Wednesday 12 December 2018

Fitzgerald made 'conscious decision' not to intervene in McCabe legal row

Former Tánaiste says she never considered contacting commissioner

Former Minister for Justice and Equality Frances Fitzgerald TD at the Disclosures Tribunal in Dublin Castle, Dublin. Photo: Gareth Chaney, Collins
Former Minister for Justice and Equality Frances Fitzgerald TD at the Disclosures Tribunal in Dublin Castle, Dublin. Photo: Gareth Chaney, Collins
Shane Phelan

Shane Phelan

Former Tánaiste Frances Fitzgerald said she made "a conscious decision" not to intervene after being informed there was an issue with then Garda commissioner Nóirín O'Sullivan's legal strategy at the O'Higgins Commission.

Ms Fitzgerald has previously said she did not recollect receiving an email when she was justice minister, alerting her to a row at the commission over the strategy.

In evidence to the Disclosures Tribunal, she indicated she must have considered the email and made a decision not to act on it.

"I made a conscious decision obviously not to interfere in the commission in any way because I would have considered it inappropriate," she said.

"And I took a conscious decision that Judge O'Higgins would deal with whatever issues, as I expected he would, at the commission."

The Fine Gael TD resigned from the Cabinet last November following the disclosure of the email from Department of Justice assistant secretary Michael Flahive, which was sent to her on May 15, 2015. Her public position had been that she had no prior knowledge of the legal strategy adopted by Ms O'Sullivan prior to it coming into the public domain in May 2016.

Under questioning from tribunal counsel Diarmaid McGuinness, Ms Fitzgerald said she could not agree that the email informed her of Ms O'Sullivan's legal strategy, which had been to question the credibility and motivation of Sgt McCabe for making serious complaints against colleagues.

She said Mr Flahive's email had been confusing and had conflated a number of issues. It had also been "for information" only and advised that there was no action required of her or the Attorney General's office.

Ms Fitzgerald said it was sent to her on a Friday evening and that she may have read it that night or over the weekend.

The tribunal heard she had been supportive of Sgt McCabe, personally intervening with the Garda commissioner after he raised concerns with her about how he was being treated in the workplace.

Despite enjoying a close working relationship with Ms O'Sullivan, she said she never considered asking her what was going on at the commission.

"The days of political interference into something like that are long gone," she said.

Ms Fitzgerald said if she had intervened in an independent commission she would be "answering different questions now".

Earlier, the tribunal heard about a freshly disclosed email, which revealed that a report was compiled for Ms Fitzgerald in May 2015 in which she was informed that an allegation of sexual assault against Sgt Maurice McCabe had been referred to at the commission.


The email was sent by Martin Power, a principal officer in the department, to Mr Flahive on May 27, 2015, and marked for the attention of Ms Fitzgerald.

Mr Power said there was no note on the file that confirmed Ms Fitzgerald had read it.

However, the tribunal heard her initials and the word "noted" were written on a printed-out version of the email disclosed by the department.

If she did see it, the emergence of the email would seem to further undermine her position that she did not know of the legal strategy until around the time it came into the public domain in May 2016.

Ms Fitzgerald was not asked about this email yesterday and her questioning will continue today.

The tribunal heard that Mr Power's email was to update Ms Fitzgerald about a Garda Síochána Ombudsman Commission (GSOC) investigation into a complaint by Ms D, the woman who alleged she was sexually assaulted by Sgt McCabe as a child. A Garda investigation found no crime had taken place.

Ms D made a complaint to GSOC on April 29, 2014, alleging a cover-up by gardaí. However, GSOC found there was no issue with the way the investigation was conducted.

In his email to Mr Flahive, Mr Power wrote: "I think the alleged sexual assault was referred to in a particular context during the recent initial hearings of the O'Higgins Commission of Investigation."

Sgt McCabe's counsel Michael McDowell suggested it would be fairly safe to assume Mr Flahive gave the report to the minister.

"That is the conclusion I would draw," replied Mr Power.

Irish Independent

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