Sunday 4 December 2016

Shatter was deprived of fair procedures in Guerin report, court hears

Published 21/04/2015 | 12:56

Alan Shatter
Alan Shatter

Former Minister for Justice Alan Shatter was deprived of fair procedures in how barrister Sean Guerin made adverse conclusions against him concerning Mr Shatter's handling of complaints by Garda whistleblower Maurice McCabe, the High Court has been told.

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Mr Guerin failed to give Mr Shatter an opportunity to speak or to have his voice heard at all, the former Minister's counsel, Paul Sreenan SC, said.

The conclusions reached by Mr Guerin in his report of May 2014 attracted severe criticism of Mr Shatter and the confidence of the Taoiseach was impacted, counsel said. Mr Shatter as a result felt he had no alternative but to resign his position as Minister with serious adverse consequences for him.

Among Mr Shatter's complaints were that these conclusions were reached without Mr Guerin having interviewed Mr Shatter or giving him an opportunity to respond to the proposed findings, counsel said.

The approach taken by Mr Guerin meant there was no independent investigation of Sgt McCabe's complaints, he said.

Counsel was opening Mr Shatter's action aimed at quashing the disputed conclusions.

Mr Shatter, who is in court for the proceedings, secured leave last July to bring judicial review proceedings aimed at quashing certain conclusions of the Guerin Report. He claims that report rendered his position as Minister for Justice "untenable" and inflicted "severe and irreversible" damage on him in the political context,

The former Minister claims certain conclusions, and the procedure adopted in reaching them, caused him "severe reputational harm" as a public official and lawyer and "in the context of any position I may wish to take up in the future". In the political context, the damage was "severe and irreversible", he said.

Mr Shatter has alleged breach of fair procedures and natural justice by Mr Guerin in how he compiled his report in the period between March 4th and its publication on May 6th 2014 and in how that report reached conclusions critical of the Minister.

Mr Shatter had also alleged Mr Guerin's membership, while preparing his report, of a Bar Council Committee which criticised aspects of Mr Shatter's Legal Services Bill was among various factors giving rise to a reasonable apprehension of bias. Mr Shatter stressed he was not alleging actual bias.

The court was later told Mr Shatter was not pursuing the claim of reasonable apprehension of bias. 

Mr Shatter resigned on May 7th, a day after publication of the Guerin report. He claims he should have been given the opportunity to provide Mr Guerin with relevant information that would have assisted him on obtaining "a rigorously accurate understanding" of the events surrounding Sgt McCabe's complaints and Mr Shatter's approach to those. That information could have resulted in Mr Guerin not drawing the disputed conclusions, it is argued.

The disputed conclusions include that Mr Shatter did not cause Sgt McCabe's allegations to be investigated but accepted the Garda Commissioner's response to the Sergeant's complaints without question.

In his opposition to the proceedings, Mr Guerin has denied the claims.

Today, Mr Sreenan said the essence of this case was that Mr Guerin, in his terms of reference, was mandated by the Government to look into allegation of wrongdoing made by McCabe and to report back to the government whether there were matters of public concern justifying a commission of inquiry

When the report was submitted to the Government, it made conclusions which Mr Shatter argued, were regarded as findings of fact that impinged on his good name and arose from matters relating to how he was alleged to have performed or not performed his function as Minister.

It was known in advance the report was to be published as the Taoiseach had said so and the report contained adverse conclusions concerning Mr Shatter, counsel said.

The conclusions were taken publicly to be severely critical of Mr Shatter and the Taoiseach’s confidence was clearly impacted, counsel said. This was communicated by the Taoiseach to Mr Shatter who considered he had no alternative but to do the "proper and ethical" thing and resign his position.

These criticism were articulated in the report without giving Shatter any opportunity whatsoever to consider them or comment on them, counsel said.

It seemed Mr Guerin felt he must produce the report within eight weeks, counsel said.

Mr Guerin failed to interview Mr Shatter, he said. There was no doubt Mr Guerin had power to interview persons and had interviewed Sgt McCabe for some 19 hours on four separate occasions.

Mr Shatter was given no notice whatsoever that he intended to examine and pass judgment on his actions as Minister, counsel added.

Mr Guerin had also completed his report without having seen documents he had sought from the Garda Siochana Ombudsman Commission, counsel also said.

The case continues before Mr Justice Seamus Noonan.

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