Tuesday 19 September 2017

Supreme Court asked to hear appeal against Alan Shatter's successful challenge to Guerin report

Former Justice Minister Alan Shatter. Picture: Collins
Former Justice Minister Alan Shatter. Picture: Collins

Tim Healy

Barrister Sean Guerin has asked the Supreme Court to hear an appeal against Alan Shatter's successful challenge to sections of his report concerning the former Justice Minister's handling of complaints of Garda whistleblower Sgt Maurice McCabe.

A three judge Supreme Court, comprising the Chief Justice, Ms Justice Susan Denham, Mr Justice Donal O’Donnell and Ms Justice Iseult O’Malley, will decide on a later date whether to hear Mr Guerin’s appeal.

An appeal to the Supreme Court can only be heard if it considers the matter raises issues of general public importance or an appeal is necessary in the interests of justice.

Mr Guerin wants to appeal a Court of Appeal decision last November granting Mr Shatter's appeal against the High Court's rejection of his challenge, brought against Mr Guerin only, to the May 2014 Guerin report commissioned by the government.

The COA held Mr Shatter’s constitutional rights were in jeopardy by reasons of "seriously damaging" conclusions Mr Guerin was proposing to include in his report and Mr Shatter should have been let respond before the report was given to the Taoiseach who later published it. 

It declared the disputed findings were reached in a manner that breached Mr Shatter's rights to fair procedures and natural and constitutional justice but declined his application to quash them, saying that was a matter for negotiation between Mr Shatter and the government that commissioned the report. If Mr Shatter is dissatisfied with the government's response to the court's findings, he can return to the court, it added.

In arguments on Wednesday seeking a Supreme Court appeal, Paul Gallagher SC, for Mr Guerin, argued the case raises issues of general public importance, the COA findings went "way beyond" the facts of this case and have "much broader significance".

The issues include whether this report could ever have been subject to judicial review when Mr Shatter was a member of the government which sought the report from Mr Guerin, a private citizen, with a view to deciding whether to set up a commission of investigation, he said.

The case raised issues concerning the "intersection between law and politics" and whether Mr Shatter was entitled to go to court to mount a "collateral attack" on the commission.

Other issues concerned the scope of requirements of fair procedures and natural and constitutional justice in relation to a report which was essentially part of a "preliminary exercise".

There were also issues whether Mr Shatter had to be notified of the report's contents concerning him when his Department was the contact point for Mr Guerin in preparing his report. A further issue concerned Mr Shatter having raised a "completely false" claim of objective bias against Mr Guerin when seeking leave for judicial review, which claim was later withdrawn.

Paul Sreenan SC, for Mr Shatter, opposed the application, argued no issue of general public importance arose and Mr Guerin was seeking to relitigate the entire case.

The Court of Appeal made clear its decision was based on the particular facts and objective meaning of the words in the report and not on political considerations or consequences, he said.

The principles of fair procedures and natural and constitutional justice are well established and no important issue arose in concerning their applicability to non-statutory inquiries, he said. The "important thing" was this report was critical of Mr Shatter and the rules of natural justice were not observed. 

Mr Shatter, like all citizens, is entitled to go to court to seek to protect his good name, counsel said. It was relevant the decision to establish a commission of inquiry had not been taken when Mr Shatter took his case, Mr Shatter had fully co-operated with the commission and that issue did not arise.

Mr Shatter's allegation of objective bias against Mr Guerin arose due to a "misunderstanding", was withdrawn when Mr Shatter realised it was a mistake and could not be raised as a matter of general public importance, he said.

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