The three-judge Court of Appeal unanimously ruled Mr Shatter’s rights to natural justice and fair procedures were breached as a result of the procedure adopted by senior counsel Seán Guerin when compiling his May 2014 report examining Garda investigations of Sgt McCabe’s complaints alleging Garda misconduct.
The president of the Court of Appeal, Mr Justice Sean Ryan, said Mr Shatter’s constitutional rights were “in jeopardy” by reason of Mr Guerin’s proposed adverse conclusions concerning Mr Shatter’s handling of the McCabe complaints.
The report included “severe criticisms” of the performance of the then minister concerning the McCabe allegations, were “seriously damaging” to his good name and he should have been permitted to respond to those before the report was given to the Taoiseach who later published it, the judge said.
The statements impair his reputation generally as a competent minister discharging his responsible position efficiently and with integrity, and also indicate or suggest he is not telling the truth about grave allegations of misconduct by gardaí, he said.
If this was a preliminiary “scoping” report as was argued, care was needed to keep any opinions and conclusions to what was appropriate for that function, he said. What happened was Mr Guerin’s report reached specific conclusions critical of Mr Shatter which were later investigated by the O’Higgins Commission. Fair procedures were required, not just as a matter of human rights and to protect people but to improve the quality of the outcome of an investigative process, he said.
There was no doubt Mr Guerin was presented with a “Herculean task”, the judge stressed. This was a “mammoth undertaking” and the judge agreed with the High Court as to the pressure under which Mr Guerin was working in dealing with a large volume of documentary material under severe time constraint.
In the overall context of what Mr Guerin had to do, “I am very far from being personally critical of him”.
The judge also disagreed with the High Court finding the matters complained of were fundamentally political decisions the courts could not adjudicate upon and the exercise carried out by Mr Guerin was not amenable to judicial review by the courts.
That issue, a crucial legal issue in the case, was the focus of a separate concurring judgement of Ms Justice Mary Finlay Geoghegan. She found the Guerin report was only amenable to judicial review because the process undertaken by Mr Guerin and the outcome of his inquiry were concerned with, and had the ability to direcly affect Mr Shatter’s constitutionally protected right to his good name and reputation.
The court has adjourned the matter to November 22 when it will consider the terms of any other reliefs Mr Shatter might be entitled to and decide costs issues.