O’Sullivan creates impression of detachment from strategy on McCabe

At the end of her second day in the witness box at the Charleton tribunal, the impression created by former Garda commissioner Nóirín O’Sullivan remained that she was someone curiously distant from the main action.

The tribunal is investigating whether she used unjustified grounds to try to discredit whistleblower Sgt Maurice McCabe in 2015 at the private hearings of the O’Higgins commission, which examined claims of garda malpractice in the Cavan-Monaghan division.

As Sgt McCabe’s counsel at those hearings and at the tribunal, Michael McDowell SC, put it at the O’Higgins commission, in public Ms O’Sullivan was expressing support for Sgt McCabe while at the same time she was “launching a fairly savage attack on him in private”.

Ms O’Sullivan’s repeated testimony is that she faced an “almost impossible dilemma” in deciding on her legal strategy at the commission hearings, as she had a responsibility towards Sgt McCabe as Garda commissioner, but also towards officers against whom he had made allegations, which the commission eventually ruled were unfounded.

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Her evidence is that on her legal team’s advice she gave it the go-ahead to challenge Sgt McCabe’s motivation at the commission.

Integrity

At the hearings her barrister, Colm Smyth SC, told Sgt McCabe he was challenging not just his motivation but also his “integrity”.

The communications between Ms O’Sullivan and her legal team were occurring by way of her liaison at the tribunal, Chief Supt Fergus Healy. Under questioning from Mr McDowell, the former commissioner declined to accept suggestions that her legal team had misunderstood her instructions, or that Chief Supt Healy had misconstrued them when passing messages on to her lawyers. Yet Ms O’Sullivan said she had never asked her lawyers to attack Sgt McCabe’s integrity. It didn’t seem to add up.

Mr McDowell did a good job in asking her to try imagine how it all must have seemed at the time to Sgt McCabe. Here he was, inside the private hearings of the commission, being accused of having acted with malice in making his complaints, while outside the woman who was giving instructions to the lawyers making these charges, his employer, was saying he had done a valuable public service.

Mr Smyth told the tribunal on November 4th, 2015, that he had been mistaken on May 15th when he had said his instructions were to challenge Sgt McCabe’s integrity. But the sergeant had had to live with the attack in the meantime, and Ms O’Sullivan, it appears, had done little in the meantime to have the mistake rectified.

According to Ms O’Sullivan, the McCabe saga, which had been going on since 2007, had contributed to bringing public confidence in the Garda to an unprecedentedly low level. She viewed the commission hearings as an opportunity to put the matter to bed and begin restoring confidence in the force.

Yet her lawyers were appointed just as the hearings were about to begin, and she didn’t meet them until months later.

It is difficult to reconcile the importance she gave to the commission, the extent to which she has spoken of the dilemma she was faced with, and the apparent lack of attention she gave to the strategy being adopted by her legal team.

The solicitor acting for her has said that despite repeated requests, she could not get to meet her client during May 2015. Ms O’Sullivan has said she was always available.

Complaints

The approach by Garda Headquarters to the commission may have been badly constructed from the outset. Ms O’Sullivan’s legal team were also representing senior officers due to appear before the commission. Some of these officers were the subject of complaints made by Sgt McCabe, and it was after the barristers had consulted with them, in the days before May 15th, that the legal team reported back that they would have to challenge Sgt McCabe’s motivation.

Mr McDowell asked yesterday if it was possible that the lawyers were following someone else’s instructions when they questioned Sgt McCabe’s integrity, but Ms O’Sullivan did not accept the proposition.

In 2016, when the commission report was published, leaks from its hearings that focused on the “integrity” issue created a media storm that meant the McCabe issue was far from put to bed. It continued to dog Ms O’Sullivan up to her retirement last year.

The then commissioner was undoubtedly a busy woman in 2015, dealing with a huge number of weighty problems against a background of a depleted senior staff at Garda Headquarters. It may be that the early decision in relation to how to handle legal representation at the commission hearings contributed significantly to the early end to her career.

Whether it involved an unjustified attempt to discredit Sgt McCabe is another matter.