Former justice minister Alan Shatter has asked the Court of Appeal to make orders quashing “enormously damaging” parts of the Guerin report criticising his handling of complaints made by Garda whistleblower Sgt Maurice McCabe.
He also wants any such amended report to be handed to Taoiseach Enda Kenny.
The three-judge court will rule at a later date on exactly what reliefs Mr Shatter is entitled to following the court’s judgment last week that barrister Sean Guerin adopted a defective procedure in compiling his May 2014 report which breached Mr Shatter’s rights to natural justice and fair procedures.
When the matter returned to the Court of Appeal yesterday for final orders to be made, the court was told the sides had agreed on the wording of a declaration that Mr Guerin was obliged to observe the rules of natural justice and fair procedures and there was a breach of those rights.
However, Mr Guerin is opposing other reliefs sought by Mr Shatter, including ones deleting the disputed sections of his report and requiring an amended report to be handed to the Taoiseach.
Paul Anthony McDermott, for Mr Guerin, said the report was no longer under his client’s control and the Government had published and acted upon it in terms of setting up a commission of investigation.
If Mr Shatter was granted the orders, there would have to be a complete rewriting of the report. It was “bizarre” to ask the court to require his client to deliver an amended report to the Taoiseach when Mr Shatter could deliver the court order to the Taoiseach himself.
Mr Shatter was given a copy of the report before it was published by the Taoiseach and had not sought to injunct it. He had brought this case only against Mr Guerin, said counsel.
While Mr Guerin clearly recognised there was an issue between Mr Shatter and the Taoiseach, it was not for Mr Guerin to get involved in any such outstanding issues which are political, said Mr McDermott.
Paul Sreenan, for Mr Shatter, said the orders sought were necessary to address an injustice to Mr Shatter and, unless they were granted, this “stain on his reputation” would remain on the public record as the report remained on the Government’s website.
There is no reason why, as a matter of principle, if a report reaches one finding that is unlawful, that the court has the power to quash that, he said. This was not about a typographical error; the report made findings which were reached in breach of Mr Shatter’s rights, were “highly critical” of Mr Shatter, and had an “enormously damaging” effect on him and on his political career.
Ms Justice Mary Finlay Geoghegan said that if the Government decides not to do anything and leave the report as it stands, that was “a very different issue”. It was already an “advance” for Mr Shatter to get judicial review of the report but she did not understand there was any authority for the court to make orders quashing aspects of the report, she said.
Mr Sreenan said his side had sought to quash aspects of the report.
In its judgment last week, the Appeal Court found the Guerin report included “severe criticisms” of the performance of Mr Shatter, the then minister, concerning the McCabe allegations.
It ruled that Mr Shatter’s constitutional rights were in jeopardy by reasons of the conclusions Mr Guerin was proposing to include in his report and Mr Shatter should have been permitted respond to those before the report was given to the Taoiseach, who later published it.
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