McDow­ell: Abuse claim in­tro­duced to ‘em­bar­rass’ Mc­Cabe

Irish Examiner - - News - Ger­ard Cun­ning­ham

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.

Pic­ture: Gareth Chaney Collins

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.

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