Wednesday 17 January 2018

Prospective witnesses given two weeks to contact Disclosure Tribunal into garda conduct

Justice Peter Charleton, Presiding over the Disclosure Tribunal at its opening at Dublin Castle. Photo Colin O'Riordan
Justice Peter Charleton, Presiding over the Disclosure Tribunal at its opening at Dublin Castle. Photo Colin O'Riordan
Shane Phelan

Shane Phelan

SUPREME Court judge Peter Charleton has asked anyone with information relevant to the alleged smear campaign against garda whistleblower Maurice McCabe to provide written statements in the next fortnight.

Opening the tribunal at Dublin Castle today, Mr Justice Charleton said the “basic touchstone” of the tribunal would be “fairness”.

“There are no preconceived notions in this tribunal as to who is a villain and who is a victim, if there are such,” he said.

The tribunal has been set up to examine allegations of an alleged smear campaign against Sgt McCabe. It will also examine disclosures made by Superintendent David Taylor and another whistleblower, Garda Keith Harrison.

However, Mr Justice Charleton announced that one of its terms of reference, the consideration of other protected disclosures made prior to February 16 this year would be “parked” for now.

The Supreme Court judge also indicated he may have to make rulings regarding journalistic and legal privilege in the course of the tribunal.

Mr Justice Charleton said he would not tolerate participants who lie or obfuscate and that the tribunal had been entrusted with doing its business in a speedy manner.

“The tribunal is here to establish the truth,” he said.

“The tribunal is a drain on the resources of the Irish people, and it is paid for by their submission to the democratic structures of which taxation has been a central part in our tradition.

“Every lie before the tribunal will be a waste of what ordinary men and women have paid for through their unremitting efforts.

“Every action of obfuscation, of diversion of focus, and of non-cooperation is unwelcome for that reason.

“We are expected to get on with our work with dispatch and to reach conclusions rapidly.”

Mr Justice Charleton said the tribunal’s ultimate findings may not be to everyone’s taste. However, he added that while truth can be bitter, it is not shameful.

He said the legal mind was conditioned to look for evidence, to seek supporting evidence and to uncover patterns indicative of truth.

It was not conditioned to leap to conclusions or declare someone had done something discreditable without sufficient proof.

Mr Justice Charleton said the tribunal was a final step following a number of internal garda investigations and a scoping inquiry by Mr Justice Kevin O’Higgins.

He set out a number of issues the tribunal will likely have to decide upon when seeking evidence, including whether privilege attaches to information provided by sources to journalists and instructions given by a client to their lawyers.

The tribunal, he said, had been tasked to examine relationships between gardaí and media and whether these contacts were used to brief negatively that Stg McCabe was motivated by malice and revenge.

“Does journalistic privilege attach to communications to a journalist where that communication by the source may not be in the public interest but, instead, where the source is perhaps solely motivated by detraction or calumny?” he asked.

The judge asked if it was possible such privilege does not apply to “using the media as an instrument of naked deceit”.

He said existing law suggested that the privilege is that of the confidential informant and not the journalist.

But he said the tribunal had “no settled view on the matter” and would have to carefully consider it.

The judge said he was also tasked to examine whether false allegations of sexual abuse were relied upon by Garda Commissioner Nóirín O’Sullivan to discredit Sgt McCabe at the O’Higgins Commission.

He said the tribunal would have to consider whether there was privilege against disclosing instructions given by a client to their lawyer as to what was to be pursued in cross examination.

Mr Justice Charleton said anyone with knowledge of the issues being investigated by the tribunal should forward written submissions to its solicitor Elizabeth Mullen by March 13.

Anyone wishing to assert legal professional privilege or journalistic privilege should do so by then also.

He said that if anyone had telephone, computer or other electronic records relevant to the terms of reference, these should be brought to the tribunal in the same time frame.

“Are you a witness to this matter? Then, the tribunal needs your help and needs it urgently,” he said.

“Many have already indicated publicly and in various circumstances that they have some knowledge. Now the opportunity has arrived to cooperate with the inquiry.

“The tribunal wants to know the detail of that; who did what, who said what, when, in what terms, who communicated with whom, by whatever means, and in what terms.”

Mr Justice Charleton said anyone whose reputation was likely to be impacted upon would be entitled to legal representation, but not every witness would be entitled to representation.

Most of the examination being done is likely to be by counsel for the tribunal, he said.

He also said each party would be entitled to make an oral or written submission at the end of the tribunal, but a draft report would not be circulated in advance of findings being published.

Some evidence at the tribunal may also have to be heard “in restricted circumstances”. He said he would hear submissions on this.

Among issues which may be heard in a restricted manner are matters in relation to the creation and distribution of a Tusla file containing false allegations of sexual abuse by Sgt McCabe, contacts between gardaí and Tusla in relation to a Garda Keith Harrison, and whether or not there was any pattern of senior garda using such files to discredit members of the force.

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