Shatter v Guerin
 IESC 9
An Chúirt Uachtarach
The Supreme Court
O'Donnell Donal J.
O'Malley Iseult J.
Terms of reference – Disclosure – Fair procedures – Appellant seeking to appeal against Court of Appeal order – Whether the respondent’s claim was justiciable in the circumstances in which and/or at the point in time at which it was initiated
Facts: The respondent/appellant, Mr Guerin, delivered a comprehensive report on 6 May 2014, entitled “A review of the action taken by An Garda Síochána pertaining to certain allegations made by Sergeant Maurice McCabe” (the Guerin Report). The Guerin Report recommended the establishment of a commission of investigation and identified certain issues to be investigated. A commission of investigation was established thereafter, and O’Higgins J was appointed to it (the O’Higgins Commission). Proceedings were commenced on 30 July 2014, almost 3 months after delivery of the report, and leave to seek judicial review was granted by the High Court (Baker J) on that day. Thereafter, the terms of reference of the O’Higgins Commission were finalised.
The applicant/respondent, Mr Shatter, through his solicitors, engaged in correspondence, in the first place with the Taoiseach, and also with the Ceann Comhairle, contending that pending the determination of the proceedings, it was not permissible to include the terms of reference, since it was contended that if the proceedings were successful, the legal basis for such an inquiry would fall away. In relation to the Oireachtas, it was also contended that the subject matter of the report could not be the subject of debate because of the principle of the separation of powers, and the fact that proceedings were then pending in the courts. In the event, however, the O’Higgins Commission was established, and reported in due course.
O’Higgins J’ report (the O’Higgins Report) exonerated the applicant from any criticism in respect of his dealings with the complaints made by Sergeant McCabe. The applicant pointed to that fact as illustrating the substantive merit of his complaints in these proceedings. If the respondent had given him the opportunity afforded to him by O’Higgins J, then, the applicant argued, the respondent would have come to the same conclusion, in which case he would not have made the comments challenged, or, indeed, would not have come to the conclusion that there was sufficient cause for concern to establish a commission of investigation, and the applicant would not have resigned, bringing to an end his ministerial career. The High Court dismissed the applicant’s claim on all grounds. The Court of Appeal allowed the appeal, agreeing as to the result, but with significant differences of approach and emphasis. Their views also diverged on the question of the appropriate remedy. In the event, the court made declarations that the conclusions in the Guerin Report which were critical of the applicant were reached in breach of fair procedures and constitutional and natural justice, but refused to make the further orders requested by the applicant, which included certiorari of the conclusions, an order requiring the respondent to deliver to the Taoiseach a copy of the report, and an order requiring the respondent to amend the report and deliver the amended copy to the Taoiseach. The Supreme Court granted leave to appeal on the following grounds: (a) whether Mr Shatter’s claim was justiciable in the circumstances in which and/or at the point in time at which it was initiated; (b) the applicability and scope of fair procedures and constitutional justice to the task of the kind undertaken by Mr Guerin, and the nature of the requirements imposed thereby; (c) whether or not the duty to make a full disclosure when seeking leave for judicial review continues to have force as a legal principle, and if so was it breached in this case by the allegation of bias against Mr Guerin.
Held by O’Donnell J that he would substitute for the order of the Court of Appeal the limited declaration that the respondent’s conclusions at paras. 19.95. 19.96, 19.100, 19.101 and 20.11 were outside the scope of the terms of reference.
O’Donnell J held that he would otherwise dismiss the appeal. Dunne J, Charleton J, O'Malley Iseult J concurred with Charleton J also handing down a judgment.
Appeal dismissed in part.
1 At para. 79 of his judgment in these proceedings, the learned President of the Court of Appeal refers to passage from the judgment in In re Haughey , which must be among the most commonly quoted passages in Irish law in the last half-century:-
‘[i]n proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution the State, either by its enactments or through the Courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.’
The breadth of citation is a testament to the fundamental nature of the proposition established in that famous case. But the fact that the passage has been subject to citation, discussion and analysis in so many cases in the almost 50 years since it was delivered is perhaps also an indicator of the enduring difficulty of applying the fundamental principles identified there in the many different circumstances in which an issue may arise. The present case poses further novel issues for resolution, which are of obvious significance for the participants in the case, but also of more general and widespread importance for the development of public law.
The background facts are well known, and have been set out in the careful judgments of the High Court and the respective judgments delivered in the Court of Appeal. Accordingly, a relatively truncated summary will, I hope, suffice for the purposes of deciding the legal issues which remain in controversy in this case.
The applicant for judicial review, Alan Shatter (who is the respondent to this appeal, but who, for consistency, I will call hereafter the applicant) is a well-known solicitor who had a successful political career. As of February 2014, he held office as Minister for Justice in the government. At the time, there was considerable public controversy about allegations made by a member of An Garda Síochána, Sergeant Maurice McCabe, and the manner in which those allegations and complaints had been dealt with. In February 2014, a volume containing complaints made by Sergeant McCabe was furnished by Micheál Martin, T.D., the leader of the opposition, to the then Taoiseach, Enda Kenny, T.D. On 25 February 2014, the Taoiseach made a statement to the Dáil during which he stated:-
‘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 Seán 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.’
A number of things might be noted at this stage. The manner in which the issue arose, and the statement made by the Taoiseach, are indicators of the scale of public discussion and the seriousness with which it was viewed. The procedure anticipated was intended to be quick and effective. It was to be conducted by an objective, independent person, who in this case held the rank of senior counsel. Its function was to examine all relevant papers, and to recommend further action. If such action (that is, the establishment of a commission of investigation) was recommended, it would be implemented. Finally, it was clearly anticipated from the outset that the report would be laid before the Oireachtas and published.
Two days later, the government published the terms of reference of what it announced as the ‘Guerin Inquiry’. While broadly consistent with what had been indicated to the Dáil, the terms of reference were much more detailed and precise. It is desirable to set them out in full in the terms in which they were announced:-
‘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
1. 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...
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