Nóirín O’Sullivan not barred from explaining comments, say experts

Garda Commissioner Nóirín O'Sullivan is not precluded from publicly explaining comments made by her lawyers at the O'Higgins Commission, legal experts have said.

The commissioner has said she is unable to clarify the comments because of the laws governing Mr Justice Kevin O’Higgins’s investigation into allegations of inaction and corruption made against some gardaí in the Cavan-Monaghan division.

But legal experts have described her position as “a stretch”, “not credible” and an example of “the tendency to use legal argument as a shield from normal accountability”.

Last week, the Irish Examiner reported details of documents relating to the commission's work, which looked into allegations made by whistleblower Sgt Maurice McCabe.

It said the documents showed Mr Justice O’Higgins asked the commissioner’s senior counsel, Colm Smyth, whether “you are attacking [Sgt McCabe’s] motivation and attacking his character”.

Mr Smyth was said to have replied: “Right the way through.”

The barrister is said to have explained he was acting on instructions. However, there was no mention of the exchange in the commission’s final report.

On Tuesday evening, RTÉ News said it had seen documents showing Mr Smyth told the commission his “instructions at all times were to challenge the motivation and credibility of Sgt McCabe”.

‘Error on my part’

But the lawyer said “it was an error on my part” when he said earlier he was to challenge Sgt McCabe’s “integrity”.

In a statement on Monday night, the Garda Commissioner said she wanted to make it clear she did not, and never had, regarded Sgt McCabe as malicious. She said she was legally precluded from clarifying matters because of Section 11 of the Commissions of Investigation Act 2004.

The Act says “a person (including a member of the commission) shall not disclose or publish any evidence given or the contents of any document produced by a witness while giving evidence in private”, except in specified circumstances.

“The witnesses who gave evidence before the commission did so on the expectation that their evidence, except as may be included in the final report, would remain private,” the commissioner said, on Monday.

Dr Tom Hickey, School of Law and Government at Dublin City University, said it would be hard to see how senior counsel representing Ms O'Sullivan could be said to count as a witness.

And reports of the senior counsel’s response to the question from Mr Justice O’Higgins “hardly counted as “evidence” under the legislation”, Dr Hickey said.

“In any case, in clarifying it or addressing it, Commissioner O’Sullivan would not be ‘disclosing’ or ‘publishing’ it,” as per the words of Section 11 (3), he said.

He said it was hard to see how the legislation might be interpreted so as to preclude the commissioner from giving a comprehensive account of the questions now at issue.

‘Normal accountability ’

“It may be that this is another example of the tendency to use legal argument as a shield from normal accountability,” he said.

Senior barristers who did not wish to be named agreed. One barrister said the legislation does not cover questions put to a witness.

“One is not allowed to publish Sgt McCabe’s response to this allegation of malice, but that’s not to say there is any prohibition on disclosing what is put by a particular party, or a stance adopted,” he said.

“I don’t think that it can be seriously argued that the commissioner is actually barred from commenting on the instructions she gave to her lawyers. It is just not a credible legal position.”

Another barrister said it was “a stretch” to say the legislation would make it unlawful and a criminal offence for the commissioner to confirm or deny instructions she may or may not have given to her counsel.

He said the commissioner’s stance was “very surprising”.