If Tusla had owned up to mistakenly accusing garda whistleblower Sgt Maurice McCabe of rape, there would likely have been no need for the Disclosures Tribunal, the tribunal chairman said.
In his report published on Thursday, Mr Justice Charleton was damning in his judgment of how Tusla dealt with false allegations of sexual abuse made against Sgt McCabe which were later circulated to senior garda management and used to discredit him.
In 2006 a complaint was made against Sgt McCabe of sexual impropriety with a colleague’s daughter, known as Ms D, about eight years earlier.
The allegations consisted of "a single, brief, alleged clothed incident". A file was sent to the Director of Public Prosecutions (DPP) who found that, even taking the complainant at face value, "no offence had been disclosed".
The DPP ordered no prosecution and social services directed no further action. "That should have been the end of any allegation that Maurice McCabe had ever sexually assaulted a child," Mr Justice Charleton wrote.
In 2013, a transcription error resulted in the 2006 alleged incident becoming a rape allegation on Sgt McCabe’s file.
Mr Justice Charleton ruled there was no conspiracy behind the mix-up: “This must be one of the most unlikely coincidences ever to be accepted by any judicial tribunal. Yet, coincidence it was.”
He accepted evidence by HSE staff member Laura Brophy about how she made the mistake and called it an "horrendous coincidence".
However, he also found a litany of errors by Tusla, which took over child protection matters from the HSE in 2014. The false rape allegation against Sgt McCabe “took on a life of its own”.
A letter was sent to Sgt McCabe’s house in 2016 detailing the false allegation. It was opened by his wife. The allegation also made its way to the assistant garda commissioner for the northern region from Cavan/ Monaghan and then to Garda Headquarters where it was kept on file.
The judge said if Tusla senior management had sat down and read the file and admitted to the mistakes “this tribunal of inquiry would most probably have been avoided”.
‘Chaotic’
There was no need for Tusla to report the false rape allegation to gardaí even when it wasn’t clear that it was false. It was done because procedures within the agency were “chaotic”.
The judge found the false report “had an afterlife within Tusla. This was not due to any action by gardaí, but was because of the astounding inefficiency of [Tusla] and the inertia of its management in Cavan/Monaghan.”
Tusla could have corrected the file in 2016, the judge said. Instead it was passed to an outside agency, the Sexual Abuse Regional Team. When this happened, certain documents were taken from the file by an unidentified person, which made it harder to spot an error had occurred.
The judge also said Tusla was slow to respond to the public request for co-operation with the Disclosures Tribunal.
“Statements made were laconic to the point of being mysterious. The tribunal had to seek further information and identify witnesses who might cast light on matters, who had not yet revealed themselves,” he said.
“This kind of holding back is bad enough from a private citizen, never mind a public body.”
On the subject of the 2006 allegation involving Ms D, Mr Justice Charleton found that the garda, the State solicitor and the DPP dealt fairly and appropriately with the matter.
“The complaint was a nightmare experience for Maurice McCabe. The matter was thoroughly investigated by the gardaí. No bias in favour of or against either Ms D or Maurice McCabe was present in anyone dealing with the matter.”
He said the DPP’s decision not to prosecution was flawless. “The shame is that this entire matter did not end there.”
