6 April 2017

Moran and Ryan make Representations at the Disclosures Tribunal – 30th March 2017

Tribunal into an Alleged Smear Campaign Against Sergeant Maurice McCabe

The Government announced on 14th of February 2017 that it would establish a Tribunal of Inquiry into an alleged smear campaign against whistleblower Maurice McCabe. It’s main purpose and central question is “Was there a deliberate smear campaign waged on Maurice McCabe?”

On the 27th of February 2017, the Tribunal, chaired by Supreme Court Justice Peter Charleton held its first public sitting. He said the task of the Tribunal is to inquire into a range of issues, all of which centre on how top officers in An Garda Síochána respond when concerns are exposed as to the performance of the force. The centre of concern, he said, was whether such reaction had perhaps not only been one of distaste but of active malice. He said there was also an additional concern, as to whether those who air their concerns may be targeted in their family life.

He said there would be two modules in the tribunal. The first of which will concern Garda Commissioner Nóirín O’Sullivan and former Garda Commissioner Martin Callinan and others at the highest command level to disclosures made by Sgt McCabe.

The second will be concerned with members of the force who had made protected disclosures and whether they were mistreated as a result of their disclosures.

The Tribunal again sat on the 30th of March 2017.  Moran and Ryan were in attendance at this Tribunal and made representations to Charleton J on behalf of our client.

The purpose of this sitting was to hear applications from parties who wished to be represented at the Disclosures Tribunal. Charleton J. heard applications by Senior Counsel Conor Dignam on behalf of the current Garda Commissioner, Nóirín O’Sullivan and her predecessor, Martin Callinan.

Mr. Dignam also stated that he would likely be making further applications on behalf of a number of other Garda staff such as Chief Superintendents and Assistant Commissioners regarding letters sent to them by the Tribunal relating to statements they had made preceding the O’Higgins Commission of Investigations. However, he said that he is yet to see these letters, thus his application is pending.

The Tribunal also heard applications on behalf of Superintendent David Taylor, the former Garda press officer.

Michael McDowell SC, counsel for Sergeant Maurice McCabe stated that he may object to the decision to have the Commissioners, both present and former represented by the same legal team as other members of An Garda because this could give rise to a potential conflict of interest as it could impact the ability of individual Garda to give evidence to the Tribunal independently. This position was echoed by counsel for the aforementioned David Taylor.

The former Minister for Justice, Alan Shatter sought limited representation before the Tribunal. His solicitor, Brian Gallagher wanted to assist the Tribunal and had submitted a prior statement.

Representation before the Tribunal was also sought for a number of Government bodies, including the Child and Family Agency, Tusla, and the former chairman of the Public Accounts Committee, John McGuiness TD.

Further applications for representation were made on behalf of a number of high ranking Garda officials.

Many of the country’s media outlets, including Associated Newspapers Limited, Independent News and Media, the Irish Times and RTE sought representation. RTE specifically sought representation on behalf of any employees who may be relevant to the Tribunal’s terms of reference.

A heated exchange occurred between counsel for such media outlets and Charleton J. over the issue of journalistic privilege. Charleton J. stated that he was being asked to rule on the issues of journalistic privilege “in a vacuum” and the news outlets were refusing to disclose if their journalists had any information that might be of relevance to the Tribunal. The lawyers for said outlets argued that they could not state whether or not their clients had information from senior Garda officials blackening Sgt. McCabe’s name without “piercing the shield” of journalistic privilege as doing so will infringe a journalist’s right protecting them from being compelled to testify about their sources or confidential information. Charleton J. stated that if such was the case, then the journalists in question would have to discuss this with their counsel and then he could make a ruling as he was not interested as to whether or not they “may” have information of relevance to the Tribunal, he only needs to know in cases where they do have information. Only in this instance would the issues of journalistic privilege be discussed before the Tribunal. Therefore, the Irish Times and Independent News and Media reserved their application for representation before the Tribunal at this present time.

With regard to the second module which will be considered by the Tribunal, there were two further applications for representation made. Charleton J. however postponed these applications until the current module dealing with the matter of Sgt. McCabe had been finalised.