Barrister Seán Guerin has asked the Supreme Court to hear an appeal against Alan Shatter’s successful challenge to sections of his report concerning the former minister’s handling of Garda whistleblower Sgt Maurice McCabe’s complaints.
A three judge Supreme Court, comprising the Chief Justice, Ms Justice Susan Denham, Mr Justice Donal O’Donnell and Ms Justice Iseult O’Malley, will decide on a later date whether or not to hear Mr Guerin’s appeal.
A Supreme Court appeal can only be heard if the matter is found to raise issues of general public importance or an appeal is necessary in the interests of justice.
Mr Guerin’s action relates to a Court of Appeal decision last November. In that case it granted Mr Shatter’s appeal against the High Court’s rejection of a challenge he brought against Mr Guerin over the May 2014 Guerin report, which was commissioned by the then government.
The appeal court held the constitutional rights of the former minister for justice were in jeopardy by reason of “seriously damaging” conclusions Mr Guerin proposed to include in his report. It held Mr Shatter should have been let respond before the report was given to the taoiseach, who later published it.
Disputed findings
The court declared the disputed findings were reached in a manner that breached Mr Shatter’s rights to fair procedures and natural and constutitional justice. However, it declined his application to quash them, saying that was a matter for negotiation between Mr Shatter and the government.
Mr Shatter was told if he was dissatisfied with the government’s response to the court’s findings, he could return to the court.
In arguments on Wednesday seeking a Supreme Court appeal, Paul Gallagher SC, for Mr Guerin, argued that the case raised issues of general public importance. He said the appeal court’s findings went “way beyond” the facts of the case and had “much broader significance”.
The issues include whether this report could ever have been subject to judicial review when Mr Shatter was a member of the government which sought the report from Mr Guerin, a private citizen, with a view to deciding whether to set up a commission of investigation, he said.
The case raised issues concerning the “intersection between law and politics” and whether Mr Shatter was entitled to go to court to mount a “collateral attack”.
Other issues concerned the scope of requirements of fair procedures and natural and constitutional justice in relation to a report which was essentially part of a “preliminary exercise”.
There were also issues whether Mr Shatter had to be notified of the report’s contents concerning him when his the department was the contact point for Mr Guerin in preparing his report.
A further issue concerned Mr Shatter having raised a “completely false” claim of objective bias against Mr Guerin when seeking leave for judicial review, a claim later withdrawn.
Relitigate
Paul Sreenan SC, for Mr Shatter, opposed the application and argued that no issue of general public importance arose. He said Mr Guerin was seeking to relitigate the entire case.
The Court of Appeal made clear its decision was based on the particular facts and objective meaning of the words in the report and not on political considerations or consequences, he said.
The principles of fair procedures and natural and constititional justice are well established and no important issue arose in concerning their applicability to non-statutory inquiries, he said.
The “important thing” was that this report was critical of Mr Shatter and the rules of natural justice were not observed.
Mr Shatter, like all citizens, is entitled to go to court to seek to protect his good name, counsel said. The decision to establish a commission of inquiry had not been taken when Mr Shatter took his case and this was relevant.
Mr Shatter had fully co-operated with the commission and that issue did not arise.
Counsel said Mr Shatter’s allegation of objective bias against Mr Guerin arose due to a “misunderstanding” and was withdrawn when Mr Shatter realised it was a mistake.
