Fintan O'Toole: Questioning Nóirín O’Sullivan is like playing handball against a haystack

In the course of her evidence to the Charleton tribunal this week, Nóirín O’Sullivan expressed the view that she had been “used as a political football”.

For some people watching or reading her resolutely defiant testimony, however, this might have seemed the wrong sporting metaphor.

What came more readily to mind was Joe Higgins’s complaint in 2003 about then taoiseach Bertie Ahern: “Asking the taoiseach a question is like trying to play handball against a haystack. You hear a dull thud and the ball does not come back to you.”

Over three gruelling days, hundreds of questions were hurled towards the former Garda commissioner. But very little came back. Instead of shedding light on the events that unfolded at the O’Higgins commission of inquiry in May 2015, her answers tended to deepen the mysteries.

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Here are just four of the many questions whose answers seem further away now than they did at 11.45am on Monday morning when O’Sullivan entered the witness box at Dublin Castle.

1. Why was Maurice McCabe effectively accused of being motivated by malice?

There is no real doubt that, for 27 days of hearings of the O’Higgins commission of inquiry into his allegations of malpractice in the Garda, Maurice McCabe was painted by Nóirín O’Sullivan’s legal team as a man motivated, not by the public interest, but by bad faith.

Yet, time and again in her evidence, O’Sullivan insisted that there was no such strategy: “There was never, ever [an] intention about challenging Sergeant McCabe’s integrity. It was never about the man. It was always about the veracity and the validity of the allegations that were being made.”

This claim is quite baffling. On Friday, May 5th 2015, the second day of hearings at the commission, there was a dramatic row when McCabe’s counsel, Michael McDowell, objected to O’Sullivan’s apparent strategy of questioning McCabe’s motivation and integrity.

This strategy was in direct contradiction to O’Sullivan’s public stance, which was that McCabe was a legitimate whistleblower whom she would do everything to protect. After frantic phone calls to O’Sullivan, her legal team confirmed to Mr Justice O’Higgins that McCabe was indeed to be accused by her of acting in bad faith.

The hearings were private, but part of the transcript was read out at the Charleton tribunal this week. It could not be clearer. O’Sullivan’s counsel, Colm Smyth says: “My instructions are reconfirmed.”

Mr Justice O’Higgins says: “Very good. Your instructions, as I understand them, are that Sergeant McCabe acted as he did for improper motives.”

And Mr Smyth answers: “Yeah.”

Mr Justice O’Higgins says: “Okay. And that his integrity is being challenged in that respect.”

Smyth replies: “In that respect.”

On Monday May 18th 2015, Mr Justice O’Higgins, addressing McDowell, summarised his clear understanding of O’Sullivan’s position: “Certainly there is no doubt that the integrity of the witness [McCabe] is being impugned in no uncertain terms.”

Later on, on October 20th 2015, when O'Sullivan herself was due to give evidence to the commission, she consulted with her legal team. The note of that consultation by Chief Superintendent Fergus Healy, who was O'Sullivan's point man at the hearings, says: "Standing over the allegation of motivation. Mala fides, bad faith. Would the Commissioner consider withdrawing?"

How could O’Sullivan have agreed to withdraw an allegation that McCabe had acted in bad faith if she had never made that allegation in the first place?

2. How exactly did O’Sullivan get the legal advice on which she claims to have acted?

O’Sullivan’s position is that she had taken the advice of her lawyers that McCabe’s motivation (but not, she claims, his integrity) must be questioned. But it is very hard to understand from her evidence how this advice was actually given to her. She insisted, time and again, that “I was going with the advices of counsel . . . that is what we agreed, with the advices of counsel”.

But, until the afternoon of May 15th, when the row broke out at the O’Higgins inquiry, she does not appear to have received any such advice.

Here is her exchange with Kathleen Leader, a lawyer for the Charleton tribunal, this week.

“You’d never actually spoken to counsel at this stage [i.e. May 15th], is that correct?”

“No, chairman.”

“There was no actual written advice from counsel at that stage either?”

“At that stage, no, chairman.”

It remains hard to understand why O’Sullivan took the fateful course of attacking McCabe’s motivation on legal advice which she had received neither in person nor in writing.

3. What did O’Sullivan discuss with the Department of Justice on May 15th 2015?

There was a flurry of calls to and from O'Sullivan on the afternoon of May 15th when the row over the challenge to McCabe's good faith blew up. One of these was certainly to a senior official at the Department of Justice, and it is highly significant given the insistence by the former minister Frances Fitzgerald that the department had no hand, act or part in this legal strategy.

But O’Sullivan’s evidence shed no light on it.

Phone records show that at 15.26 pm O'Sullivan rang the acting general secretary Noel Waters – just one minute after Superintendent Fergus Healy had called her from the O'Higgins inquiry to tell her about the row. But Noel Waters's evidence is that he has no memory at all of this call – and in November, in preparatory discussions with the tribunal's lawyers, O'Sullivan also said "I have no specific recollection or note of the call."

Yet in her evidence this week, O’Sullivan did have some memory of the call – just not of the parts of it that are germane to the tribunal. She was able to recall that she discussed some specific security matters with Waters: “What we had going on at that time was the security operation, and I certainly remember speaking to him in relation to that issue and updating him.”

But unfortunately, in relation to their discussion of the red-hot issue of McCabe’s integrity, which she accepts she must have discussed, “I don’t have any specific recollection of speaking to him in relation to this matter”.

4. Why did O’Sullivan accuse McCabe of causing distress to victims of crime by seeking justice for them?

A remarkable but little remarked on aspect of this week's hearing is the revelation that, in her final submission to the O'Higgins inquiry in February 2016, O'Sullivan said: "Also affected were victims of crime with whom Sergeant McCabe dealt directly, who were erroneously led to believe that they were disserved by An Garda Síochána. This, in turn, led to those victims being put through further unnecessary suffering."

This is startling. These victims were the ones who had been appallingly treated by some of McCabe's colleagues who failed to investigate the crimes against them. Mr Justice Peter Charleton seemed taken aback by the accusation that it was, rather, McCabe's efforts to help them that caused them "unnecessary suffering".

Referring to one of the most egregious cases, he said: “Now, I suppose I read that, and I may be old-fashioned, and I was appalled. But nobody can say, in consequence of that, that Sergeant McCabe failed in any way. Rather, it’s a public service for him to point out that if this is the way policing is carried out in Bailieboro, well then they need a new police force or new managers. So that’s it.

“But on the other hand, the submission [on behalf of O’Sullivan] seems to say victims were discommoded or undermined in consequence of Sergeant McCabe, and that doesn’t seem to emerge anywhere. And I have read everything, by the way.”