About this case:

• Court:
  Supreme Court
• Judge:
  Mr Justice Donal O'Donnell

Emphasising that the Supreme Court was “far from being critical” of Mr Guerin’s conduct, Mr Justice Donal O’Donnell delivered the leading judgment dismissing the appeal.

Background

In February 2014, the Government announced its decision to hold a review into, inter alia, the allegations made by Garda whistleblower Sergeant Maurice McCabe. The resulting report by Mr Guerin was delivered in May 2014 and included criticism of the then Minister for Justice and Equality, Alan Shatter, ultimately resulting in his resignation from office.

Mr Shatter argued that the report contained damaging findings and conclusions about him that Mr Guerin included without giving him any opportunity to rebut or make reply.

It was noted that in a subsequent report from the O’Higgins Commission, Mr Shatter was exonerated from any criticism in respect of his dealings with the complaints made by Sergeant McCabe. Mr Shatter argued that if Mr Guerin had given him the opportunity afforded to him by Mr Justice O’Higgins, Mr Guerin’s conclusions on Mr Shatter would have been different and Mr Shatter would not have been forced to resign.

In the High Court, Mr Shatter’s claim was dismissed on all grounds. However, in the Court of Appeal, Mr Shatter’s appeal was allowed, and the Court made declarations that the conclusions in the Guerin Report which were critical of Mr Shatter were reached in breach of fair procedures and constitutional and natural justice.

The Supreme Court

The Supreme Court granted leave to appeal on a limited number of grounds:

1. Whether Mr Shatter’s claim is justiciable in the circumstances in which and/or at the point in time at which it was initiated.
2. The applicability and scope of fair procedures and constitutional justice to the task of the kind undertaken by Mr Guerin, and the nature of the requirements imposed thereby.  Whether or not the judicial review amounted to a collateral attack on the decision to establish a commission of investigation (i.e. the O’Higgins Commission), and in particular, an attempt to have Mr. Shatter excluded from the terms of reference of such commission.
3. (Whether or not the duty to make a full disclosure when seeking leave for judicial review continues to have force as a legal principle, and if so was it breached in this case by the allegation of bias against Mr Guerin. 

Mr Justice Donal O’Donnell said that the issues raised fell naturally into two categories:

1. Issues of principle relating to justiciability and the applicability of fair procedures to the task conducted by Mr Guerin,
2. Consideration of discretionary grounds for refusal of relief by way of judicial review, namely collateral attack and non-disclosure.  It is convenient to deal with the latter discretionary issues first, before turning to the issues of principle.

Among the grounds upon which Mr Shatter sought and obtained leave to seek judicial review was an assertion that the report was vitiated by objective bias, however this allegation was “grudgingly withdrawn”. Observing that the allegation was carelessly made and gracelessly and belatedly withdrawn, Mr Justice O’Donnell said that this behaviour deserved criticism, at a minimum – but that this did not amount to ‘a sufficient ground requiring the court to refuse relief to which an applicant is otherwise entitled as a matter of law’.

Mr Justice O’Donnell also found that the assertion that the existence of judicial review proceedings precluded or inhibited the establishment of a commission of investigation or any other inquiry, “while erroneous and unfounded…did not in itself amount to a ground upon which a court should refuse relief”.

Mr Justice O’Donnell said that Mr Guerin had been “appointed to conduct a preliminary inquiry with the view to recommending to the government whether or not it should establish a commission of investigation, and, if so, the matters into which any investigation should be carried out”. Mr Justice O’Donnell said that this was a matter of the exercise of public law power - not a purely private law matter – as such, the resulting report was amenable to judicial review.

Mr Justice O’Donnell said that if Mr Guerin’s report had not been a catalyst for Mr Shatter’s resignation, it would have been “difficult if not impossible to contend” that Mr Guerin’s inquiry required procedural protections before it was delivered – however it had to be recognised that Mr Shatter resigned his office in immediate consequence of the report, and he was subsequently exonerated from criticism by the report by the O’Higgins Commission report.

Mr Justice O’Donnell said the “lack of clarity about the legal nature of any ad hoc inquiry as a preliminary exercise can give rise to undesirable uncertainty both as to the steps required and the legal principles to be applied to such an exercise”. As such, Mr Justice O’Donnell said that it was “…desirable that the precise legal function of a preliminary inquiry be clarified at the outset on the appointment of a person to inquire. It is also desirable that any person appointed to produce a preliminary report on whether or not a further inquiry is necessary should avoid expressions which suggest that he or she has come to any conclusion on the matters which remain in dispute”.

Mr Justice O’Donnell concluded that certain comments made by Mr Guerin, “in particular those contained in para. 20.11, went further than was necessary to express conclusions on the question of whether a commission of investigation was necessary”. He said that the Court had the power to make a declaration, and exercising that discretion, Mr Justice O’Donnell said he would make a limited declaration that Mr Guerin’s conclusions at paras. 19.95. 19.96, 19.100, 19.101 and 20.11 were outside the scope of the terms of reference.

Emphasising that he was “far from being critical of the conduct” of Mr Guerin, and noting that the timescale was short, the nature of his role was ambiguous, and the difficulty was compounded by a surprising lack of communication within the Department of Justice; Mr Justice O’Donnell said that he would otherwise dismiss the appeal. Ms Justice Iseult O’Malley and Ms Justice Elizabeth Dunne concurred with Mr Justice O’Donnell’s judgment.

Agreeing that the report went beyond the scoping exercise that it was described as in public and instead made a declaration in the public sphere, Mr Justice Peter Charleton said this ought to be corrected by the limited declaration suggested by Mr Justice O’Donnell.

• by Seosamh Gráinséir for Irish Legal News