‘I felt that I had to inform the minister’

THIS is Department of Justice Assistant Secretary General Michael Flahive’s statement to the Charleton Tribunal concerning the infamous email that led to the ultimate downfall of former justice minister Frances Fitzgerald. It carries the now fateful date of May 15.

‘ON 15 May, 2015, I sent an email to the minister’s private secretary. That afternoon I had taken a phone call from Richard Barrett…

‘Richard told me at the O’Higgins Commission the issue was raised of the allegation of sexual assault that had previously been made against Sergeant McCabe. Richard also told me that counsel for Sgt McCabe had objected to this being raised and had asked whether the Garda commissioner had authorised this, which was confirmed…

‘However, while I felt that I had to inform the minister and senior colleagues, of this development, I was extremely reluctant to overtly refer to an allegation of sexual assault in the email.

‘While I knew that the DPP had directed no prosecution and the matter was closed, even the fact that such a sensitive subject was mentioned. I didn’t want to directly link McCabe’s name with such an allegation.

‘My email was purely internal and at a very high level but with emails there is always the risk that they can, through inadvertence or mistake, be forwarded or copied more widely than they ought to be, and I was concerned at the potential risk that such highly sensitive information might spread beyond the initial small circulation.

‘Equally, I could not, of course, make my email so bland that the message got lost. That is why I referred to a serious criminal complaint and linked it to a case that had been referred to the Independent Review Mechanism, a link that was intended to be a coded reference to the underlying issue that would be understood by those with a knowledge of the IRM.

‘In my email, I said that I presumed that the matter was being raised on the basis that it could be argued to be potentially relevant to motivation, although Sgt McCabe would deny this…

‘It was clear to me that the allegation that had been made against Sgt McCabe was not relevant to any of the O’Higgins terms of reference and the potential relevance to any motivation may simply have appeared to be the most likely possibility.

‘I made clear, however, that it was a presumption. I had no knowledge of any statements, written or oral, made to the O’Higgins Commission by the Garda commissioner or any other member and I had no knowledge of any legal advice available to the commissioner.

‘Before sending my email, I spoke to the deputy secretary general Ken O’Leary, and advised him of the phone call I had received from Richard Barrett.

‘I concluded my email by saying that Richard and I had agreed that this was a matter for the Garda commissioner, who was being legally advised, and that neither the attorney [general] nor the minister had a function relating to the evidence a party to a commission of investigation might adduce.’