Guerin report a ‘serious injustice’ to Alan Shatter, court told

The Court of Appeal will rule later on former minister for justice Alan Shatter’s appeal over his failed challenge to parts of the Guerin report concerning his handling of complaints by Garda whistleblower Sgt Maurice McCabe.

A total of 39 grounds of appeal have been advanced against the High Court’s rejection of Mr Shatter’s challenge to barrister Seán Guerin’s May 2014 report.

Outlining the appeal, Paul Sreenan SC, for Mr Shatter, argued the Guerin report reached conclusions which were "highly critical" of his client who was not afforded fair procedures or the right to be heard before it was given to the Taoiseach, who later published it.

The report inflicted a “serious injustice” on the former Minister, a holder of important constitutional office, a career politician and citizen with rights to his good name and to earn a livelihood. It left him with “no alternative” but to resign.

It was clear any adverse findings had potential to damage his good name and livelihood and there was “no compelling reason” not to give him the right to be heard on any proposed adverse findings.

While the findings of the O’Higgins Commission that Mr Shatter acted properly at all times might go some way to alleviating the damage, the Guerin report directly caused Mr Shatter’s resignation and damaged his good name, he argued.

The report contained findings recognised by the Taoiseach among others as hard-hitting and described in the media as “explosive” and “damning” of Mr Shatter, counsel said. Had Mr Shatter been heard, it was likely such findings would not have been included, he argued.

Mr Guerin clearly made findings of fact, including the only action the minister took on foot of the confidential report concerning Sgt McCabe’s complaints was to seek a response from the Garda commissioner, which he did not challenge in any meaningful way, he said.

Mr Guerin has denied any unfairness and argued his report contained “observations”, not conclusions, based on documents provided for the review by the Department of Justice.

‘Political decisions’

His counsel Paul Anthony McDermott SC argued Mr Guerin was asked by the government, of which Mr Shatter was then a part, to prepare a “scoping” report and the consequences that flowed were a result of “purely political decisions”.

The High Court accurately described Mr Shatter's case as "extraordinary" and said he was "rewriting history" in asserting the purpose of his case was not to mount a collateral attack on the O'Higgins Commission set up, in line with Mr Guerin's recommendations, to inquire into Sgt McCabe's claims, counsel said.

Mr Shatter had seemed to envisage a commission that would look at all aspects of the handling of the McCabe complaints except the role of his own department, counsel added.

If, as was claimed, the Taoiseach only allowed Mr Shatter read three chapters (one, 19 and 20) of the report, that was political and Mr Shatter had not read chapter three where Mr Guerin said he was not deciding anything, counsel said.

Mr Guerin gave Mr Shatter the fair procedures required of a “scoping exercise” such as this was and there was “ample basis” for the High Court’s finding against Mr Shatter on all grounds and describing several of his claims as “extraordinary and unstateable”.

While Mr Shatter argued the Guerin report was inconsistent with the O’Higgins Commission report, that was not so, counsel submitted.

The O’Higgins report confirmed the absence of any document recording any decision of the minster on the McCabe complaints and an issue in the department about documents not getting to the person they were intended for.

The appeal concluded after a day long hearing before Judge Seán Ryan, presiding, and Judges Mary Finlay Geoghegan and Mary Irvine. The court reserved judgment.