O'Sullivan contacted Justice officials about McCabe strategy
Ex-Garda boss 'sought to talk to department before confirming plan to challenge whistleblower'
Former Garda commissioner Nóirín O'Sullivan consulted the Department of Justice before deciding to proceed with a controversial legal strategy questioning the motivation of whistleblower Sgt Maurice McCabe for making complaints.
The consultation took place in May 2015 while the O'Higgins Commission was examining Garda conduct and competence in the Cavan/Monaghan division on foot of a series of allegations made by Sgt McCabe about the way certain investigations were handled.
Details of the contact emerged at the Disclosures Tribunal, which yesterday began public hearings in a module examining whether false allegations of sexual abuse or any other unjustified grounds were inappropriately relied on by Ms O'Sullivan to discredit Sgt McCabe at O'Higgins.
The issue of what former tánaiste Frances Fitzgerald knew at the time of the legal strategy almost brought down the Government last November.
An election was averted only when Ms Fitzgerald resigned.
In a statement to the tribunal, Ms Fitzgerald denied having any knowledge of the legal strategy. She said she was sent an email by assistant secretary general Michael Flahive highlighting an issue at the commission but did not recall receiving it. In any event, the email was "for information" purposes only, she said.
"I was not entitled to interfere in the commission and I did not know the legal strategy being pursued by the Garda commissioner, nor had I any role in relation to it," said Ms Fitzgerald.
Tribunal counsel Kathleen Leader BL said Chief Superintendent Fergus Healy, who was the Garda officer liaising with the commission, kept a note of conversations he had with Ms O'Sullivan on May 15, 2015, during which he sought confirmation of her legal instructions.
The note said Ms O'Sullivan "sought time to speak to the DOJ" before returning with instructions that if her legal counsel was advising the area of motive be explored "then she was inclined to give instructions to him to explore that issue".
Lawyers for the commissioner had earlier advised her that it would become necessary to put "certain background" issues to Sgt McCabe, including a Garda investigation in 2006 and 2007 into a complaint that he sexually assaulted a child, now known as Ms D, years earlier.
The Director of Public Prosecutions found there was no evidence against Sgt McCabe, but the whistleblower was said to have been upset the full contents of the DPP's decision letter were not shared by gardaí with him and Ms D's family.
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Chief Supt Feeney's conversations with Ms O'Sullivan took place after questions were raised at the commission by Sgt McCabe's barrister Michael McDowell SC about the commissioner's legal strategy.
During exchanges at the commission, Ms O'Sullivan's barrister Colm Smyth SC confirmed he had instructions from Ms O'Sullivan to challenge Sgt McCabe.
"My instructions are to challenge the integrity certainly of Sgt McCabe and his motivation," the barrister said.
"His motivation and his credibility in mounting these allegations of corruption and malpractice."
After a brief adjournment, Mr Smyth said: "My instructions are re-confirmed."
He agreed with Mr Justice O'Higgins that he was challenging Sgt McCabe's integrity on the basis that Sgt McCabe had acted for improper motives.
However, when Mr Justice O'Higgins raised the issue at another hearing the following November, Mr Smyth said it had been an error to use the word "integrity". "My instructions are contained at his motivation and credibility only," he said.
Ms Leader told the tribunal that a letter was sent to the O'Higgins Commission by the Office of the Chief State Solicitor on May 18, 2015 setting out the matters that the commissioner was relying upon.
The letter said Sgt McCabe had two encounters with Ms D and her mother in October 2007, some six months after the DPP decided he had no case to answer. Afterwards he raised with a superintendent the issue of the dissemination of the DPP's directions as he was of the view Ms D's family were unaware of them.
The letter also stated, incorrectly, that Sgt McCabe had advised two gardaí that the only reason he had made a number of complaints was to put pressure on the superintendent to have the full DPP directions circulated, which was not in accordance with procedure.