In 2006, a young woman, referred to in official reports as Ms D, made a statement that in 1998 she had been in Maurice McCabe’s family home with her parents; during a game of hide-and-seek Maurice McCabe caught her from behind and tickled her waist. She was ‘about seven or eight’ at the time. When she later learned about sex and sexual assault, she seemed to remember that McCabe had rubbed himself against her inappropriately during the tickling incident. This new memory may—or indeed may not—have been influenced by Sergeant McCabe having, shortly before, reported Ms D’s father, also a guard, for being drunk when he turned up to investigate the scene of a suicide. Mr D was reprimanded and disciplined for that incident.
Ms D’s complaint had gone ‘directly to the gardaí and the gardaí referred it pretty much immediately to social service’; Ms D was offered and received counselling from RIAN, the National Counselling Service for adults who have experienced childhood abuse (http://rian.ie/en).
The garda complaint was investigated, and a file was sent to the DPP, who decided that no offence had been committed.
The opinion of the professional officer of the Director of Public Prosecutions was arrived at after a proper Garda file had been sent to her and appropriate professional opinion proffered by the state solicitor. The decision of the Director of Public Prosecutions was faultless.
In 2013, Ms D again sought counselling from RIAN and again spoke of the incident in 1998. Her counsellor, Laura Brophy, sought advice from the HSE as to whether a report had been made in 2006 when the original complaint was made, in which case, she would not need to make a duplicate report. No record was found, although one existed, and this ultimately resulted in a duplicate report being sent to the HSE, which was treated as a new accusation. In writing her report, Laura Brophy used as a template a report from a separate, unrelated file that included an accusation of a much more serious offence. Due to an error in cutting and pasting, she mistakenly left that serious offence on Ms D’s record.
On 1 January 2014, Tusla was established to replace the HSE as ‘the dedicated State agency responsible for improving wellbeing and outcomes for children’ (www.tusla.ie). On 2 May 2014—by which time, Martin Callinan had resigned, and Maurice McCabe’s name was very much in the public domain—a decision was made within Tusla to forward the file to the Garda Síochána citing the erroneous allegation of a rape offence against Maurice McCabe that bore no relation at all to the actual facts of Ms D’s case and no relation at all to Maurice McCabe.In a damning passage, Justice Charleton questions the decision to revive the matter at that time and ‘regards the explanation of mere coincidence as wholly unconvincing. . . . The reality is that someone within TUSLA realized that they had what they perceived to be unfinished business with Maurice McCabe and decided that for the avoidance of trouble, the business should then be dealt with. This was not, as was related to the tribunal, a coincidence’.
Charleston describes this as one of a number of serious mistakes that were made by social services to the detriment of Maurice McCabe.
The report from Tusla containing the false accusation, arrived at Bailieboro garda station on 7 May 2014 and was opened by Superintendent Leo McGinn, who had only been in Bailieboro for a year; even though he had heard that an allegation had once been made against Maurice McCabe, he had not been involved in and did not have any knowledge of the original investigation. ‘The tribunal accepts that he knew nothing about the prior allegation of Ms D beyond rumour and that he acted in a state of puzzlement, but in good faith’. Because of the widespread media coverage of Maurice McCabe at that time, on receipt of this referral, ‘he felt it best to notify it up the line to the divisional commander, Chief Superintendent James Sheridan’.
A ‘day or two’ later McGinn spoke to Mr D and was told that Ms D denied that she had ever made the allegation in relation to the rape offence. On 14 May 2014, Ms D contacted the RIAN service and ‘made it perfectly clear’ that she had never made such an allegation against Maurice McCabe. Laura Brophy testified to the tribunal that she felt a ‘wave of panic’ on receiving Ms D’s phone call, which led to her discovery of the cutting-and-pasting mistake. She tried to correct that mistake by calling Tusla within minutes of speaking to Ms D and by sending an amended report. She also attempted to follow up the matter with the gardaí but ‘could not make contact’. She subsequently sent a registered letter to Superintendent McGinn in Bailieboro in which she ‘explained the nature of the error and apologised for it’.
While Laura Brophy had made a mistake, she did everything possible to ensure it was corrected. Had the systems within TUSLA not been utterly chaotic, what she had done would have been enough. She cannot be blamed for what subsequently happened.
Nevertheless, even after Laura Brophy discovered and reported her mistake, the erroneous allegation ‘remained on the TUSLA file in a kind of nuclear half-life that had later damaging consequences’.
That kind of administrative incompetence is shocking. Plainly, if it was to be retained on the TUSLA file, it should have been stamped as erroneous or mistaken or those words should have been plainly written across the relevant documents.
Within days Superintendent McGinn informed Chief Superintendent Sheridan of the mistake and Laura Brophy’s correction; Sheridan remembers receiving this correction on or about 12 May 2014. Nevertheless, Sheridan subsequently wrote to the assistant commissioner for the Northern Region, Kieran Kenny, about the allegations, but made no reference to his knowledge that the Tusla referral form attached to the letter was completely incorrect. He passed on that allegation as if it had been made by Ms D. after he had been told that Ms D denied it. ‘This kept alive in garda administration files an allegation of a rape offence that no one had ever made against Maurice McCabe. This was inappropriate and extraordinary’ according to Justice Charleton.
A sense of the inappropriate and extraordinary nature of that action emerges from the examination of Sheridan by Kathleen Leader, BL for the tribunal:
Question: Now, you’ve already told us this morning that you knew the allegations in the attached referral had never been made by Ms. D, isn’t that correct?
Answer: That’s correct, yeah.
Question: Now, why, at that stage, didn’t you tell the assistant commissioner that the allegations contained in the attached referral had actually never been made by Ms. D?
Answer: Well, perhaps I should have, but I was trying to establish how the actual error occurred, and Superintendent McGinn was to communicate with the HSE in that regard. And, in hindsight, perhaps I should have put it in.
Question: But surely it was extremely important to set out that the allegations which you were causing more inquiries to be made with the HSE, be set out clearly, that they were incorrect. Surely it was of paramount importance that you, informing your superiors, informed them as well that those allegations were incorrect?
Answer: Well, I accept perhaps I should have put it in, but I was still conducting or having inquiries conducted to try and establish how it got to be in that referral in the first place. . . .
Question: Did you at that time think that Ms. D had made a complaint based on the digital allegations, if I can put it that way—
Question: —to the following parties, the following parties being Micheál Martin and GSOC?
Answer: No, not in relation to the digital penetration.
Question: Why didn’t you say that in the letter?
Answer: I accept, in hindsight, I probably should have put it in, but, as I say, there was no—there was no malice in what I did. I was still trying to get to the bottom of how it happened to be in the referral in the first place, and I accept, in hindsight, that I possibly should have put it in there.
Knowing the accusation to be erroneous, he nevertheless forwarded it to the assistant commissioner’s office. According to his testimony, only in hindsight, when the facts of the case were public knowledge, did he think he should ‘probably’ have informed the assistant commissioner that the accusation arose out of a cutting-and-pasting mistake, and that no such allegation had been made against Sergeant McCabe.
On 16 May 2014, Sergeant Karen Duffy of Assistant Commissioner Kenny’s office for the Northern Region forwarded the notification to Garda Headquarters for the attention of the Garda Commissioner. ‘At that stage . . . but only at that stage, it could be said, as Assistant Commissioner Kenny testified, he did not really know if this new notification of a rape offence was somehow an extension of the prior allegation of Ms D’.
The letter attached from Kenny to Garda Headquarters stated as follows:
The attached report from Chief Superintendent Sheridan . . . concerns a notification of suspected child abuse received by Superintendent L. McGinn, Bailieboro, from TUSLA Child and Family Agency on the 7th May 2014.
You will note that the allegation identifies the alleged perpetrator as Mr. Maurice McCabe and the victim is Ms D.
I am considering this matter at the present time and I will keep you informed of developments.
On the same date, the private secretary to the Commissioner, Superintendent Frank Walsh, acknowledged receipt of this correspondence from Assistant Commissioner Kenny:
I am directed by the Commissioner to refer to e-mail correspondence from your office of 16 May 2014, the content of which has been noted by the Commissioner.
It is noted that you are considering this matter and that you will keep the Commissioner informed of developments.
On 22 May 2014, Sheridan finally forwarded the amended report from the original counsellor to Assistant Commissioner Kenny, pointing out that ‘The previous referral contained incorrect information and should therefore be withdrawn and replaced with the attached [amended report]’.
On 3 July 2014, Sheridan sent a further report to Assistant Commissioner Kenny, with a chronology of the case including the original file and the decision of the DPP that no offence had been committed, his report of the false accusation, and the correction. He stated quite clearly that ‘The referral of the 2nd May 2014 was issued in error and is not relevant to the allegations of Ms D’. He went on
I understand Ms D had a meeting with Mr Micheal Martin T.D. and made him aware of the allegations she had made and he referred them to An Taoiseach Enda Kenny T.D.
I also understand that Ms D made a complaint relating to these matters to the Garda Siochana Ombudsman Commission.
They have indicated that they will not be investigating the allegation made by Ms D against Sergeant Maurice McCabe but that they will be investigating the original Garda investigation of her complaint.
Unambiguously, as Justice Charleton said, in a manner that ‘could admit of no uncertainty, the allegation against Maurice McCabe of a rape offence had officially been notified to the assistant commissioner as a mix-up’. Kenny replied on 10 July 2014 stating that he had noted the above correspondence, but as Charleton points out, ‘The report of Chief Superintendent Sheridan was not forwarded on to the Commissioner or to Garda Headquarters. That was Assistant Commissioner Kenny’s responsibility’.
Nor did he ever write to the Commissioner that one of her officers, whom he had reported as being the subject of a rape offence allegation, had been accused in the wrong. A rape offence allegation against Maurice McCabe was passed up the line without the correction that had been forwarded to Assistant Commissioner Kenny by Superintendent Sheridan. That correction never got to Garda Headquarters.His failure or refusal to include in his report that he knew that no one had ever accused Maurice McCabe of a rape offence suggested to Justice Charleton ‘that Maurice McCabe was outside the ranks of those entitled to ordinary consideration’.
The tribunal cannot accept that there was any reason consistent with the proper and fair-minded discharge of duties that could explain why Garda Headquarters and the Garda Commissioner were left with a report against Maurice McCabe that a young woman had alleged he had committed a rape offence.
When asked during his testimony to the tribunal why ‘when this matter erupted in the media and in Dáil Éireann, the Commissioner’s office, even at that stage, had documentation from you including an allegation of penetrative abuse’ Kenny replied ‘I just say at that time, I mean, the amount of responsibilities I had—and I am not making this in any way as an excuse for it—it’s just, it’s something that I assumed or I was of the impression that it had been forwarded from my office’.
It’s hard to believe that Kenny did not know, as Charleton said, ‘a notification of this importance could not have been made without an express order’ from him.
The erroneous rape offence report passed on to Garda Headquarters and to the Garda Commissioner required Assistant Commissioner Kenny to withdraw it. In his evidence he claimed that he had thought that this correction should have been made by his staff. His staff could not, however, in a matter of this importance, have acted without his direction.
It’s hard to accept, even given the possibility that he was ignorant of the responsibilities of his official position, that he felt no responsibility as a human being to correct such a damaging error—unless Maurice McCabe was well and truly ‘outside the ranks of those entitled to ordinary consideration’.
The mistake in cutting and pasting remained in play until it was scrutinised by the tribunal in June 2017.
In January 2016, a letter was sent to Maurice McCabe from Tusla, opened by his wife, containing the rape accusation—even though that accusation had been established to be false in May 2014 when Laura Brophy informed Tusla of her mistake and confirmed that no such accusation had been made against McCabe.
When a justifiably angry letter of protest was sent in response by solicitors for Maurice McCabe, social services made no proper response and never wrote to the McCabe family pointing out how the error was made. That situation continued all the way up to the start of this tribunal. It was only then that the sequencing of the error was uncovered by the tribunal investigators. Local social services in Cavan/Monaghan failed in their duty to report the error to administrative headquarters in Dublin up until 24 January 2017. This was extraordinary because less significant issues continued to be notified at regular monthly meetings between local and national management.
Charleton described Tusla as ‘reluctant to engage’; they were ‘slow to respond to the public request for cooperation by the tribunal. Statements made were laconic to the point of being mysterious. . . . This kind of holding back is bad enough from a private citizen, never mind a public body.’
A public body, paid for by the taxpayer, has a fundamental duty of self-scrutiny in pursuit of the highest standards. The administration of Tusla was sorely lacking in application and in dedication to duty.
Astonishingly, and potentially criminally, the file was transferred to the Sexual Abuse Regional Team (SART) in July 2016 with important documentation missing; in particular, it was missing any reference to the erroneous nature of the rape allegation.
In reality . . . it was filleted by someone. The tribunal is not in a position to state by whom and, because of the unsatisfactory nature of the evidence from Tusla, cannot indicate who among a range of people might have been responsible. It could, in reality, have been almost anybody.
The decision to transfer the file to SART was strongly criticised by Linda Creamer, service director of Tusla, who testified that all knowledge of the difficulties that had arisen had been kept from her. ‘It was only on 24 January 2017 that [she] was made fully aware of the history of Tusla’s handling of the Maurice McCabe case.’ As she said,
In the context of the responsibility for the frontline workers I can see how errors are made because it is such a fast pace. But I don’t accept it at the management level. . . . I believe it to be completely and absolutely incompetence . . . . [in] the management of the file.
Justice Charleton ‘agreed with that devastating assessment’.
Linda Creamer also expressed the clear view that there should have been ‘some sort of due diligence report handed over with the file.’ This was clearly not done. More seriously the apparently deliberate ‘filleting’ of the file suggests something more than a lack of ‘due diligence’ and cries out to be investigated. The person(s) responsible need to face appropriate disciplinary action.
By the time the file was seen by the tribunal, ‘it was in its complete form and with all the documents present and in the correct order’. The missing documentation had been returned to the file—again it could have been by almost anyone.
Whether the failures within Tusla were a result of a cockup, an attempt to cover up that cockup, or collusion with the gardai, it’s hard to deny that at least two senior garda officers, Chief Superintend Sheridan and Assistant Commissioner Kenny, knowingly sent the false accusation of rape against Maurice McCabe further up the line without attaching the clear and unequivocal correction in their possession. Sheridan sent the correction on 22 May, ten days after the original accusation reached the assistant commissioner’s office on 12 May, but Kenny never sent the correction to Garda Headquarters, though he had acknowledged receiving it. In doing so they allowed false rumours of a very serious nature to circulate about the ‘rat’, Maurice McCabe. Only when the Tribunal’s forensic investigators traced the full history of the accusation did the complete file get reconstructed and entered into evidence. Delays or refusals to include a clear correction when the file was sent up the line meant that a false accusation was forwarded all the way to the Commissioner’s office and was left on Sergeant McCabe’s file until the start of the tribunal. This is deeply disturbing.
At a time when there was considerable public interest in Maurice McCabe as a person who had disclosed inefficiencies and bad practices within the gardaí, an incorrect report, accusing him of a rape offence, was maintained in Garda Headquarters. When the Northern Region learned of the inaccuracy of that report, the assistant commissioner did not correct it to Garda Headquarters.
And all this happened because Sergeant McCabe had spoken out about bad practice and bad behaviour at the station in which he was the sergeant in charge. In the process, certain gardaí, including those of the highest rank, have tried and failed to cover up the faults that grew out of loyalty to the uniform above loyalty to the people the gardai are appointed to serve. They have succeeded in tarring the entire garda force with the same reputational brush. They have also succeeded in ruining the life and reputation of a good garda simply for doing his duty. Shame on them.
Unless otherwise noted in the text, all quotations are from the third interim report of the disclosures tribunal (http://www.disclosuretribunal.ie/en/DIS/Pages/Third Interim Report).
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