Former Minister for Justice Alan Shatter has lost his legal challenge aimed at quashing parts of a report concerning his handling of allegations made by Garda whistleblower Sergeant Maurice McCabe.
Mr Justice Seamus Noonan said he could not see how Mr Shatter, as a member of the Government that decided to obtain and publish the report compiled by barrister Sean Guerin, “can complain of the consequences”.
The report involved an expression of expert opinion, was “legally sterile” and Mr Shatter’s complaints appeared to concern its publication and later political consequences, the judge said.
Nowhere in Mr Shatter’s evidence did he appear to say the report’s conclusions were in fact wrong and, if so, why, the judge noted.
Mr Shatter must also have appreciated the absence of documents in his department relevant to any investigation of Sgt McCabe’s complaints called for an explanation but he “offered none”.
The “principal focus” of Mr Shatter’s case was an attempt to prevent the Commission of Investigation— set up by the Government in line with the Guerin report recommendations —investigating Mr Shatter’s role in relation to Sgt McCabe’s complaints, he said.
While that is “now a fait accompli”, Mr Shatter “still seeks to curtail the investigation by undermining the conclusions on which it is based”.
Mr Shatter sought to mount “a collateral attack” on the Commission, the judge added. “That cannot be permitted.” Jusdicial revew was intended to protect citizens against unjust attack, not “to facilitate the adoption of stratagems or tactical positions designed to achieve a different purpose”.
That collateral attack, plus the “totally unwarranted” claim of reasonable apprehension of bias made by Mr Shatter against Mr Guerin when making his ex parte application, were matters which would lead him to exercise his discretion to refuse judicial review, the judge said.
That objective bias claim was later withdrawn by Mr Shatter who said it was based on his mistaken belief the Professional Practices Committee of the Bar Council, of which Mr Guerin was a member, had criticised the Legal Services Bill.
That withdrawal of a claim of the “utmost gravity” included “no hint of apology or regret” and he considered Mr Shatter’s approach to the issue was “entirely unacceptable”, the judge said.
Before making such a claim, Mr Shatter had a duty to apprise himself of the full facts before swearing on oath those facts were true.
In judicial review proceedings against Mr Guerin,
Mr Shatter claimed Mr Guerin made a number of highly critical “findings” concerning the then minister’s handling of the allegations, leaving Mr Shatter with no alternative but to resign as minister. Mr Guerin denied any unfairness and said his report contained “observations”, not conclusions, based on documents provided for the review by the Department of Justice.
Disputed aspects of the report included statements by Mr Guerin that the minister accepted Garda Commissioner Martin Callanan’s response to the McCabe complaints “without question” and there was no independent investigation of Sgt McCabe’s complaints.
Costs issues will be dealt with next month.
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