O’Sullivan denies being kept in dark about Garda whistleblower strategy

Nóirín O’Sullivan has denied that her representatives at the O’Higgins commission kept her in the dark while Garda lawyers were questioning the integrity of the whistleblower Sgt Maurice McCabe.

The former Garda commissioner on Wednesday finished giving evidence to the Charleton tribunal, which is investigating if she tried to use “unjustified grounds” to try to discredit Sgt McCabe at the commission, which in 2015 examined claims of malpractice and corruption in the Cavan-Monaghan division.

Sgt McCabe’s barrister, Michael McDowell SC, asked Ms O’Sullivan why a senior counsel acting for her at the commission told the chairman on May 15th, 2015, that he had been instructed to question the whistleblower’s integrity. Colm Smyth SC, who represented Ms O’Sullivan and other senior gardaí, told Mr Justice Kevin O’Higgins: “My instructions are to challenge the integrity, certainly, of Sgt McCabe and his motivation.”

Five months later, on the day Ms O’Sullivan was due to appear at the commission, Mr Smyth told the chairman that there had been an error and that his only instructions were to challenge Sgt McCabe’s motivations.

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At the Disclosures Tribunal this week Ms O’Sullivan has denied instructing her legal team at any point to attack Sgt McCabe’s character. She said her instructions were to challenge his motivation in selecting the individual incidents that he said amounted to corruption.

Ms O’Sullivan also denied that she was being “kept in the dark” or “starved of information” about what was happening at the commission and said that Chief Supt Fergus Healy, her liaison officer, kept her up to date.

“Bad faith”

Questioning her knowledge of the legal instructions, Mr McDowell cited a note Chief Supt Healy took during a consultation between Ms O’Sullivan and her legal team immediately before she was due to be called as a witness at the commission in November 2015. The note mentioned mala fides – or bad faith – and included the line “would the commissioner consider withdrawing?”

Mr McDowell suggested this referred to withdrawing the legal strategy of questioning Sgt McCabe’s integrity. He asked her how she could account for the note, given that she denies ever instructing that such a strategy be used. She said she could not have instructed her lawyers to withdraw from that strategy as she had never instructed them to follow it in the first place. She also said she could not account for the note as it was made by Chief Supt Healy. “I have no recollection of discussing withdrawal,” she said.

Mr McDowell also asked Ms O’Sullivan about evidence from Annmarie Ryan, of the Chief State Solicitor’s Office, that she had requested an urgent consultation with the then commissioner on May 15th after an “integrity” legal strategy was mentioned.

Chief Supt Healy has told the tribunal he relayed a request for a consultation that weekend to Ms O’Sullivan but was told she was too busy. Ms O’Sullivan said that this did not happen and that she would have made herself available for such a consultation, as she had during other inquiries.