No media outlet ever traduced the character of Sgt Maurice McCabe, Mr Justice Peter Charleton found in his Disclosure Tribunal report.
In a protected disclosure in 2016, former head of the Garda Press Office Supt David Taylor said he was ordered to contact journalists as part of a smear campaign against McCabe. It appears the campaign bore no fruit.
Protected disclosures are supposed to be highly confidential documents. However, the claims made by Taylor about smearing McCabe appeared in the media almost as soon as they were made.
The claim was made public by way of reports in the Irish Examiner written by journalist Mick Clifford, sparking off a major crisis for the then Garda commissioner, Nóirín O'Sullivan, who faced calls to resign.
Mr Justice Charleton has rejected Taylor’s claim that O’Sullivan instructed him to smear McCabe or knew about the campaign. Taylor was motivated in making his false claim by bitterness towards O’Sullivan, the judge found.
If the smear campaign conducted against McCabe did not result in negative reports about McCabe, it is still the case that the media was a key player in the McCabe saga. Mr Justice Charleton’s report, published on Thursday, makes findings in relation to two aspects of the role it played.
Selected leaks
In 2015, the Government established the O’Higgins commission, an inquiry that had strong legal provisions covering the confidentiality of its proceedings. The commission was set up to examine complaints made by McCabe about poor policing standards.
In May 2016, when the commission published its report, “selected portions of the transcript of the O’Higgins commission were leaked to the media”, Mr Justice Charleton said.
The leaks appeared on RTÉ's Prime Time and in the Irish Examiner and the effect was to create a false impression as to what had happened at the commission. They constituted "the deception of the media by the persons who leaked the selected extracts", the judge found.
The leaks were limited to a very few pages and reports based “on this infirm foundation led to considerable misunderstanding in the public mind”.
“The tribunal is not mandated to inquire into who engaged in any manipulation of the media with selected extracts from those transcripts and has no view as to responsibility for this conduct,” the judge said.
The effect of the leaks was to put enormous pressure on O’Sullivan, who was accused of going after McCabe behind the closed doors of the commission.
Suspicions created by the leaks were “somehow transmogrified” over time and ended up in the tribunal’s terms of reference, which referred to whether O’Sullivan had instructed her legal team at the commission to raise “false allegations of sexual abuse” in an effort to discredit McCabe. (The allegation being referred to was one made in 2006 by a Ms D.)
“This allegation of counsel for the Garda commissioner’s legal team putting allegations of sexual misconduct to Maurice McCabe while testifying [at the commission] is central to this inquiry,” Mr Justice Charleton said.
The full transcript of the entire 34 days of sittings of the commission was available to the tribunal and the judge even listened to much of the audio. What was alleged had never happened, he concluded.
He has also dismissed other serious allegations that arose as a result of the leaks in relation to Supt Noel Cunningham and Sgt Yvonne Martin.
‘Inflamed opinion’
The second major allegation against O’Sullivan that was examined at the tribunal was Taylor’s claim that she, along with former commissioner Martin Callinan, had directed Taylor to engage in a smear campaign.
While the tribunal has found Callinan was engaged in a smear campaign along with Taylor, it found there was no credible evidence O’Sullivan had any hand, act or part in it.
Reflecting on what had happened, Mr Justice Charleton queried whether there was a “lacuna” in the disclosures legislation.
The leaking of supposedly confidential disclosures “to public representatives and journalists working in the media” constituted “not merely an ignition switch but the accelerant used to inflame public opinion”. There was a rush to judgment about O’Sullivan in the public mind as a result.
Mr Justice Charleton said that Mick Clifford came across as a serious-minded and careful journalist who had taken a particular interest in the entire saga surrounding McCabe, and took every reasonable precaution to obviate error.
Taylor told the tribunal he had negatively briefed 12 journalists as part of his alleged smear campaign.
Initially, he provided nine names but when the tribunal discovered the names of two journalists who had visited the home of Ms D, and he was told about this, he added them to his list.
These were Debbie McCann of the Irish Mail on Sunday and Eavan Murray of the Irish Sun, who each independently called on Ms D's home in February or March 2014. Their requests for interviews were refused.
Near the end of the tribunal's sittings, journalist Cathal McMahon from the Irish Daily Mirror said he had received information about Ms D from Taylor in early 2014, when he was considering calling on her home. Taylor added his name to the list.
The nine journalists originally named were: Conor Lally (The Irish Times); Paul Reynolds and John Burke (both RTÉ); Paul Williams (Irish Independent); John Mooney (Sunday Times): Michael O'Toole (Irish Daily Star); and Cormac O'Keeffe, Daniel McConnell and Juno McEnroe (all the Irish Examiner).
The journalists from the Examiner, as well as McCann, refused to answer questions about contacts with Taylor, nothwithstanding the fact that he had waived any claim to journalistic privilege.
The tribunal accepted the evidence of Lally, Reynolds, Burke, O’Toole and Mooney that they had never been negatively briefed by Taylor about McCabe.
Journalistic privilege
While McEnroe refused to discuss any conversation he might have had with a source, the judge said that other evidence he gave excluded him from being negatively briefed by Taylor at the relevant period. O’Keeffe and McConnell would not answer questions for reasons of journalistic privilege.
“The bizarre aspect of this claim of privilege is that the journalist, having refused to give evidence to the tribunal, is quite free to write whatever he likes about any alleged encounter he may believe he had with a ‘Garda source’. It is hard to see that as serving the public interest,” the judge said.
He did not accept, as claimed by Taylor, that McCann and Murray had been left off Taylor’s original list because he had forgotten them.
The judge said Taylor’s claim he was informed by the two journalists at the time they were travelling to Ms D’s home in the hope of an interview, without his having had anything to do with their quest, was “plainly deceitful”.
The tribunal did not accept Murray’s evidence she had never been negatively briefed by Taylor. It found McCann had been strongly biased against McCabe and the person who did this was “the press officer for An Garda Síochána”.
Mr Justice Charleton said that details about Ms D were given to McCann and Murray by Taylor. He also found Taylor directed McMahon towards Ms D’s home “to cause as much trouble for Maurice McCabe as possible”.
None of the three journalists ever interviewed Ms D.
Taylor was part of a campaign against McCabe, but tried to downplay his role in his evidence, Mr Justice Charleton said.
The nine journalists originally identified by Taylor were chosen because they were probably never encouraged to think negatively about McCabe.
However, it was “probable” there were other journalists who had been briefed negatively about McCabe, but had decided not to respond to the tribunal’s appeal for them to come forward.
