McCabe, O'Sullivan and a stick of 'political dynamite'
Inquiry has heard explosive evidence about the garda whistleblower case, writes Gerard Cunningham
'Political dynamite" were the two words solicitor Annmarie Ryan wrote down when barristers for the Garda Commissioner began to challenge whistleblower Maurice McCabe's credibility at the O'Higgins Commission of Investigation.
Ryan was the Chief State Solicitor's Office's representative at Judge Kevin O'Higgins's 2015 investigation into Sgt McCabe's claims of garda malpractice in the Cavan/Monaghan Garda division.
Last week, she was again before a judge but this time it was Justice Peter Charleton at the Disclosure Tribunal. Justice Charleton's public inquiry was set up last year to investigate claims of a Garda HQ orchestrated smear campaign against McCabe.
Ryan told the Tribunal she was "always conscious" that there may be political consequences if the legal strategy to question McCabe's credibility and motivation at the O'Higgins Commission became public knowledge.
Charleton's terms of reference for his third module, which began with an opening statement two weeks ago, are fairly straightforward. He is to "investigate whether the false allegations of sexual abuse or any other unjustified grounds were inappropriately relied upon by Commissioner O'Sullivan to discredit Sergeant Maurice McCabe" at the O'Higgins Commission.
Last Wednesday, Charleton paused during the proceedings to clarify one aspect of the terms of reference, almost as an aside. Observing that "looseness of language can lead to error", the supreme court judge pointed out that, during the commission hearings, "McCabe was never accused of sexual abuse, no one ever intended to accuse him of sexual abuse".
A historic accusation of abuse made in 2006 by 'Miss D' outlining an allegation of "inappropriate touching" had led to a file going to the DPP, who directed against a prosecution in the case.
What was at issue from the An Garda Siochana side at the commission was whether McCabe - in a bid to have the DPP's direction more widely circulated in order to combat ill feeling among Miss D's family after the garda investigation was completed - had been motivated by bad faith and had made complaints about garda conduct in the Cavan/Monaghan division simply to put pressure on his superiors to distribute the DPP's directions, something which garda authorities believed was not legally possible at the time.
McCabe's "motivation, his credibility, and from time to time, his integrity, was stated to be an issue" at the O'Higgins Commission, senior counsel Michael McDowell told the Charleton Tribunal last Monday.
This was done "to make it appear that none of his complaints were genuine but they were all concocted with a view to getting back at An Garda Siochana".
McDowell, who also appeared on McCabe's behalf before the O'Higgins Commission, had challenged the garda lawyers immediately when they raised a meeting between McCabe and Superintendent Noel Cunningham in August 2008.
At that meeting, held in a Mullingar hotel, McCabe outlined his belief that the DPP's instructions should be shared with Miss D's family.
He also laid out incidents involving the D family, including an occasion where he was challenged by a family member outside a district court.
McCabe didn't want any action taken about these incidents, and was not making formal complaints about them, but had raised them to illustrate the problems caused by the fallout from the abuse investigation, which he believed could be overcome by circulating the DPP's direction that the case should be dropped as there was no evidence a crime had been committed.
McDowell asked the commission for clarification of what Commissioner O'Sullivan's instructions were to her legal team, and over the weekend a document was drawn up for the inquiry.
In paragraph 19, the document stated that McCabe told Cunningham that he was making complaints against another officer, Chief Superintendent Michael Clancy, a distortion of the true position. McCabe had made it clear he was not making a formal complaint about anybody, and he had forwarded concerns to Clancy, rather than making complaints against the chief superintendent.
Fortunately, it emerged that McCabe had made an audio recording of the meeting with Cunningham on his mobile phone, which showed what he had actually said. Notes taken at the time of the meeting by Supt Cunningham also backed up McCabe's recording.
Where exactly the error crept into the process wasn't clear.
Supt Cunningham, who has yet to give evidence in this module, said later that when he was emailed a draft of the lawyer's paper summarising their instructions, he missed the against/to error because he read the document on his mobile phone and he had poor eyesight.
Fergus Healy, the chief superintendent who was appointed to act as liaison officer between the commission and Commissioner O'Sullivan, said the legal team drew up their draft document based on information contributed by Cunningham and Chief Superintendent Colm Rooney, who had received a report on the Mullingar meeting from Cunningham.
"The commissioner didn't contribute to that document, that paragraph as such," Healy told the tribunal.
Healy said that when they were first briefed on McCabe's complaints about garda issues in Cavan/Monaghan, they wanted to know "what was the trigger to these events".
"Counsel then said to me, look, he needs to get instructions from the commissioner with respect to motivation and credibility and I need them from the commissioner. So he had been asking me to talk to the commissioner, to get her instructions or get her go-ahead on it," Healy said.
As liaison officer, Healy said he contacted O'Sullivan and outlined the barristers' request to her to address McCabe's motivation and credibility. The commissioner told him that if that was what the legal counsel were advising, then that was what they should do.
The following day, McDowell's objections to the line of questioning led to several adjournments as O'Sullivan was asked to confirm her instructions, during which time she telephoned Department of Justice officials to bring them up to date on developments.
Over the weekend, the document outlining the garda position was created. O'Sullivan was not available that weekend and did not take part in those meetings.
Two weeks ago, the tribunal set out an ambitious and optimistic timetable for its third module. Three civilian witnesses, an official from the Department of Justice, a solicitor from the Chief State Solicitor's office and a legal adviser to the Garda Commissioner would give evidence on the first day. They would be followed by two garda officers who acted as a bridge between the lawyers representing the police at the O'Higgins Commission of Investigation at Distillery Buildings and Garda headquarters in the Phoenix Park.
O'Sullivan would give her evidence on January 17, followed by more gardai, legal and civil service witnesses, until the tribunal finished by hearing from McCabe himself.
The tribunal planned to hear an average of three witnesses a day, and one day's list featured seven. McCabe was scheduled to start his evidence this Wednesday.
Even allowing for some slippage, it seems like the tribunal hoped to get to the end of the module before the beginning of February.
The plan quickly stalled. Of the three witnesses to give evidence on the first day's hearings, only one, former Department of Justice secretary general Noel Waters, has been heard in full.
O'Sullivan's expected appearance was moved first from last Wednesday to Thursday, then to Friday afternoon, and then to some time tomorrow morning.
Tomorrow if all goes to plan, the former garda commissioner may finally get her chance to outline what she knew about the instructions given to counsel and approved in her name before the O'Higgins Commission.