Challenging McCabe ‘was my duty’, says counsel for Nóirín
COUNSEL for ex-Garda commissioner Nóirín O’Sullivan has said his ‘conscience is clear’, and that he would still challenge Sgt Maurice McCabe’s credibility if he had to do it all again.
Responding to questioning from Michael McDowell SC, counsel for Sgt McCabe, Colm Smyth SC said: ‘I put the case made by the commissioner. She asked me to test the truth of the allegations. I believe I abided by her instructions.’
Colm Smyth SC, who represented Ms O’Sullivan and senior gardaí at the O’Higgins Commission, was giving evidence at the Disclosures Tribunal for the third day.
Chairman Peter Charleton has been tasked with deciding if unfair grounds were used to discredit Sgt McCabe at the commission, while it explored in private his allegations of corruption in the force.
Mr McDowell SC, said to Mr Smyth: ‘I am at the end going to suggest it was wrong to challenge his credibility and wrong to challenge his motivation.’
Mr Smyth responded: ‘At the risk of being tedious, I had to try to act in the best interests of my clients, regardless of the consequences that might befall me.’
He said the senior gardaí he represented were facing serious allegations of corruption and malpractice, and asked: ‘Am I to sit on my hands and not try to probe these allegations?’ He continued: ‘If you are asking, Mr McDowell, if I would do it again, yes I would.’
Mr Smyth said he had suffered for his decision due to the media and political storm that followed, but added: ‘They are secondary to the interests of my clients.’
And he said: ‘If the tribunal finds to the contrary, I fully respect it but my conscience remains clear.
‘I fell on my sword for no person. I put the case made by the commissioner. She asked me to test the truth of the allegations. I believe I abided by her instructions.’
He repeated his conviction that if there was no evidence to support Sgt McCabe’s allegations, he was entitled to ask why the allegations had been made. And he stated: ‘Nobody ever said to me that I had to challenge the man’s integrity.’
Michael McNamee BL said he was nominated by the Attorney General in April 2015 to represent the Garda commissioner and gardaí over the rank of superintendent at the O’Higgins inquiry. He said he was
‘I would do it all again’
given ‘firm instructions’ by three of the senior gardaí, but never by Nóirín O’Sullivan, and that she had no input into the guards’ instructions.
He said it quickly became apparent that an event had occurred involving Sgt McCabe before the allegations of corruption were made by him.
He said he and two colleagues received instructions from the Garda commissioner to explore the factual background to the complaints made by Sgt McCabe, and to explore any possible issue of motivation. But he stressed: ‘We were careful not to impugn Sgt McCabe’s credibility and honesty.’
He said he and fellow counsel Garret Byrne drafted the written legal advice to Ms O’Sullivan between them. It was an ‘emergency exercise’ which followed Judge O’Higgins asking Mr Smyth to have his instructions from the commissioner reconfirmed on the second day of the inquiry, May 15, 2015, he said.
He said it was a ‘very fraught afternoon’ and that while he had been concerned when he heard the word ‘integrity’ used, he did not think it appropriate to intervene.
Mr McNamee also said he had drafted the letter to the commission of May 18, which contained an error stating that Sgt McCabe had made a complaint against Chief Supt Mick Clancy, rather than to the officer. It wrongly implied Sgt McCabe was trying to ‘blackmail’ Chief Supt Clancy into releasing a DPP file, which cleared the whistleblower of a charge of sexual abuse
He said he had been instructed that weekend with regard to the letter by Supt Noel Cunningham and Chief Supt Colm Rooney, but that Chief Supt Clancy had been busy with security for a visit of the Prince of Wales. He was ‘disappointed’ to learn at a later stage that an error was made and that he had wanted to correct it but the opportunity did not arise.
Garret Byrne BL, the third lawyer in the commissioner’s team, confirmed he sent the email containing their legal advice to the Garda liaison officer, for Ms O’Sullivan’s benefit. He said he and Mr McNamee did not deliberately exclude the words ‘credibility and motivation’ from this advice.
The tribunal continues on Monday.