Competing forces: How McCabe affair became a saga

“On August 5th, 2007, shortly after 3pm, three men entered Cafolla’s restaurant in Bailieborough, Co Cavan, and ordered food. One of the men emptied the contents of a vinegar bottle and replaced it with urine. Having eaten the meal, the men left the premises. The incident was captured on CCTV.”

So begins chapter seven of the O'Higgins Commission report into allegations of Garda malpractice raised by Garda whistleblower Sgt Maurice McCabe, the one-time sergeant in charge of Bailieborough Garda station, in Co Cavan.

Late last year the continuing impact of the McCabe affair almost led to the collapse of the Government. Starting this week, the Charleton tribunal, which is examining how Garda management responded to McCabe, resumes public sittings and will hear evidence to do with the O’Higgins commission, which examined some of the complaints made by McCabe.

The position adopted towards McCabe by Colm Smyth SC, counsel for the then Garda commissioner, Nóirín O'Sullivan, at the commission, and what the then minister for justice, Frances Fitzgerald, knew about this, is what lay behind Fitzgerald's resignation as tánaiste late last year.

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O’Sullivan is due to give evidence on Tuesday, and Smyth on Wednesday. Others due to appear include officials from Garda headquarters, the Department of Justice, and the Attorney General’s office. Fitzgerald is scheduled to give evidence next week, as is McCabe.

Referring to pee

The O’Higgins commission sat in 2015, in private. Among the matters examined was McCabe’s concerns about the Garda investigation of the Cafolla incident. Majella Cafolla, the owner of the Bailieborough restaurant, didn’t like the way the men who had come into her premises in August 2007 were laughing loudly and continually referring to pee. Just as they left, a man and his child entered and sat at table three.

“At this the three males went into hysterical laughter outside the door and looking back into the restaurant,” Cafolla later told the Garda.

She noticed the vinegar bottle on the table was urine coloured and asked the man and child to move to another table. She then checked her CCTV recordings and saw footage of one of the three men coming out of the loo with a full vinegar bottle and placing it on table three. She took the bottle to Benjamin’s pub, where the men had gone. “I walked up to the bar and I put the bottle up in front of him and told him he was a dirty despicable bastard urinating in a bottle in my restaurant.”

She told the man she was going to the guards. On June 8th, 2008, all three men pleaded guilty to public order offences. They were told to pay €500 each to Cafolla, but she said the money should be given to the Garda Benevolent Trust Fund.

The Cafolla investigation is one of those cited by McCabe as part of a series of complaints about the quality of the policing in Bailieborough in relation to crimes of varying levels of gravity that occurred in 2007-2008.

The O’Higgins commission criticised the Cafolla investigation, which among other flaws involved delays in the conduct of the inquiry, and Cafolla having to twice go to the station with copies of the footage from the CCTV. McCabe, when he learned of the delays, had contacted Cafolla. He apologised for the way the case had been handled and told her she could make a complaint about the matter if she wanted. She did not do so. McCabe’s intervention ensured summonses were applied for just before the prosecution would have been out of time.

The then superintendent in the district, Michael Clancy, was told about the incident in October 2007 and became involved.

Range of complaints

In January 2008 McCabe met Clancy to discuss a range of complaints he had outlined in a letter about policing at Bailieborough. The complaints included members not turning up for duty, members not turning up on time, not doing foot patrols, constant tea breaks and not following up on policing matters. The letter did not specifically mention the Cafolla case, but the commission decided it was covered by the broad complaints listed.

McCabe said he was “receiving no help” in addressing these matters. He afterwards complained that Clancy “completely brushed me aside, would not listen to my concerns”, according to the commission’s report.

The two men had different perceptions afterwards as to how the meeting went. The commission found that “any proper reading of the document furnished by McCabe should have revealed that it was a near desperate cry for help from a concerned member of the force. Unfortunately Supt Clancy failed to appreciate the depth of feeling manifested in the letter.” However, the commission also decided that “the assertion of Sgt McCabe that Supt Clancy brushed him aside is unfounded.”

In a statement made by McCabe in April 2008 as part of a bullying complaint to Garda HR, he referred to the Cafolla inquiry. Cafolla had been “disgusted with the way she was treated by the Gardaí. Nothing was done about the incident until the owner made numerous calls to the Garda station and eventually I became aware of it.” He reported the matter to Clancy but “he refused to take any action against the gardaí concerned”.

The commission found that while mistakes were made in the Garda inquiry, it was not correct to assert that nothing was done until McCabe became aware of the incident. Likewise it was not correct that he sought help in sanctioning the gardaí concerned.

The Cafolla incident became part of inquiries conducted by assistant commissioner Derek Byrne and Letterkenny-based Chief Supt Terry McGinn, who examined multiple complaints from McCabe.

McCabe was unhappy about Byrne’s involvement given he had been transferred from the Northern Region to Garda headquarters, just before being asked to look at the McCabe complaints.

Badly handled

The two senior officers upheld McCabe’s view that the Cafolla case was badly handled, and said the sergeant had acted promptly and commendably when he became involved. Gardaí Rudy Kelly and Fearghal McCarthy, who investigated the Cafolla case, were the subject of an eventual breach of discipline inquiry, and were formally given advice. The commission found this to be appropriate.

In a letter in January 2012 to the Confidential Recipient – an office established to receive anonymous complaints from gardaí – McCabe included the Cafolla incident and said, among other matters, that “Supt Clancy refused to send a file to the DPP on an endangerment involving the attempted poisoning of the young boy and his father. He refused to have it investigated.”

The letter sent to the Confidential Recipient went to the then minister for justice, Alan Shatter, who had it sent for comment to the then Garda commissioner, Martin Callinan.

The commission found there was no evidence Clancy refused to send a file to the DPP, or refused to have the matter investigated. Nor was there any evidence to support the contention of endangerment or attempted poisoning.

The Cafolla chapter is one of eight in the commission’s report that deal with Bailieborough cases about which McCabe made complaints in relation to how they were investigated by gardaí. They involved drunken, abusive and threatening late-night behaviour on a bus at Kingscourt, Co Cavan; an assault at the Lakeside Manor Hotel, Virginia, Co Cavan; an assault on a woman in Virginia by a man called Jerry McGrath, who later murdered a woman in Limerick; a dangerous driving incident at Lakeside Manor;and an assault on a young woman in the Cootehill area. All of the incidents occurred in 2007-2008.

The commission also looked at complaints by McCabe about how senior Garda management responded to his complaints about policing standards at Bailieborough and other matters. These culminated in his making a corruption allegation against then Garda commissioner Martin Callinan.

Misuse of Pulse

On October 11th, 2010, McCabe attended a meeting in the Hillgrove Hotel, Monaghan town, where assistant commissioner Byrne and Chief Supt McGinn were to present findings of their investigations into 42 complaints made by McCabe about policing matters in Bailieborough. When McCabe was told he had some responsibility for some of the matters that had arisen, because he was the sergeant in charge in Bailieborough, he was unhappy, according to the commission report. He then informed the officers that he had evidence of further serious wrongdoing.

“He left the hotel briefly and returned carrying two boxes of documents containing print-outs of records generated by the Pulse system. Sgt McCabe indicated that the material disclosed evidence of the misuse” of Pulse, the Garda IT system that records alleged crimes and their investigation.

“Pulse records are confidential,” the commission report noted. “Assistant commissioner Byrne was concerned about the circumstances in which the documents were generated and how they came” to be in McCabe’s possession. He would not allow McCabe take the documents from the hotel.

What happened next is not disclosed by the report as it was outside the commission’s terms of reference. However, Byrne “took possession of the boxes of documents”.

An investigation into the records was initiated, with deputy commissioner Nacie Rice taking charge. About half the records were referred back to Cavan-Monaghan for examination. McCabe was to later criticise this decision, believing that the documents should have been examined "independently". One of the people who became involved was divisional officer for Cavan-Monaghan, Chief Supt Colm Rooney, "notwithstanding the fact that Sgt McCabe had made a complaint about Chief Supt Rooney". McCabe contended that many of the Pulse records returned to the Cavan-Monaghan area ended up being updated in a way that was inaccurate and "intended to cover up what he had found".

The Pulse issue is complicated. The commission examined a sample of the records and found that, as alleged by McCabe, there were a large number of cases where motoring offences and other admitted crimes were not subsequently prosecuted. Of 182 examined, this was at least in part true of 170, according to the commission report. It also examined the updating issue, and found a “clear pattern of updates which suggested that the underlying offence was not in fact committed”.

The updating was “consistent with an attempt to excuse the failure to prosecute”. On the other hand, the commission said, it was not arguing that the Garda should be inflexible and prosecute “every minor infraction”.

McCabe made complaints of corruption in relation to the handling of the Pulse issue, but the commission found that the contention that the return of some of the cases to the Cavan-Monaghan Division constituted corruption was not correct. “Furthermore, the commission rejects the suggestion that updating the incidents was itself corrupt.”

Bullying complaint

In April 2008 McCabe made a formal complaint to HR management against Clancy, alleging bullying and harassment. Before the investigation of the complaint was concluded, the process had exceeded the allowed time. McCabe switched his focus to the Confidential Recipient. Under the legislation, all reports to the Confidential Recipient have to go to the Garda Commissioner, save when they are against the Garda Commissioner, in which case they go to the Minister for Justice.

In 2012 McCabe had a meeting with the then Confidential Recipient, Oliver Connolly, to discuss his complaints. By this stage he had a concern that Clancy had been placed on a promotions list, despite the complaints McCabe had made about him. McCabe was considering making a complaint against the Garda commissioner in relation to this, in the knowledge that if he did so, the matter would have to go to the then minister, Alan Shatter.

“It would be a gross abuse of process and most unfair to the commissioner to invoke the regulations in the absence of a genuine complaint,” the commission noted. “The evidence before the commission falls short of establishing that such is the case.”

The Clancy promotion complaint by McCabe was “motivated in part by his desire to ensure that the matter came before the minister”, but the commission was satisfied that McCabe did hold genuine concerns “that there was some impropriety in the promotion of” Clancy.

McCabe made a complaint against Callinan under the “corruption and malpractice regulations” and arising from an alleged involvement of Callinan in placing Clancy on the promotions list. The complaint went straight to the minister.

‘No evidence’

The O’Higgins commission found that there was “not a scintilla of evidence to support an allegation of any type of corruption against the former commissioner”. Callinan was not responsible for putting Clancy on the promotions list and had no power to do so. Clancy went through the normal competitive process. Callinan was “entitled to have his reputation vindicated”. Any aspersions cast on the integrity of the former commissioner “were unfounded and deeply hurtful”, the commission found. It also said the complaint from McCabe was “in part, a device” to ensure that it came to the attention of the minister.

When the matter was raised at the O’Higgins commission, McCabe did not accept that his complaint was without foundation but did accept that the commissioner may not have known “the full facts”. The commission also pointed out that the Byrne/McGinn reports had found that the McCabe complaints against Clancy were “not substantiated in any way”.

After McCabe was told that his complaint against the commissioner was not being upheld, he met Connolly on February 9th, 2012, to discuss the outcome. Unbeknown to Connolly, McCabe taped the meeting, a move Connolly later described as a “betrayal”. The commission noted that a purported transcript of the recording later entered the public domain.

In the transcript, Connolly is alleged to have told McCabe: “If Shatter thinks you’re screwing him, you’re finished.” When the transcript was publicly disclosed, the ensuing controversy saw Shatter sack Connolly. Connolly thereby became the first of a series of people, including Shatter, who were to lose their positions arising from the McCabe affair.

Shatter told the commission of the “baleful consequences” for him of the release of the transcript. The commission said it was beyond its terms of reference to comment further.

In its remarks on McCabe, the commission said he “impressed the commission as being never less than truthful in his evidence, even if prone to exaggeration at times”.

In relation to the complaints covered by the O’Higgins commission, it said “some have been upheld in this report, especially in respect of the quality of the investigations examined by this commission. Other complaints made by him have proven to be overstated or exaggerated. Some were unfounded and some have been withdrawn.”

Genuine concerns

It found that it was wrong and unfair to cast aspersions on McCabe’s motives. He acted out of “genuine and legitimate concerns” and the commission unreservedly accepted his bona fides. McCabe “has shown courage and performed a genuine public service at considerable personal cost”.

Complaints of corruption were made by McCabe against senior officers Byrne, Rooney and Clancy. “In each case the commission has found those hurtful complaints unfounded and those against whom such complaints were made had to live for many years under the strain of those allegations.”

In relation to the large number of complaints against Clancy examined in the report, the commission said, “he is exonerated of any wrongdoing and is the subject of only occasional and very mild criticism”.

The Charleton tribunal, which will begin public hearings today, is expected to go into some detail about the legal strategy adopted by O’Sullivan’s legal team at the commission hearings.

The tribunal is investigating whether there was a smear campaign against McCabe, and whether Callinan or O’Sullivan acted in a way designed to discredit the former Bailieborough sergeant. It is also looking at whether unjustified grounds were used at the O’Higgins commission by O’Sullivan to discredit McCabe.

* A number of articles published by The Irish Times on 11^th February 2017, 18^th February 2017, 21^st February 2017 and on 8^th January 2018, addressed Alan Shatter's Ministerial involvement in events relating to Sergeant McCabe and omitted any reference to his subsequent exoneration from allegations made against him in relation to those events. The Irish Times recognises that Mr. Shatter's conduct as a Minister was fully vindicated by the O'Higgins Commission of Investigation Report in May 2016 and apologises to Mr. Shatter for any reputational damage resulting from the articles.