The barrister representing former Garda Commissioner Nóirín O’Sullivan decided in 2015 that Garda whistleblower Sgt Maurice McCabe had a “strong motivation” to denigrate the character and reputation of two Garda officers against whom he made complaints, the Charleton tribunal has heard.
The view about Sgt McCabe was expressed in a letter written during the hearings of the O’Higgins Commission which sat in private to investigate complaints made by the sergeant.
During the hearings a row erupted over whether the legal team representing the then Garda Commissioner and senior Garda officers, should be allowed attack Sgt McCabe’s motivation in making complaints.
The tribunal heard that in a letter sent by Colm Smyth SC in July 2015, he expressed the view that that it was becoming "increasingly obvious" that Sgt McCabe "has a strong motivation to denigrate the character and reputation of Chief Superintendent Michael Clancy and Superintendent Noel Cunningham. "
The letter noted that in one of the commission's modules he had withdrawn allegations of "cover up" against Chief Superintendent Terry McGinn and Assistant Commissioner Derek Byrne. The full content of the letter was not disclosed at the tribunal.
The tribunal has heard that in the week that the commission hearings were due to begin in May 2015, the legal team representing Ms O'Sullivan and senior officers were briefed about matters concerning a sex abuse allegation made against Sgt McCabe in late 2006. The allegation was investigated by Supt Cunningham and the Director of Public Prosecutions decided that no charges should be brought. The DPP also noted that even if the allegations, which were contested, were true, they would not constitute an assault.
Requests from Sgt McCabe that the full nature of the DPP’s view be released were refused, as this was against policy at the time. The tribunal has heard that a number of senior officers believed that the refusal to release the comprehensive nature of the DPP’s decision led to a change in Sgt McCabe and his developing a grievance, something he denied during the commission hearings.
Annmarie Ryan, a solicitor with the Chief State Solicitor's office who acted for the Garda Commissioner at the commission hearings, told the tribunal that Garda management wanted all matters arising from complaints by Sgt McCabe that had been going on for years to be heard by the commission chairman, Mr Justice Kevin O'Higgins.
The Garda wanted the judge to hear all the evidence, she told Diarmuid McGuinness SC, for the tribunal. “So he could get to the bottom, get to the truth, put it all out and get to the bottom of it.”
SSgt McCabe’s counsel, Michael McDowell SC, strongly objected to the matter of Sgt McCabe’s motivation being raised at the commission, and sought confirmation that counsel was following the then Commissioner’s instructions.
However he did not raise the matter when Ms O’Sullivan came to give evidence, Ms Ryan said.
The tribunal is investigating whether the sex abuse allegation or any inappropriate matter were relied upon at the commission in an attempt to discredit Sgt McCabe.
Ms Ryan said it was her understanding that Ms O’Sullivan had confirmed that the legal team should raise the issue of Sgt McCabe’s motivation, as per the legal team’s advice to her.
The tribunal chairman, Mr Justice Peter Charleton, has noted that usually the questioning of a person's credibility only arises when there is a conflict of fact. However the O'Higgins Commission was mainly investigating operational policing matters with which the sergeant had not been involved.
However Shane Murphy SC, for the Garda Commissioner, has noted that Sgt McCabe had made serious allegations of corruption and malpractice against senior officers. Ms Ryan said there appeared not to have been any evidence to back up some of these allegations. Ms Ryan said that before giving evidence at the commission, Sgt McCabe had apologised to Supt Cunningham.
It his report, Mr Justice O’Higgins found that it was wrong and unfair to cast aspersions on McCabe’s motives. He also ruled that allegations of corruption and malpractice against senior officers we’re unfounded. The evidence continues.
