‘Malice’ controversy nowhere near over for Nóirín O’Sullivan

The long-running controversy around malpractice allegations by Garda whistleblower Sergeant Maurice McCabe and the Garda's and Government's treatment of him still has a way to run.

If the Minister for Justice Frances Fitzgerald and Garda Commissioner Noirin O'Sullivan are not careful in the next few days, perhaps in the next few weeks, more heads will roll.

The whole saga - which has already cost former commissioner Martin Callinan and former minister for justice Alan Shatter their jobs - has taken a serious turn since the end of last week.

In a bid to close down a fresh controversy around her own alleged treatment of McCabe, O’Sullivan last night issued a lengthy statement, after passing up the opportunity to comment at the first time of asking late last week.

She has denied ever thinking or suggesting Sgt McCabe acted with malice.

The only problem is that she has sought to clear herself of an allegation that has not really been levelled against her.

And the substantive allegation has been left hanging in the air. It must now be cleared up with another statement from the commissioner.

Confused? Well, you wouldn’t be the only one. Let’s get a few facts on the table.

O’Higgins Commission

Last week, the O’Higgins commission of investigation issued its final report.

Mr Justice Kevin O’Higgins was investigating a series of allegations - levelled by McCabe - about policing in the Cavan-Monaghan Garda division.

McCabe alleged some very serious crimes that came to the attention of the Garda in the division up to 10 years ago were not properly investigated.

He also alleged victims were not treated properly by the Garda and that elements of the inaction and bad practice amounted to corruption.

Callinan was accused of being corrupt and it was alleged Shatter had not handled McCabe’s whistleblowing the way he should have. Both men were exonerated by Mr Justice O’Higgins.

The commission found some of the allegations put forward by McCabe about policing - and about some other senior Garda officers - could not be substantiated. Others, it found, were exaggerated.

However, the commission very clearly found evidence of some extremely poor police work and shoddy treatment of victims, as alleged by McCabe. And it found McCabe had spoken out for the right reasons.

The Irish Examiner story

But last Friday, just a few days after the commission's final report was published, a story appeared in the Irish Examiner newspaper that was potentially devastating for O'Sullivan.

It is no exaggeration to say it put her job on the line. And her job is perhaps still on the line.

The story set out an exchange that it claimed took place while the O’Higgins commission was in private session.

It contains quotes attributed to Mr Justice O'Higgins; Colm Smyth, a barrister said to be acting for O'Sullivan; and barrister Michael McDowell SC, who was representing McCabe.

The exchange involving these three men is damaging for O’Sullivan. But the news report is not without shortcomings.

The story claims that in the early stages of the commission’s hearings a senior counsel acting for the commissioner said evidence would be furnished to show Sgt McCabe was motivated by malice.

It was reported the barrister outlined how McCabe in 2010 had had a conversation with two colleagues during which he claimed to be making the allegations he was making at the time because of malice he harboured towards a senior officer, as the Irish Examiner puts it.

It is alleged the barrister said that the two Garda members who McCabe had spoken to had made notes on the conversation, had compiled a report on his comments and that they would give evidence at the commission.

However, the newspaper further reported that when McCabe produced a secret recording he had made of the conversation, it contradicted the claims of his two colleagues. The end result was that his two colleagues accusing him of malice never gave evidence at the commission.

The Irish Examiner story continued:

“Following that, no evidence to show malice was called from the two officers who were at the meeting.

“However, the failed attempt to impugn Sgt McCabe’s character did not appear in the O’Higgins report. The retired judge stated that Sgt McCabe was an entirely truthful witness and his bona fides were fully accepted.

“The documents show that, at the commission, Mr O’Higgins asked the commissioner’s lawyer whether “you are attacking his [McCabe’s] motivation and attacking his character”.

“The reply from Colm Smyth, SC, was: “Right the way through.”

“He told the judge that he was acting on instructions.”

The Irish Examiner story was run under the headline: Garda Commissioner claimed Maurice McCabe was motivated by 'malice'

However, at no point in the claimed quotes used by the newspaper does the word ‘malice’ pass through the lips of any of those people quoted.

The only people in the story accused making the claim of malice against McCabe are the two unidentified Garda members who had the conversation with the whistleblower.

And even though the commissioner’s barrister is reported to have said these two officers would tell the commission McCabe conceded to them he was acting out of malice; the barrister is outlining the two officers’ allegations, not any allegation by O’Sullivan.

She is accused of instructing her barrister to go into the commission and, according to quotes attributed to Mr Justice O’Higgins, to “attack” McCabe’s character and motivation.

Yet last night she issued a statement denying she ever believed McCabe acted with malice. But the newspaper story - save for the unfortunate headline - did not accuse O’Sullivan of that charge. In essence, she has now denied something she was never accused of.

Since the story was published, the accusation in its headline - that the commissioner accused McCabe of malice - has been repeated as fact so often it has become accepted.

Acting under instruction

The key allegation about O’Sullivan is that a barrister for her and acting under her instructions was sent into the commission to attack McCabe’s character and motivation. And it is that allegation that must now be addressed.

While anyone disclosing evidence given by witnesses at a commission of investigation in private session would be committing an offence, there is always a formula of words or a mechanism to be found to overcome these impediments.

O’Sullivan could issue a statement to the effect she never instructed anyone to attack McCabe’s character.

Fitzgerald could also use the legal privilege she enjoys in the Dáil to address the matter. The Minister might be well advised to do that sooner rather than later, before McDowell takes his newly-won seat in the Senate, where he too enjoys legal privilege.

His acting for McCabe might restrict him ethically from using that privilege. But if McCabe gave him the nod to proceed, McDowell could turn executioner very quickly.