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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

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75% of Irish firms ‘affected by corruption or bribery’

Bribery and corruption remain stubbornly widespread among Irish companies despite acknowledgement of the potential harm they can cause businesses, a new report has found.

 Almost two thirds of board-level executives in Irish firms feel their anti-bribery policy does not work.

Some 75% of Irish business leaders claim to have identified bribery or corruption in their organisation too.

According to Neil O’Mahony of legal firm Eversheds Ireland, which carried out the research, the results show executives understand the threat corruption and bribery pose to their business, but reveals a contradictory response.

“It is clear bribery remains a problem in Ireland,” said Mr O’Mahony.

“Businesses do understand the seriousness of bribery and corruption and the potentially devastating impact of public investigation on their bottom line and their reputation. 

“This in itself represents significant progress.

“The fact that so few Irish businesses see potential prosecution as the most important risk of bribery and corruption has profound implications for government’s anti-bribery strategies.

“Governments have typically tried to fight bribery by deterring companies with stringent penalties, but they need to work with the private sector to articulate the business case for anti-bribery.”

The findings expose an apparent clash of ethical intentions and commercial objectives among firms.

All of the Irish respondents said their anti-bribery policy made it more difficult to build their business while nearly a third are concerned that employees would resort to bribery or corruption to achieve growth targets.

As Mr O’Mahony eluded to, legal considerations were considerably less important to Irish executives than potential commercial issues.

Just one in 10 saw legal ramifications as the main deterrent to bribery or corruption being important.

In contrast, 40% identified the potential impact on commercial success as their biggest concern. 

Only half surveyed said they understood their anti-bribery policy, while one in 10 felt they have undertaken sufficient anti-bribery training. 

Four in 10 believe their approach to managing bribery and corruption is appropriate.

Peter O Dwyer

O'Higgins report: Accountability for public and victims of crime now the key challenge

The O'Higgins report into how Gardai investigated complaints made by whistleblower Maurice McCabe raises serious concerns of accountability within the force, argues Michael Clifford. 

On page 27 of the O’Higgins report, the retired judge has this to say about how the gardai initially investigated complaints by Sergeant Maurice McCabe.

“There was a corporate closing of ranks,” O’Higgins reports. It’s as close as he came to using the phrase “cover-up”. But, in keeping with the tame tone of the report, he goes on to qualify the statement. “The commission does not consider that this was done consciously or deliberately. There was no question of bad faith.”

How exactly a corporate closing of ranks could occur except deliberately is not explored. But one way or the other, the characterisation of how the force deals with its own shortcomings goes to the heart of the cultural problems within An Garda Siochana.

When Maurice McCabe made his complaints about investigations in the Cavan Monaghan region, two senior officers were appointed to investigate. The report they compiled is key to everything that occurred afterwards, from McCabe’s relentless pursuit of the matter to the resignation of Alan Shatter and the establishment of the O’Higgins commission.

Assistant commissioner Derek Byrne and chief Superintendent Terri McGinn conducted the internal investigation. Initially, concerns were expressed about the appointment of Byrne on the basis that he had previously worked in the northern division. In that capacity he would have been the direct superior of some of the senior officers against whom McCabe made complaints.

These concerns were expressed by then assistant commissioner Noirin O’Sullivan. However, she got over her concerns in a decision that O’Higgins describes as “curious”.

The Byrne/McGinn investigation lasted nearly two years. It upheld some of McCabe’s complaints, and not others. Following the completion of the report, chief superintendent Colm Rooney circulated a letter in the northern division.

“The investigation concluded that there were no systemic failures identified in the management and administration of Bailieboro garda district. A number of minor procedural issues were identified. On further investigation at local level no evidence was found to substantiate the alleged breach of procedures…I would like to congratulate all members who served in Bailieboro district during the period in question…The findings of the Assistant Commissioner vindicate the high standards and professionalism of the district force in Bailieboro.

Some might characterise the letter as a “nothing to see here folks, move along”.

The Byrne/McGinn investigation cited in the letter left a lot to be desired. Throughout the O’Higgins report, elements of the investigation are commented on leaving one to question how robust it was.

In one case, the two senior cops failed to locate a statement from the victim of an alleged sexual assault. They were told it wasn’t available.

“I accepted the evidence that was presented to me,” Byrne told the commission. “I never challenged it…the mistake I made, I accepted everything that was done, and really for me personally I am disappointed I didn’t look for the statement.”

Obtaining a victim statement is pretty high up on page one of basic police procedure.

Byrne/McGinn described the original investigation as merely “shabby”, but O’Higgins concluded: “they relied on the file….which did not contain a detailed account of the incident.”

In another case, Byrne/McGinn’s report made a “significant omission” about “the most serious breach of garda practice,” O’Higgins concluded. Byrne was asked at the commission why McCabe wasn’t asked about specifics in that case.

“It would have been quite simple to phone Sergeant McCabe and say what do you mean by this,” Byrne was asked.

“Yes, absolutely, that is correct,” he replied, although he never did pick up the phone.

Then, there was the case of the men who filled a vinegar bottle with urine in a fast food restaurant, and only for the quick thinking of the owner, a young boy may have ingested the urine. The investigating gardai were found not to have dealt properly with the victim in this case, the restaurant owner. The case was not investigated properly.

Byrne/McGinn fired some of the blame back at McCabe. Their report stated: “While Sergeant McCabe was aware that the investigating gardai behaved inappropriately towards the injured party, he did not take any immediate action himself or bring this matter to the attention of the district officer.”

O’Higgins begged to differ. He reported: “In fact, almost immediately after becoming aware of the matter and probably the very next day, Sergeant McCabe went to visit the injured party. He apologised for the misinformation given …he also informed her of her right to complain. He acted promptly and commendably.”

Another case involved major shortcomings in investigating an assault outside a public house. O’Higgins found that the Byrne/McGinn report “summarised the deficiencies in the garda investigation with considerable understatement” which failed to “express the egregious nature of the failures of the (original) investigation.”

In that case, O’Higgins noted: “It is not surprising that Sergeant McCabe was sceptical of the findings of the Byrne/McGinn report concerning this incident.”

Those were some of the shortcomings in Byrne/McGinn, a report compiled by two of the most senior officers in the force.

The report was completed in 2010. A five page summary of its findings into 22 complaints was handed to McCabe in the Hilgrove Hotel in Monaghan. He wasn’t given any opportunity to challenge or question any of the findings. Rooney issued his letter on foot of that report claiming all was well in Bailieboro.

O’Higgins found that both then commissioner Martin Callinan and then minister for justice Alan Shatter were entitled to rely on the Byrne/McGinn report as the final word on McCabe’s complaints.

At that meeting in Monaghan, McCabe presented Byrne with over 200 Pulse records which McCabe said illustrated how all these cases were not dealt with in a manner that should have led to prosecution.

Byrne took possession of the Pulse records and passed the matter onto to deputy commissioner WI Rice. He handed over 600 of the files back to the Cavan/Monaghan division, a decision that O’Higgins does not take issue with.

However, once back in the division, a number of the files were altered in a manner “consistent with an attempt to excuse the failure to prosecute,” according to O’Higgins. In effect, the cases were updated on Pulse to show why no prosecution had occurred.

Some might class this as a corporate closing of ranks. McCabe believed such practice was “corrupt”, but O’Higgins found what had occurred was just “troubling” and “unsatisfactory”.

Had the report been compiled in a befitting manner, that would have been the end of the whole affair.

In many ways, the Byrne/McGinn report echoed another internal garda investigation, that of assistant commissioner John O’Mahoney, who in 2013 investigated complaints by McCabe and John Wilson about wholesale abuse of the penalty points system.

O’Mahony never interviewed McCabe or Wilson and his final report was accepted without question by Alan Shatter. Perceived shortcomings in that report prompted McCabe to continue his effort to expose that malpractice and ultimately he was vindicated when further investigations unearthed major shortcomings in both the system and the O’Mahoney report.

Similarly, the O’Higgins report exposes shortcomings in the Byrne/McGinn report.

In both cases, it took McCabe’s persistence to follow the matter until he received a satisfactory investigation that examined all the issues in a professional manner.

The culture of senior garda officers erasing penalty points at will for friends and colleagues has now been dealt with properly as a result of McCabe’s persistence. Tackling the wider culture within the force to ensure accountability for the public, and particularly for victims of crime, will be a lot more difficult to address.

Michael Clifford

Police Corruption: In five cases, O’Higgins deems McCabe was targeted in the wrong

What stands out is the treatment meted out to the whistleblower within the force, writes Michael Clifford

Sgt Maurice McCabe made numerous allegations of malpractice in garda investigations. Photo: Gareth Chaney

ACCORDING to the O’Higgins report Maurice McCabe has done the State some service.

But what of the treatment of McCabe within the force as he attempted to have the serious issues of malpractice addressed?

O’Higgins says that McCabe “is a man of integrity, whom the public can trust in the exercise of his duties”.

He had acted out of “genuine and legitimate concerns… has shown courage, and performed a genuine public service at considerable personal cost”.

The retired judge does say that McCabe was prone to exaggeration in places, but put yourself in his shoes, running into brick walls and rejection for seven years while he attempted to have the issues addressed. Would you be prone to exaggeration at the end of all that?

What stands out in the report in relation to McCabe is the treatment that was meted out to him within the force while he was trying to have the issues addressed.

O’Higgins highlights five separate incidences in which there were attempts to blame McCabe for poor policing or worse himself. Four of those relate to cases he had brought to the attention of his superior officers to be addressed.

The fifth, probably the most sinister, involved an attempt to blame him for the disappearance of a computer seized from a priest who was convicted of child sexual abuse.

In each case, O’Higgins deems that McCabe was targeted in the wrong. Where there was a conflict of evidence between McCabe and other garda officers, O’Higgins accepted McCabe’s version of events.

In relation to the most serious case — that of Jerry McGrath who went on to commit murder — O’Higgins reports that McCabe “had reason to believe that he was being ‘set up’ and wrongly implicated”.

The retired judge finds such fears “unproven” but one is ultimately expected to accept that it’s merely coincidences that McCabe was wrongly blamed in so many cases.

Jerry McGrath committed what was characterised as a “vicious assault” on taxi driver Mary Lynch, in Virginia, Co Cavan, in 2007. He was charged with a minor offence initially and released on station bail. He subsequently attempted to abduct a child in Tipperary, but was released on bail again. That court was not told that he was already on bail in Cavan. He went on weeks later to murder Sylvia Roche Kelly.

Sylvia Roche Kelly

In an earlier investigation, there was an attempt to blame Sgt McCabe for releasing McGrath. The judge rejected that.

“The commission accepts Sergeant McCabe had no role in the investigation of the offences committed by Mr McGrath, nor in his detention or release.”

In Janaury 2008, when McGrath was due before the court on the assault charge, Mary Lynch got a call telling her the matter wouldn’t be dealt with on the day in question. This denied Ms Lynch her day in court when she may have aired her grievance on how the gardaí had handled the matter.

One garda said he was instructed by McCabe to make the call. McCabe emphatically denied this, and O’Higgins preferred his evidence to that of his colleague.

In a case of alleged sexual assault in Cootehill, a garda told the O’Higgins commission that McCabe had told her release the suspect from custody.

O’Higgins reported, “It is unlikely that Sergeant McCabe would have authorised the suspect’s release,” before providing a detailed explanation for his conclusion.

In a case of dangerous driving that had not been properly investigated, there was an attempt to say that Sergeant McCabe — who complained about the investigation — had actually conducted it himself.

“Sergeant McCabe did not take over the investigation from the gardaí in Virginia… nor was he asked to do so,” O’Higgins concluded.

The worst example was the missing computer. McCabe had no role in the investigation, and did not take custody of the computer. Yet when the computer went missing, a disciplinary inquiry was initiated, which targeted him and him alone.

O’Higgins concluded: “It is difficult to understand why Sergeant McCabe was the only person subjected to disciplinary proceedings for the loss of the computer. The decision was based on a paper review in which there was a clear conflict of fact. It was the first time in a long career that he faced such proceedings. He was, quite rightly, exonerated.”

That exoneration, however, only came after 18 months of a deeply stressful time for him and his family.

O’Higgins makes no connection or observes no pattern between the five instances above.

He does note that many organisations are instinctively hostile to whistleblowers. “Any criticism from within is regarded as suspect, disloyal or even treacherous,” he reports.

Whether that kind of attitude informed the attempts to blame Sgt McCabe for some of the malpractice that he had dragged into the light is not a subject the chair of the commission explored.

Members of the public will have to make up their own minds.

Michael Clifford