Thursday 30 March 2017

Moves by Alan Shatter to quash parts of Guerin report opposed by author

Alan Shatter
Alan Shatter

Shane Phelan Legal Affairs Editor

Former Justice Minister Alan Shatter is to receive a declaration that his constitutional rights were breached by a report into garda whistleblowing allegations.

However, efforts by the former Fine Gael TD to have parts of the report quashed are being opposed by lawyers for its author, barrister Sean Guerin SC.

Mr Shatter resigned as justice minister in 2014 after the report found he had failed to heed concerns raised by garda whistleblower Maurice McCabe.

But a commission of investigation, headed by Mr Justice Kevin O’Higgins, subsequently found Mr Shatter had dealt with the concerns appropriately.

A three-judge Court of Appeal heard today there was a dispute between both sides as to what should happen following a ruling earlier this month that opinions critical of Mr Shatter in the Guerin report were reached in breach of his right to fair procedure as he was never asked to give his version of events.

Counsel for Mr Shatter, Paul Sreenan SC, said there was agreement between both sides on a declaration.

However, orders being sought by Mr Shatter for the quashing of conclusions, that the quashing order be given to Taoiseach Enda Kenny, and that Mr Guerin amend his report and deliver it to the Taoiseach, have been opposed by lawyers for the senior counsel.

Paul Anthony McDermott SC, for Mr Guerin, said the report could not simply be edited on the assumption the conclusions would remain the same.

He also said it was not within Mr Guerin’s power to amend the report.

His client had been asked to write a report by the Government, had delivered it, and was no longer in control of it.

The court heard that despite the O’Higgins findings, Mr Guerin’s report remains available on the Department of Taoiseach website and has not been edited.

“It is the Taoiseach who is in control of the report and it is the Taoiseach who would have to do anything. The Taoiseach is not in court,” said Mr McDermott.

“Our point all along is that Mr Shatter sued the wrong party. He should have sued the Taoiseach, but we lost that argument.”

Asked by Ms Justice Mary Finlay Geoghegan if this was a matter for Mr Shatter and Mr Kenny to work out, Mr McDermott said: “Yes. It is not for the court to get involved in outstanding issues between Mr Shatter and the Taoiseach.”

Mr Sreenan said the orders sought were necessary to address “an injustice” done to Mr Shatter. If they were not granted a “stain on his reputation” would remain on the public record, via the Department of Taoiseach website.

Ms Justice Finlay Geoghegan said she did not see any law which would allow for the quashing of parts of a report.

The president of the court, Mr Justice Sean Ryan, said it would be “a pyrrhic victory” for Mr Shatter if he obtained a declaration his rights were breached only for the report to remain in place.

He said the court would consider whether the orders should be granted and would deliver a ruling on the issue shortly.

The case revolved around a scoping report delivered to the Government by Mr Guerin in May 2014.

The report examined a series of allegations about the handling of cases in the Cavan/Monaghan division and how complaints about the conduct of investigations were dealt with.

Mr Shatter objected to the process in which the report was compiled, as he did not have an opportunity to respond in advance of the report’s publication.

He resigned as minister a day after the findings were published. Mr Shatter claims Mr Kenny told him he would not be able to express confidence in him.

But the O’Higgins commission subsequently found Mr Shatter had dealt with the complaints appropriately.

Mr Shatter blamed the Guerin report for the loss of his job and the subsequent loss of his Dáil seat.

He is seeking his costs and the costs of an earlier High Court case, but has not lodged any claim for damages.

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