‘Keep the head. They’ve nothing to throw at you’
How Frances Fitzgerald did herself no favours at the tribunal this week
NON-INTERFERENCE
FITZGERALD SAYS: ‘It was very clear from the senior members in the Department of Justice and from myself, as minister and advisers, everyone, that [O’Higgins] was a self-contained commission of investigation.
‘So anything that touched on that, there was a clear response… that it was very much my understanding that it would probably have been certainly inappropriate, if not illegal... if I’d done anything… to interfere with the legal strategy of any party there.’ REALITY: While the commission was sitting, there were several emails and phone calls back and forth between the highest ranking members of the department and the Garda – including commissioner Nóirín O’Sullivan – where the O’Higgins Commission and the Garda’s legal strategy there was mentioned. If it was so clear that any interference would be inappropriate, why all the background noise?
SPEAK NO EVIL
FITZGERALD SAYS:: She never discussed the commission with Ms O’Sullivan until it’s final report in May 2016. ‘No, I didn’t, no,’ she told the tribunal. ‘I mean, just to make the point, I suppose there were an awful lot of other issues that I would have been having very intense and detailed discussions on with the commissioner. Very detailed meetings about very current and important issues… other items that were very, very important.’ REALITY: Lawyers for the tribunal and Sgt McCabe expressed incredulity that the justice minister and the head of the police force had never discussed the commission of inquiry set up to investigate Garda malpractice.
It stretches any reasonable definition of credibility, especially given the number of interactions at official level at the time as evidenced by the paper trail.
ANOTHER PESKY EMAIL
FITZGERALD SAYS: She knew nothing of Ms O’Sullivan’s controversial legal strategy to challenge Sgt McCabe’s credibility and motivation at the commission until
it came into the public domain in May 2016. ‘It wasn’t up to me to know these things, there were legal teams down there to deal with that,’ she said.
REALITY: An email disclosed at the tribunal this week reveals a Garda Ombudsman report was compiled for Ms Fitzgerald, informing her that an allegation of sexual assault against Sgt McCabe had been referred to at the commission.
Department official Martin Power sent the email to another official, Michael Flahive, for the attention of Ms Fitzgerald. Mr Flahive noted receipt of it on June 2, 2015, and Ms Fitzgerald confirmed she had read it.
‘And did it strike you as something that odd at the time?’ asked counsel for the tribunal.
‘Well, you know, this was a comment from Martin who said, “I think the alleged sexual assault was referred to in a particular context during the recent initial hearings.” Well, I imagine I would have. I mean, when you look back on emails, obviously until you see the written email, I mean, there’s 20,000 emails coming in and hundreds – you know, thousands coming into me in… that whole period, so – but looking back you can, obviously, describe context and how your response would’ve fitted in to what your approach would have been at the time.’
SEE NO EVIL
FITZGERALD SAYS: An email she received in July 2015 did not alert her to the Garda’s ‘aggressive stance’ towards Sgt McCabe at the commission – even though the email referred specifically to this. She says she didn’t speak to senior official Ken O’Leary about it, even though it referenced a coordination of press strategy between the Department and An Garda Síochána.
REALITY: Fitzgerald received an email from a senior civil servant in her department sent on the evening of Saturday, July 4, 2015, which told her an RTÉ journalist had asked the Garda press office about whether the commissioner had instructed counsel to adopt an aggressive stance towards Sgt McCabe at the commission.
Tribunal counsel asked: ‘In light of what you had previously known from the earlier email [dated May 15] and the GSOC report, did it not raise any concern about the effect on Sgt McCabe of this allegedly aggressive questioning, or what the commissioner was… doing?’
‘Well, I mean, obviously there was a commission of investigation under way. Sgt McCabe was very central to that… [and] was represented at the commission. I didn’t see that there was any operational role for myself in relation to how that was going at the commission.’
ZERO RECALL
FITZGERALD SAYS: When the news eventually broke in 2016 about the legal strategy pursued by the Garda commissioner at the commission, nobody in the department reminded her [Ms Fitzgerald] or referenced the three times the previous year that she had been informed of the issue or of the controversial legal strategy, or the sexual allegation against Sgt McCabe.
REALITY: Three key occasions stand out: the email on May 15, 2015, the day the legal strategy against Sgt McCabe was raised at the commission; a couple of weeks later in the newly revealed emailed report in June 2015; and the email about the RTÉ This Week press query in July 2015.
Together, these would surely have jogged the memory of someone in the department prior to the controversy of May 2016.
But Ms Fitzgerald insisted no such recall occurred. ‘I’m not saying… they might not have been referenced; they could have been, but they weren’t.’