Tuesday 6 December 2016

Guerin denies he 'passed judgement' on former justice minister Shatter

Published 22/04/2015 | 12:53

Alan Shatter
Alan Shatter

BARRISTER Sean Guerin has denied that he “passed judgement” on former Minister for Justice Alan Shatter in a report concerning the handling of allegations made by Garda whistleblower Sergeant Maurice McCabe.

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In proceedings aimed at overturning disputed aspects of the report, including an alleged conclusion the former Minister did nothing about Sgt McCabe’s allegations, Mr Shatter claims he was deprived of fair procedures by Mr Guerin and was left with no alternative but to resign following publication of the report in May 2014.

In an affidavit read to the court today, Mr Guerin said what he had done in his report was to record the contents of documents provided by the Department of Justice among others and to express an opinion as to whether concerns arose given those contents.

A statement in his report that the then Minister had accepted “without question” the response of the Garda Commissioner to the complaints of Sgt McCabe was based on the information provided by the Department of Justice, he said.

His report had not commented on the personal actions of Mr Shatter but on the performance of his ministerial functions as a corporation sole charged with the performance of certain executive functions of the State, Mr Guerin said.

His report noted there was no written record of any submission made or advice received by the Minister and his officials and had stated “the review is unable to shed any light on the reasons for the approach adopted by the Minister in the exercise of those functions”. That is as far as the report goes, Mr Guerin said.

The publication of the report by the Government may, as Mr Shatter asserts, have had political consequences but that was a different matter arising from a separate decision of the Government and/or Taoiseach, he said.

If the Taoiseach of the day cannot obtain an opinion on the performance of executive functions and then publish that as part of the political process without engaging in the full panoply of fair procedures that apply in a commission of investigation, that would represent “a very serious limitation” on the Taoiseach’s ability to address issues of public concern relating to the executive, Mr Guerin said.

He also rejected complaints by Mr Shatter that he had not “directly” communicated with the former Minister when preparing his report. 

Mr Guerin said he had communicated with Kevin Clarke, an official in the Department of Justice nominated by the then Minister as a point of contact for Mr Guerin for his review.

The purpose of asking the Minister to nominate a point of contact was precisely to facilitate contact with him in his official capacity and he considered his contact with Mr Clarke to be contact with Mr Shatter in his official capacity as Minister, Mr Guerin said.

He rejected suggestions there was an onus on him to ensure his correspondence with Mr Clarke was brought to the then Minister’s attention.  Mr Guerin said he had no reason to believe the Minister was not kept fully informed of such correspondence.

Given the importance of the matter at issue as emphasised by the Taoiseach in the Dail in February 2014, it was “more than a little surprising” that Mr Shatter did not keep himself informed of the correspondence, he added.

In his affidavits, Mr Shatter said Mr Guerin had made findings critical of the performance of his Ministerial functions and should have accorded Mr Shatter fair procedures. The failure to do so rendered the disputed findings “fundamentally flawed”, he said.

Mr Guerin had reached adverse findings that he, Mr Shatter, did nothing and had accepted the position of the Garda Commissioner concerning Sgt McCabe’s allegations, he said. He was entitled to an opportunity to respond to that.

That conclusion was based on a “misreading” by Mr Guerin of advice which he, as Minister, and sought and received from the Attorney General, Mr Shatter said. He believed that misreading had informed Mr Guerin’s conclusion.

The advice had specifically recommended that Sgt McCabe’s allegations should be dealt with in a manner entirely opposite to the approach later recommended by Mr Guerin, he added.

This conclusion was widely reported in the media and was seen as an adverse finding of fact made against himself personally and not just as Minister for Justice, Mr Shatter said.

Mr Shatter also said there was an inevitable delegation of certain functions within his department to officials. In regard to this matter, what the nominated point of contact had done was to provide documents sought by Mr Guerin.

Mr Guerin should have notified him of any concerns that he had concerning performance of ministerial functions and given him an opportunity to respond, Mr Shatter said. He had not anticipated that Mr Guerin would “stray beyond” the task allocated to him.

Another concern was that Mr Guerin had completed his report without reviewing documents which he had sought, but not yet received, from the Garda Siochana Ombudsman Commission, Mr Shatter said.

In submissions, Paul Sreenan SC, with Patrick O'Reilly SC, for Mr Shatter said there was a "contradiction" in Mr Guerin's response to the proceedings.

On the one hand, Mr Guerin seemed to argue his task was just to review documents and not make findings of fact but on the other hand he seemed to consider his function was to address the carrying out of the Minister's statutory functions, counsel said. Mr Guerin had said it was "integral" to his function that he consider the appropriateness of steps taken by relevant public bodies, including he Minister.

Mr Guerin did make findings of fact including that Mr Shatter had failed to properly carry out his statutory functions and failed to heed the voice of Sgt McCabe, counsel said.

Meanwhile, the High Court also heard the former minister urged that issues about a report into his handling of allegations by a garda whistleblower not be investigated by a proposed Commission of Investigation pending the outcome of legal proceedings.

Mr Shatter made the request in a letter to the Taoiseach and Ceann Comhairle.

Correspondence from Mr Shatter and his lawyers, and replies, was read during the hearing of Mr Shatter's judicial review challenge aimed at quashing parts of the report of barrister Sean Guerin concerning Mr Shatter's handling of whistle blower Sergeant Maurice McCabe's allegations.

Mr Shatter claims Mr Guerin breached fair procedures in how he reached allegedly adverse conclusions which, it is claimed,  left the then Minister with no option but to resign the day after the report was published on May 6, 2014.

Paul Gallagher SC, for Mr Guerin, read correspondence from Nick Reddy, private secretary to Taoiseach Enda Kenny, which showed the former minister was concerned about the terms of reference of the proposed Commission. 

He believed they might include matters in Mr Guerin's report concerning Mr Shatter's conduct of his statutory function as Minster for Justice.

Mr Reddy said the decision to establish a Commission was for the Government to make and neither the content of Mr Guerin's report, described by Mr Reddy as "a scoping exercise", nor how he carried out that report, could have a bearing on the Commission's investigation.

The Commission process was "wholly independent" and the Government intended to proceed with its establishment, he added

Mr Shatter's solicitors replied on November 17 last stating, should the issues concerning Mr Shatter raised by Mr Guerin form part of the Commission's terms of reference, or the matters of public concern to be investigated, that would amount to "unlawful and unjustifiable" trespass on court proceedings. 

It would be "bizarre" and "Kafkaesque" if Mr Shatter was forced to become involved with a Commission arising from conclusions in a report which he was challenging, they said.

The Government had on November 19 approved a draft order for a Commission and attached the terms of reference.

Those terms directed the Commission to investigate a range of matters including the investigation by the Garda, and Minister for Justice, of complaints by Sgt McCabe related to nine specified incidents, including a garda investigation into an April 2007 assault on tax driver Mary Lynch in  Co Cavan.

The court heard Mr Shatter and his lawyers wrote to Ceann Comhairle Sean Barrett seeking to raise his concerns in the Dail about the remit of the Commission.

The Ceann Comhairle replied on January 27 to solicitors for Mr Shatter there was no provision for the Dail to amend or delete the Commission's terms of reference.

The case continues.

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