Frances Fitzgerald admits seeing report referring to Maurice McCabe allegation in 2015
Former Tánaiste Frances Fitzgerald has accepted she did read a report in June 2015 which alerted her that a sexual assault allegation against Garda whistleblower Maurice McCabe had been raised at the O'Higgins Commission the previous month.
The admission at the Disclosures Tribunal appears to contradict Ms Fitzgerald's position that she only became aware of the legal strategy adopted by then Garda Commissioner Nóirín O'Sullivan around the time the commission report was published in May 2016.
The reference to the sexual assault allegation being raised was made by Department of Justice official Martin Power in an email for the minister’s attention about a Garda Ombudsman investigation.
Mr Power said in the email: “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.”
Under questioning from tribunal counsel Diarmaid McGuinness, Ms Fitzgerald accepted she had read the email.
The main thrust of Mr Power’s report was that GSOC had found there was no Garda cover-up of the sexual assault allegation made by the daughter of a colleague, known as Ms D, against Sgt McCabe. It had been investigated properly and the DPP determined no crime had occurred in 2007.
Mr McGuinness asked if the reference to the allegation being raised at the commission had caused her any concern.
She said the main point she would have taken from the email was that GSOC was absolutely clear that the investigation had been conducted properly.
Mr Power’s email came just weeks after another department official, assistant secretary Michael Flahive, alerted the minister that a row had occurred at the tribunal over the raising by the commissioner’s legal team of a serious criminal allegation against Sgt McCabe.
It later transpired that this was not quite correct, and that the matter raised related to Sgt McCabe’s response to not being given the DPP directions in the Ms D case.
Nevertheless, the discovery of the Flahive email last November sparked the political crisis which almost led to the Government falling. A general election was only avoided when Ms Fitzgerald resigned.
Paul McGarry SC, for Sgt McCabe, asked Ms Fitzgerald if the emails from Mr Flahive and Mr Power had not raised concerns for her, as the Ms D allegation was not part of the terms of reference of the O’Higgins Commission.
Ms Fitzgerald said she knew it was not part of the commission, but felt that whatever had been raised by the commissioner’s legal team would have been dealt with by Mr Justice O’Higgins.
It was put to her that what Ms O’Sullivan was doing at the commission appeared at odds with how she had supported Sgt McCabe in public.
Mr McGarry asked why she had not phoned Ms O’Sullivan to ask what was going on.
“I think that would have been completely inappropriate,” Ms O’Sullivan replied.
Earlier, Ms Fitzgerald was asked about an email from then Department of Justice deputy secretary general Ken O’Leary on July 4, 2015.
This related to a query RTÉ’s This Week programme had submitted to the Garda Press Office about Sgt McCabe.
The query stated Sgt McCabe was looking to be taken off the traffic unit in Mullingar. It also stated that the Garda Commissioner had instructed her counsel to take an aggressive stance against Sgt McCabe. The programme sought a comment from the commissioner in relation to these two issues.
Mr McGuinness asked Ms Fitzgerald if she had been concerned when she read Mr O’Leary’s email.
She replied that the email was a background briefing as she was appearing on the programme the following day.
Under further questioning Ms Fitzgerald said she didn’t respond to Mr O’Leary’s email. She said she didn’t believe she spoke to him about it either and that she did not contact the commissioner in relation to it.
She said that Sgt McCabe was legally represented at the commission and she did not see how she could get involved.
As it transpired, the issue wasn’t raised during her appearance on the RTÉ programme.
Ms Fitzgerald was asked by Mr McGuinness about May 2016 and the period after the O’Higgins Commission report was published.
The tribunal has previously heard how within days of the report being published, news reports based on leaked transcripts said Ms O’Sullivan had instructed her legal team to accuse Sgt McCabe of malice at the commission.
This was denied by Ms O’Sullivan in subsequent meetings with Ms Fitzgerald.
Ms Fitzgerald said the most important point for her at the time was that Mr Justice O’Higgins had not referred to the approach taken to Sgt McCabe by parties at the commission.
She said there was “no direct comment” about behaviour at the commission.
But she said she obviously had to respond as much as she could to the leaks.
She met with Ms O’Sullivan on May 16, 2016, but the tribunal heard there were no departmental minutes for the meeting.
Ms Fitzgerald accepted this was unusual.
The tribunal also heard how a detailed information pack prepared for her ahead of meeting Ms O’Sullivan did not include the Flahive email from the previous year.
“I personally would not read anything into that,” she said, adding that she did not believe there had been a deliberate attempt to omit it.
A more substantial meeting was held with the commissioner on May 19, dealing solely with the O’Higgins Commission.
Ms Fitzgerald said she put a direct question to Ms O’Sullivan about whether or not one thing had been said in public about Sgt McCabe and another thing said in private.
She said Ms O'Sullivan made it clear she had not questioned Sgt McCabe's integrity and had never accused him of malice.
Ms Fitzgerald said Ms O'Sullivan told her she had wanted to treat all witnesses at the commission equally.
“I was reassured she had not questioned his integrity or accused him of malice,” Ms Fitzgerald said.
The tribunal heard how in a series of emails on May 18, Ms O’Sullivan had asked Ms Fitzgerald to give details to the Dáil about the legal advice she had based her legal strategy at the commission on.
The tribunal has previously heard how barristers advised the commissioner that Sgt McCabe’s motivation and credibility should be challenged and Ms O’Sullivan gave them clearance to do so.
However, Ms Fitzgerald did not reveal the legal advice after consulting with the Attorney General, who had concerns about legal privilege.
The tribunal has previously heard how the emails were sent to Ms Fitzgerald’s Oireachtas email account and were not included in the original batch of documents disclosed to the tribunal by the Department of Justice.
But it also emerged today that Ms Fitzgerald did not refer to them in her written statement to the tribunal last December either.
Asked about this by Mr McGuinness she said she thought both herself and the department had only been dealing with matters which took place prior to the publication date of the O’Higgins report.
She said she had attempted to forward the emails to then Department of Justice secretary general Noel Waters.
However, she learned last month when Mr Waters gave evidence last month that he had not received the emails as she had typed in the wrong address.
Ms Fitzgerald said she had asked her constituency staff to check and they had not been able to find any “bounce back” alerting them that the email had not been delivered.
The tribunal heard how notes of a meeting on May 18 showed she had discussed the emails with Mr Waters and Mr O’Leary.