Shatter v Guerin

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan,the President
• Judgment Date: 10 November 2016
• Neutral Citation: [2016] IECA 318
• Date: 10 November 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 318 [2015 No. 321] Appeal No. 2015/321 [2014 No. 868]

BETWEEN

ALAN SHATTER

APPLICANT/APPELLANT

AND

SEAN GUERIN

RESPONDENT

[2016] IECA 318

Neutral Citation Number: [2016] IECA 318

[2015 No. 321]

Appeal No. 2015/321

[2014 No. 868]

THE COURT OF APPEAL

CIVIL

Administrative & constitutional law – Judicial review – Allegations of serious Garda misconduct – Report submitted by Senior Counsel – Appeal against dismissal of appellant's claim

Facts: The appellant, a former Minister for Justice and Equality inter alia, sought judicial review of a report submitted to the Taoiseach. The report, prepared by the respondent in his capacity as Senior Counsel, detailed the allegations put forward by Sergeant Maurice McCabe. The appellant contended the report failed to give him any opportunity to reply to allegations made against him in that report. The High Court had dismissed his application, and the matter now came before the Court of Appeal.

Held by President Ryan, the other Justices concurring and giving judgments, that the appeal would be allowed notwithstanding the Court's sympathy with the demands placed on the respondent in preparing the report. The appellant had established that he was entitled to protection of his constitutional rights and respect for the rules of natural justice. The procedure adopted by the respondent in the preparation of his report was flawed, and on that basis the parties were invited to make submissions on the appropriate orders for relief. John v Rees [1969] 2 WLR 1294 considered.

JUDGMENT of the President delivered on 10th November 2016

Introduction

1 This is an appeal against the dismissal by the High Court of the application by Mr. Alan Shatter for judicial review of a report to the Taoiseach concerning the handling of allegations made by Sergeant Maurice McCabe about Garda misconduct. The applicant is the former Minister for Justice and Equality who resigned on the presentation of the report following consultation with the Taoiseach. The respondent is a Senior Counsel and the author of the report, which he produced at the request of the Government. Mr. Shatter's case essentially is that the report contains damaging findings and conclusions about him that Mr. Guerin included without giving him any opportunity to rebut or make reply. The Minister resigned from the Government on 7th May 2014, also relinquishing his other portfolio as Minister for Defence. Noonan J. delivered his judgment in the High Court on 20th May 2015.

2 On 27th February 2014, the Government announced its decision to hold a review into the allegations made by Sergeant McCabe and related matters. The respondent, a well-known and respected Senior Counsel experienced in criminal law, agreed to review and examine the handling of the complaints by the Garda authorities and other public bodies including the Department of Justice and Equality, of which the applicant and appellant Mr. Shatter was Minister. The terms of reference of the project that Mr. Guerin undertook were agreed by the Government on the advice of the Attorney General. The first reference is as follows:

'1. To conduct an independent review and undertake a thorough examination of the action taken by An Garda Siochana 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 Sergeant Maurice McCabe and furnished to An Taoiseach on 19th February 2014 and b) the letter understood to be from Sergeant 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.'

3 Among the tasks to be considered was whether there was a sufficient basis for concern as to whether the Gardaí or any other public body had taken all appropriate steps to investigate the Sergeant's complaints. Mr. Guerin also had to advise as to further steps that might be warranted, including the desirability of a Commission of Investigation under the 2004 legislation of that name. He was to complete his work within eight weeks, which time span could be extended if necessary, but the specified period would be a yardstick so it was not open to Mr. Guerin to embark on a process that would greatly exceed the time allowed.

4 It is clear that the focus of the review extended to the Minister for Justice and Equality and his Department in respect of the adequacy of any investigation or inquiry instigated by them into the McCabe allegations. Mr. Guerin had to consider if there was a sufficient basis for concern as to whether the Minister or the Department had taken all appropriate steps. And if he considered that a Commission of Investigation was required, he was to say what matters should be investigated.

5 In due course, Mr. Guerin submitted his Report to the Taoiseach on 6th May 2014. In his covering letter to the Secretary General of the Department, he noted that the Taoiseach had stated publicly his intention to lay the report before the Dail. The Taoiseach furnished a copy of the report to Mr. Shatter on the following morning, and in a conversation between the two men later, he said that in light of the report's contents he would have difficulty in expressing confidence in Mr. Shatter, if asked. The Minister resigned his two Government positions. In his letter of resignation to the Taoiseach, Mr. Shatter, referring to Mr. Guerin said:

'At no time did he ask to interview me and I would have expected, if it was his intention to reach a conclusion or form an opinion with regard to my approach or the extent of my concern with regard to issues raised by Sergeant McCabe, that he would have done so.'

6 The report opens with its genesis, its terms of reference and a summary description of the subject matter of Sergeant McCabe's dossier. Chapter 3 is entitled "Structure and Method" and introduces the consideration of a series of specific incidents and issues that Sergeant McCabe complained about. They are dealt with in Chapters 4 to 16 inclusive. Chapter 17 is an overview of the Garda investigations; Chapter 18 concerns the role of Garda Síochána Ombudsman Commission. Chapter 19 addresses the role of the Department of Justice and Equality and Chapter 20 contains Conclusions and Recommendations.

7 The statements of which the appellant complains appear in Chapters 19 and 20. Chapter 19 contains details of relevant correspondence, concluding with a section headed "Analysis". Before setting out the relevant material, it is important to note the contents of Chapter 3, para. 4 and also the statutory and regulatory context in which the report's contents are to be viewed. Para. 3.4 states:

'It is important to emphasise before embarking upon the review of individual incidents, that it is understood that the purpose of this review is not to make findings of fact or to determine any disputed question either of fact or law. Insofar as any views are expressed on factual matters, these are only facts as they appear from a review of the files that I have received. Any such expression is not an adjudication on any matter affecting the persons named or referred to in this report. It is possible that, with the benefit of an opportunity to interview or hear evidence from the individual members and officers of An Garda Síochána and civilians, including victims of crime, involved in these matters, a different view of the facts would emerge.'

8 Two ministerial powers are relevant. Section 42 of the Garda Síochána Act 2005 provides that the Minister may appoint a suitably qualified person to inquire into and report on the administration, practice or procedure of the Garda Síochána with respect to any matter the Minister considers to be of public concern. Secondly, Regulation 8(2) of the Garda Síochána (Confidential Reporting of Corruption or Malpractice) Regulations 2007 ( S.I. No. 168 of 2007) requires that in the case of an allegation of corruption or malpractice on the part of the Commissioner, the confidential recipient shall transmit the report to the Minister, who must either have it investigated or take appropriate action:

'Unless he or she has reason to believe that the allegation contained in it was not made in good faith or is false, frivolous or vexatious'.

9 The following is my brief summary of the contents of the report that are relevant to this appeal in order to provide context for the statements that gave rise to the application for judicial review. It obviously is not intended to be complete or comprehensive but merely to give some background. To understand the material fully in its proper and complete context, it would be necessary to refer to the report.

10 The first statement is in the conclusion to para. 19.93 where it is stated that:

'There appears to be no question of the allegations having been investigated at the instigation of the Minister. It is not clear, however, which of the other options the Minister adopted'.

11 Referring to a confidential report containing an allegation of misconduct by the Commissioner in relation to the promotion of an officer alleged to be unsuitable, as well as to Sergeant McCabe's dossier and a complaint about an internal Garda investigation, Mr. Guerin recorded that it was the Department's invariable practice to refer matters to An Garda Síochána, which he thought was reasonable. However, he did not think it was right that the Department should accept the response unquestioningly. Mr. Guerin could find no record of any submission by Department officials to the Minister on the subject of the Commissioner's response, and the only relevant document was a letter to the Confidential Recipient dated 7th February 2012. That did not reveal any conclusion by the Minister from among the options available under the Regulations. The report concluded at para. 19.97:

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