Thursday 27 October 2016

High Court rejects Shatter challenge to Guerin report

Published 20/05/2015 | 10:58

Alan Shatter
Alan Shatter

A High Court judge has dismissed a challenge by former Minister for Justice Alan Shatter aimed at quashing certain parts of a report concerning his handling of allegations made by Garda whistleblower, Sergeant Maurice McCabe.

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Mr Shatter, in judicial review proceedings against barrister Sean Guerin, challenged 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.

A Commission of Investigation was set up by the Government earlier this year following publication of the report.

Today, Mr Justice Seamus Noonan rejected all grounds of the challenge.

Mr Guerin's report was in the nature of an expert opinion from an independent senior counsel obtained by the Government on foot of a contractual arrangement entered into, he said.

The report did not give rise to any justiciable controversy between the parries such as would permit Mr Shatter to seek judicial review, the judge said.

The judge also found the preliminary nature of the report did not attract the requirements of natural justice but, even if it did, there was in fact no denial of fair procedures to Mr Shatter.

The judge said he could not see how Mr Shatter, as a member of the Government that decided to obtain and publish the report, can complain of the consequences.

It was clear Mr Shatter was very dissatisfied with the report's contents and what he alleges was a denial of the opportunity to tell his story, the judge said.

However, that opportunity, with the full panoply of fair procedures, would be afforded him by the Commission of Investigation, the judge said.

Many, if not all, of the matters which form the basis of the complaints by Mr Shatter occurred as a result of "purely political decisions" of the government and indeed Mr Shatter himself, the judge added.

It was not the court's function to adjudicate on any of those matters having regard to the constitutional separation of powers.

It was clear from the evidence the principal focus of this case following its commencement was an attempt by Mr Shatter to prevent the Commission investigating his role in relation to Sgt McCabe's complaints, the judge said.

That was "now a fait accompli" yet Mr Shatter still seeks to curtail the investigation by undermining the conclusions on which it is based, he added.

The judge said he was of the view Mr Shatter seeks to mount a collateral attack on the Commission where a conscious decision was made not to join it, or the government, to the case. "That cannot be permitted."

The judge also criticised the "totally unwarranted" claim of bias made at the ex parte stage of the case against Mr Guerin by Mr Shatter. That claim  was later withdrawn.

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

Mr Guerin denied 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 included statements by Mr Guerin that the Minister accepted the response of the Garda 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 that 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.

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