Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

At the outset, I want to make a point about the very serious question of the leaking of the report. I must say that shades of the beef tribunal come to mind. It is entirely unacceptable that a report of this seriousness should be leaked in a particular way that resulted in us getting a very unbalanced account of what was in the report over a number of nights on RTE news. Action needs to be taken on that. More worryingly, in the reply to a recent parliamentary question I submitted on this issue, the Minister indicated that she was not going to take any action in this area at all. It is not acceptable and it should be addressed.

The O’Higgins report deals with a litany of failings in certain sections of An Garda Síochána. Of most concern is the fact that a woman was killed and undoubtedly official failings played a part. In many instances, victims were not treated properly or professionally. Probationer gardaí were not trained or supervised appropriately, whistleblowers were seriously mistreated and basic yet crucial duties, such as note-taking, checking PULSE records and other regular duties of gardaí, were not performed adequately. The report also serves as a reminder of ongoing concerns about the inadequacy of our bail laws, the frustrations of gardaí with the bail system, and the lack of accountability of the Judiciary in certain cases. It also details, in fairness, some good work undertaken by gardaí at several levels of the force. Overall, though, it draws attention to a number of significant failings of management in relation to the Garda, which must now be urgently addressed by the Minister.

However, the fallout of the O’Higgins report now centres on the actions of the legal team representing the Garda Commissioner at the O’Higgins commission. It has been widely reported that counsel for the Garda Commissioner claimed he was instructed to challenge the credibility and motivation of Sergeant Maurice McCabe during the course of the commission. It would appear that this was confirmed, because he apparently reiterated this after double-checking that instruction during the course of the proceedings of the commission. It was only after counsel for Sergeant McCabe became aware that this was to be the legal strategy of the Commissioner that Sergeant McCabe revealed the recording and blew that strategy out of the water.

I note the statement made by the Garda Commissioner yesterday, in which she states, “An Garda Síochána’s legal team was not at any stage instructed to impugn the integrity of Sergeant Maurice McCabe or to make a case that he was acting maliciously”. She then appears to admit that the legal team was instructed to challenge the credibility and motivation of Sergeant McCabe. Much has been made of the distinction between integrity and motivation but in most people's eyes questioning Sergeant McCabe’s motivation is precisely the same as questioning his integrity.

Several issues arise from this, and the public need straight answers to straight questions. If the Garda Commissioner did not instruct her legal team to question the integrity of Garda McCabe, then why did this happen, even after counsel double-checked his instruction? Leaving aside the word “integrity,” did the Garda Commissioner instruct the legal team to question the motivation and credibility of Sergeant McCabe? We need to know the answer to that question. If she did instruct her legal team in that regard then why exactly did she do so? On what basis did she take that action? What caused her to take a different view of Maurice McCabe in private from the one she took in public? What evidence had she that Sergeant McCabe’s motivation was not entirely well intentioned? On whose advice did she take this action, or does she believe she was lied to? These questions must be answered sooner rather than later.

From the public’s point of view, there appears to have been a plan to use the proceedings of the commission to again attempt to blacken the name of Maurice McCabe. In a most serious twist, the two gardaí who interviewed Sergeant McCabe in Mullingar were apparently willing to give what amounted to - at a minimum - false evidence against Sergeant McCabe. If Maurice McCabe had not been able to produce a taped conversation to prove that this evidence was false, that attempt may well have proven successful - and then, would we have known anything about what went on behind the scenes?

The public needs to know if the Garda Commissioner was aware of the apparent plan to provide false evidence to the O'Higgins inquiry. This is a fundamental question which needs to be answered. Why is the Garda Commissioner only now referring this episode to GSOC? What disciplinary action, if any, has been taken against the two officers in question? If none has been taken, why on earth has it not been taken? It is almost one year since Maurice McCabe produced the tape that proved he was telling the truth and that the two gardaí in Mullingar had in fact attempted to set him up.

The question must also be asked of why the Tánaiste did not refer this matter to GSOC before yesterday. Clearly the Tánaiste has questions to answer with regard to that. Perhaps the Minister could also clarify why only the Mullingar meeting was referred to GSOC and not the Garda Commissioner’s legal strategy. Why is the Garda Commissioner's legal strategy not being referred to GSOC? With regard to the Mullingar meeting, will the Tánaiste confirm that GSOC will be given access to the transcripts of Maurice McCabe’s recording, which is crucial? Will GSOC actually be able to carry out a full investigation into what transpired at that Mullingar meeting? The Commissioner does not have to breach any legal code or requirement to answer the very simple questions that have been asked of her. Whether it was her own doing or not, she has been drawn into this very serious public controversy and only a full explanation will end that controversy. The statement issued yesterday, however lengthy, does not provide a full explanation. It is in both her own interest and the public interest that she provide that explanation as soon as possible.

A significant question also needs to be asked as to why this exchange was not mentioned at all in the O'Higgins report or referred to GSOC by the commission. This is a very serious allegation which has been supported by the tape produced by Sergeant McCabe. Why has that incident not been referred to GSOC, either by the commission or by the Minister? This is a major concern, and it is extraordinary that Mr. Justice O'Higgins concluded that the incident did not warrant a mention. It is very hard to understand how he could possibly have come to that conclusion. One has to wonder what else has been left out of the commission’s report. Surely the whole point of the commission was to lay out the full facts and finally establish the whole truth of the matter. Leaving a very relevant part of proceedings out of the report is completely unsatisfactory and undermines the entire value of the O'Higgins report.

Separately, it should be noted that the report from the two gardaí who interviewed Sergeant McCabe in Mullingar was apparently forwarded to a chief superintendent. Further to that, the Byrne-McGinn inquiry investigated Mr. McCabe's claims. Clearly, if the alleged McCabe admission of malice had arisen from the Mullingar meeting, it would surely have been highlighted in that report, but there was no mention of it in the Byrne-McGinn report in 2010. It is interesting to note that this report was heavily criticised in the O'Higgins report, yet there is no indication that any disciplinary action was taken in this regard - nor, strangely, is any recommended by O'Higgins.

With regard to the Garda attitude to whistleblowers, either the Garda authorities embrace whistleblowing or they do not. The commission highly commended Sergeant McCabe:

Sergeant McCabe acted out of genuine and legitimate concerns, and the commission unreservedly accepts his bona fides. Sergeant McCabe has shown courage, and performed a genuine public service at considerable personal cost. For this he is due the gratitude, not only of the general public, but also of An Garda Síochána.

Yet these are only words. If there was another Garda McCabe, would he or she have any confidence at all that the culture of secrecy and closing of ranks in the Garda had changed one iota? Would he or she be assured that malpractice had been minimised or that there were consequences for those who seriously neglected their duties? Crucially, would that garda feel that he or she could draw attention to wrongdoing and not end up being excoriated and vilified? How could this be the case?

The Fianna Fáil position with regard to the O'Higgins report is curious, to say the least. Fianna Fáil has studiously dodged the central issue, and I wonder why, but that is just a by-the-way. The responsibility for dealing with this matter falls fairly and squarely on the Minister for Justice and Equality, and she must now address the many issues that arise. There is considerable disquiet and public concern about what is coming out in a drip-feed manner from side reports regarding the O'Higgins report. To date, the Government's response has been wholly inadequate.

While there are good recommendations made regarding Garda practice and so on, the O'Higgins report falls on its statements on the recommendations. It was not asked to make recommendations but it did so. It is extraordinary that the last recommendation made in the report raises more questions than it answers. It says, inter alia,"It is hoped that the closing of this inquiry will enable the gardaí in the area to put the unhappy events, the subject matter of this inquiry, behind them...".

If that is not the understatement of the year - "the unhappy events" - then I do not know what is. The report speaks about this happening a long time ago and drawing a line under it. That is the implication of that last recommendation. Crucially, it states, "Bearing the foregoing in mind [which is that it was a long time ago and the Garda wants to put the unhappy events behind it], and in the very particular circumstances pertaining, the commission considers that the institution of any disciplinary proceedings, which might conceivably arise out of its findings, would not be helpful." That is not why the commission was set up. It went beyond its remit to make recommendations when the principal recommendation was that we should draw a line under this and move on.

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