McDowell: Abuse claim introduced to ‘embarrass’ McCabe
An attempt to introduce the Garda handling of an historic abuse allegation made against whistleblower Sgt Maurice McCabe at the O’Higgins Commission was made solely for the purpose of embarrassing the sergeant, the Charleton Tribunal has been told.
The DPP ruled out a prosecution in the Miss D case in 2007, saying there was no evidence an offence had been committed. Sgt McCabe wanted the DPP’s instructions to be given to Miss D’s family, but this was not possible because of the DPP’s policy at the time, the tribunal heard.
Senior counsel Michael McDowell, representing Sgt McCabe, said it was his client’s case that after it was decided that the case should not be part of the terms of reference for the O’Higgins Commission, it “was dragged back in a collateral way to embarrass him [McCabe]”.
“His motivation, his credibility, and from time to time, his integrity, was stated to be an issue,” Mr McDowell said. 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 Síochána”.
Under cross-examination, former Department of Justice secretary general Noel Waters said he had no recollection of seeing an email from the assistant secretary general, Michael Flahive, on Friday, May 15, 2015.
The email outlined that counsel for the Garda commissioner had “raised as an issue in the hearings an allegation made against Sgt McCabe”.
“I think it is important to point out that neither I nor anybody else at the department had any idea of what was happening at the commission of inquiry,” Mr Waters said.
Mr Waters said the commission of inquiry hearings were held in private.
Mr McDowell said phone records showed a 14-minute call to Mr Waters’ number from commissioner Nóirín O’Sullivan during a recess at the O’Higgins Commission, during which the commissioner’s legal team sought clarification of their instructions.
“I have to say in response that I have no recollection of that at all,” Mr Waters said. The witness said he did accept phone records showed he was called from the commissioner’s landline.
Ken Ruane, head of legal affairs and legal adviser to the commissioner, said the issue of Sgt McCabe’s motivations was never brought to his attention.
Tribunal barrister Pat Marrinan said that head of Garda human resources, John Barrett, had made a statement where he said Cyril Dunne, a senior Garda civil servant, told him: “We are going after him [Sgt McCabe] in the commission”.
This allegedly occurred before a February 2015 meeting between Sgt McCabe and senior Garda officers, including the commissioner.
“I indicated my shock and dismay that such an approach would be taken at the O’Higgins Commission,” Mr Barrett said in his statement to the tribunal.
Mr Marrinan said Mr Dunne denied saying this to Mr Barrett.
Earlier in the day, the tribunal was told a draft letter from the Garda commissioner to the Department of Justice about the legal strategy pursued by the commissioner at the O’Higgins inquiry was written by a department official. Mr Waters said there was a lot of back-and-forth in drafting letters to the department.
The tribunal also heard that Ms O’Sullivan had prepared a draft statement for then-justice minister Frances Fitzgerald to use in answering Dáil questions, and enclosed the legal advice she had received about Sgt McCabe at the O’Higgins commission.
“You may choose to put this on the record in the house. If you do, I would request you state that I volunteered this document to you in the public interest,” the commissioner wrote. Was there an attempt to smear Sgt Maurice McCabe behind the closed doors of a statutory inquiry? That matter forms the basis of the current module of the Disclosures Tribunal at Dublin Castle.
The hearings have just got under way, but already the matter appears to be boiling down to the usual question. Big misunderstanding or actual conspiracy?
On Monday during the opening statement, the early money was going on a misunderstanding. The issue centres on what transpired at the O’Higgins commission of investigation, set up in 2015 to investigate McCabe’s claims of malpractice in the force.
On day two of the commission, an allegation was made that Sgt McCabe’s motives in bringing forward his claims were dubious. It was suggested that he was motivated by the fallout from an allegation that he had inappropriately touched the daughter of a colleague of his with whom he was in dispute.
Sgt McCabe was emphatically cleared of any impropriety, but he appeared unhappy with the way some aspects of the matter were dealt with.
A suggestion arose that he had expressed a grudge against his district officer, Supt Mick Clancy over the matter at a meeting some seven years earlier with a colleague, Inspector Noel Cunningham. A 19-paragraph letter was furnished to O’Higgins setting out the basis for this claim. Sgt McCabe produced a recording that was at odds with the document, but coincided with a report Cunningham had made of the meeting. Thereafter McCabe believed that if he hadn’t produced the recording, there would have been an attempt to ascribe to him the expression of a grudge at the meeting, as per the letter. He believed that that in turn would be used to discredit his claims of malpractice.
On Monday, counsel for the tribunal Kathleen Leader suggested that the letter actually contained an error, which would explain why there had been the ref- erence to McCabe expressing a grudge against Clancy.
Ms Leader said it appeared that Insp Cunningham “never maintained that Sergeant McCabe had made complaints against Superintendent Clancy…. rather what was inserted into the letter of the 18th May 2015 was an error made by someone other than Superintendent Cunningham [he has since been promoted from inspector].” That conclusion pointed towards an error, or a misunderstanding, albeit one that had major repercussions for Sgt McCabe.
Yesterday afternoon counsel for Sgt McCabe, Michael McDowell, provided a different take on the facts.
“Ms Leader said an error was made in ascribing to Noel Cunningham the view that he [McCabe] made allegations against Michael Clancy,” he said.
“And the tribunal will know that Noel Cunningham was shown the 19-paragraph letter and signed a copy of it and was asked for his agreement of the contents.”
Mr McDowell said that Mr Cunningham did the same in respect of a submission that was made to O’Higgins some three weeks later.
In other words, if there was an error made about the meeting, then Insp Cunningham should have spotted it as he had signed off on the letter.
It may well be the case that he missed it, but McDowell is suggesting he must also have missed it in the submission three weeks later, which he also signed off on.
In addition, Monday’s opening statement included a transcript of an exchange between McDowell and Insp Cunningham at the O’Higgins commission.
Mr McDowell asks Insp Cunningham if he had been furnished with a copy of the letter, to which Insp Cunningham replies he has it now.
“Had you it before,” Mr McDowell asks.
“No,” Insp Cunningham replies… “I don’t remember seeing it.”
That exchange took place three weeks after the letter was furnished to O’Higgins. This gives rise to the question as to how, if stated yesterday, Insp Cunningham signed off on the letter, could he not have seen it?
This, and related matters, will have to be teased out in the coming weeks. While some of it may appear complicated, the question of whether it was all conspiracy or misunderstanding is vital in light of what was at stake.
Sgt McCabe had made serious allegations of policing malpractice that were ultimately shown to have been justified. He has been praised by Judge O’Higgins, among others, for doing a service to the State.
Either he was the subject of a terrible misunderstanding that wrongly left him with the impression that elements were out to destroy him for bringing his complaints. Or he was justified in his impression that that was the case. Judge Charleton will have to listen to all the evidence and make his mind up. He has an unenviable task.
Sgt Maurice McCabe at the Disclosures Tribunal at Dublin Castle. Either he was the subject of a terrible misunderstanding or there was an actual conspiracy to smear his character.
Mr Justice Peter Charleton: He faces an unenviable task.