Shatter to seek Guerin report changes after winning court battle
Published 11/11/2016 | 02:30
Former Justice Minister Alan Shatter is to seek orders for the amendment and deletion of parts of a report that criticised his handling of allegations by garda whistleblower Maurice McCabe.
The application will be made later this month after the Court of Appeal unanimously ruled Mr Shatter was entitled to a declaration that opinions critical of him in the report were reached in breach of his right to fair procedure.
The solicitor and former Fine Gael TD believes he lost his ministerial job and failed to get re-elected to the Dáil as a result of findings by barrister Sean Guerin SC that he had not sufficiently heeded complaints by Sgt McCabe.
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 its publication.
He resigned as minister a day after the findings were published. Mr Shatter claims Taoiseach Enda Kenny told him he would not be able to express confidence in him.
Retired High Court judge Mr Justice Kevin O'Higgins, who headed up a commission of investigation in the wake of the Guerin report, subsequently found that Mr Shatter had dealt with the complaints appropriately.
In a ruling yesterday, the President of the Court of Appeal, Mr Justice Sean Ryan, said Mr Shatter had established his constitutional rights were in jeopardy. The court president's findings were supported in separate rulings by Ms Justice Mary Finlay Geoghegan and Ms Justice Mary Irvine.
Mr Justice Ryan said Mr Guerin had been obliged to observe the rules of natural justice and should have given Mr Shatter the opportunity to respond prior to delivering the report. He said there was a breach of those rights "because of the defective procedure that was adopted" and Mr Shatter "is entitled to a declaration accordingly".
However, Mr Justice Ryan said he was not criticising Mr Guerin, who was under pressure to deal with "a large amount of documentary material under severe time constraint".
"It seems to me that he was in error, but in the overall context of what he had to do I am very far from personally critical of him," said Mr Justice Ryan.
Mr Shatter welcomed the ruling, telling the Irish Independent he had spent two-and-a-half years trying to clear his name.
The matter will return to the court later this month where submissions will be heard on "appropriate remedies" open to Mr Shatter.
His legal team is expected to seek the deletion of certain parts of the report and amendments to others. The former TD will also seek his costs for the appeal and an earlier High Court application for a judicial review, which he lost.
In his ruling, Mr Justice Ryan said it was clear Mr Kenny's withdrawal of confidence and Mr Shatter's response by resigning "happened because they considered that the statements in the report contained serious criticisms" of his performance as Justice Minister.
Mr Guerin's side had submitted that his report gave a narrative account of documents disclosed and an expression of opinion on these, rather than findings of fact. However, Mr Justice Ryan said Mr Shatter had made an "irresistible" argument that the report contained severe criticisms of him.