This is the text of the email released on Tuesday evening by Tánaiste Frances Fitzgerald
Could you pass this on to the Minister for information please.
I took a call this afternoon from -------- in relation to the O’Higgins Commission of Investigation (which is investigating the matters identified by the Guerin report).
The O’Higgins Commission has started hearings, and the Garda Síochána are represented by counsel, as is Sergeant McCabe (in his case, Michael McDowell SC).
------- wanted to let me know that counsel for the Garda Síochána has raised as an issue in the hearings an allegation made against Sergeant McCabe which was one of the cases examined by the IRM [independent review mechanism. The allegation had been that a serious criminal complaint against Sergeant McCabe (which he has always denied) had not been properly investigated by the Garda Síochána. The IRM found that an investigation file on the case had in fact been submitted to the DPP, who had directed no prosecution, and the IRM, which because of the seriousness of the allegation had been considering whether to recommend its inclusion in the O’Higgins terms of reference, in the end recommended no further action by the Minister.
Presumably the Garda Síochána are raising the matter on the basis, they could argue (and Sergeant McCabe would deny), that it is potentially relevant to motivation. ---- advised me that counsel for Sergeant McCabe objected to this issue being raised, and asked whether the Garda Commissioner had authorised this approach. ----- also told me that the Garda Commissioner’s authorisation had been confirmed (although I understand separately that this may be subject to any further legal advice).
----- and I agreed that this is a matter for the Garda Commissioner, who is being legally advised, and that neither the Attorney nor the Minister has a function relating to the evidence a party to a Commission of Investigation may adduce.
