The Supreme Court made a limited declaration that five conclusions in the Guerin Report about former Justice Minister Alan Shatter were outside the inquiry’s terms of reference. It otherwise dismissed the appeal and did not quash or require amendments to the report.
In a judgment delivered on 26 February 2019, O’Donnell J. said the conclusions at paragraphs 19.95, 19.96, 19.100, 19.101 and 20.11 exceeded the scope of the task assigned to senior counsel Seán Guerin. The court considered their overall thrust damaging to Shatter’s reputation and noted that he had not been given notice or an opportunity to make representations on them.
The case arose from Guerin’s 2014 review of how complaints by Garda Sergeant Maurice McCabe had been handled. The review recommended a commission of investigation and identified matters for it to examine. Shatter sought judicial review, arguing, among other things, that Guerin could not reach conclusions affecting him without fair procedures.
The Supreme Court held that the appointment of an independent person to prepare a report for publication and presentation to the Oireachtas was an exercise of public power, making the report amenable to judicial review in principle. But it said a person conducting a preliminary inquiry to recommend whether a formal inquiry should be established was not normally required to provide legal representation, submissions, cross-examination or a draft report for comment. The later inquiry would provide the opportunity for a fuller hearing.
The court distinguished the preliminary recommendation from a final determination of Shatter’s good name. The O’Higgins Commission, established after Guerin’s recommendation, later exonerated Shatter from criticism concerning his handling of McCabe’s complaints. The Supreme Court said that commission provided an opportunity to vindicate his reputation.
The declaration was narrower than the relief Shatter had sought. The court refused the further orders requested, including quashing the conclusions and requiring Guerin to amend and redeliver the report. It also held that Shatter’s withdrawn allegation of bias and his correspondence seeking to constrain the commission and parliamentary debate did not themselves justify refusing relief to which he was otherwise entitled.