New Appeal: Does the duty to make full disclosure when seeking leave for judicial review continue to have force as a legal principle?

In this determination, Shatter v Guerin, the Supreme Court granted Guerin leave to appeal the judgment of the Court of Appeal that he, Mr Seán Guerin SC, breached the then Minister Shatter’s right to fair procedure in the compilation of a report into handling of “allegations of grave deficiencies in the investigation and prosecution of crimes, in the County of Cavan and elsewhere, made by Sergeant Maurice McCabe”.

 

Background

In February 2014 the Government appointed Guerin to examine the handling of complaints by the Garda authorities and other public bodies, including the Department of Justice and Equality, of which Shatter was the minister. In May that year Guerin presented his report to the Taoiseach.

The report stated:

It is important to emphasise before embarking upon the review of individual incidents, that it is understood that the purpose of this review is not to make findings of fact or to determine any disputed question either of fact or law. Insofar as any views are expressed on factual matters, these are only facts as they appear from a review of the files that I have received. Any such expression is not an adjudication on any matter affecting the persons named or referred to in this report. It is possible that, with the benefit of an opportunity to interview or hear evidence from the individual members and officers of An Garda Síochána and civilians, including victims of crime, involved in these matters, a different view of the facts would emerge.

 

Later in the report, Guerin was critical of Shatter’s handling of Sergeant McCabe’s complaints.

On reading the report, the Taoiseach informed Shatter that he could no longer express confidence in him as minister. Shatter resigned.

In the High Court, Shatter instigated judicial review proceedings seeking any order of certiorari quashing Guerin’s findings relating to Shatter. One of Shatter’s grounds was a reasonable apprehension of bias: that Guerin “was a member of Professional Practice Committee which engaged in criticism of the applicant as Minister in respect of the Legal Services (Regulation) Bill 2011, which bill the applicant [Shatter] was centrally involved in promoting through the legislature”.

Dismissing Shatter’s application, Noonan J (here) stated:

158. It is clear from the evidence that the principle focus of these proceedings following their commencement was an attempt by the applicant to prevent the Commission investigating his role in relation to Sergeant McCabe’s complaints. That is now a fait accompli yet the applicant still seeks to curtail the statutory investigation by undermining the conclusions on which he says it is based. In that respect, I am of the view that the applicant seeks to mount a collateral attack on the Commission where a conscious decision was made not to join either the Commission or the Government in these proceedings. That cannot be permitted. It is a matter that goes to discretion as does the totally unwarranted allegation of bias publicly made against the respondent at the ex parte stage. Thus, even in the absence of the foregoing conclusions, I would exercise my discretion against granting relief.

 

The Court of Appeal agreed with the High Court’s finding that Shatter’s allegation of bias was unacceptable behaviour. But it allowed Shatter’s appeal (here, Ryan P) and upheld his complaint, stating:

103. My view, in summary, is that the appellant has established that he was a person whose constitutional rights were in jeopardy by reason of the conclusions that Mr. Guerin was proposing to include in his report, that the author was obliged to observe the rules of natural justice and in particular audi alteram partem, that there was in the circumstances breach of those rights because of the defective procedure that was adopted and that he is entitled to a declaration accordingly. I would therefore allow the appeal.

 

Supreme Court

Granting Guerin leave to appeal, the Supreme Court determined that he raised a point of law of public importance and that an appeal is in the public interest. The Court certified three questions:

a. Whether Mr. Shatter’s claim is justiciable in the circumstances in which and/or at the point in time at which, it was initiated.

b. The applicability and scope of fair procedures and constitutional issues to a task of the kind undertaken by Mr. Guerin, and the nature of requirements imposed thereby. Whether or not the judicial review amounted to a collateral attack on the decision to establish a Commission of Investigation, and, in particular, an attempt to have Mr. Shatter excluded from the Terms of Reference of such Commission.

c. Whether or not the duty to make full disclosure when seeking leave for judicial review continues to have force as a legal principle, and if so was it breached in this case by the allegation of bias against Mr Guerin.

Advertisements
%d bloggers like this: