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Charleton tribunal hears draft letter on legal stretegy was written by Justice Department official

A draft letter from the Garda Commissioner to the Department of Justice about the legal strategy pursued by the commissioner at the O'Higgins inquiry was written by a Department official, the Charleton tribunal has heard.

The draft letter, which set out reasons why legal instructions and advice could not be published to preserve lawyer-client confidentiality, was apparently drafted in May 2016 by assistant secretary Ken O'Leary, Mr Justice Peter Charleton said today.

The instructions related to the commission of inquiry chaired by Judge Kevin O'Higgins, set up to look at allegations of garda malpractice made by garda whistleblower Sgt Maurice McCabe.

Tribunal chairman Mr Justice Charleton said it "would seem to be a somewhat empty exercise" for the Department to draft a letter which would then be sent to itself.

Former Justice secretary general Noel Waters, giving evidence to the tribunal, said there was a lot of back and forth in drafting letters to the department.

Peter Charleton.

"If you want to know what somebody thinks, you say 'what do you think?', as opposed to 'here's what you think'," the chairman said.

Mr Waters said there were concerns that a precedent might be set which would breach legal privilege, and there were discussions around how to deal with the issue.

The tribunal also heard that commissioner Noirin O'Sullivan had prepared a draft statement for Justice Minister Frances Fitzgerald to use in answering questions in the Dáil, and enclosed the legal advice she had received about Sgt McCabe at the O'Higgins Commission.

"You may choose to put this on the record in the house. If you do, I would request you state that I volunteered this document to you in the public interest," the commissioner wrote.

Mr Waters said he could not recall if he was aware at the time that the garda commissioner was in favour of publishing her legal advice.

Former Dept of Justice Secretary General Noel Waters disagreed with Michael McDowell SC that a historic allegation of sexual assault against Sgt McCabe was "common knowledge", saying that it wouldn't have been knowledge among many people, but he agreed that there was knowledge of the allegation in the department at the time the O'Higgins Commission was established.

The DPP had decided against prosecuting in the case in 2007, noting that there was no evidence an offence had actually occurred.

Mr Waters said he imagined that the allegation would have been known to then Minister Fitzgerald.

- Digital desk