‘Legal distinctions blurred’ in Shatter case, Supreme Court judgment finds

A preliminary inquiry into the scope of a formal review does not have to be subject to the same legal parameters as a formal review, a Supreme Court judgment on the Shatter case has found.

Former Minister for Justice Alan Shatter had challenged a report on his handling of complaints of the Garda whistle-blower Sergeant Maurice McCabe.

The judgments of Mr Justice Donal O'Donnell and Mr Justice Peter Charleton were given in the Supreme Court on 26 February in Shatter v Guerin. 

The Supreme Court of five judges unanimously dismissed an appeal over Alan Shatter’s successful challenge to sections of the Guerin Report, which examined the former minister’s handling of complaints made by Sgt McCabe.

The O'Donnell judgment finds that there was no “pre-existing clarity in either statute or administrative practice which showed that the legal nature of that task [which the respondent was set] was clearly established and understood.

Blur the legal distinctions

“It is easy for the terms of reference to blur the legal distinctions, and invite, or at least encourage, findings which are essentially final in nature, without the full range of fair procedures that should be necessary before a final conclusion is published to the world with the authority of the State.”

The O'Donnell judgment finds that fair procedures must be accorded to the subject matter of the report before adverse conclusions are publicly reported.

“In some cases, that may have to be addressed at a preliminary stage,” the judgment reiterates.

However, where the preliminary recommendation is simply recommending the establishment of a commission of investigation, then that process does not require any particular procedures.

Mr Justice O’Donnell finds that a careful construction of the terms of reference shows that the court should not condemn any statement in hindsight: “That would be a both impractical and undesirable exercise in micro-managing, in retrospect, a task which was intended to be carried out at considerable speed.

Views

“It is to be expected, moreover, that the authors of reports may express views and make comments without thereby giving rise to subsequent review by the High Court.”

The judgment says that the respondent [Mr Guerin] was careful to express himself with appropriate caution and qualification on a number of occasions in the course of his report. 

And no complaint was made about the vast majority of what was said by the Mr Guerin in his lengthy and comprehensive report, he said.

The report uses careful language, such as: “so far as I can tell” and “from the papers I have seen”.

The judge writes that one cannot take one or two statements out of context to make a determination adverse to the report, thereby undermining its entire credibility.

Terms of reference not clear-cut

However, the report’s conclusions were sufficiently beyond the scope of the preliminary inquiry to warrant a determination by the court, the judgment finds.

“The conclusions expressed, and the impression thereby created, were damaging to the reputation of the applicant [Mr Shatter].

“Even then, if they had been preceded by an invitation to the applicant to express his views, I do not think it would have been appropriate to grant any relief,” the judgment finds.

“The terms of reference were not clear-cut, and so long as a person in the position of the applicant had been afforded an opportunity to express his views and have them reflected in the report, I do not think the applicant could complain, or that a court should intervene,” the judgment finds.

Unusual case

It continues: “I consider accordingly that it is appropriate that the court should declare that the expressions of conclusions adverse to the applicant, contained in particular in paras. 19.101 and 20.11 of the report, exceeded the scope of the inquiry the respondent was authorised to carry out. 

It also concludes that “any of the more extravagant reliefs” sought by Mr Shatter should not be granted.

Describing it as a very unusual case, the judgment says that Mr Guerin carried out his task with “great thoroughness and admirable expedition”.

The Supreme Court recommends absolute clarity as to the legal nature of the tasks to be performed in similar situations in the future.

Finally, the fact that Alan Shatter was required to resign as Justice Minister was not a reflection on the lack of fair procedures in the report, but rather on the fact that the Taoiseach could dismiss a minister without any process of inquiry, hearing, or subsequent review or appeal. 

Reality of political life

That is a reality of political life, the judgment finds.

Judge O’Donnell concluded that he was far from critical of the conduct of the respondent, given the short timescale and ambiguous nature of the role he was asked to perform.

The difficulty of his task was compounded by “a surprising lack of communication” within the Department of Justice, the judge says.

Entitled to complain

“Nevertheless, he states, I have come to the conclusion that the applicant [Mr Shatter] is entitled to complain about the outcome of the report as it affected him. Accordingly, I would substitute for the order of the Court of Appeal the limited declaration that the respondent’s conclusions at paras. 19.95. 19.96, 19.100, 19.101 and 20.11 were outside the scope of the terms of reference, and would otherwise dismiss the appeal