The Court of Appeal has allowed Alan Shatter’s appeal against the dismissal of his challenge to the report prepared by Senior Counsel Sean Guerin on the handling of complaints by Sergeant Maurice McCabe. The court held that the report’s critical conclusions put Shatter’s constitutional rights at risk and were reached without the fair procedures required in the circumstances. It did not specify the final relief or orders, saying the parties should be heard on those matters.
Guerin’s report, commissioned by the Government in 2014, examined the handling of McCabe’s complaints by An Garda Síochána and other public bodies, including the Department of Justice and Equality, then led by Shatter. The report concluded, among other things, that there was cause for concern about the adequacy of the investigation and whether the Minister had taken appropriate steps. Shatter resigned in May 2014 after the report was delivered to the Taoiseach and its contents were discussed.
Shatter argued that Guerin had criticised his conduct without giving him an opportunity to answer. The High Court dismissed his judicial review application in 2015. On appeal, the Court of Appeal rejected Shatter’s argument that the conclusions were outside Guerin’s terms of reference: it found that the terms permitted him to reach conclusions and that he was not obliged to conduct extensive interviews.
The appeal judgment nevertheless distinguished between the authority to reach conclusions and the procedure for doing so. The President of the Court of Appeal considered the report’s comments serious criticisms of Shatter’s performance as Minister, damaging to his good name. The report’s general caveat that it was not making findings of fact did not, in the court’s view, sufficiently qualify those specific criticisms.
The court said that the preliminary nature of the review, its documentary focus and its tight timetable did not by themselves remove the need for fair procedures. Given the specific and severe criticism in the report, Shatter should have received at least notice of the criticism and an opportunity to comment before it was included. The judgment acknowledged that Shatter could be criticised for not recognising the significance of the missing departmental records, but concluded that this did not displace the need to hear from him.
The court also rejected the arguments that Shatter was barred from bringing the challenge because he had been a member of the Government that commissioned the review, or because his proceedings were a collateral attack on the later Commission of Investigation. It concluded that he was criticised in his personal capacity and that pursuing the judicial review did not, in the circumstances, bar his claim.
The judgment allowed the appeal and said Shatter was entitled to a declaration that his rights had been breached. It did not make the final orders at that stage: because Guerin had completed the report and no longer controlled it, the court invited the parties to address the appropriate remedies and wording of the orders.