Charleton evidence raises questions about damaging claims made

A number of serious allegations against former Garda commisssioner Nóirín O'Sullivan and others have been strongly challenged by the evidence heard over the past year at the Charleton tribunal, which yesterday finished its public sittings.

In his report, which is expected in October, the tribunal chairman, Mr Justice Peter Charleton, will rule on the evidence that has been heard as to whether the then Garda commissioner Martin Callinan grievously smeared Sgt Maurice McCabe during conversations with others in December 2013 and January 2014, including, according to deputy John McGuinness, describing him as a "kiddie fiddler".

There is no doubting that the evidence in regard to this part of the tribunal’s inquiry is very serious and involves a number of parties independently making claims against Callinan that he spoke negatively to them about McCabe, claims that Callinan denies.

If in time Mr Justice Charleton decides that the then chief of police had told the then head of the Public Accounts Committee that Sgt McCabe was a child abuser, it will be a grave finding.

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However, it would be a pity if the controversy that such a finding would provoke, if it happens, would distract attention entirely from another aspect of the tribunal’s proceedings.

Even prior to the judge’s report it is possible to point to significant episodes in the controversy where damaging public claims were made on the basis of reasons the tribunal evidence has now shown to be questionable. In many cases the claims were used at the time to call for the resignation of Callinan’s successor, Nóirín O’Sullivan, even though she had denied the claims.

Eventually, due to these and other criticisms, she did indeed step down.

Brendan Howlin

Labour Party leader Brendan Howlin spoke in the Dáil on Wednesday, February 8th, 2017, as the Oireachtas was considering establishing a commission of inquiry into the McCabe affair.

“This morning a journalist contacted me and told me they had direct knowledge of calls made by the Garda commissioner to journalists during 2013 and 2014 in the course of which the commissioner made very serious allegations of sexual crimes being committed by Sgt Maurice McCabe,” he said.

The commissioner being referred to was O’Sullivan, and Howlin was of the view that she should “step aside” pending the outcome of the commission.

Howlin's comment, we now know, was based on a telephone conversation he had that morning with Alison O'Reilly, of the Irish Daily Mail, who had told him of what she said she had been told by a colleague, Debbie McCann, of the Irish Mail on Sunday.

However, McCann has now told the tribunal that she never said to O’Reilly what O’Reilly claims she said. There is a complete conflict between the two.

Howlin made his comments in the Dáil without having checked the veracity of what he was saying with either McCann or O'Sullivan

Furthermore, McCann has said it was not the case that she ever discussed McCabe with O’Sullivan, whether in negative terms or otherwise. O’Sullivan has said the same. Phone records examined by the tribunal show no contacts between the two during the period at issue.

O'Reilly said she was told by McCann that O'Sullivan was her source for information about a child sex abuse allegation made against McCabe in 2006 that was comprehensively dismissed by the Director of Public Prosecutions. (This is being called the Ms D allegation.)

Howlin made his comments in the Dáil without having checked the veracity of what he was saying with either McCann or O’Sullivan.

His claim was the first the public ever heard of McCabe being linked to alleged sex abuse. In his short comment, Howlin referred to sexual crimes, plural, and journalists, plural. His intervention was hugely damaging to O’Sullivan and was reported extensively in the media.

The RTÉ broadcasts

The tribunal was given its terms of reference by the Oireachtas. Term of reference K requires the tribunal to “investigate whether commissioner O’Sullivan, using briefing material prepared by Garda Headquarters, influenced or attempted to influence broadcasts on RTÉ on the 9th of May 2016, purporting to be a leaked account of the unpublished O’Higgins Commission Report, in which Sergeant McCabe was branded a liar and irresponsible.”

This term of reference could be seen as the equivalent of a charge not only against O'Sullivan but also against the RTÉ crime correspondent, Paul Reynolds, who produced the broadcasts. He, and the colleagues who worked with him in producing the broadcasts, felt they were being accused of being Garda stooges or bad journalists.

The provenance of the term of reference has been outlined at the tribunal.

In a protected disclosure (a supposedly highly-confidential disclosure made under the "whistleblower" law) in October 2016, McCabe said he was on stress-related leave and that the reports by Reynolds were part of the reason for this.

Citing three numbered reasons for his being out of work, McCabe said the first was O’Sullivan’s “treatment of me”.

Another was the production of “false evidence” in an attempt to “set me up” at the confidential hearings of the O’Higgins commission (see more on this below).

The third was the “disgraceful series of broadcasts” on RTÉ on May 9th, 2016, in which he had been “branded as a liar and irresponsible”.

The disclosure then continued: “I am now satisfied, on impeccable authority, that those RTÉ broadcasts were planned and orchestrated by the commissioner, Nóirín O’Sullivan, personally using briefing material prepared at Garda Headquarters.”

The Oireachtas opted to reflect McCabe’s claim in the tribunal’s terms of reference, even though O’Sullivan had rejected the claim as untrue.

McCabe, when asked at the tribunal to identify the reason for the claim, cited one sentence he claims was said to him by the civilian head of human resources at Garda Headquarters, John Barrett, during a visit by Barrett to McCabe's home some weeks after the RTÉ reports.

"He told us that in our house, me and [McCabe's wife] Lorraine were there when he told us. I would have the date in a diary, but it was – well, it was obviously after this, after the broadcast. But he said it would have come from block one."

Block one is a reference the commissioner’s office in Garda Headquarters. The reference to it is the basis for the serious charge against O’Sullivan and Reynolds.

However, Barrett, in his evidence, has said he never made the comment to McCabe that McCabe claims he made.

The broadcasts by Reynolds led the news on RTÉ all day, on both radio and television. That they are based on the contents of the then-unpublished O’Higgins commission report can now be shown as the report has been published.

In them, Reynolds tells viewers and listeners what is in the report, which he had a copy of and no-one at the tribunal has suggested otherwise. If McCabe did not like the broadcasts, then his issue was with Mr Justice Kevin O’Higgins, Reynolds told the tribunal.

The word “lie” is used in the broadcasts, but it does not appear in O’Higgins. However the report does state that McCabe told an “untruth” to a Garda inquiry knowing it to be untrue. There is no mention of McCabe being “irresponsible” in the broadcasts. The use of the word “lie” was discussed within RTÉ. The broadcasts included the fact that the word used in the report was “untruth”.

Reynolds, when asked by the tribunal chairman, said he was resentful and angry about the charge made against him. The former chief news editor at RTÉ, Ray Burke, who worked for days with Reynolds on the broadcasts, said the criticisms of their work was an insult to him and his colleagues.

O’Higgins commission

The O’Higgins commission sat in private. In its report it found that while McCabe had made valid complaints about policing matters, serious allegations he had made against a number of senior officers were unfounded. An allegation of corruption made against Callinan did not have a “scintilla of evidence” to support it, the report found. While the commission said McCabe had been truthful, it also noted that he was prone to exaggeration.

A few days after the O'Higgins commission report was published on May 11th, 2016, which the government had hoped would bring the McCabe saga to an end, there were reports on RTÉ's Prime Time, and by Mick Clifford in the Irish Examiner, that were based on partial leaks of confidential information from the commission's proceedings. These reports had the effect of reigniting the McCabe affair and, once again, putting pressure on O'Sullivan.

One aspect of the reports was that a serious claim against McCabe was to have been made by O'Sullivan's legal team at the private commission hearings. "That was blown out of the water when McCabe produced a transcript" of a secret recording he had made which disproved the claim, said the Examiner report.

On May 26th, 2016, Mick Wallace, who has long championed McCabe, told the Dáil: "Two gardaí were planning to perjure themselves or provide false evidence to impugn Sgt McCabe's motives [at the O'Higgins commission] until a recording was produced."

The recording referred to was one made secretly by McCabe of a meeting with a Garda colleague. The recording showed that the claim made against McCabe in a summary document produced by the legal team acting for O’Sullivan and other senior officers at the commission hearings was incorrect. The summary document was designed to justify the O’Sullivan legal team’s desire to attack McCabe’s motivation at the commission hearings.

However, the evidence heard by the tribunal shows that another document handed in by the same legal team, at the same time or soon thereafter, disclosed that the claim against McCabe contained in the summary was incorrect. This document, a report of the meeting secretly taped by McCabe, gave a version of events that agreed with McCabe’s transcript. In other words, it also showed that the claim made in the summary was incorrect. In the witness box, McCabe was asked if he accepted this. He said at first that he did, and then immediately changed his answer.

“I’ll just tell you, and I have, you know, admitted a few things here, but I have to say, and it is in my heart, that I think if I hadn’t got the recording of the Mullingar meeting, I think it would have been serious for me.”

The tribunal was told that the incorrect or mistaken claim arose following a consultation between lawyers and a Garda officer. In other words, someone misdescribed or misunderstood what was being said during a series of consultations that took place over a weekend in order to have the summary document ready for the Monday morning. There is no evidence that connects O’Sullivan directly in any way with what happened over the weekend. The legal team was acting for her but also for other officers. The legal team met these officers, but not O’Sullivan. The tribunal will in time report on the matter.

Prime Time and the Irish Examiner did not name the two gardaí. However, during his comments under Dáil privilege in 2016, Wallace named the two gardaí he said were "planning to perjure themselves" at the O'Higgins commission as Supt Noel Cunningham and Sgt Yvonne Martin.

“Sgt Maurice McCabe would be buried by now if he had not taped the conversation,” Wallace said.

RTÉ has recently made a six-figure settlement with Cunningham arising out of the Prime Time report. A defamation case against the broadcaster taken by Martin continues. Both are also suing the Irish Examiner, as well as other media organisations. In a statement to the tribunal, Martin said she had never even attended the O'Higgins commission.

"Nor have I ever, to this day, been contacted by the garda commissioner, [O'Sullivan], her legal team, Gsoc [Garda Síochána Ombudsman], the media, to clarify my involvement in or recollection of the [taped] meeting."

Text messages

In September 2016 McCabe met the former head of the Garda press office, Supt Dave Taylor, in Taylor's home. At the time McCabe was on stress-related sick leave largely due, as he said in his protected disclosure, to his view as to O'Sullivan's "treatment of me", her attempt, as he saw it, to "set me up" at the O'Higgins commission hearings, and her role, as he believed it, in Reynolds's broadcasts based on the commission findings.

Taylor was also in a bad way. He had been arrested, was suspended on reduced pay, was in the middle of a severe crisis involving a member of his family, and was the subject of a then ongoing criminal inquiry during which he was asserting his right to silence. Such were the pressures he was under, his wife Michelle has told the tribunal, she feared for his life.

Taylor felt that O’Sullivan, who had moved him from the press office to the traffic division when she took over from Callinan, was the source of all his woes.

At the meeting McCabe was told by Taylor that he, Taylor, had been conducting a smear campaign against McCabe while head of the Garda press office, that he had done so on the orders of Callinan, and that O'Sullivan had known about it. McCabe subsequently made a protected disclosure about the matter and so too then did Taylor (who had been told by McCabe that he was making one). Wallace and his colleague Clare Daly TD met both men at around this time.

On October 4th, Clifford, in the Examiner, reported that protected disclosures had been made by two (unidentified) members of the force, alleging a smear campaign and saying that O'Sullivan had known about it. The report was published around the same time as the disclosures were being received by the Department of Justice.

Speaking at the Charleton tribunal, Conor Dignam SC, for Garda Headquarters, said the editorial in the Irish Examiner that day included the following phrase: "Today's revelations about an organised campaign driven by senior garda management to undermine a whistleblower". This put the matter, Dignam said, as something that was being revealed, rather than alleged.

In the Dáil, Sinn Féin’s Mary Lou McDonald called for O’Sullivan’s resignation. Clare Daly did the same, saying: “The tánaiste and minister for justice and equality [Frances Fitzgerald] has . . . the protected disclosures of two senior gardaí outlining systematic, organised, orchestrated campaigns not just to discredit a whistleblower but to annihilate him, with the full involvement of the current and former Garda commissioners.”

It is worth noting that McCabe’s basis for making his claim was what he was told by Taylor, so there was in fact only one source for the serious allegations against O’Sullivan and Callinan, something which was known to Daly, who had met both men.

In a radio interview on RTÉ that day, Daly said “inaccurate personal information was given out about him [McCabe] in the most horrific ways. Text messages sent to the gardaí, people in the media told ‘Oh, you don’t want to be talking to him, you know all about him’, hint, hint, hint, with some more graphic details with it. Politicians who I think need to come clear on this got the message about this as well.”

McCabe, Wallace, Clifford and Daly have all said they were told, or it was indicated to them by Taylor, that the alleged smear campaign involved texts. McCabe said he went back the day after he met Taylor to check that he had been told “hundreds” of texts may have been involved. He was, he said, told the number of texts may have been in the thousands.

Yet Taylor, in his sworn evidence, has said he never claimed to anyone that the alleged smear campaign involved texts.

The smear campaign

In his evidence Taylor said he had spoken with 12 named journalists as part of smear campaign. Conor Lally, crime and security editor with The Irish Times, was one of those named. On Thursday. Taylor's counsel, Michael O'Higgins SC, said 10 of the journalists had denied Taylor's claim, and two had asserted journalistic privilege. Lally is one of those who denied Taylor's claim.

Michael O’Higgins acknowledged that no independent evidence had been produced to Charleton to support charges that O’Sullivan had known of the campaign his client said he was ordered by Callinan to conduct. He also acknowledged that Taylor’s credibility was a significant issue. His client’s claims were “capable” of being believed, he said. Whether they should be was a matter for the chairman, he said.

The Tusla files

The day after Howlin's comments in the Dáil, a shocking report on Prime Time set in motion a controversy that, before it had ended, led to the acknowledgement by the then taoiseach, Enda Kenny, that he should retire, and the decision of the Oireachtas to establish not merely a commission but a tribunal of inquiry into the McCabe allegations.

In the Prime Time report, journalist Katie Hannon outlined how documents from Tusla that had been sourced by McCabe by way of freedom-of-information requests showed that in 2013, following a counselling session with Ms D, a false report was sent to Tusla by the counsellor in which it was recorded that the allegation against McCabe was one of digital rape, rather than the vastly more minor allegation that had in fact been made by Ms D (the allegation that had been made in 2006 and which the DPP had dismissed).

This false report from the counsellor, created, the tribunal has been told, as a result of a botched cut-and-paste job from a different client’s file, was in turn then forwarded to the Garda. Tusla as a result opened files on McCabe’s children.

A news report based on the Tusla material was published online by Clifford in the Irish Examiner on the same evening as the Prime Time programme.

In her report Hannon outlined to the public, for the first time, the fact of the 2006 Ms D allegation and its dismissal by the DPP. She also reported that the false Tusla report, created in 2013 after Ms D had gone to see a counsellor, happened at a time when rumours were beginning to circulate in political and other circles about McCabe.

In a statement on Monday, February 13th, McCabe and his wife Lorraine called for a public tribunal.

“We have endured eight years of great suffering, private nightmare, public defamation and state vilification arising solely out from the determination of Maurice to ensure that the Garda Síochána adheres to decent and appropriate standards of policing in its dealings with the Irish people.

“Our personal lives and our family life, and the lives of our five children, have been systematically attacked in a number of ways by agencies of the Irish state and by people working for the state in those agencies.”

The Oireachtas eventually charged the tribunal it established to examine whether the false Tusla file had been used by senior Garda officers to discredit McCabe.

As a result, it appears, of separate claims made by another Garda whistleblower, Keith Harrison, the tribunal was also charged with examining whether there was a "pattern" of false Tusla reports being created and their being used by senior gardaí to target whistleblowers.

No evidence to support either of these enormously serious suggestions has been produced at the tribunal, though there are continuing concerns expressed by McCabe about how the Garda dealt with the false reports it received in relation to him following the “clerical error” made by the counsellor and the creation of the false file. The tribunal may express a view on this matter in its final report.

Mr Justice Charleton has already dismissed Harrison’s claims against Tusla as being “without any validity”.

The issue of a pattern of Tusla files being used against Garda whistleblowers was not explored during the tribunal’s sittings and no one has argued at the tribunal that there is any evidence to support such a scenario.