television appearance, May 18, Ms O’Sullivan sent a series of emails to Ms Fitzgerald, including what appeared to be a draft statement that could be read in the Dáil.

Garda whistleblower Sergeant Maurice McCabe. Photo: Gareth Chaney, Collins
Garda whistleblower Sergeant Maurice McCabe. Photo: Gareth Chaney, Collins

This statement included the legal advice Ms O’Sullivan had relied upon when making the decision to challenge Sgt McCabe.

It said Ms O’Sullivan had never accused Sgt McCabe of malice and also contained a line expressing confidence in the commissioner.

However, Ms Fitzgerald did not read the statement in the Dáil and instead sought a meeting with Ms O’Sullivan the following day.

The then Tánaiste later informed her she did not agree with releasing the legal advice because of the precedent this would set.

Ms O’Sullivan denied she had drafted a statement for the Tánaiste to read.

She said she had in fact had been drafting a statement for herself and may well have referred to herself in the third person. This is what she sent to the minister, she said.

She also said there were facts in the draft which the Tánaiste could choose to rely upon or not.

Ms O’Sullivan told tribunal counsel Kathleen Leader BL that she felt at the time that if Ms Fitzgerald did not publicly express confidence in her she would have no option but to consider her position.

“At that point in time I felt completely isolated,” said Ms O’Sullivan.

“I felt that if this was the only way to set the record straight and put the truth in the public domain, then this was the thing to do.”

Ms O’Sullivan went on to say: “I made it clear to the Tánaiste that we were dealing with a report in the newspaper that did not factually portray what happened the O’Higgins Commission.

She told Ms Leader her role was being politicised in a way that was not acceptable to her.

“I felt I was being used as a political football and this is something that continued right up to my retirement last year,” Ms O’Sullivan said.

She went on to say: “Distorted facts led to a situation which was completely unfair to everyone in the process.”

Earlier today, Ms O’Sullivan denied she was under pressure from within An Garda Síochána to challenge Maurice McCabe’s motivation and credibility at the O’Higgins Commission.

The Disclosures Tribunal heard how Ms O’Sullivan discussed the issue of Sgt McCabe’s motivation at a meeting with her legal team on October 20, 2015.

The previous May, Mr Justice Kevin O’Higgins ruled that the legal team was permitted to establish that Sgt McCabe had a grievance, real of perceived, arising from the refusal of senior gardaí to release the full DPP directions in a case where he was cleared of a sexual assault allegation. He stated motivation was “only periphery, very periphery”.

But at the October meeting, there was a discussion as to why it was necessary to continue challenging Sgt McCabe motivation.

Commenting on the meeting at the tribunal today, Ms O’Sullivan said she had a duty to balance the rights of individuals against whom allegations had been made and the rights of Sgt McCabe.

Asked by tribunal counsel Kathleen Leader BL if she had been under pressure from other officers to challenge Sgt McCabe, she replied: “No. I was never under pressure from anyone within the organisation.”

She went on to say that she was “very conscious” of the impact the allegations were having on An Garda Síochána and how the force was being perceived in the community.

The October meeting came just before Ms O’Sullivan was due to give evidence at the commission, which examined allegations made by Sgt McCabe of malpractice and corruption in the Cavan/Monaghan division.

It was anticipated that Ms O’Sullivan would be quizzed by Sgt McCabe’s lawyers about the instructions she gave to her own legal team and she was advised that she could assert privilege over those instructions.

A note of the meeting made by Chief Superintendent Fergus Healy, the Garda liaison officer to the commission, stated: “Would the commissioner consider withdrawing?”

But Ms O’Sullivan said: “I don’t remember any discussion of withdrawing anything.”

She went on to say there was never any suggestion of “bad faith” by Sgt McCabe in making his allegations.

Ms O’Sullivan said she had always said that whistleblowers or members of the force with issues must be listened to even though they may not always be right.

Yesterday, it emerged Sgt Maurice McCabe felt “under threat” from Ms O’Sullivan after her lawyers sought to challenge his motivation for raising concerns about Garda malpractice.

The whistleblower told his superintendent, Alan Murray, he wanted to leave his post as sergeant in charge of the Garda traffic unit in Mullingar because if anything was to go wrong “it would come down on him like a tonne of bricks”.

The conversation occurred three days after lawyers for Ms O’Sullivan indicated at the O’Higgins Commission they would be challenging his motivation and credibility.

A memo, written by Supt Murray and sent up the chain of command, said Sgt McCabe “did not feel safe” remaining in the sergeant in charge role.

“As an explanation he indicated the reason was Nóirín O’Sullivan and that he felt under threat,” Supt Murray’s memo said.

Ms O’Sullivan told the tribunal she could understand Sgt McCabe may have felt under pressure at the commission.

But she added: “I was at a loss to know what he meant when he said he was under threat from me and that if something happened I would be down on him like a tonne of bricks, because that was certainly never the impression given.”

Ms O’Sullivan defended her decision to instruct lawyers to challenge Sgt McCabe. She said the instruction was based on legal advice and that while credibility and motivation were to be examined she never considered Sgt McCabe to be “malicious” or lacking integrity.

The legal advice arose from a consultation meeting on May 11, 2015 attended by gardaí and lawyers during which three barristers were briefed on Sgt McCabe’s background.

Tribunal chairman Mr Justice Charleton has said Sgt McCabe was portrayed as a bitter man who was prone to exaggeration at the briefing.

Ms O’Sullivan was not present and the legal advice was relayed to her afterwards.

It left her with “an unprecedented dilemma” but ultimately she approved the strategy as she felt his evidence had to be tested. “I was very satisfied that the advice was coming from a competent and professional legal team,” she said.

Ms O’Sullivan said she had been absolutely committed to supporting Sgt McCabe in the workplace and that it “wasn’t an easy decision” to challenge him at the commission.

“I was very aware that it would change Sgt McCabe’s perception of me,” she said.

The briefing appears to have included some of the background to the Ms D case, where Sgt McCabe was cleared of an allegation of sexual assaulting the daughter of a colleague.

The barristers were told he was unhappy the full DPP directions were not circulated.

“It certainly seems to me Sgt McCabe was very frustrated by his perception this matter was not being dealt with adequately by [Garda] management,” said the former commissioner.

After a row developed over the legal strategy on May 15, the second day of the commission, lawyers for Ms O’Sullivan were asked to reconfirm their instructions. This led to a flurry of phone calls to her from Chief Supt Fergus Healy, the Garda liaison officer to the commission.

Initially Ms O’Sullivan suggested they seek an adjournment. When this was rejected she said the lawyers were to proceed with their instructions.

Her decision was relayed immediately after a 14 minute phone call with then Department of Justice secretary general Noel Waters. Ms O’Sullivan said she didn’t have a specific recollection of the call but believes she would have mentioned the legal row at the commission as well as the foiling of a planned terror attack on Prince Charles, who was due to visit Ireland the following week.

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