No ‘back door’ effort to introduce false allegation against McCabe

Charleton tribunal: Frances Fitzgerald due to give evidence on Wednesday

A senior civil servant has said he did not think there was an attempt in 2015 to introduce a false child sex assault charge against Sgt Maurice McCabe at the O’Higgins Commission hearings “by the back door”.

Assistant secretary at the Dept of Justice, Michael Flahive, is giving evidence to the Charleton Tribunal which is investigating whether unjustified grounds were used by then Garda Commissioner Nóirín O’Sullivan at the commission hearings to discredit Sgt McCabe.

The commission, which sat in private, investigated allegations that had been made by Sgt McCabe about poor policing standards and other matters. At the hearings the Garda Commissioner authorised her legal team to challenge the sergeant’s motivation for making complaints. At the time Ms O’Sullivan was expressing public support for whistleblowers.

Mr Flahive, answering questions from Kathleen Leader BL, for the tribunal, said an “Independent Review Mechanism” (IRM), which had looked at more than 320 allegations of poor policing by the Garda, had concluded a case involving Sgt McCabe would be suitable for inclusion in the O’Higgins Commission.


However the IRM also suggested any such move should be considered by the Minister for Justice, the Attorney General, and the chair of the commission, before the case was included in the commission’s terms of reference.

The case arose from a complaint by a woman, being called Ms D, who felt that her allegation of sexual abuse by Sgt McCabe, had not been properly investigated by the gardaí.

No charges

The allegation was made in 2006 about an event that had allegedly occurred some years earlier, when she was a minor. The Director of Public Prosecutions (DPP) decided that even if the contested events had occurred, they would not constitute a crime. The parties were told no charges were being brought, but Sgt McCabe wanted the full nature of the DPP’s finding to be disclosed, even though this was against DPP policy.

Mr Flahive said following the suggestion by the IRM that Ms D’s complaint about the Garda investigation be considered for inclusion in the commission’s terms of reference, it was recognised the inclusion of the Ms D complaint could be “very problematic” and might make Sgt McCabe feel “victimised”.

The move might be seen as “having the effect of putting Sgt McCabe on the back foot at the hearings”.

In the event, the barristers conducting the IRM were asked to look at the Garda file on the Ms D investigation. They found the Garda had conducted an inquiry and recommended that no charges be brought, a conclusion also arrived at by the DPP. They said it appeared the investigation had been properly conducted and it was then decided the investigation did not have to be examined by the O’Higgins Commission.

Mr Flahive said if the case had been included, it would have to be mentioned in the terms of reference, and in the commission’s final report. This meant the sensitive matter would be mentioned in the public domain.


When it later emerged the Garda HQ legal team was going to raise the issue of Sgt McCabe’s motivation for making complaints at the commission hearings, and a possible link to the Ms D allegation, Mr Flahive said, he was conscious that this would occur at confidential hearings.

“They were two obviously related things, but they were different things,” he told Ms Leader, when she asked if the Ms D issue, which had been ruled out, was now being re-introduced at the commission.

“I am not sure I had the sense that this was being introduced by the back door, but I did recognise it was a sensitive matter.”

At the time he learned on May 15th, 2015, that the issue of the Ms D investigation was being raised at the commission hearings, he didn’t know the detail, Mr Flahive said.

When he was told that the Garda legal team was going to raise the matter of Sgt McCabe’s motivation at the commission hearings, he did not think it was appropriate for the then Tánaiste and Minister for Justice, Frances Fitzgerald, to intervene.

It was a matter for the commission chairman if matters were raised at the hearings which were not relevant to its terms of reference.

Earlier on Monday, a former senior civil servant with the Department of Justice has said he was “wasn’t delighted” when he was contacted by then Garda Commissioner Nóirín O’Sullivan during the confidential hearings of the O’Higgins Commission.

Former deputy secretary general Ken O’Leary was contacted by Ms O’Sullivan by phone on the afternoon of May 15th, 2015, after a row erupted at the commission as to whether her legal team was attacking the motivation of Garda whistleblower Sgt Maurice McCabe on her instructions.

‘Ms D’

Mr O’Leary told Patrick Marrinan SC it was his view the Department or its then minister, Frances Fitzgerald, could not properly become involved in the proceedings of a commission she had established.

Mr O’Leary told the tribunal chairman Mr Justice Peter Charleton that it had never been suggested to him that the so-called “Ms D” allegation might be raised at the commission.

He said that if it had been, it would have “transcended” any issue as to what was happening at the commission and “would be alerting us that we had a problem with the Garda Commissioner”. It would raise the “wider issue of confidence”.

Mr Justice Charleton has already observed that there is no evidence to suggest any effort was made at the commission hearings to put the historical sex abuse allegation to Sgt McCabe. The allegation was dismissed by the DPP in 2007.

Mr O’Leary told Mr Marrinan, for the tribunal, that when he spoke on the phone with Ms O’Sullivan on May 15th, 2015, he was “slightly concerned from my own point of view” about getting involved.

He said he had not given the then commissioner advice as to what she should do at the commission and agreed with the suggestion that she had used him as a type of “sounding board”.


When Mr Marrinan said the then Commissioner was happy to discuss with the witness what was going on at the confidential sittings of the commission, Mr O’Leary responded: “I wasn’t delighted to discuss it with her.”

He said he was still thinking about the appropriateness of the contacts when he was told of further contacts that had come via the Attorney General’s Office from the Commissioner’s legal team.

Asked if it was the official position of the department at that time that it supported Sgt McCabe, Mr O’Leary said the department’s view was that procedures had to be in place to protect people reporting wrongdoing.

Sgt McCabe was by far the most high-profile but there were “other people labelling themselves as whistleblowers” and the matter was a “live” one at the time.

Mr O’Leary was asked about his role in helping draft a letter in 2016 which Ms O’Sullivan was to write to Ms Fitzgerald in the wake of reports in the media concerning the position adopted at the commission by Ms O’Sullivan’s legal team in relation to Sgt McCabe.

He said that at the time the department was of the view that Ms O’Sullivan might be prompted to resign given how she was being “pilloried”. The department’s view was this would not have been in the national interest.

The commission chairman, Mr Justice Kevin O’Higgins, had presided over the commission hearings and there was nothing in his report that called Ms O’Sullivan’s position into question.

The media reports were based on leaks from the commission hearings and a “particular version of a story”. The situation was that there was public concern created on the basis of reports based on “three pages” of what went on at the O’Higgins Commission.

‘Political reality’

“That didn’t call into question at all the position of the Garda Commissioner yet she was being publicly traduced” in circumstances where she couldn’t defend herself because of the confidential nature of the commission proceedings.

Ms Fitzgerald had to “deal with the political reality of the concerns that had been raised”. It was not possible, in the circumstances, to ask the Commissioner what had gone on at the commission hearings. The document he worked on was aimed at putting what could be stated into the public record.

There was no basis for questioning Ms O’Sullivan’s position but there was a danger, arising from the “feverish” nature of the controversy, that it could lead to a situation where they would end up having to find another Garda Commissioner.

The cooperation between the department and the Commissioner at the time was not “friends helping each other out” but rather both working together towards an objective that was seen by both to be in the national interest.

If the O’Higgins Commission had found that the Garda Commissioner had relied upon inappropriate grounds to “bring down” Sgt McCabe, then the department would have been faced with a different situation.

In his view, the department and the Garda Commissioner were entitled to communicate about the matter. Referring to his working on a letter from the Commissioner that was to be sent to the minister, he said that was really just a matter of “form rather than substance”.

Asked why he hadn’t supplied a statement to the tribunal until December of last year, he said the two brief telephone calls he’d had with Ms O’Sullivan on May 15th, 2015, had not struck him earlier last year as requiring being reported. He wasn’t conscious of the “significance that those matters were going to give rise to”. The significance the contacts subsequently got, had not been apparent to him at the time, he said.

Late last year a dispute over what Ms Fitzgerald knew at the time about the legal strategy being adopted by Ms O’Sullivan’s legal team at the O’Higgins Commission, almost led to the collapse of the Government. Ms Fitzgerald resigned as tánaiste and Minister for Business, Enterprise and Innovation and is now a backbencher. She is scheduled to give evidence on Wednesday.

The evidence continues.

Colm Keena

Colm Keena

Colm Keena is an Irish Times journalist. He was previously legal-affairs correspondent and public-affairs correspondent