In his affidavit, Alan Shatter said Seán Guerin had, in his report on the Department of Justice, relied incorrectly on a letter of advice received from the office of the Attorney General on December 18th, 2013.
Mr Guerin had misread that letter as stating documents received from Sgt Maurice McCabe’s solicitors should be forwarded to the minister “without further ado” when the advice had been that those documents should be forwarded by departmental officials to the Garda commissioner without further ado, he said.
That “misreading” appeared to have informed Mr Guerin’s conclusion he, as minister, had done nothing in relation to the complaints of Sgt McCabe, he added.
He firmly believed the perception he had failed to act on the advice of the AG’s office had substantially contributed, with Mr Guerin’s other conclusions, to rendering his continuing as minister “untenable”.
He had asked in autumn 2013 that advice be obtained arising from his concerns how to best address the situation as there was an “impasse” in correspondence between departmental officials and Sgt McCabe’s solicitors and it was unsatisfactory further progress had not been made.
For reasons of which he is unaware, he was never informed by department officials the advice letter had been received on December 18th and became aware of that only when he received the Guerin report. He had since sought and got the advices.
Mr Shatter was making the case that because no privilege had been sought prior to the letter of advices being provided, privilege was therefore waived, his counsel, Patrick O’Reilly, said.
Mr Shatter also said he was troubled by statements of Mr Guerin in his report when dealing with a letter from the department stating it was understood Sgt McCabe’s claims were being investigated by the Garda and Garda Síochána Ombudsman Commission (GSOC) so it was inappropriate for the minister to intervene.
Mr Guerin had said he was unaware of any GSOC investigation, it seemed “unlikely” there was such an investigation into the complaints but, in the absence of documents from GSOC, he could put that matter no further.
‘Erroneous’ observations
In relation to Sgt McCabe’s complaints to the confidential recipient and provided directly to the Garda commissioner, the commissioner was obliged to notify GSOC, which could investigate the complaints, Mr Shatter said. Despite not awaiting documents from GSOC, Mr Guerin had made the disputed “erroneous” observations.
Mr Shatter also disputes comments by Mr Guerin relating to the absence of written internal records made by the minister between January 23rd and February 7th last.
Mr Guerin had said the absence of such records meant he had been unable to shed any light on the reasons for the approach adopted by Mr Shatter as minister to exercise of certain statutory functions.
Mr Guerin had “not once”, in correspondence with Kevin Clarke, an official of the Department of Justice nominated to deal with Mr Guerin concerning his review, raised any queries concerning the handling, by either the department or Mr Shatter, of the complaints of Sgt McCabe, it is also alleged.
