Share, , Google Plus, Pinterest,


Ireland, Italy and the Disclosures Tribunal

Let’s hope the Charleton Tribunal protagonists keep their eyes, under pressure, on the truth

Leonardo Sciascia was an Italian political journalist, an elected radical member of parliament and the most prominent anti-mafia critic. All of this features in his famous detective novels which are in fact anti-detective novels or works of political observation. Coupled with his masterly analysis of the assassination by the Red Brigade of the Christian Democrat conciliator and former Prime Minister Aldo Moro they amount to a sustained critique of Italian and Sicilian political and cultural life. They reflect the complex interstices of corruption and collusion between extreme-right-wing Catholicism, organised crime and the shadowy self-protection syndicates of big business, politics, a malevolent state bureaucracy and crime. His books show the lethal effects of innuendo, smoke, mirrors and sighs, the nefarious rumour mill, shadows.

Sciascia was a specialist in the mafia and he demonstrated how they kill and destroy. First they isolate, disempower and then denigrate. They in effect demonise their prey. And those who seek to investigate them, such as Judge Giovanni Falcone, who act on principle are destroyed in the process. This is exquisitely detailed in ‘Equal Danger’, his best book. In Sciascia’s fiction, it is the detective, not the murderer, who is isolated and suspected.

Leonardo Sciascia

Ironically in the end Sciascia attacked the crusading judges as putting civil rights at stake in an article, when he was dying, that irredeemably punctured his reputation, by attacking Falcone as a celebrity judge.

This is deeply relevant to Ireland. Our mafia are our corrupt politicians, bankers and lawyers and the toxic relationship of our shadow state of governance between the police and the justice department.

Those who challenge corruption or blow the whistle are reputationally destroyed, personally attacked, framed, driven to self-destruction or simply disposed of. Ireland is Italy and “equal danger” a cautionary text.
The smearing of the state knows no boundaries and frequent collusion with Tulsa a criminal conspiracy maintained by many lawyers who should be disbarred.

Another Sciascia theme, particularly evident in his most famous text, ‘The day of the Owl’ is the Sicilian trait of anomie or indifference. A shrug of the shoulders. It is what it is. Life moves on. Principle, justice and the truth are a waste of time.

In controlled societies such as Ireland and Italy Sciascia’s books show the lethal effects of innuendo, smoke, mirrors and sighs, the nefarious rumour mill, shadows, in Italy trivialisation amounts to a resigned admission that the victims of crime had it coming to them in some obscure way. It betrays a desire for yourself not to go the same way.

Being principled in an unprincipled society is very difficult.

We know more than 10 black sacks of shredding left the office of the Commissioner under the supervision of a superintendent who has given evidence twice already to the Tribunal. The phone of the two past heads of national intelligence, Callinan and Ms. O’Sullivan are gone…vanished, destroyed. Yet no issue of the destruction of crucial evidence seems to be of concern to the Tribunal. It was the husband of the former Commissioner O’Sullivan who was appointed to take charge of the investigation into Superintendent Taylor. The phone of the Superintendent was taken but that crucial evidence too is lost. It seems to be simply a matter of no consequence.

A judge whose orientation in private practice was prosecutorial and who, on the bench, has been somewhat indulgent of changes to evidential exclusionary rules to the advantage of fact-gathering gardaí, risks steering a Tribunal away from the glaringly obvious criminality of the highest level of the Department of Justice and the police.

Moreover Maurice McCabe is represented at the Tribunal by former Minister for Justice Michael McDowell SC, a long-time and visceral political defender of the police and law and order.

If I were McCabe I would contemplate refreshing my legal representation and wonder how the now ascendant narrative is that a cock-up rather than obvious state criminality smeared him.

He should dwell on whether it was in fact appropriate for him to concede that the evidence established that the inclusion of the false allegation against him of rape in the 2013 Tusla report “was some form of cut and paste error”, and that the error was not the result of any deliberate action or ill will.

Maurice McCabe

And he should consider how the damning evidence of the press secretary Dave Taylor was not addressed first, as the Tribunal’s first module, as dictated by the terms of reference; and how the sequence of modules was altered so the less clearcut Tusla model was heard first.

Instead the Tribunal opened with an arbitrarily selected series of smokescreen narratives implying a cock-up by Tulsa, and culpability for outlying zealot Callinan perhaps.

Noel Waters, former Secretary General of the Department of Justice, has suffered from amnesia. In his evidence to the Tribunal he declared he could not remember, on nearly 50 occasions. Most damningly, he spoke to Nóirín O’Sullivan at a crucial moment during the O’Higgins Commission which in 2015 was looking at allegations of poor policing in Cavan/ Monaghan made by Sergeant McCabe, phone records indicate. However, neither Waters nor O’Sullivan can remember the 14-minute call on May 15, 2015. The crucial moment was when O’Sullivan’s lawyers were asked by the commission to confirm that they had been instructed to attack Sergeant McCabe’s motivation, and the commission adjourned briefly so that she could be contacted.

The Tribunal had previously heard that O’Sullivan “sought time to speak to the Department of Justice” before confirming her original instructions. The Department has maintained neither it nor then Minister for Justice Frances Fitzgerald had prior knowledge of, or input into, the legal strategy.

Waters said he could not remember the call, and insisted the Department had played no role in the strategy. When it was put to him by Tribunal counsel, Diarmaid McGuinness SC, that it was reasonable to assume he and O’Sullivan discussed what was occurring at O’Higgins that day, Waters replied: “I have to say in response that I have no recollection of that at all”. But Waters was paid the salary of someone who should not have no recollection.

And his predecessor as Secretary General of the Department of Justice, Brian Purcell, claims his congratulations to Callinan for his “exceptional performance” before the Public Accounts Committee in 2014 where he had described McCabe’s whistleblowing as “disgusting” were of no substantive import, in an effort to show he was not an antagonist of the sergeant. Brian Purcell said that when he asked Garda commissioner Martin Callinan in 2013 if there was anything “in the background” about McCabe, he received a “manner of fact” briefing on the Ms D case, and was told that the DPP found there was no case to answer. Purcell said amnesiacally that he could not recall if he received the briefing in person or over the phone.

Peter Charleton

The witness evidence to the Tribunal is dauntingly fractured. Even Garda McCabe appears tired. He will get a huge financial settlement from the state in addition to defamation proceeds.
Those concerned with justice, the balance of powers in a democracy, and accountability of the Garda will watch for any signs that the zeal for truth is waning in Tribunal land.

There are real and embedded reasons why institutional Ireland does not want to look hard at the Garda. For a start the Department of Justice, whose power is in part derived from the ability to have any and all obstreperous comers of this small society surveilled, likes to be in the know about things that only the Garda, on the ground, can know. It jealously guards its cosy access to reports to the Minister such as that, “Deputy Wallace was on his mobile phone while driving” or that, “We arrested and cuffed Deputy Daly on suspicion of drink driving”. Most of the media crime correspondents depend on the Garda to the extent that the truth is unlikely to be their prime motivation when covering their travails.

However, the biggest reason for concern is that the conservative State knows far too much of the miserable accumulating failures of our law enforcement. It’s not just the obvious ones: the Dowra affair, phone-tappings and recordings, the Kerry Babies, or even Donegal. It’s all the others where the spotlight has never been shone. It is the appalling vista illuminated, in another context, by Leonardo Sciascia’s anti-detective novels.

David Langwallner

David Langwallner is a barrister at Great James Street Chambers London