Nóirín O’Sullivan leaves key questions unanswered

Last night’s statement from Commissioner Nóirín O’Sullivan falls short of a full response.

The commissioner issued a statement following concerns in the wake of the Irish Examiner story last Friday that her legal team at the O’Higgins Commission had alleged that Maurice McCabe was motivated by malice.

The allegation was conveyed to Kevin O’Higgins last May at the outset of the commission’s hearings. It was alleged that there would be evidence of malice from two officers who attended a meeting in Mullingar with Sgt McCabe in which he expressed malice.

When asked by Mr O’Higgins if he intended attacking Sgt McCabe’s motivation and character, Commissioner O’Sullivan’s lawyer replied, “right the way through”.

Sgt McCabe’s counsel Michael McDowell objected in the strongest terms.

“Attacking one of our own members of our force who is in uniform and on oath when in circumstances where in public she promoted him to a professional standards unit and in public she has indicated that she accepts that he was acting in good faith et cetera, et cetera, and in private she sends in a legal team to excoriate him.”

The attempt to blacken Sgt McCabe’s character was abandoned when he produced a tape recording of the meeting in question in which he expressed no malice whatsoever.

In his report, O’Higgins accepted totally Sgt McCabe’s bona fides and went on to say that the sergeant was due “not just the gratitude of the general public but of An Garda Síochána”.

Yet this is much bigger than the apparently appalling treatment of one officer.

McDowell’s above submission encapsulates the commissioner’s current dilemma.

How can she, with any credibility, now ask any of her officers to speak out when they see something wrong if this is how one of them was treated for doing so behind the closed doors of a commission of inquiry? Without an explanation for why she acted as she did behind those closed doors of the commission she has no moral authority to ask any garda to ever stick his or her head above the parapet to expose wrongdoing.

Commissioner O’Sullivan’s statement last night did not fully address the issues now in the public domain. She said that, while precluded from commenting on the O’Higgins commission, “Like every member of An Garda Síochána, Sergeant Maurice McCabe’s contribution is valued and the service has changed for the better in response to the issues about which he complained. I want to make it clear that I do not — and have never, regarded Sgt McCabe as malicious.” That, however, does not explain what transpired at the commission last May. Despite her comments of being precluded by law, that position was challenged yesterday by the Labour Party’s Joan Burton who pointed out that the law in question prohibits revealing any “evidence given by a witness in private to a commission of investigation”. The submission by the commissioner’s lawyer was not evidence and therefore is not covered by the law in question.

The Morris Tribunal into garda malpractice in Donegal recognised the importance of whistleblowers within the force. Morris found that much of the malpractice and criminality that gripped small elements of the force in Donegal could have been avoided if somebody had listened and acted on the initial concerns of a rank-and-file Garda.

This was subsequently recognised in the establishment of the confidential recipient system which opened up an avenue for gardaí to express their concerns outside the force. The system was exposed as having major flaws in how it dealt with Sgt McCabe, but it was an attempt to facilitate whistleblowers.

Wherefore now for the garda who sees something wrong? He or she will have noted how Sgt McCabe was treated. He or she will see that the price of standing up for what is right could mean not just the suspicion of colleagues, but implicit condemnation from on high.

Commissioner O’Sullivan has expressed the view that whistleblowers in the future will be listened to by management. Can such a view carry any weight in light of the revelations of what Sgt McCabe was subjected to at O’Higgins? Are regular officers to take the high moral stance as a nod and wink to appease those outside the force, in politics and among the citizens, while the old value system of circling wagons persists?

The commissioner has said she is statute barred from commenting on anything that transpired at the inquiry.

There is nothing to stop the commissioner clarifying her position on Sgt McCabe, which she did in her statement last night, but also on whether or not she had been misinformed about events that might have led her to form such an opinion.

She could also indicate whether any officer is being subjected to disciplinary action if she was misinformed about what transpired at that meeting in Mullingar referenced at the commission. After all, the commission was told that sworn evidence would be heard to the effect that Sgt McCabe had expressed malice.

She might also explain why she was, at the very least, so willing to go along with an attempt to impugn the character of Sgt McCabe in light of her public pronouncements about him.

Anything less than a full explanation will call into question the commissioner’s ability to continue to lead the force with moral authority. Anything less than a demand from the Government of an explanation will indicate a willingness to turn a blind eye to a major shortcoming in the force.

Questions also arise for Mr O’Higgins. Why did he make no reference to this attempt to impugn Sgt McCabe’s character?

There were at least five instances in the report where there were attempts to lay the blame at McCabe’s door for malpractice. In each case O’Higgins accepted McCabe’s version of events and rejected the alternative. Yet he drew no conclusion from this pattern.

We now know that there was also a specific attempt from the top of garda management to impugn McCabe, yet the combined evidence of that along with the pattern in individual cases didn’t prompt O’Higgins to draw any glaring conclusions.

What if McCabe had no record of the meeting in question? Would the evidence of the other two officers have been accepted, and fed into the final report? It would have been a very different report if so.

There is no mechanism for questioning O’Higgins, but the whole episode has left a shadow over the inquiry.

The garda commissioner is in a different position. She has issued a statement which has left most of the questions still hanging in the air.

O’Sullivan statement

'As previously stated, An Garda Síochána has fully accepted the findings and recommendations of the O’Higgins Commission. We will examine what lessons can be learnt and ensure the issues arising are fully addressed.

Our immediate concern, arising out of the O’Higgins Commission, must be with victims who believe - with justification, they were not dealt with properly by An Garda Síochána. We are sorry the victims did not get the service they were entitled to, and we will seek to work with them.

A key element of our modernisation and renewal programme is ensuring victims are at the heart of the Garda Service and they get the service they are entitled to. In order to ensure a victim centred approach our first steps have been the setting-up of 28 Victim Service Offices throughout the country to keep victims up-to-date on the progress of their case through the justice system and the establishment of the National Protective Services Bureau, which among its work provides support for vulnerable victims. These measures will help ensure we meet our obligations under the EU Victim Rights Directive.

We are learning from our past mistakes and following a number of reports in recent years, improvements in relation to how An Garda Síochána conducts investigations, manages incidents, trains its personnel, and liaises with victims of crime have been introduced or are in the process of being introduced as part of An Garda Síochána’s modernisation and renewal programme.

Every day, the men and women of An Garda Síochána do great work to protect and support communities. In doing this, they consistently show great depth of character, resolve and commitment. The initiatives we are undertaking as part of our modernisation and renewal programme are designed to ensure they have the necessary supports to provide the very best service to the communities we serve.

I have been asked to clarify certain matters in relation to the proceedings before the O’Higgins Commission.

I am legally precluded from so doing under section 11 of the Commissions of Investigation Act 2004, which provides that it is a criminal offence to disclose or publish any evidence given or the contents of any document produced by a witness.

The witnesses who gave evidence before the Commission did so on the expectation that their evidence, except as may be included in the final report, would remain private.

Accordingly, I have been advised that I cannot discuss the details of any proceedings before the O’Higgins Commission.

I have consistently and without exception, within An Garda Síochána and in public, stated clearly that dissent is not disloyalty, that we must listen to our people at every level with respect and with trust, and that we stand to gain, rather than lose, when members bring to our attention practices they believe to be unacceptable.

Like every member of An Garda Síochána, Sergeant Maurice McCabe’s contribution is valued and the service has changed for the better in response to the issues about which he complained. I want to make it clear that I do not - and have never, regarded Sergeant McCabe as malicious.

Any member of An Garda Síochána who raises issues will be fully supported. Each and every one of them must know they have the right and responsibility to raise their concerns and be confident that they will be listened to and addressed.

They won’t always be right and we in management won’t always be right either.

But we are on a journey towards a markedly better policing service and we will learn from every mistake we make.'
Michael Clifford