A Supreme Court judgment has proposed a limited declaration that a report by Seán Guerin went beyond its terms of reference when it made a damaging public comment about former Justice Minister Alan Shatter without asking for his response.
Mr Justice Peter Charleton said Guerin’s assignment was a scoping exercise: to examine complaints about police actions and advise whether further measures, including a statutory inquiry, were warranted. It was not a mandate to decide whether individuals had acted wrongly.
The judgment, delivered on 26 February 2019 in Shatter’s judicial review proceedings against Guerin, said the report generally identified issues for further scrutiny without reaching conclusions. But it said a passage about Shatter’s oversight of the Department of Justice and Equality amounted to a definite and damaging public assessment. Shatter had not been asked for his account, and the report did not include a contrary view from him.
Charleton said the report’s public character and its potential effect on Shatter’s good name brought the exercise within public law. In those circumstances, he said, the minimum fairness required was to tell Shatter what might be said about him, consider his response and include it in the report without endorsing either account. He said the report exceeded its brief and did so without that basic safeguard.
The judgment distinguished this situation from ordinary administrative inquiries and from a full public tribunal. It did not hold that a scoping exercise recommending further inquiry attacks someone’s good name simply by identifying issues. Nor did it require the full notice, document disclosure, representation and cross-examination rights associated with the Supreme Court’s 1971 decision in In re Haughey. Charleton said the required procedures depend on the circumstances and that the minimum standard in this case was an opportunity to respond.
Charleton rejected the argument that a possible later inquiry made the report harmless: the Government was not obliged to take a second step, and the report had immediate public effect. He also said the limited relief should not be refused because of the confusion over an allegation of objective bias; any effect on recovery of full costs required further argument.
The judgment’s stated result was that limited declaratory relief, as suggested by Mr Justice O’Donnell, was appropriate. The supplied judgment contains Charleton’s opinion and does not set out the wording of the declaration or the Supreme Court’s formal order.