The Court of Appeal has allowed Alan Shatter’s appeal over the Guerin Report, finding that opinions critical of his conduct as Minister for Justice and Equality were reached in breach of his right to fair procedures.
In a judgment delivered on 10 November 2016, Ms Justice Finlay Geoghegan agreed with the President that the appeal should be allowed. She said the report’s conclusion that there was cause for concern about the adequacy of the investigation of complaints made by Sergeant Maurice McCabe was seriously adverse to Shatter’s good name and reputation.
The court held that Sean Guerin SC had been carrying out a public function under the Government’s terms of reference. Those terms required him to review the adequacy of steps taken by public bodies, including the Minister, and advise whether further action was warranted. The court found the report amenable to judicial review because the process and its outcome could directly affect Shatter’s constitutionally protected reputation.
The judgment said the opinions in Chapter 19 were within the scope of Guerin’s terms of reference. But Shatter should have been given an opportunity to respond before adverse opinions were included. The court found that requests for documents and contact through a departmental official did not adequately notify him of the intended criticism. The judgment stressed that procedures required in future government reviews would depend on their circumstances, including whether an individual’s good name was at risk.
The appeal concerned a High Court decision that had dismissed Shatter’s judicial review challenge to seven conclusions identified in the report. The Court of Appeal rejected the view that the report could not be reviewed, and held that the critical opinions were reached in breach of fair procedures. It did not, in this judgment, settle the wording of the order or decide what additional relief should be granted. The parties were to be heard on those matters.
The judgment noted that the Government had published the report and established a Commission of Investigation on matters within its terms of reference. Shatter had participated in that Commission, which the judgment said provided an opportunity to vindicate his good name. The court also raised questions about what order it could make: the report was no longer under Guerin’s control, and deleting some complained-of passages might require rewriting them.