Law does not prevent Garda Commissioner from explaining O’Higgins investigation legal tactics

16 May 2016

Labour Party Leader Joan Burton TD said today that the law does not prevent Garda Commissioner Nóirín O’Sullivan from clarifying the instructions she gave her legal team at the O’Higgins Commission of Investigation.

She said there was serious public disquiet about the claim that, although in public Ms Sullivan had said Sergeant Maurice McCabe had the full support of Garda management, she had instructed her lawyers in the commission’s private sessions to attack Sergeant McCabe’s motives and character.

It was a very serious matter if this was true and it was even more serious if the lawyers’ instructions had been changed mid-stream, but only in the face of irrefutable evidence to the contrary.

“It is simply not true to say that the law prevents the Garda Commissioner from responding to this allegation,” Deputy Burton said. “The governing law is the Commissions of Investigation Act 2004. It is true that section 11 (3) of the Act prohibits a person from disclosing or publishing any evidence given by a witness in private to a commission of investigation.

“But lawyers are not witnesses. And their statements to a commission are not evidence. So this prohibition does not apply.

“There is no provision in the Act that restricts a person from commenting on the statements of lawyers before a commission. And in particular there is no bar on a party explaining the statements of their own lawyers, made under the instructions of their clients.

“In this case, the reported statements of the Garda lawyers appear to directly contradict the official public stance of the Commissioner towards Sergeant McCabe, as outlined to an Oireachtas committee in May 2014.

“The Dáil and the public are entitled to know how she can reconcile this apparent contradiction. In particular, the Commissioner must explain how she could reconcile instructing her lawyers to attack Sergeant McCabe’s motives and character while at the same time keeping him as a member of the statutory Professional Standards Unit, which is charged with reviewing the performance of the Garda Síochána at all levels and promoting the highest standards of practice.

“The official stance of the Garda legal team towards Sergeant McCabe, on foot of the instructions given to them by Garda management, has now become a matter of serious and legitimate public concern. Commissioner O’Sullivan owes it to the public to clarify this issue.

“I note also that, throughout this period, the Garda Commissioner had a reporting relationship with the Minister for Justice and a duty to account.  In circumstances where both the Garda Síochána and officials of the Department of Justice were represented at the investigation by the lawyers from the Office of the Chief State Solicitor, we need to know whether or to what extent these tactics were known to or approved by the Department and the Minister as well.

“If neither the Minister nor the Commissioner is willing to take steps to clarify this very serious issue, then I believe the new Garda Authority has both a right and a duty to intervene,” Deputy Burton concluded.

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