Charleton Tribunal: ‘Conflicts of interest’, ‘impossible dilemmas’

An important aspect of the Garda HQ's handling of the 2015 O'Higgins Commission inquiry was the focus of the questioning of Nóirín O'Sullivan at the Charleton Tribunal today, her third and final day in the witness box.

The then Commissioner has said that she was faced with an "almost impossible dilemma" at the 2015 hearings, because of her duty, as Garda Commissioner, to continue to support Garda whistleblower Sgt Maurice McCabe while also having regard to the rights of other members of the force.

Some of her officers were the subject of very serious allegations by McCabe, which were eventually ruled to be unfounded by the commission. Yet these officers were also clients of Ms O’Sullivan’s legal team, which was headed by Colm Smyth SC and had Annmarie Ryan of the Chief State Solicitor’s office as solicitor.

The commission hearings were held in private and the first sitting was on Thursday, May 14th, 2015. The first consultations by the barristers of the clients only occurred on the days prior to the first sitting, and did not include a meeting with O’Sullivan.

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She met Smyth for a short meeting on May 21st, without the presence of Ryan. It was a “meet and greet type meeting”, she said, though at the meeting they discussed the seriousness of the accusations against the senior officers. Her first consultation would not be until November.

Aggrieved

This meant that the consultations with clients, conducted by O’Sullivan’s barristers in the days running up to the commission, included meetings with officers who had a reason to feel aggrieved about McCabe and his complaints. These officers were the team’s main source for factual material about the background to the McCabe saga. After these consultations, the lawyers decided they had to attack McCabe’s motivation. O’Sullivan agreed, On May 14th, via an intermediary, that the barristers should pursue this strategy. But she had not yet met with the legal team.

O’Sullivan, at the tribunal, said her view was that all the facts should be put before the commission so that it could come to a view about the McCabe whistleblowing complaints and his complaints against senior officers, and question the evidence it heard from everyone, including the evidence of McCabe, and thereby come to the truth.

But this raised what has emerged at the tribunal as a key point. Who would challenge the evidence of the officers against whom McCabe had made complaints? Not their own legal team, obviously. Yet this same legal team, O’Sullivan’s legal team, based on its consultations, had formed the view it would have to attack the motivation of McCabe. In other words, the Garda Commissioner, by way of her legal team, appeared conflicted.

Political storm

In the wake of the commission report being published in 2016, media reports about Ms O’Sullivan’s legal team challenging the motivation of McCabe, at private hearings, while in public Ms O’Sullivan was singing his praises, created a media and political storm which raged for an extended period and contributed to the early end of O’Sullivan’s reign as commissioner.

At the tribunal Michael McDowell SC, for McCabe, showed O’Sullivan transcripts from the commission on a day when one of the officers against whom McCabe had made a complaint, Superintendent Noel Cunningham, gave evidence. It included information about the officer being on school runs and being asked questions about apparently improper policing matters at Bailieboro station “and my daughter sitting looking over at me and me not answering. My answer has always been the truth will out”.

Cunningham said at the commission he was “totally, absolutely completely depending on this commission to ensure that the truth will out”. He said McCabe had tried to “undermine” him ever since he’d been appointed a superintendent. As McDowell put it to O’Sullivan, having referred her to the transcript, it was obvious that there was “bad blood” and that Cunningham was “hostile” towards McCabe. Yet Cunningham’s lawyer at the commission hearing was also O’Sullivan’s “mouthpiece” – the latter a word O’Sullivan did not accept.

All in all, it was a “manifest conflict of interest”, McDowell said. O’Sullivan said no-one had brought this to her attention. The tribunal has heard her solicitor, Ryan, was desperately seeking a consultation with O’Sullivan over the weekend of May 15th to 17th, 2015, but was told she was too busy. O’Sullivan said she was not aware of this.

Legal privilege

It is not clear as yet whether the tribunal will be told what happened at the consultations between the officers against whom complaints had been made, and the legal team. There may be an issue of legal privilege.

O’Sullivan told McDowell that she has never had a conversation with Cunningham about his attitude towards McCabe.

The tribunal is investigating whether unjustified grounds were used by O’Sullivan at the commission hearings to discredit McCabe. The above summary of her position does not necessarily show that. But you could understand how it would lead to McCabe feeling that O’Sullivan had taken a hostile attitude to him at the commission, at a time when she was publicly stating that she was fully behind him and his whistleblowing activities, and that he was being attacked by lawyers acting on the instructions of his boss.

O’Sullivan’s evidence is the legal team never brought the apparent conflict to her attention, and never recommended the issue be addressed by appointing a separate legal team for any aggrieved officers. The evidence supports this.

But it is hard to reconcile the general suggestion that the matter was never brought to O’Sullivan’s attention, with her repeated evidence that she was faced with “an almost impossible dilemma” when asked to approve an attack on McCabe’s motivation at the O’Higgins Commission hearings.