Shatter v Guerin

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 26 February 2019
• Neutral Citation: [2019] IESC 9
• Date: 26 February 2019
• Court: Supreme Court
• Docket Number: Supreme Court Record No: S:AP:IE:2017:000051 High Court Record No: 2014/478 JR,[S.C. No. 51 of 2017]

Between

Alan Shatter

Applicant/Respondent

and

Seán Guerin

Respondent/Appellant

[2019] IESC 9

O'Donnell J.

McKechnie J.

Dunne J.

Charleton J.

O'Malley J.

Supreme Court Record No: S:AP:IE:2017:000051

Court of Appeal Record No: 2015/321

High Court Record No: 2014/478 JR

THE SUPREME COURT

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.

Appeal dismissed in part.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 26th day of February, 2019 .

Introduction/Background:

1 . Controversy of a public nature is never far from the surface in any state which practices democratic principles. Simmering for some time before taking rooted foothold, were allegations made by one Sergeant McCabe, then a member of An Garda Síochána, in which he questioned both the proper investigation and prosecution of crime in the Cavan area and elsewhere. His views in this regard were made known to the Commissioner and other senior management in the force. By way of a letter dated 23 ^rd January, 2012, he had made a complaint to the confidential recipient under An Garda Síochána (Confidential Reporting of Corruption or Malpractice) Regulations S.I. No. 168/2007 (“the 2007 Regulations”), in respect of the then Commissioner which because of his rank gave rise to the statutory reporting of the matter to the Minister for Justice and Equality (“the Minister for Justice”). Given the subject of the complaint and the obvious connection between justice and An Garda Síochána, the Minister and his department became very much involved in “the McCabe affair”. This led to the issues being discussed on several occasions in the Dáil, written copiously about in the newspapers and being debated intensely on the networks. Eventually on the 19 ^th and 21 ^st February, 2014, the Taoiseach of the day received a dossier compiled by Sergeant McCabe outlining the matters of concern and also a copy of the complaint letter which I have referred to. The response was swift and so began the events giving rise to this litigation.

2 . On the 25 ^th February, 2014, An Taoiseach addressed the Dáil, the first section of his speech reads as follows:-

“I am, however, acutely conscious that the scale of 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 S.C., to examine and assess all the relevant papers and recommend what further action might be taken.”

He continued by saying that if recommended, a Commission of Investigation would be established, and that the report would be laid before the Oireachtas and published.

3 . Some two days later the government announced the terms of reference for this inquiry, the salient features of which are as follows:-

At the conclusion of this assignment, a report to An Taoiseach was to be furnished.

• “(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 complied by Sergeant Maurice McCabe and furnished to An Taoiseach on 19 ^th February, 2014, and

  • (b) the letter understood to be from Sergeant Maurice McCabe to the confidential recipient, Mr. Oliver Connolly, dated 23 ^rd February, 2012, part of which was furnished to An Taoiseach on 21 ^st February, 2014.

• (2) To interview Sergeant 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 as 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 entity, into the incidents or 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 and, if so, the matters to be investigated.”

4 . The person who was nominated to conduct such an exercise, Mr. Seán Guerin, S.C., is a highly respected and experienced Senior Counsel, and although perhaps better known for his expertise in the field of criminal law, there is no doubt but that his knowledge extends much further and well beyond that particular area. On the 4 ^th March, he accepted the undertaking which had an indicative timeframe of eight weeks. In fact, he completed the task with admirable expedition,...