O’Mahoney inquiry presented as option rather than order

The devil of the penalty points debacle is in the detail

Garda whistleblower Sgt Maurice McCabe released a statement to the media on Monday night. It scotched news reports suggesting he had ignored a direction from Garda Commissioner Martin Callinan to co-operate with an investigation into penalty points terminations.

His intervention on Monday was extraordinary.

It was a direct challenge from a Garda sergeant to the commissioner in public and via the media, which is without precedent. Archaic as it might seem, even his contacting of the media is in breach of Garda rules.

Sources said his whistleblower status and high public profile mean he is untouchable to those who would want to discipline him.


McCabe seemed incensed that his role on such an important matter was, in his view, being badly twisted and so he joined the debate he felt was debasing him.

Media reports
The media reports on Monday that he took issue with suggested that, having made the penalty point allegations in 2012 with fellow whistleblower Garda John Wilson, he failed to co-operate with the later inquiry, even ignoring a direction by Callinan to do so.

Minister for Justice Alan Shatter made the same charge in the Dáil last year, and is coming under intense pressure to apologise for it. So where is the truth in all of the confusion?

It is worth for a moment revisiting a meeting of the Public Accounts Committee last month.

Callinan said that in October 2012 he was furnished with a large volume of material by the Department of Justice containing allegations of the corrupt termination of penalty points.

He forwarded them to Assistant Commissioner John O’Mahoney for investigation.

He added that on December 8th, 2012, one of the two Garda whistleblowers – the now retired Wilson – printed off a large volume of documents from the Garda’s computerised Pulse database in a Co Cavan station relating to penalty points terminations.

The incident was reported to Callinan, who said he contacted both men via a Garda direction; a written message delivered orally by a member of higher rank.

"I directed them to desist from what they were doing, that they were in breach of the Data Protection Act and probably other offences also, and if they had any issues, problems or complaints that they should contact the assistant commissioner dealing with a very wide investigation on wrongdoing."

That accounts tallies entirely with Callinan’s direction to McCabe in December 2012, which was released by McCabe on Monday.

"The commissioner is now directing you to desist from the practice of accessing Pulse and or disclosing to third parties sensitive personal data regarding the cancellation of fixed charge notices by members of An Garda Síochána, " it reads.

“If you have any further concerns and without prejudice of your rights under the confidential reporting mechanism such matters can be brought to the attention of Assistant Commissioner John O’Mahoney, Crime and Security, who will fully investigate those matters.”

The text absolutely supports McCabe's contention that he was never directed by Callinan to co-operate with the O'Mahoney inquiry. The O'Mahoney inquiry is presented as an option, whereas he is clearly directed, or ordered, to cease downloading material from Pulse.

Words in his mouth
However, to be fair to Callinan, some reports this week have put words in his mouth.

Contrary to those reports, he has never suggested that he directed McCabe to co-operate with the O’Mahoney investigation. That suggestion was the media’s and the media’s alone.

It is also very clear that that the direction notice issued to McCabe and Wilson in December 2012 did indeed contain an invitation to participate in the O’Mahoney investigation.

The inclusion of that invitation, and the fact the men did not take it up, appears to be the main reason why Shatter has said in the Dáil the men had their chance to co-operate and refused, and he has declined to take back those words.

The two whistleblowers were perhaps expecting a more formal approach to be interviewed as part of the inquiry and were apparently waiting to be contacted.

All the while, O’Mahoney was waiting for them to act on Callinan’s suggestion that they contact his investigation and be part of it.

One wonders why there was so much ambiguity and why somebody in Garda headquarters in Phoenix Park, Dublin, did not contact the men directly and agree an interview appointment over the phone at a time and place to allow the men play a key role in the investigation.

The Assistant Commissioner was questioned on that very issue at the Public Accounts Committee last month.

His responses were not reported at the time but given subsequent developments are worth examining now.

“First and foremost the documentation provided to the commissioner and subsequently to me was unsigned and unattributed; I proceeded with my examination on the basis I was dealing with anonymous allegations,” he said of the reasoning behind not contacting the men.

He said some of the allegations had come through the confidential recipient, suggesting contacting the men would have undermined the protection afforded to them under that reporting system.

Crucially, he also suggested that with full access to Pulse he did not need to speak to the whistleblowers to test what this whole mess rests on; if their interpretation of Pulse documents was right about corruption or if they came to unfounded views based on having only partial access to Pulse.

"Bear in mind that I was doing my examination and finding that, in most cases but not all, what was on Pulse did not accurately reflect what these people were alleging.

“In fairness, if they had the full information, they may not have made the allegations,” he said.

Conor Lally

Conor Lally

Conor Lally is Security and Crime Editor of The Irish Times