Clearance sought from O’Sullivan to question McCabe’s motivation

Colm Smyth SC apologises for becoming emotional as Charleton witness

Disclosures Tribunal: Colm Smyth SC, who led former Garda commissioner Nóirín O’Sullivan’s legal team at the O’Higgins commission. Photograph: Gareth Chaney/Collins

Disclosures Tribunal: Colm Smyth SC, who led former Garda commissioner Nóirín O’Sullivan’s legal team at the O’Higgins commission. Photograph: Gareth Chaney/Collins


The former Garda commissioner Nóirín O’Sullivan never instructed her lawyers to question the integrity of the whistleblower Sgt Maurice McCabe at the O’Higgins Commission hearings, the Charleton tribunal has been told.

Colm Smyth SC, who led Ms O’Sullivan’s legal team at the commission, said he sought clearance from the then commissioner to question Sgt McCabe’s credibility and motivation. He told Diarmuid McGuinness SC, for the Disclosures Tribunal, which sits under Mr Justice Peter Charleton, that he did not make the case that Sgt McCabe was an “embittered” man who made complaints to get back at the Garda. “I wanted to test the evidence,” he said.

If it was shown that serious allegations made by the sergeant were not supported by evidence, then the question would arise of why the allegations had been made. This would raise the issue of motivation, he said.

Mr Smyth said he took exception to the suggestion that he had sought permission to attack Sgt McCabe’s motivation. “Intemperate language” had been used in Dáil Éireann and in the media about what had happened at the commission hearings, “that I went after this man, to attack him. I did not.” Mr Smyth said he had “suffered personally” because of what had been reported in the media.

Mr Smyth pointed out that he and his legal team at the O’Higgins commission had had only 48 hours to prepare before the commission’s first sittings, even though they would have repercussions for An Garda Síochána and the Government. He said he was sorry to get emotional but he was in the witness box to be questioned about the commission hearings by legal teams that had “months to prepare. I had to take it on the hoof.”

Maurice McCabe allegations

The commission sat in 2015 and conducted inquiries in private into complaints that Sgt McCabe had made about policing matters and allegations that he had made against senior officers.

The tribunal is investigating whether Ms O’Sullivan used “unjustified grounds” at the commission hearings in an effort to discredit Sgt McCabe.

Early on in the O’Higgins commission Mr Smyth confirmed that his instructions were to question Sgt McCabe’s integrity. At a later date he said that this had been an error on his part. Ms O’Sullivan had never used the word integrity with him, he told Mr McGuinness.

The judge at the commission hearings, Mr Justice Kevin O’Higgins, first used the word integrity, and he “fell into the trap” of trying to interpret the judge’s meaning, Mr Smyth said.

He said that none of the serious allegations against senior officers was upheld in the commission’s final report. He said the commission and the controversy has “weighed heavily on me”.

Mr Smyth said he had never challenged Sgt McCabe’s character at the commission hearings and had not sought instructions from Ms O’Sullivan that would give him the “liberty to be wide-ranging. I got permission for the instructions that I sought.”

He said he never went outside his instructions from the former commissioner.

He said that in his consultations with the officers against whom serious allegations had been made, he and the legal team were “desperately seeking what had caused this fine, upstanding member of the force to suddenly become like this.”

Asked if he believed Sgt McCabe had become “a whinger, a complainer, a moaner”, Mr Smyth said he did not and had never put any such charge to Sgt McCabe at the commission.

He said Ms O’Sullivan’s predecessor Martin Callinan, Chief Supt Michael Clancy, Chief Supt Colm Rooney and Supt Noel Cunningham, from his observation, had shown no spite towards Sgt McCabe at any stage.He said he and the team would have taken a different view if they had seen any spite or hostility.

He said that when an allegation was shown not to stand up when tested, there had to be a question of integrity in that context. He had not challenged Sgt McCabe’s character and was not instructed to.

The evidence continues.