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
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 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 19th February 2014 and
b) the letter understood to be from Sgt Maurice McCabe to the Confidential Recipient, Mr. Oliver Connolly, dated 23rd January 2012, part of which was furnished to An Taoiseach on the 21st day of February 2014.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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 Commissions of Investigation Act 2004 and, if so, the matters to be investigated.
8. At the conclusion of the aforesaid review, within eight weeks of 27th February, 2014 or so soon as may be thereafter, to deliver a Report to An Taoiseach on the matters set out at 1, 5, 6, and 7 above.’
Plainly, the terms of reference contemplated something more than the purely documentary review outlined by the Taoiseach on 25 February 2014, since it expressly contemplated that Seán Guerin S.C. (the appellant in the present appeal, but who, again, for ease of reference and consistency, I will call the respondent) would interview Sergeant McCabe and any other person considered necessary. However, such interview was in relation to the allegations made of deficiencies in relation to the investigation and prosecution of crime in a particular area of the country. In other words, the purpose of any such interview was to clarify, and perhaps amplify, any allegation. It does not appear that this reference was intended to instruct the respondent to conduct a full oral procedure in which allegations were put to individuals and their response tested. The principal focus of the investigation was directed to the treatment of the complaints made by Sergeant McCabe by An Garda Síochána. Insofar as the Department of Justice was concerned, the sole reference to it was as part of point 3 of the terms of reference, and the requirement was to examine ‘all documents and data’. There was no reference to the applicant, either personally or in his capacity as Minister. In broad terms, therefore, the thrust of the terms of reference appeared sequential: essentially, the respondent was required to review the investigations; consider whether there was a sufficient basis for concern in relation to the steps taken to investigate the complaints; and advise on any further...
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