Disclosures Tribunal—update

Introduction

In the third interim report of the Disclosures Tribunal, Justice Peter Charleton correctly goes to justifiable lengths to clear Maurice McCabe of any wrongdoing, describing him as a ‘genuine person who at all times has had the interests of the people of Ireland uppermost in his mind’. In a much-quoted passage, he gave McCabe a glowing character reference:

Maurice McCabe has done the State considerable service by bringing these matters to the attention of the wider public and he has done so . . . out of a legitimate drive to ensure that the national police force serves the people through hard work and diligence. He is an exemplar of that kind of attitude.[1]

The vast majority of people in Ireland would applaud those comments.

If McCabe is the legitimate hero, then Superintendent David Taylor, former head of the garda press office, is Charleton’s villain.  At one point, Charleton argues that the question the people of Ireland asked the tribunal to investigate was ‘What did Superintendent Taylor do?’ This is a narrow and incomplete understanding of the terms of reference. Elsewhere, he offers a wider summary of those terms:

The tribunal is tasked . . . with urgently inquiring into a series of controversies which all pivot on how the top officers within our national police force react when issues are aired as to the performance of the organisation.

The central concern is whether such reaction has not only been one of distaste, but of active and calculating malice and bullying, and whereby media briefings took place against individuals who disclosed inefficiencies within the police. That was suspected to encompass the undermining of the family life of concerned officers through the abuse of social services.

That seems more like what most people wanted to know.

He points out that no previous tribunal has had to deal with matters that directly concern two former commissioners of the force, a former garda press officer, and several other senior ranking officers of An Garda Síochána. Clearly, Taylor played a major role in those controversial events, as did his superior officer, then Commissioner Martin Callinan, who spoke ‘in the most derogatory way’ about Wilson and McCabe to TD John McGuinness, chairman of the Public Accounts Committee (PAC). He also spoke in the same derogatory terms to TD John Deasy, a member of the PAC, to the Comptroller and Auditor General, Séamus McCarthy, and to broadcast journalist Philip Boucher Hayes.

Complicating these matters was a false accusation of a rape offence against Maurice McCabe, on foot of which Justice Charleton nominates as a secondary villain Tusla, the Child and Family Agency that was established in 2014 as ‘the dedicated State agency responsible for improving wellbeing and outcomes for children’, which had prviously been the responsibility of the HSE.

The false accusation arose because of a grievous mistake in a report of a disclosure by Ms D in 2013 when she had sought counselling from RIAN, a counselling service operating independently under the Health Service Executive. In using as a template a report in a different and totally unrelated case, Ms D’s counsellor, Laura Brophy, cut and pasted sections of that case into her report of Ms D’s disclosure. In doing so, she inadvertently left in an allegation of a rape offence that did not belong there and had no reference to Ms D. When the mistake was discovered it was reported to Tusla and to the gardaí. Due to what Charleton variously calls chaos, incompetence, and inertia inside Tusla, there was an unconscionable delay in reporting the error and its correction to the gardaí. Due to incompetence, inertia, and, it must be said, some degree of bad faith inside the Garda Síochána, the reported correction was ‘overlooked’ at several stages of the garda investigation, allowing an erroneous and false accusation of rape to languish on Sergeant Maurice McCabe’s file and to feed the rumour mill inside and outside the Garda Síochána. Charleton found that between them Tusla and the gardai managed to elongate this unpleasantness over a full decade until shortly before the Tribunal was established in 2017. I’ll have more to say on this in ‘Cock-up, cover-up, or fit-up?’ next week.

Who said what when

In his testimony to the Tribunal, David Taylor alleges that he was told by Commissioner Martin Callinan to brief the media with negative information about Sergeant McCabe. Taylor remembers Callinan telling him that McCabe was ‘driven by revenge’, because of an allegation of sexual abuse made against him by the daughter of a colleague. Taylor said he believed this to be the truth at the time and that he had briefed nine journalists accordingly in the process of a ‘nodding and winking’ campaign suggested or at least sanctioned by Callinan. Most of the nine were crime correspondents. Taylor claimed that he passed the allegations along in person and that he ‘would have briefed them all negatively about Sergeant McCabe. I cannot provide any further details. It was generic, and it was as and when the matters presented themselves’, which may go some way to explain why journalists did not agree that they were briefed while being nodded and winked at. He further testified that he had kept no records, leaving no digital or paper trail—although there is no little dispute about this.

Some of the journalists that Taylor said he briefed deny categorically that he did any such thing. Others have claimed journalistic privilege. The question we need to keep in mind here is whether journalists who depend for a large part of their careers on their confidential garda informant(s) would be willing to turn on any one of them and ‘rat them out’. It’s hard to imagine why Taylor would lie, knowing that the journalists he named would be called to give evidence. Charleton’s finding, nevertheless, was that he lied. He also found that three journalists not among the original nine Taylor named were encouraged by Taylor to seek out the alleged victim of a false accusation of a rape offense in order to publish a negative story about Maurice McCabe; he describes those three as ‘committed journalists who were looking for news, [and] were very unfortunate to have come within the orbit of Superintendent David Taylor’. So, Taylor is damned if he did and damned if he didn’t brief negatively.

He dismissed Taylor’s claim that he was acting under orders from Martin Callinan. In a jesuitical parsing of events, he found instead that Taylor ‘pursued a scheme that somehow evolved out of his cheek-by-jowl working relationship’ with his superior officer. The distinction between an official order from a superior officer and the ‘nodding and winking’ plan to spread untrue rumours endorsed by that superior officer is hard to trace given the importance of hierarchy within the force.

While not giving Callinan a free pass, he nevertheless responds to the Commissioner’s description of whistleblowers as ‘disgusting’ by stating that ‘the tribunal understands well how an inappropriate word, that in this instance was deeply hurtful, can be dropped inappropriately’. That comment was more than ‘inappropriate’, it goes to the heart of the matter under investigation: the practice of omerta within the gardaí, in which loyalty to the uniform superseded all other considerations, including natural and legal justice.

As a consequence of this code of silence, Charleton had great difficulty getting information from gardaí and is scathing about this difficulty in his report. He wrote to 430 gardaí and received replies from two, each of whom denied ever hearing anything negative about Maurice McCabe. Perhaps he failed to reach those gardaí who participated in or viewed a website showing a rat called Maurice.

It’s clear that Callinan participated with gusto in the ‘winking and nodding’. When it apparently didn’t go as he had intended because, in Charleton’s words, Taylor ‘promised much but delivered little’ in the way of negative briefing, Callinan ‘felt the need to supplement the efforts of his press officer’. He seems to have a different understanding of ‘nodding and winking’ than Taylor’s ‘generic’ style. Callinan’s less subtle approach consisted of pulling someone aside and making remarks like ‘the other fella fiddles with kids; they’re the kind of fucking headbangers I’m dealing with’, as he did to John McGuinness, chairman of the Public Accounts Committee (PAC). Charleton is critical of Callinan’s participation in the ‘winking and nodding’ campaign and accepts that the Commissioner spoke in derogatory and offensive terms about McCabe to McGuinness and his fellow TD John Deasy, to the Comptroller and Auditor General, Séamus McCarthy, and to broadcast journalist Philip Boucher Hayes.

McGuinness testified that as he approached Callinan after the PAC meeting on 23 January, during which Callinan made the ‘disgusting’ comment. ‘[Callinan] immediately went into a story telling me about an incident involving [whistleblower] John Wilson’ and then offered the statement quoted above. McGuinness said he assumed the ‘fella fiddles with kids’ reference was aimed at Maurice McCabe.

He agreed to meet with Callinan the following day at Bewley’s Hotel, Newlands Cross, and was surprised that they met not in the hotel but in the car park. Callinan agrees that this meeting took place, though the two have different accounts of what subsequently transpired. According to McGuinness,

Mr Callinan stated to me that Mr McCabe had sexually abused someone and that he was not a credible person. Mr Callinan stated that an investigation into Mr McCabe’s activities was underway . . . (he) then asked me was I aware that Mr McCabe had sexually abused family members.

He testified that Callinan told him that there was a ‘file’ on McCabe and that he would be facing criminal charges. No charges have been brought. He said the Commissioner went on to tell him that he (McGuinness) had made a grave error in relation to the PAC and, because of this, he could find himself in serious trouble. Callinan denies having said anything of the sort to McGuinness.

McGuinness remembers being ‘troubled’ because of the possibility that Callinan was telling the truth. He worried that if he [McGuinness] had been wrong about McCabe the PAC may be ‘brought into disrepute’:

Lots of questions ran through my mind about how it had all come to this, and what would happen from here. I was deeply upset over what I was hearing. And deeply troubled by the fact that so many in high places were trying to stop that hearing from going ahead.

The tribunal reviewed notes that McGuinness had scribbled down on his way home from the meeting and is satisfied that he spoke truthfully in his testimony.

Charleton also accepts the word of Fine Gael TD John Deasy, a member of the Public Accounts Committee. Deasy testified that Callinan was vehemently opposed to McCabe giving evidence to the PAC, allegedly because of his concerns over possible data protection issues. He said that when he met Callinan on his way to the committee, the Commissioner told him that Maurice McCabe was not to be believed or trusted with anything. Again, Callinan denies saying this.

Comptroller and Auditor General Seamus McCarthy who, in his official position, had upheld many of the complaints made by McCabe about the improper removal of fixed charge penalty notices, also said he spoke with Callinan on his way into the PAC:

I met [Callinan] in the lobby. . . . My recollection is that the Commissioner came forward to have a word with me. . . . We began just with sort of normal greetings but very quickly the Commissioner raised Sergeant McCabe’s name in the conversation, along the lines that Sergeant McCabe is not to be trusted, that he had questions to answer and that there were sexual offence allegations against him.

Once again, Callinan denies saying any of this to McCarthy.

Broadcast journalist Philip Boucher-Hayes, co-host at that time of RTE’s Crime Call, testified that Callinan had told him that McCabe had ‘well-known issues’, ‘psychiatric issues’, ‘psychological issues’ and that he had done ‘horrific things . . . the worst kind of things’, but didn’t go into further detail.

I knew there was no suggestion of either murder or genocide . . . I assumed it was child sexual abuse or rape, perhaps.

I didn’t believe what I was hearing. I felt it was a smokescreen that was being deflected on the penalty points issue.

He went on to say that Callinan closed the conversation by saying to him that if he wanted to know more, he should ask David Taylor. Callinan denies smearing McCabe to Boucher-Hayes.

Callinan’s successor, Commissioner Nóirín O’Sullivan, gets a clean bill of health, with no finding of wrongdoing on her part. It seems to me that, without attributing corruption to Nóirín O’Sullivan or to individual gardai, it is clear that the culture within the gardai is corrupted by the practice of omerta and that it would be hard, if not impossible to reach the top of such an organisation without being similarly corrupted—that is, without subscribing to the idea of loyalty above all to the uniform. If she did nothing to contribute to the rumours circulating about Maurice McCabe, and it’s hard to believe that she heard none of them, she also did nothing to contradict them. She offered him no support. Like the 430 gardaí to whom the tribunal wrote, she maintained the code of silence—a major element of the cultural problem Charleton finds within the Garda.

So much for the ‘new layer of public accountability and transparency to the administration and oversight of policing’ promised by Frances Fitzgerald in 2014. Not to mention the ‘pillar of integrity’ that was to greatly reinforce public confidence in the working of our police services. Somebody didn’t get the memo.

In retrospect, had Maurice McCabe’s reports of ‘gross inefficiency’ as to the conduct of several police investigations and the practice of ‘fixing’ tickets issued under the penalty points system been made public, the scandal would have been on the front pages for days—perhaps longer during the ‘silly season’. But, as Richard Nixon found out during Watergate, it was the cover-up that did the real damage. That cover-up led to the resignations of Martin Callinan and Justice Minister Alan Shatter, the sacking of Garda Confidential Recipient Oliver Connolly, the Guerin Report, the O’Higgins Report, the Disclosures Tribunal, and the washing of piles of garda dirty linen in pubic—along with massive collateral damage along the way.  From 2008, when  Maurice McCabe first raised concerns with his superiors about senior gardaí ‘fixing’ penalty points, until, (so far) the autumn of 2018, the scandal has rarely been far from public attention—which explains why I argue that the code of silence stretching from the newest recruit to the office of the commissioner is the real villain of this piece.

Perfect storm

The confluence of events around the whistleblower controversy could be new Commissioner Drew Harris’ perfect storm, in which the likelihoods of sinking or swimming are about equal. He could either be the lamest Commissioner ever or the new broom that sweeps away the ‘old ways’ to bring the Garda into the twenty-first century.

He didn’t get off to a good start. In the first weeks of his tenure, his response to the use of masked gardai supporting masked and unidentified private-security operatives at the eviction of peaceful protesters from a building on North Frederick Street was seriously inadequate. His silence on the appearance of armed gardaí at the eviction of a homeless family with two children from a B&B where they had lived for nine months was ear-splitting. Loyalty to the uniform is still the default response. I’ll wait and see his reaction to the report from the Disclosures Tribunal before commenting further. The coincidental release of the report from the Commission on the Future of Policing could either help or hinder him, depending on how he manages to spin the current mess.

The ravelling/unravelling has already started. Welcome to the Republic, Mr Harris.

 

 

This article, originally published on 17 September 2018, has been updated to reflect the findings of the Charleton Tribunal.

 

 

[1] 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).

 

 

Let us know how you feel and email us on the contact form below:

About Dr. Jeannette Boyne

Dr. Jeannette Boyne: former out-of-work actor, former working academic and Mellon Fellow, current contributing editor of leftbucket.com, born in Ballyfermot, raised in Birmingham, educated by Columbia (the university, not the country). The old cliché says that journalism is the first draft of history; as Jeannette sees it, the job of an online journal like leftbucket is to provide its first edit. View all posts by Dr. Jeannette Boyne →