Crime Correspondent Paul Reynolds reports on details of the O'Higgins commission report into garda failures in the Cavan/Monaghan division.
The investigation focused on eight criminal investigations.
1. Chapter 4 - Attack on bus in Kingscourt Co Cavan, February 2007
The incident involved three men on a bus, who were very lewd and loud. They may have pinched a woman, there was a possible sexual assault. The woman didn't complain, but the female bus driver did; she was very upset, it was a nasty and serious incident.
The commission criticised the investigation into the possible sexual assault as “very poor”. The probationer garda decided to deal with the case by means of €150 compensation and a note of apology from the three men on the bus, which he gave to the female bus driver, and she withdrew her complaint.
The commission found that “her legitimate expectations” of having “the matter dealt with competently and professionally by the gardaí ... were not met”.
The commission found in this case that “Sergeant McCabe’s assertion that the incident involved an alleged sexual assault was not exaggerated, it is quite correct”, but that there was not a scintilla of evidence of corruption. “Due to inexperience” a probationer garda failed to realise the gravity of the situation.
2. Chapter 5 - Lakeside assault, April 2007
The incident involved an attack on a man in a nightclub. A suspect was arrested, charged, and subsequently acquitted.
The commission found that the investigation “was characterised by delay and error”. The garda, a probationer, received virtually no guidance from his supervisory sergeants as to how to further the investigation. He made mistakes and his manner of interviewing the suspect was inappropriate. In court, the accused man’s solicitor quite properly used this material to undermine the prosecution case during cross-examination.
The commission says Sgt McCabe correctly identified the deficiencies in the investigation and the steps necessary to rectify them. The Superintendent also tried “to salvage the prosecution” of the suspect who was charged but subsequently acquitted in court.
What did Sgt McCabe allege was wrong in this case?
However, Sgt McCabe also alleged “criminal conduct by the gardaí in the investigation”.
“The Commission is satisfied there was no evidence of crime [by gardaí] and the allegation of criminality was withdrawn.”
3. Chapter 6, murderer Jerry McGrath
The most serious questions in the report were raised in the case of convicted murderer Jerry McGrath, who had attacked taxi driver Mary Lynch, was released on bail, abducted a five-year-old child in Tipperary, and was bailed for a second time. McGrath then went on to murder Sylvia Roche Kelly.
The commission found that Mary Lynch was “the victim of a savage attack and only escaped far more serious injury through her own bravery and initiative”.
The inappropriate charge was brought against McGrath, who was only charged with minor assault. It found he should have been charged with a more serious offence.
The commission found: “The investigation ... was characterised by delay and lack of effective supervision of the investigating member”. It said there was inordinate delay in files being sent to the Director of Public Prosecutions, undated witness statements were furnished, and there was a failure to ensure Ms Lynch was in court when the case was disposed of.
However, it concluded “the case was ultimately presented in a professional fashion before a district judge who accepted jurisdiction”.
McGrath ended up in Tipperary where he was caught kidnapping a child – what happened then and what does the report say about the fact that he was given bail and therefore free to kill Sylvia Roche Kelly?
When McGrath came before the court on the child abduction charge “bail was objected to in strenuous terms by the gardaí in Tipperary”. The sergeant who “vigorously opposed” bail was not cross examined by the defence, but bail “was granted by the court having heard and considered those objections”.
The court had access to a psychiatric report on McGrath which gardaí didn’t see – the court released McGrath and he went on to murder Ms Roche Kelly
The commission found that “the approach of the gardaí in Tipperary was a reasoned and considered one”.
However the commission also said “this does not excuse the original misclassification of the Virginia assault” as a minor assault “and the lamentable failure to communicate within An Garda Síochána to ensure that accurate and relevant information is shared.”
The report found Lorcan Roche Kelly, Sylvia’s husband, “was left in the dark for an excessive period in relation to his request for information” and “deserved better treatment” from gardaí. He was “not well served” by GSOC either “by the fact that a considerable period of time elapsed in deciding who should investigate his complaints”. Certain aspects of the investigation are ongoing.
4. Chapter 7 Caffola case
The commission examined an incident at Cafola’s restaurant in Bailieboro where three men replaced the vinegar in a bottle with urine. They were subsequently convicted and fined €500 each which Ms Majella Cafola asked to be donated to the Garda Benevolent Fund.
The Commission criticised the investigation which is said was “characterised by delay and error” and found Ms Cafola was not well served by the gardaí.
What does the report say about Sgt Mc Cabe in this case?
The commission commended Sgt McCabe for his “diligence and commitment to duty in this case - without which this prosecution would have faltered.”
Sgt McCabe applied for the summonses in the case thereby making sure the men were charged in time and the case was not statute barred – the men were convicted of public order offences.
Confidential recipient letter
However, four years later in a letter to the confidential garda recipient (dated 23 January 2012) Sgt McCabe exaggerated the incident. He described it as “an endangerment involving the attempted poisoning of a young boy and his father”.
The Commission found that was not the case. It said “there was no evidence to support a contention that this file concerned a case of endangerment; there is no evidence of any attempted poisoning either of a young boy or his father.”
5. Chapter 8 Cootehill
A 17-year-old girl was walking home at 6am in September 2007 when a man walking behind her grabbed her shoulder and put his hand over her mouth. The girl struggled and escaped. She said: “I did not receive any injuries from this, just shock.”
A suspect was arrested, but was questioned for just 22 minutes, and was released. There was no prosecution.
The commission found the victim not well served by the investigation. There was no identity parade, and the interview was of poor quality. The investigating garda was not told by her colleagues that the victim’s father had reported two sightings of her assailant.
What does the report say about Sgt McCabe in this case?
The sergeant claimed an assault on the girl was a case of rape.
Mr Justice Kevin O’ Higgins, however, said: “This was not a rape investigation as was asserted by Sgt McCabe. This was exaggeration of both the evidence of the incident and the nature of the investigation”. He said there was no evidence either of an attempted rape or sexual assault disclosed in the victim’s statement.
6. Chapter 9 Dangerous Driving
In an incident at the Lakeside Manor Hotel in Virginia, Co Cavan, three men were thrown out of the hotel at 2.30am. They got into a car and drove at speed towards the entrance. Three people were hit and suffered minor injuries. One person was arrested, but there was no prosecution.
The commission agrees with an internal investigation which found that the injured parties and the public were not well served in this investigation.
What does it say about Sgt McCabe’s complaints?
It rejected his complaints in this case. He said other gardaí “did not investigate the incident or did not want to investigate it”. The commission said “this complaint is unfounded”, adding “the gardaí at Bailieboro did not show unwillingness to investigate the matter. On the contrary ...”
He also complained about his Superintendent Michael Clancy in this case. He alleged “Supt Clancy ... showed no interest at all in the case” and “refused to hold a conference” “three times”
The commission found however these allegations are without foundation and the supt “did not refuse on any occasion, still less three times”.
Mr Justice O’Higgins also said “At the Commission... he withdrew his complaint on this matter – no doubt welcome, late though it was.”
7. Chapter 10, Assault at Crossan’s pub in Bailieboro, Co Cavan on 23 May 2007
The case was investigated by a probationer garda. “Mr R” was attacked in the pub, sustaining injuries to his face and head. He was helped from the pub by a friend, and collected by his wife. He went to hospital two days later and was diagnosed with “minor head injury and concussion”.
Ten months later, two suspects were arrested. One was charged and remanded on bail at Monaghan District Court. The victim, however, later withdrew his complaint and the DDP directed that the charge be withdrawn. It later transpired the probationer garda encouraged the victim to withdraw his statement and the victim was misled in relation to the evidence in the case.
The commission found that “unfortunately in this instance” the trust the victim and his wife had in gardaí “was not justified”.
What does the report say about Sgt McCabe’s claims in this case?
Sgt McCabe was quite right to be suspicious of the fact that the complaint had been withdrawn. “It is clear from the evidence of Assistant Commissioner Derek Byrne that he considered Sgt McCabe’s complaints in this matter substantiated”. But it also found the details he submitted in his complaints were exaggerated and wrong. The commission found Sgt McCabe was “incorrect to say” that “an ambulance was called and that the injured party was rushed to hospital” that night. “He did not attend hospital until two days after the incident.”
It also pointed out that Sgt McCabe said the victims were linking a personal trauma to an assault but it later emerged that this was not the case, this trauma was not being linked to the investigation.
While the commission says Sgt McCabe was “never less than truthful in his evidence”, it also says that he lied during this case - or as the commission puts it “told ... this untruth” in a report to a senior officer.
On 3 March 2008 the sergeant “reported that a complaint had been made to GSOC” when the commission says he was aware that this was not the case”.
He told the commission that the reason for the untruth was that he felt that the victim and his wife had been badly treated and that he knew the reference to GSOC would ensure the matter would receive attention.
“While his concern was genuine and commendable” the commission said: “It was unacceptable to furnish false information in a report.”
8. Chapter 11, the Fr Molloy Case and the loss of a computer
Fr Michael Molloy was jailed in 2009 for sexually abusing a boy and sentenced to five years in prison. During the investigation a computer was seized, lost, never found.
The commission found the investigation was seriously flawed, but notwithstanding the flaws the culprit was convicted of serious offences.
Regarding the fact that the computer was never found, the commission said it was “quite unjustified” to believe it was “removed to protect Fr Molloy”, and there was no evidence to support a claim that it was stolen.
Sgt McCabe was the only person subjected to disciplinary proceedings for the loss of the computer, and the commission said “it is difficult to understand why” and “he was quite rightly exonerated”.
“Sgt McCabe formed the view that there may have been ‘a plot’ against him and that other members of the gardaí ‘went all out to blame him’”.
It said “It is understandable that he might feel aggrieved” and “there is no doubt that to be subjected to such a process was very stressful particularly having regard to Sgt McCabe’s long years of service,” but “there is no evidence to establish any concerted attempt to blame Sgt McCabe.”
What the commission concluded about policing in Bailieboro overall
The report identifies probationer gardaí as being the lead investigators in seven of the eight poorly conducted garda investigations and stresses that probationer gardaí, because they are at the early stage of their careers, are in need of constant supervision and management.
In some garda units in Bailieboro there were as many as five probationers.
The report says “It would be quite wrong to regard the investigations examined and criticised by the commission as indicative of the general quality of investigations in the Bailieboro district. To do so would be unfair to the gardaí in that district who have worked under the shadow of allegations for many years.”
It also finds: “Although this report is critical of individual gardai in specific investigations, it would be unfair to regard those criticisms as applicable to the quality of their work in general or to consider the actions criticised as typical of their performance.” That includes Sgt McCabe.
It also points out that a business case had been made in September of 2006 for a garda inspector to be appointed to Bailieboro, but this was not done until two years later – by which time all these crimes and deficient investigations had occurred.
The commission concludes that all these problems “would not have occurred or would have been rectified” if an inspector had been appointed to Bailieboro.
“It is very probable that many of the matters that are criticised by this commission would not have occurred or would have been rectified at an early stage if there had been an inspector in Bailieboro during the period with which the commission is concerned”.
