“What has been unnerving about more than 100 days of hearings in this tribunal is that a person who stood up for better standards in our national police force, Sergeant Maurice McCabe, and who exemplified hard work in his own calling, was repulsively denigrated for being no more than a good citizen and police officer. …The question has to be asked as to why what is best, what demands hard work, is not the calling of every single person who takes on the job of service to Ireland. Worse still is the question of how it is that decent people, of whom Maurice McCabe emerges as a paradigm, are so shamefully treated when rightly they demand that we do better. ” Justice Peter Charleton

This afternoon.

Supreme Court Judge Peter Charleton’s third interim report on the Disclosures Tribunal has been published.

It is broken into three separate reports – each with their own chronology of events.

The three reports focus on:

– The HSE and TUSLA matter.

– What happened at the O’Higgins Commission of Investigation.

– Attacks on the character of Sgt Maurice McCabe.

In relation to the HSE and TUSLA matter:

In 2006, the 14-year-old daughter of a colleague of Sgt McCabe alleged that during a game of hide and seek back in 1998, when she was about six, Sgt McCabe pressed against her. Ms D used the word “humping” in her Garda statement.

Ms D made the allegation in a statement to gardai in December 2006, about 11 months after her father, Mr D, lost his position and was reverted to other duties, following a report made by Sgt McCabe against Mr D for attending the scene of a suicide after drinking alcohol.

Ms D’s allegation was investigated by Supt Noel Cunningham and, in 2007, the DPP ordered that there was no basis for any prosecution.

Specifically, the DPP found:

“Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault… there is no basis for prosecution.”

Six years later, in July and August 2013, Ms D told the allegation to a RIAN counsellor Laura Brophy during counselling sessions.

Judge Charleton found Ms D unambiguously understood that by identifying the person at the centre of her 2006 allegation – while she was undergoing counselling – that Ms Brophy would be compelled to refer the matter to TUSLA who would then pass it on to the gardaí.

Ms D identified Sgt McCabe as the person at the centre of her allegation and Ms Brophy referred the matter to TUSLA but she sent a botched referral which referred to an allegation of rape pertaining to a whole different client and had nothing to do with Sgt McCabe.

Judge Charleton found this was a “mistake” by Ms Brophy.

A letter was sent from TUSLA to Supt Noel Cunningham – seeking clarity on the 2006 investigation – but this letter was never answered and, Judge Charleton noted, “was supposedly only discovered four years later”.

Judge Charleton found:

“This matter was an unbelievable coincidence. Yet, as it emerges, despite its bizarre nature, this was a genuine mistake.”

Given the unequivocal direction of the DPP in 2006, Judge Charleton found:

“There was thereafter no basis upon which anyone could legitimately accuse Maurice McCabe of having assaulted or sexually assaulted a young girl. Thereafter, there was no basis for accosting Maurice McCabe with this allegation or seeking to demean him.

And yet…

In or around New Year’s Day 2016, TUSLA wrote to Sgt McCabe to say it was examining the false allegation of rape which had been initially made in a botched referral in 2013 and revived in April/May 2014 and circulated to An Garda Siochana – all the way up to the Garda Commissioner Nóirín O’Sullivan’s office.

Judge Charleton found:

“When a justifiably angry letter of protest was sent in response by solicitors for Maurice McCabe, social services made no proper response and never wrote to the McCabe family pointing out how the error was made. “That situation continued all the way up to the start of this tribunal. It was only

then that the sequencing of the error was uncovered by the tribunal investigators. “Local social services in Cavan/Monaghan failed in their duty to report the error to administrative headquarters in Dublin up until 24 January 2017. This was extraordinary because less significant issues continued to be notified at regular monthly meetings between local and national management. “Had an admission as to what had happened then been made by TUSLA, this tribunal might not have been necessary. TUSLA were slow to respond to the public request for cooperation by the tribunal. Statements made were laconic to the point of being mysterious. The tribunal had to seek further information and identify witnesses who might cast light on matters, who had not yet revealed themselves. “These then had to be called in evidence, as from them emerged important evidence. This kind of holding back is bad enough from a private citizen, never mind a public

body.”

Judge Charleton heavily criticised TUSLA for how it handled matters in 2014 – when the false rape file was selected from a filing cabinet, having sat there from the summer of 2013, and was recirculated before ending up with An Garda Siochana.

He found:

“The tribunal cannot identify the mind behind the decision to revive the matter at that point but the tribunal regards the explanation of mere coincidence as wholly unconvincing. As to whether it was either Laura Connolly or Eileen Argue or someone directing either of them, there is insufficient evidence to make a decision. “The reality is that someone within TUSLA realised that they had what they perceived to be unfinished business with Maurice McCabe and decided that for the avoidance of trouble, the business should then be dealt with. This was not, as was related to the tribunal, a coincidence. It is very disappointing that the tribunal could not have been told by TUSLA what actually happened.”

In regards to Ms D’s allegation having been sent to the gardai in both 2006 and 2014 (this time as a false rape allegation), Judge Charleton found:

“The tribunal has been expected by TUSLA personnel to believe something that does not make sense of any kind. It is plain sense that the same allegation does not need to be notified to the gardaí twice.”

He said it was “mystifying” as to why the allegation was sent to the gardai in 2014.

Recalling the errors which led to this occurring, Judge Charleton found:

“Reviewing this account of error upon error, of not attending to duty upon not attending to duty, of not abiding by guidelines and of reporting the same matter multiple times to the police, when the police had in fact originally referred the matter to social services, the tribunal is left utterly dispirited.“

The false rape allegation was first received from TUSLA by Supt Leo McGinn and then sent up the chain of command of An Garda Siochana – first to Chief Supt Jim Sheridan.

Judge Charleton found that:

“There was nothing inappropriate about the actions of Superintendent McGinn in referring the matter to his chief superintendent. That was the right thing to do at the time.”

Judge Charleton found that RIAN counsellor Laura Brophy acted appropriately when, in May 2014, after it had already been sent to the gardai, she discovered that she had made an error in sending an incorrect rape allegation to TUSLA.

[She became aware of this because once Supt McGinn got the false rape referral, he spoke with Mr D, Mr D then spoke with Ms D and, in turn, Ms D made contact with Ms Brophy – to tell her she never made any allegation of rape]

But Judge Charleton found that TUSLA did not act appropriately.

He found:

“The erroneous garda notification prepared by Laura Connolly [of TUSLA] dated 2 May 2014 remained on the TUSLA file in a kind of nuclear half-life that had later damaging consequences. That kind of administrative incompetence is shocking. Plainly, if it was to be retained on the TUSLA file, it should have been stamped as erroneous or mistaken or those words should have been plainly written across the relevant documents.”

In relation to Chief Supt Sheridan’s handling of the false rape allegation, Judge Charleton found:

“Despite the fact that Chief Superintendent Sheridan had been informed by Superintendent McGinn that Ms D had not made the rape offence complaint as contained in the TUSLA notification, he forwarded the incorrect notification up the line. This kept alive in garda administration files an allegation of a rape offence that no one had ever made against Maurice McCabe. This was inappropriate and extraordinary.”

Judge Charleton also criticised Chief Supt Sheridan for the manner in which he passed the false rape complaint up to the assistant commissioner for the Northern Region, Kieran Kenny.

He found:

“Chief Superintendent Sheridan did not make any reference to his knowledge that the TUSLA referral form attached to the letter was completely incorrect. The assistant commissioner did not know that no one had ever accused Maurice McCabe of digital penetration, a rape offence, but yet this notification passed on that allegation as if it had been made by Ms D. It never was.”

He added:

“There is no explanation other than that a false allegation against Maurice McCabe of a rape offence had been passed from a chief superintendent to an assistant commissioner. This is incomprehensible.”

After the false rape allegation reached now retired Asst Comm Kenny, it was forwarded to the Garda Commissioner’s office.

At this point, Asst Comm Kenny had read the original 2006 file. Judge Charleton found:

“At that stage, but only at that stage, it could be said, as Assistant Commissioner Kenny testified, he did not really know if this new notification of a rape offence was somehow an extension of the prior allegation of Ms D. If that was so, then he should have paused and sought further information before reporting this false allegation as fact. This suggests to the tribunal that Maurice McCabe was outside the ranks of those entitled to ordinary consideration.”

Judge Charleton went on to find that “one of the most disturbing aspects of this” is that after Asst Comm Kenny was notified that the rape allegation which was sent to the Commissioner’s office was incorrect “Assistant Commissioner Kenny never disclosed to Headquarters that the allegation had been made in error”.

Judge Charleton added:

“Assistant Commissioner Kenny left the administrative centre of the national police force with false information that a person from within garda ranks who was complaining about police standards had been the subject of a rape offence allegation.”

Judge Charleton found it was “not right” that Mr Kenny had left “Garda Headquarters and the Garda Commissioner with an allegation of a rape offence against Maurice McCabe which no one had ever made.”

He further noted:

“The tribunal cannot accept that there was any reason consistent with the proper and fair-minded discharge of duties that could explain why Garda Headquarters and the Garda Commissioner were left with a report against Maurice McCabe that a young woman had alleged he had committed a rape offence.”

Former Garda Commissioner Noirin O’Sullivan was shown the false rape allegation, presented as a ‘true’ allegation, by her private secretary Frank Walsh in May 2014.

Superintendent Walsh ‘s evidence was that Ms O’Sullivan read the incorrect notification but he couldn’t recall her saying anything or reacting in any way to it. It was Ms O’Sullivan’s evidence that she couldn’t remember reading it.

In August 2014, there was a meeting between Ms O’Sullivan, Mr Kenny and Sgt McCabe about workplace matters.

Sgt McCabe was not told of the false rape allegation which had been circulated about him at this meeting.

A month earlier, in July 2014, there was a meeting between Asst Comm Kenny, Chief Supt Sheridan, Supt McGinn and Sgt Karen Duffy in Mullingar – during which the matter of the mistaken rape referral was discussed.

Two things were supposedly agreed to have taken place following that meeting – that the head of legal affairs Ken Ruane would be notified and that the HSE would be contacted.

But neither of these two things occurred.

Judge Charleton said he found it “extraordinary” that Supt Noel Cunningham (who carried out the 2006 investigation) wasn’t invited to this meeting.

He found:

“Superintendent Noel Cunningham should have been at this meeting. His absence, and the complete absence of any rational excuse for not inviting him, casts a pall of unreality over testimony about that gathering.”

Judge Charleton added:

“Enough time was spent during the tribunal hearings on this meeting to offer some enlightenment. No enlightenment came. “The tribunal is not content to accept any one of the several broadly conforming accounts as to the purpose and content of this meeting. Little of that testimony struck home in the context of the already listed infirmities of the meeting. “Certainly, the meeting would have been a reminder to Assistant Commissioner Kenny that he had made an incorrect report of a rape offence to Garda Headquarters against Maurice McCabe. But it resulted in nothing. “Also, it might have reminded any sensible person that Superintendent Noel Cunningham would be worth talking to. No one did that. On its face, the minutes of the meeting display, at very best, a lack of clear thinking and an eminent level of inefficiency and woolly thinking.“

As mentioned above, Sgt McCabe was in the dark about the false rape referral until TUSLA wrote to him on New Year’s Day 2016 – telling him it was investigating the rape allegation.

Judge Charleton found:

“Whatever was being tossed around in Mullingar [at the meeting in July 2014], it is impossible to conclude that what was afoot was some kind of plan to deliberately do down Maurice McCabe. No matter how any reasonable person may look at it, there could be no inkling that in consequence of the return of Ms D to counselling in 2013 and the word processing error in 2014, TUSLA would be so incompetent that a letter from them accusing Maurice McCabe of a rape offence would arrive at his home in January 2016. “That, certainly, had nothing to do with the gardaí. Nor could anyone have predicted it.

He added:

“As regards Garda Headquarters, is it right to question whether the making of, and the failure of someone of assistant commissioner level to correct, a plainly false but extremely damaging report of a rape offence testifies to a febrile atmosphere at the top levels of the organisation? There is insufficient evidence to state that on the basis of what is in this report alone. The tribunal is, however, driven to doubt bald assertions that fellow gardaí had no problems with Maurice McCabe. Some certainly did have problems with him. There is no doubt about that.”

In relation to the suggestion that members of An Garda Siochana interfered with TUSLA’s actions, Judge Charleton found:

“Certainly, the manner in which the allegation that was known to be false was sent to Garda Headquarters, and was left uncorrected, is a responsibility of the garda organisation. “The incompetence of TUSLA, however, and the consequences generated by poor management within TUSLA has nothing to do with the gardaí.”

Judge Charleton criticised the events leading up to the letter about the false rape referral to Sgt McCabe on New Year’s Day in 2016 – in particular the actions of principal social worker Seamus Deeney.

He found: “The levels of non-application to duty are alarming. ”

But he found:

“There is no basis, however, on which the tribunal could conclude it was because of any animus against Maurice McCabe.”

After receiving the letter from TUSLA in or around New Year’s Day 2016, Sgt McCabe’s solicitor Sean Costelloe wrote back to TUSLA and, in no uncertain terms, told TUSLA the rape allegation was ““wholly false and malicious” and “wholly untrue”. Mr Costelloe asked for an urgent reply from TUSLA.

But Sgt McCabe did not get a reply from TUSLA until the following June.

This reply accepted that the rape allegation was a mistake but it didn’t explain how the error occurred. Judge Charleton said “that is plainly what then should have happened”.

He commented:

“Within TUSLA, speaking collectively, those responsible for the series of errors that led to a direct accusation against Maurice McCabe of a rape offence knew: firstly, that he had never been accused of a rape offence by anyone; secondly, that a word processing error had led to an erroneously attributed accusation being recorded in a written file; thirdly, that this error had been passed on to the gardaí; fourthly, that when the error was identified, a correction and retraction were sent to the gardaí; fifthly, that this mistaken attribution remained on the TUSLA file as two mutually inconsistent reports to gardaí; sixthly, that within TUSLA there were senior personnel who knew or ought to have known of the origin and mistaken nature of these two inconsistent reports but did not share that information at an appropriate time; and, seventhly, that multiple failures to read the file fully resulted in the letter of 29 December 2015. “It would have been very easy to respond to the justifiable disquiet expressed in the letters on behalf of Maurice McCabe by stating simply: a counsellor in Rian was in error in using as a template a completely unrelated document involving an allegation of another person and mistakenly ascribing a complaint of a rape offence against Maurice McCabe and that TUSLA, having carried it forward negligently into a referral to gardaí, is indeed sorry for its errors. “Had that happened, yes, there would have been some kind of investigation but probably not a tribunal of inquiry. The result of failure to face the facts, of a complete lack of black box thinking that demands to precisely know when an aircraft has gone down why that happened, has been justifiable public disquiet together with a gigantic expenditure of public money. This happened through not facing up to the problem and not being forthright about mistakes internal to TUSLA.”

More to follow.

Read full report here