Alan Shatter v Sean Guerin
 IEHC 301
THE HIGH COURT
2014/478JR - Noonan - High - 20/5/2015 - 2015 IEHC 301
Corruption – Malpractice – Infringement of reputation – Bias – Order of certiorari – Order of mandamus.
Facts: The applicant sought for an order of certiorari quashing the conclusion in the impugned report and sought order of mandamus to delete the report. The applicant further sought declaration that the respondent in reaching the conclusion breached fair procedures, constitutional and natural justice. The applicant claimed that the drawing of the conclusions was ultra vires the powers conferred on the respondent. The respondent averred that the report was generated as result of an expert professional opinion which was not amenable to judicial review. The respondent contended that the report did not make any findings of fact or law but merely expressed opinions and therefore, it did not attract the principles of fair procedures and natural justice.
Mr. Justice Noonan held that the application for an order of certiorari quashing the conclusion in the impugned report and order of mandamus to delete the report would be denied. The Court dismissed the application. The Court observed that the facts would not give rise to any justiciable controversy worthy enough to invoke judicial review; in fact no denial of fair procedures would be established. The Court stated that the opinion rendered in the report was in the nature of a contractual arrangement privately entered into between two parties.
1. The applicant is the former Minister for Justice and Equality. He resigned that office on the 7 th May, 2014. On the 6 th May, 2014, the respondent fomlshed a report to An Taoiseach on a review of the action taken by An Garda Síochána pertaining to certain allegations made by Sergeant Maurice McCabe ("the Report"). The applicant alleges that the Report contains what are described as "conclusions" and "findings" which are critical of him in his ministerial capacity and which have caused significant damage to his political, professional and personal reputation.
2. The applicant claims that these conclusions and findings were arrived at by the respondent without according fair procedures to the applicant. In these judicial review proceedings, the applicant claims the following reliefs:
An order of certiorari quashing the relevant conclusions.
An order of mandamus directing the respondent to delete those conclusions from the report.
A declaration that the respondent reached those conclusions in breach of fair procedures, constitutional and natural justice.
A declaration that the drawing of the conclusions by the respondent was ultra vires the powers conferred on him under the relevant terms of reference.
3. Sergeant McCabe became a member of An Garda Síochána in August, 1985, attaining the rank of sergeant in January, 2000. Between October, 2004 and March, 2008, Sergeant McCabe was the sergeant-in-charge at Bailieboro Garda station. Towards the end of that period, Sergeant McCabe became concerned in relation to a range of issues including the manner in which certain incidents were investigated and dealt with by colleagues in the force.
4. These concerns ultimately became the subject of complaint by Sergeant McCabe to a number of different parties including his superiors in An Garda Síochána, the Department of Justice and Equality ("the Department"), the Garda Síochána Ombudsman Commission ("GSOC") and the Garda Síochána Confidential Recipient ("the Confidential Recipient").
5. Sergeant McCabe's interaction with The Department appears to have commenced on the 23 rd March, 2009, when he sent an email to the applicant's predecessor, the then Minister for Justice, Equality and Law Reform ("the Minister"). In that email, Sergeant McCabe made a complaint about the conduct of an internal Garda investigation in relation to malpractice and corruption in Bailieboro Garda District and about comments made by a senior Garda officer in the press in relation to that investigation. Sergeant McCabe asked the Minister to provide an independent party to oversee the investigation. There was intermittent contact between the Department and Sergeant McCabe and his solicitors over the next few years. On the 4 th September, 2012, Sergeant McCabe's solicitors wrote to the Minister raising a number of issues and enclosing three volumes of documents setting out details of Sergeant McCabe's complaints. The first of those volumes contained details of ten different incidents which Sergeant McCabe felt were of a serious nature and matters of public concern.
6. On the 19 th February, 2014, this volume was furnished to An Taoiseach by Mr Micheál Martin TD. On the 21 st February, 2014, a further document was furnished to An Taoiseach which is described as part of a letter understood to be from Sergeant McCabe to the Confidential Recipient dated the 23 rd January, 2012.
7. On the 25 th February, 2014, An Taoiseach made a statement in the Dáil in relation to the matter. He referred to the material given to him by Mr Martin which contained very serious allegations against members of the Gardaí, many of which had been published in the media. An Taoiseach said:
"I am, however, acutely conscious that the scale of the public discussion around these matters could have implications for confidence in the administration of justice in our country. There is a need to address these concerns and put in place a process that can do so quickly and effectively. For that reason, the Government has asked an independent and objective legal expert, Mr Sean Guerin SC, to examine and access all the relevant papers and recommend what further action might be taken. If he recommends that a Commission of Investigation should be established, it will be done. The terms of reference for this work are currently being finalised. The report, which we hope will be completed before the Easter recess, will be laid before the Oireachtas by me and published. I believe this is a prudent way to proceed in view of all the comments, allegations and documents that surround these matters."
8. On the next day, the 26 th February, 2014, the applicant made a statement in the Dáil and answered questions from Deputies, to which I shall refer further.
9. On the 27 th February, 2014, the following appeared on the website of the Department of An Taoiseach, www.taoiseach.gov.ie:
"27 February 2014"
Government announces terms of reference for Guerin inquiry
The Government has appointed Mr Sean Guerin SC to conduct the independent inquiry into allegations made by Garda Sergeant Maurice McCabe and related matters. The Terms of Reference for the Inquiry were agreed by the Government today, on the advice of the Attorney General. They are as follows.
Terms of Reference
To conduct an independent review and undertake a thorough examination of the action taken by An Garda Síochána pertaining to certain allegations of grave deficiencies in the investigation and prosecution of crimes, in the County of Cavan and elsewhere, made by Sergeant Maurice McCabe as specified in:
a) The dossier compiled by Sgt Maurice McCabe and furnished to An Taoiseach on the 19 th February 2014 and
b) The letter understood to be from Sgt Maurice McCabe to the Confidential Recipient, Mr. Oliver Connolly, dated 23 rd January 2012. part of which was furnished to An Taoiseach on the 21 st day of February 2014.
To interview Sgt Maurice McCabe and any other such person as may be considered necessary and capable of providing relevant and material assistance to this Review in relation to the aforesaid allegations and to receive and consider any relevant documentation that may be provided by Sergeant McCabe or such other person.
To examine all documentation and data held by An Garda Síochána, the Department of Justice and Equality, and any other entity or public body as is deemed relevant to the allegations set out in the documents at 1(a) and (b) above.
To communicate with An Garda Síochána and any other relevant entity or public body in relation to any relevant documentation and information and to examine what steps, if any, have been taken by them, to investigate and resolve the allegations and complaints contained in the documentation referenced at 1(a) and (b) above.
To review the adequacy of any investigation or inquiry instigated by An Garda Síochána or any other relevant entity or public body into the incidents and events arising from the papers furnished at 1(a), 1(b) and 2 above.
To consider if, taking into account relevant criminal, civil and disciplinary aspects, there is a sufficient basis for concern as to whether all appropriate steps were taken by An Garda Síochána or any other relevant entity or public body to investigate and address the specified complaints.
To advise, arising from this review, what further measures, if any, are warranted in order to address public concerns including whether it is considered desirable in the public interest for the Government to establish a Commission of Investigation pursuant to the...
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