Sunday 17 December 2017

Ex-minister out for count after smackdown

SMACKDOWN: Former Minister for Justice, Alan Shatter pictured arriving at the Four Courts yesterday
SMACKDOWN: Former Minister for Justice, Alan Shatter pictured arriving at the Four Courts yesterday
Dearbhail McDonald

Dearbhail McDonald

A Smackdown, as the wrestling fans among you will know, is a decisive or humiliating defeat or setback.

It seems a particularly appropriate word to describe former Justice Minister Alan Shatter's resounding defeat yesterday in the High Court.

When he launched judicial review proceedings to quash parts of a report by Senior Counsel Sean Guerin on the handling of allegations by Garda whistle blower Sergeant Maurice McCabe, Mr Shatter alleged that Mr Guerin's conclusions gave rise to a reasonable apprehension of bias.

The hugely public allegation of bias by Mr Shatter caused consternation. It was viewed by many as a groundless and unjustified personal attack on Mr Guerin, a widely respected lawyer who recently acted as lead prosecutor in the Graham Dwyer murder trial.

The explosive allegation may have, as the High Court noted yesterday, had serious implications for Mr Guerin's career and reputation - and the integrity of his report - if it had any substance.

It had anything but.

The basis of Mr Shatter's allegation was the fact that Mr Guerin was a member of the Professional Practices Committee (PCC) of the Bar Council, the ruling body for barristers. Mr Shatter, the architect of the Legal Services (Regulation) Bill, initially complained that there could be a reasonable apprehension of bias because the PCC had openly opposed the bill. But he was forced to withdraw the allegation when it was pointed out that the PPC had no function whatsoever in relation to the bill. Its functions related solely to barristers' ethical conduct.

Mr Shatter, who was mistaken in his claim, quietly withdrew the allegation after four and a half months.

But, as Mr Justice Seamus Noonan noted yesterday, he did so without a hint of apology or regret, the withdrawal "grudging".

So unimpressed was Judge Noonan by Mr Shatter's "entirely unacceptable" approach to the bias issue, he said he would have exercised his discretion to quash the judicial review application on that basis alone.

That is a staggering finding against Mr Shatter, a former Justice Minister and, in the words of Judge Noonan, an "eminent lawyer".

But there is more.

Judge Noonan also found that the main focus of Mr Shatter's case was to prevent the Commission of Investigation - led by retired Supreme Judge Nial Fennelly - from investigating his role in relation to Sgt McCabe's complaints. Moreover, Judge Noonan found, Mr Shatter sought to mount a collateral attack on the commission. In a searing comment, Judge Noonan said that judicial review was intended to protect citizens against unjust attack, not to "facilitate the adoption of stratagems or tactical positions designed to achieve a different purpose".

There is no doubt that Mr Shatter paid a heavy personal, professional and political price when he resigned from the Cabinet in May 2014. Publication of the Guerin report may have been the tipping point, but his position was arguably untenable long before then, the crises engulfing the Department of Justice threatening to collapse the Government. But Irish society has paid a heavy price too: public confidence in policing and the administration of justice plummeted under Mr Shatter's watch.

Efforts to restore that confidence are fragile, unhelped by politico-legal smackdowns.

Irish Independent

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