O’Sullivan saw no conflict in retaining same lawyers as whistleblower

The legal team that acted for Nóirín O’Sullivan at the O’Higgins commission was briefed by officers who were “hostile “to whistleblower Sgt Maurice McCabe, the Charleton tribunal has heard.

Sgt McCabe’s counsel Michael McDowell on Wednesday put it to the former Garda commissioner that this represented a huge conflict of interest.

He pointed out she shared a senior counsel with Supt Noel Cunningham, a man who was “vehemently of the view that McCabe was trying to destroy his career”.

Mr McDowell said having the same lawyer represent both the commissioner, who was responsible for supporting Sgt McCabe, and senior gardaí, who had been accused of corruption by the whistleblower, left her legal team “hugely conflicted”.

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Ms O'Sullivan denied this represented a conflict of interest and said no one had ever suggested as much to her. She said she had been advised by the Garda's head of legal affairs, Ken Ruane, when appointing a legal team. She said if a conflict of interest arose at any stage he would have advised a different approach.

She said it had long been Garda policy to appoint a single legal team in such circumstances. “I certainly think a different model could be used for the future.”

Conflict of interest

An official from the Attorney General’s office also told the tribunal, which is examining if there was a smear campaign to discredit Sgt McCabe, that he did not remember concerns being flagged about a conflict of interest.

Duty director general of the Attorney General’s office Richard Barrett said similar representation had arisen in many inquiries and it was not without precedent.

Colm Smyth, the senior counsel who represented the interests of Ms O'Sullivan and other senior gardaí at the O'Higgins commission, said he was asked by Chief State Solicitor Annmarie Ryan to come on board as counsel on May 1st, just two weeks before the commission was to begin.

Mr Smyth said he had never appeared at a commission or tribunal before and that he was unhappy with the preparations in place for the commission. Lawyers only had their first consultation on May 11th, which left less than 72 hours to prepare before the first hearing, Mr Smyth said.

“This was most unsatisfactory from our point of view,” he said, adding that the material looked to be “extremely complicated and difficult”.

Primary client

Mr Smyth said it was at first unclear whether he was representing the commissioner only or acting for other gardaí. He said he was instructed by Ms Ryan that if a conflict of interest arose, the commissioner was his primary client and he was to act in her interests.

The barrister said they were “on red alert” when they saw a report authored by Sgt McCabe alleging corruption by several senior gardaí. This report was to form part of the commission.

He said the allegations were against “men who had served the State with distinction. They had no stain on their characters up to this point.”

If the allegations “stuck” it would have severe implications.