O’Sullivan suggested Fitzgerald disclose legal advice in Dáil

Garda commissioner also suggested tánaiste might say she had disclosed it ‘in national interest’

Former Garda commissioner Nóirín O’Sullivan disclosed confidential legal advice she had received to the then minister for justice and suggested she put it on the record of the Dáil, the Charleton tribunal has heard.

The advice concerned the approach that should be taken in relation to Garda whistleblower Sgt Maurice McCabe at the O’Higgins commission hearings, which were held in private in 2015.

Ms O'Sullivan sent the advice by email to then tánaiste Frances Fitzgerald in May 2016, in the wake of the publication of the O'Higgins report and against a background of controversy over whether senior Garda management, which had been publicly supportive of Sgt McCabe, had adopted an aggressive approach towards him at commission hearings in private.

New information about contacts between Ms O’Sullivan and Ms Fitzgerald has been disclosed by the Charleton tribunal, which is investigating whether inappropriate instructions were given by Ms O’Sullivan to her legal team at the O’Higgins commission in an effort to discredit Sgt McCabe.

The tribunal disclosed that in emails sent to Ms Fitzgerald, the then Garda commissioner suggested that if the legal advice was put on the record of the Oireachtas, Ms Fitzgerald might say that the commissioner had voluntarily given it to her “in the national interest”.

Ms O’Sullivan also suggested Ms Fitzgerald tell the Dáil that at no time had she instructed her legal team to accuse Sgt McCabe of “malice”.

In the event Ms Fitzgerald did not reveal the legal advice and in fact spoke in the Dáil against such disclosures. Ms Fitzgerald also did not take up the suggestion from Ms O’Sullivan that she express confidence in her before the Dáil.

Waters saw email

In evidence to the tribunal, former secretary general of the Department of Justice Noel Waters said he accepted he saw an email dated May 15th, 2015, which mentioned the legal strategy being adopted by the Garda commissioner at the O'Higgins commission.

He said he could not remember seeing the email and noted that it included the suggestion no action needed to be taken by the minister.

The tribunal has heard that Ms O’Sullivan’s legal team had advised her they would have to raise the issue of Sgt McCabe’s motivation at the commission hearings, because of allegations he had made involving other members of the force.

Mr Waters took up the role of acting secretary general after the departure of Brian Purcell in 2014. He was appointed secretary general in October 2016, and resigned last November.

‘Going after’ McCabe

Tribunal counsel Patrick Marrinan SC said it had been told by the head of Garda HR, John Barrett, that Cyril Dunne, a senior Garda civil servant, told him in 2015: "We are going after him [Sgt McCabe] in the commission".

However Mr Dunne, counsel said, had denied making the comment. Both men are due to give evidence at the tribunal.

Micheal McDowell SC, for Sgt McCabe in comments to the tribunal chairman, Mr Justice Peter Charleton, said it was his client's case that after it had been decided the O'Higgins Commission would not look at matters linked to a 2006 allegation against him , an effort had been made to re-introduce the matter to embarrass him.

The tribunal has heard Sgt McCabe was the subject of a historical allegation of child sex abuse of a Garda colleague’s daughter, but the Director of Public Prosecutions ruled that no charges should be brought.

Sgt McCabe was anxious the young woman’s family would be told the DPP had ruled that even if the allegation, which was disputed, was true, the actions alleged would not constitute an assault, sexual or otherwise.

The tribunal resumes hearing evidence on Monday.