The Charleton tribunal, which is currently investigating whether a sex abuse allegation or other unjustified matters were used by the then Garda commissioner Nóirín O’Sullivan to discredit Garda whistleblower Sgt Maurice McCabe at the O’Higgins Commission, this week heard from former justice minister Frances Fitzgerald. It also heard from a number of civil servants from her former department.
What did we learn?
We learned that at the time the commission was beginning to hear evidence, Fitzgerald already knew a lot about a key background issue concerning Sgt McCabe. At the time this was a highly sensitive issue and was not known to the public.
Is that the so-called ‘Ms D’ case?
Exactly. In 2006, the daughter of a Garda colleague claimed she had been sexually abused by McCabe six years earlier when she was a minor. The matter was investigated, and the DPP decided that even if it was true, which was doubted, it would not constitute a crime. Some years later, when Sgt McCabe was gaining national prominence, Ms D complained that her allegation had not been properly investigated. This was investigated by the Garda Síochána Ombudsman Commission, and an internal justice department process called the Independent Review Mechanism (IRM), and both decided that the Garda investigation had been properly conducted.
What’s that got to do with Fitzgerald and her evidence?
Two things. Asked by Paul McGarry SC, counsel for McCabe, Fitzgerald said she had never heard any “rumours” about a sex allegation against McCabe, prior to her being appointed justice minister in May 2014. Up to then, she was minister for children. As well as the O’Higgins Commission the tribunal is more generally investigating whether Garda HQ conducted a smear campaign against McCabe, using the sex abuse allegation. So we now know that a member of cabinet in early 2014, had heard no such rumour.
The other thing is that soon after she became minister for justice, Fitzgerald became aware not just of the Ms D allegation against McCabe, but also of the more contemporaneous complaint that the Garda investigation had not been properly conducted. The complaint about the allegedly poor investigation was considered for inclusion in the terms of reference of the O’Higgins Commission, which was to investigate allegations by McCabe of poor policing.
But it was recognised that, as assistant secretary at the Department Michael Flahive put it, this could be “very problematic” as it would involve a public reference - in the terms of reference - to the highly sensitive sex abuse allegation and probably make McCabe feel “victimised”.
In the event the IRM concluded that the Garda investigation was properly conducted, and so there was no need to review the matter in the commission. But it puts the email in a different context.
What email?
THE email. The Government nearly collapsed late last year when its existence emerged. Fitzgerald ended the crisis by resigning from Cabinet. It was dated May 15th, 2015, and was from Michael Flahive. It was sent to Fitzgerald and advised her that at the commission hearings, which had just begun the day previously, the Garda had raised as an issue “an allegation made against McCabe which was one of the cases examined by the IRM”. This led to the political charge that Fitzgerald and the Department knew at the time that Garda HQ had decided to attack McCabe at the confidential commission hearings, while in public they were saying they supported whistleblowers.
Fitzgerald said at the time, and said again this week in the witness box, that she does not remember reading the email. But now we know that at the time she was very aware of the whole Ms D issue, and the sensitivities in relation to the O’Higgins Commission, as were the senior officials in her Department who also saw the email. But...
But?
Another thing to emerge this week was how little Fitzgerald knew. And why.
What do you mean?
The McCabe saga has been going on since 2007/08, and has been causing ongoing convulsions, the latest of which was Fitzgerald’s fall from office late last year. When the O’Higgins Commission was being established by her then Department in early 2014, the hope was that this would finally bring the saga to an end.
Fitzgerald said she was very clear, and made the conscious decision, to stay away from the commission once it was established. She was of the view that it was now up to the chairman, Mr Justice Kevin O’Higgins, to address the issues, and that it was improper, and probably illegal, for her to interfere. This was her view when the topic arose in parliamentary questions and elsewhere, she said. So, by way of extrapolation, she said this was probably what she decided when she saw the email. It was none of her business, and was a matter for the commission chairman.
So that’s that?
Three other things. One is that when a huge row broke out in 2016 over what had happened at the confidential hearings in relation to McCabe, almost costing O’Sullivan her job, Fitzgerald was advised that if she wanted to read the commission transcripts, she would have to go to the High Court to get permission.
Yet the crisis that erupted in May 2016 - O’Sullivan called it a “vortex” - was based on partial leaks from the commission proceedings, and O’Sullivan was precluded from explaining in detail what had happened. It appears that it was not until this tribunal that Fitzgerald learned the detail of what had happened at the commission in relation to McCabe.
The second is that, during her evidence, Fitzgerald sometimes appeared detailed and certain about her thought processes when reading an email she said she couldn’t remember reading. For instance, she said she never considered contacting O’Sullivan about the matter.
Third is that she was a key player in the drafting of the tribunal’s terms of reference, which included asking the judge to investigate whether “false allegations of sexual abuse” were used against McCabe at the commission. There is no evidence whatsoever to suggest this happened, the judge pointed out.
“Well, it’s very hard to say exactly where it arose from,” Fitzgerald responded. “But it seemed to be -- it seemed to be an innuendo that, you know, was around, and that -- in terms of, I think there may have been, there may have been some media coverage in relation to it.”
It was an observation that seems to chime with so much of the “vortex” that is the McCabe saga.
