Wednesday 26 October 2016

Court reserves decision in action taken by former Justice Minister Alan Shatter

Tim Healy

Published 23/04/2015 | 17:52

Alan Shatter
Alan Shatter

A DECISION will be given later in a High Court action by former Minister for Justice Alan Shatter aimed at quashing certain parts of a report concerning his handling of allegations made by garda whistle blower, Sergeant Maurice McCabe.

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Having heard closing arguments from both sides Thursday, Mr Justice Seamus Noonan said he was reserving judgment.

Mr Shatter was in court throughout the three day hearing.

In the judicial review proceedings against barrister Sean Guerin, Mr Shatter wants orders quashing certain sections of the May 2014 report compiled by Mr Guerin after his review of the handling by the relevant public bodies of Sgt McCabe's allegations.

Mr Shatter claims Mr Guerin made a number of "highly critical" findings concerning the then Minister's handling of those allegations, leaving Mr Shatter with no alternative but to resign as Minister on May 7, 2014, the day after the report was published.

Mr Guerin denies any unfairness in his report or in the manner in which he carried out his review and said his report contained "observations", not conclusions, based on documents provided for the review by the Department of Justice.

The disputed aspects of the report include statements by Mr Guerin the Minister had accepted the response of the Commissioner to the McCabe complaints “without question”.

The report also said the process of determining Sgt McCabe’s complaints went no further than the Minister receiving and acting upon the advice of the then Garda Commissioner Martin Callanan, “the very individual who was the subject of the complaint”.

Mr Guerin said his “observation” in the report there was no independent investigation of Sgt McCabe’s complaints was “an objective description” of the relevant information voluntarily provided by the Minister through his department.

Closing the case for Mr Shatter, Patrick O'Reilly SC said the former Minister was given no notice by Mr Guerin that "conclusions" “impacting heavily” on his good name would be reached in this “unfair” report.

The report was “clearly critical” of Mr Shatter whose good name had been “besmirched” without his being given an opportunity to respond, counsel argued.

Mr Guerin gave Mr Shatter no opportunity to address various unresolved issues identified in his report and should have written to Mr Shatter in advance of publication of the report indicating the views he had reached, counsel said.

A Commission of Investigation set up by the Government earlier this year following publication of the report has no jurisdiction to set aside the disputed findings and cannot rectify the failure to accord fair procedures to Mr Shatter, he submitted.

Mr Shatter had never sought to restrain the work of the Commission, counsel also said.  While Mr Shatter had concerns about being faced with such a Commission, he never sought to challenge its establishment.

Earlier, in closing submissions for Mr Guerin, Paul Gallagher SC said documents provided by the Department of Justice to Mr Guerin showed Sgt McCabe made complaints from 2011 and by March 2014 “nothing material” had been done.

The disputed “observations” by Mr Guerin concerning the former Minister's handling of the McCabe complaints were based on those documents which "speak for themselves”.

Mr Shatter, an experienced lawyer, could have been under no misapprehension as to the purpose of those documents being provided to Mr Guerin, counsel said.  

This case was about Mr Shatter saying that Mr Guerin, instead of setting out the materials and making his comments, should have merely stated he was recommending a commission of investigation into the matters, Mr Gallagher said.

The fundamental issue was the entitlement of the Government to get advice from a private professional without the need for that person to carry out some sort of mini-investigation, counsel argued.

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