Sunday 16 December 2018

Rough justice: how one big storm blew away two women

The Disclosures Tribunal suggests the Garda and the Department of Justice are still far too close, writes Philip Ryan

QUESTIONS, QUESTIONS: Former Garda Commissioner Noirin O’Sullivan and former Justice Minister Frances Fitzgerald
QUESTIONS, QUESTIONS: Former Garda Commissioner Noirin O’Sullivan and former Justice Minister Frances Fitzgerald
Philip Ryan

Philip Ryan

John Barrett said he was "shocked and dismayed" when Cyril Dunne allegedly told him that Garda management would be "going after" Maurice McCabe during the O'Higgins Commission of Investigations.

Barrett is the force's head of human resources and Dunne, at the time, was An Garda Siochana's chief administration officer. Dunne's part of the exchange was read into the Disclosure Tribunal last Friday afternoon and is based on notes of the conversation taken by Barrett.

"Prior to the commencement of the O'Higgins Commission hearings, at the conclusion of a meeting in the office of the Chief Administration Officer, Cyril Dunne, Mr Dunne asked me to remain in his office after the other attendees had left and with reference to Sergeant Maurice McCabe, said, 'We are going after him in the commission'," Justice Peter Charleton's Tribunal heard. Dunne denies he made these comments.

Barrett's reaction to the alleged comments is contained in a protected disclosure he made to the Department of Justice which has not yet been read into. However, its contents were verified by several sources last week.

The sense of disbelief suggested by Barrett was shared by many of those watching proceedings in Georges Hall, Dublin Castle, last Friday.

Major revelations emerged throughout the day which gave a fascinating insight into, among many other things, the relationship between the two women at the highest ranks of the justice system as a political storm was about to rob them of their livelihood.

QUESTIONS, QUESTIONS: Former Garda Commissioner Noirin O’Sullivan and former Justice Minister Frances Fitzgerald
QUESTIONS, QUESTIONS: Former Garda Commissioner Noirin O’Sullivan and former Justice Minister Frances Fitzgerald

The worryingly symbiotic relationship between An Garda Siochana and the Department of Justice was also on full show as former secretary general Noel Waters was questioned on his knowledge of the alleged plot to discredit McCabe.

At times, the forensic questioning dragged as barristers poked holes in Waters's responses. But members of the media and the dozen or so tribunal groupies edged forward on their seats when it was revealed that former Garda Commissioner Noirin O'Sullivan composed a statement which she suggested the then Minister for Justice Frances Fitzgerald could read into the Dail record.

In the statement, Fitzgerald was to express confidence in the Commissioner and defend O'Sullivan after it emerged her legal team were to question McCabe's motivation and credibility throughout the O'Higgins inquiry. Fitzgerald turned down the request and instead went to meet O'Sullivan the following day.

The statement related to a leaked transcript from the O'Higgins Commission which showed how the Commissioner's legal team planned, under O'Sullivan's instruction, to pursue the line that McCabe was only questioning his colleague's work practice because he had a grudge.

Specifically the grievance centred on a refusal by senior gardai to release a Director of Public Prosecutions (DDP) report which showed there wasn't a scintilla of evidence to show he had in any way sexually assaulted a colleague's daughter.

Last Monday, we found out that the line of questioning which sparked concerns among McCabe's legal team was an attempt to criticise him and another colleague for suggesting to a crime victim that she make a complaint to the Garda Ombudsman.

This would have supposedly shown McCabe was out to get his colleagues.

We will find out more about O'Sullivan's decision to draft a speech for the Minister for Justice when she appears before the Charleton Tribunal this week. The former commissioner will also hopefully shine some light on her request to Fitzgerald to have her legal advice published when the strategy became public knowledge.

O'Sullivan sent a copy of a 20-point letter backing up her legal strategy, as drafted by her counsel, to Fitzgerald and asked that it be released along with the statement composed in Garda headquarters. Ms O'Sullivan was quite insistent on having her legal advice released.

"I would request you to state that I volunteered this document to you in the public interest. My directions at all times were to assist the Commission to establish the facts and the truth, and never at any stage change those directions," the Commissioner wrote.

However, the Tanaiste believed this could set a dangerous precedent and refused to divulge the legal advice from the Commission of Investigation as it was meant to be heard behind closed doors.

Waters could not remember the nuts and bolts behind the decision but said it seemed appropriate not to release the advice.

It will also be intriguing to find out why the commissioner felt it was necessary to use a personal Gmail address when contacting Fitzgerald about such a sensitive matter.

Another puzzling interaction involved Department of Justice deputy secretary general Ken O'Leary composing a response for the Commissioner on the legal strategy controversy. This response was then sent to Minister for Justice and was posed as the Commissioner's views on the scandal. Justice Charleton was taken aback by the approach.

"There may be a reason for it, but, at first blush, the Garda Commissioner writing her Department, which have already been written by the Department, would seem to be a somewhat empty exercise," he said.

Waters said interaction between senior gardai and civil servants when drafting statements wasn't unusual and noted that it was always open to the Commissioner to send a different response if she so wished. It also emerged that at this time Terry Prone, Communications Clinic boss and well-known media guru, was providing the Commissioner with advice on public statements. Waters said Prone previously worked with his department but to his best knowledge had not been at this time.

The tribunal audience looked on in bewilderment when Waters said he could not remember a 14-minute conversation he had with Noirin O'Sullivan about the legal strategy she wanted to use on McCabe. But then Waters couldn't recollect much throughout the day's hearing. In his defence the conversation took place on May 15, 2015 but it would seem to have been an important phone call.

It was put to Waters by McCabe's senior counsel Michael McDowell that he took the phone call from O'Sullivan's landline in Garda headquarters during the same period the O'Higgins Commission adjourned so the Commissioner's legal team could confirm the legal strategy with the police chief.

There was a flurry of calls to O'Sullivan from Superintendent Fergus Healy, who was acting as the force's liaison at the inquiry, and in the middle of these calls Waters spoke at length to the Commissioner. Waters said he could not remember and in a statement to the tribunal, O'Sullivan also says she does not recall the phone call.

O'Sullivan insisted she was not looking for advice but was concerned that the department might get media queries about the strategy.

The relationship between the Department of Justice and Garda headquarters is essential to the proper operation of the country's justice system. However, we learned during the era of Garda Commissioner Martin Callinan and Minister for Justice Alan Shatter that too close a relationship could be perhaps be detrimental to both sides.

In the wake of their departures from public life, there was a lot of talk about new dawns and rethinks of how justice is applied in the State.

However, last week's Disclosure Tribunal suggested that a very close working relationship with little boundaries continued in the years after they left office. The hearings have also resulted in many more questions for O'Sullivan and Fitzgerald to answer in the coming weeks.

Sunday Independent

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