Former Tánaiste and Labour TD Joan Burton said Garda Commissioner Nóirín O'Sullivan should " move to clarify the comments or statements made by her legal team" .

It comes after Ms O’Sullivan moved to address claims she instructed a barrister to “attack” Garda whistleblower Sgt Maurice McCabe’s motivation and character during private proceedings at the O’Higgins commission of investigation.

“I want to make it clear that I do not, and have never, regarded Sgt McCabe as malicious,” Ms O’Sullivan said in a statement on Monday night.

Ms Burton told RTE's Morning Ireland that the Commissioner's statement "is extremely helpful" but "but I believe she is not legally precluded from commenting. Lawyers are not witnesses. Statements to a commission are not evidence, so the prohibition does not apply."

Ms Burton said the Minister for Justice should also clarify the situation.

“If neither the Commissioner nor the Minister will comment when the Garda Authority should look at the matter.” she said.

Elsewhere Fianna Fail Justice spokesman Niall Collins TD, speaking on Newstalk Breakfast: said he accepted the Commissioner's stance on Section 11.

“People are turning this into a legal argument. Section 11 says the Commission shall be conducted in private and that it is an offence to disclose evidence. The law also requires that it be held in private.

“I think there is an internal issue there between senior Garda management that they will have to address. What disturbs me about all this is that the victims are not centre stage following the publication of the O’Higgins report, we seem to be having a national conversation about the fall out.

“To be fair to Noirin O’Sullivan, since she took over as Garda commissioner she has embraced the whole change agenda. We have to have the force and service victim centred.”

Not legally precluded from commenting

Independent TD Mick Wallace called on Commissioner O’Sullivan to clarify what instructions she gave her legal team in the O’Higgins Commission enquiry. “The question remains did she direct her legal team to say that Sgt McCabe acted with malice.

“There is very big difference between what she says in public and how she acts within the force.

“This is a serious problem. The Minister for Justice has to act. This needs a full Dáil discussion.

“The fact that Judge O’Higgins didn’t mention this in his report is alarming,” he told RTE Radio.

At the time of the hearing in autumn 2014, Ms O’Sullivan had made supportive comments about Sgt McCabe in public and asked him to join a Garda professional standards unit audit that was investigating some of his allegations about the termination of penalty points.

She said Sgt McCabe’s contribution was valued and that in general terms the Garda had changed for the better because of his complaints. She noted that “dissent was not the same as disloyalty”.

Mr Justice Kevin O’Higgins investigated allegations of inaction and corruption made against some gardaí in the Cavan-Monaghan division and senior officers leading the force at the time. He concluded many of Sgt McCabe’s allegations were borne out, though others were inaccurate or exaggerated.

The commission did not reach findings of corruption against Garda members and rejected a suggestion that Ms O'Sullivan's predecessor Martin Callinan had acted corruptly. The commission found former minister for justice Alan Shatter responded appropriately to Sgt McCabe's allegations.

Mr Justice O’Higgins also found many errors in the Garda’s investigation of serious crimes, noting that victims were let down.

In her statement on Monday night, Ms O’Sullivan said: “We are sorry the victims did not get the service they were entitled to, and we will seek to work with them.”

The Irish Examiner last week reported details of what it said were documents relating to the commission’s work. It claimed the documents showed that when Mr Justice O’Higgins asked the commissioner’s barrister whether “you are attacking [SGT MCCABE’S]motivation and attacking his character”, counsel for the commissioner replied: “Right the way through.”

The barrister is said to have explained he was acting on instruction in that regard. However, there was no mention of the exchange in the commission’s final report.