Evidence indicates Nóirín O’Sullivan just followed legal team’s advice

One of the striking aspects of the evidence that has been heard since the Charleton tribunal began this series of hearings on January 8th, has been how far the then Garda commissioner, Nóirín O’Sullivan, appears to have been from the action.

The tribunal is investigating whether her legal team at the O’Higgins commission, which sat in private in 2015, used a false sex abuse allegation that had been levelled in 2006 against whistleblower Sgt Maurice McCabe, to discredit him.

No evidence of such a charge being raised at the commission has been heard and the tribunal chairman, Mr Justice Peter Charleton, has essentially dismissed the issue. That means what remains is whether her legal team used any other unjustified grounds to try to discredit McCabe.

The commission was charged with investigating his allegations about poor policing in the Cavan/Monaghan area, but also allegations McCabe had made against senior officers, including former Garda commissioner Martin Callinan. At the time of the commission hearings, the then commissioner had a public position of supporting McCabe, praising the work of whistleblowers, and expressing the view that serving members who raised issues of concern needed to be protected.

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The evidence shows that the preparations for the commission hearings were rushed, with O’Sullivan’s legal team being appointed not long before the hearings began. She did not meet the solicitor or barristers acting for her until the commission had already had a row over how the legal team was treating McCabe.

Serious complaints

O’Sullivan’s legal team was also representing officers above the rank of superintendent. In the days before the hearings began, Colm Smyth SC and other members of the legal team spoke with, among others, officers against whom McCabe had made serious complaints.

The lawyers formed the view that McCabe’s evidence would have to be challenged, this view was conveyed to O’Sullivan and she gave the go ahead.

On Monday she said she felt she had been placed in an “almost impossible dilemma” given her public support for McCabe, but also that she made her decision based on the legal team’s advice and was confident about it.

At the commission, Smyth told McCabe he was challenging his integrity, but later said this was a mistake on his part. His instructions were to challenge McCabe’s credibility and motivation.

In its final report, the commission said it was wrong and unfair to question McCabe’s motivation. But it also found that while the criticisms of policing in the Cavan-Monaghan division were correct, the serious allegations against senior officers were unfounded.

Motivation

In her evidence, the former commissioner said that when she approved the questioning of McCabe’s motivation, it occurred to her this might affect McCabe’s perception of her, which is exactly what happened.

She said she wanted the lawyers to explore what had caused McCabe to make the serious claims against senior officers but this did not mean she thought he was acting in bad faith. Asked if she believed he was an “embittered man”, she said she thought he might have been frustrated by how his legitimate complaints about policing matters had been responded to.

Back in 2015, O’Sullivan said, she had hoped that the commission hearings would be a chance to finally put the McCabe issue to bed.

But in the years since, the opposite has proved to be the case.

One controversy that lingers is how a document drafted by the legal team at the hearings, which contained a false allegation against McCabe, came to be created. There is no evidence that O’Sullivan had anything to do with the document. Yesterday, the former commissioner said the mistake was a “genuine error” which she had been informed had been cleared up at the commission.

McCabe’s counsel, Michael McDowell SC, is likely to question her closely about this when the sittings resume on Tuesday. However, as matters stand it appears O’Sullivan’s main role was to accept advice from lawyers in relation to how McCabe should be treated at the commission.

Mr Justice Charleton, in a comment last week, recalled a saying that “when you hire a dog, you let it bark”.

At the moment, the evidence indicates that O’Sullivan did nothing other than follow her legal team’s advice, even though this placed her in an position that appeared at odds with her public position in relation to McCabe.