THE COURT OF APPEAL
Neutral Citation Number:  IECA 318
Finlay Geoghegan J.
[2015 No. 321]
JUDGMENT of the President delivered on 10th November 2016
1. This is an appeal against the dismissal by the High Court of the application by Mr. Alan Shatter for judicial review of a report to the Taoiseach concerning the handling of allegations made by Sergeant Maurice McCabe about Garda misconduct. The applicant is the former Minister for Justice and Equality who resigned on the presentation of the report following consultation with the Taoiseach. The respondent is a Senior Counsel and the author of the report, which he produced at the request of the Government. Mr. Shatter's case essentially is that the report contains damaging findings and conclusions about him that Mr. Guerin included without giving him any opportunity to rebut or make reply. The Minister resigned from the Government on 7th May 2014, also relinquishing his other portfolio as Minister for Defence. Noonan J. delivered his judgment in the High Court on 20th May 2015.
2. On 27th February 2014, the Government announced its decision to hold a review into the allegations made by Sergeant McCabe and related matters. The respondent, a well-known and respected Senior Counsel experienced in criminal law, agreed to review and examine the handling of the complaints by the Garda authorities and other public bodies including the Department of Justice and Equality, of which the applicant and appellant Mr. Shatter was Minister. The terms of reference of the project that Mr. Guerin undertook were agreed by the Government on the advice of the Attorney General. The first reference is as follows:
3. Among the tasks to be considered was whether there was a sufficient basis for concern as to whether the Gardaí or any other public body had taken all appropriate steps to investigate the Sergeant’s complaints. Mr. Guerin also had to advise as to further steps that might be warranted, including the desirability of a Commission of Investigation under the 2004 legislation of that name. He was to complete his work within eight weeks, which time span could be extended if necessary, but the specified period would be a yardstick so it was not open to Mr. Guerin to embark on a process that would greatly exceed the time allowed.
"1. To conduct an independent review and undertake a thorough examination of the action taken by An Garda Siochana pertaining to certain allegations of grave deficiencies in the investigation and prosecution of crimes, in the County of Cavan and elsewhere, made by Sergeant Maurice McCabe as specified in: a) the dossier compiled by Sergeant Maurice McCabe and furnished to An Taoiseach on 19th February 2014 and b) the letter understood to be from Sergeant Maurice McCabe to the Confidential Recipient, Mr. Oliver Connolly, dated 23rd January 2012, part of which was furnished to An Taoiseach on the 21st day of February 2014.”
4. It is clear that the focus of the review extended to the Minister for Justice and Equality and his Department in respect of the adequacy of any investigation or inquiry instigated by them into the McCabe allegations. Mr. Guerin had to consider if there was a sufficient basis for concern as to whether the Minister or the Department had taken all appropriate steps. And if he considered that a Commission of Investigation was required, he was to say what matters should be investigated.
5. In due course, Mr. Guerin submitted his Report to the Taoiseach on 6th May 2014. In his covering letter to the Secretary General of the Department, he noted that the Taoiseach had stated publicly his intention to lay the report before the Dail. The Taoiseach furnished a copy of the report to Mr. Shatter on the following morning, and in a conversation between the two men later, he said that in light of the report’s contents he would have difficulty in expressing confidence in Mr. Shatter, if asked. The Minister resigned his two Government positions. In his letter of resignation to the Taoiseach, Mr. Shatter, referring to Mr. Guerin said:
6. The report opens with its genesis, its terms of reference and a summary description of the subject matter of Sergeant McCabe’s dossier. Chapter 3 is entitled ‘Structure and Method’ and introduces the consideration of a series of specific incidents and issues that Sergeant McCabe complained about. They are dealt with in Chapters 4 to 16 inclusive. Chapter 17 is an overview of the Garda investigations; Chapter 18 concerns the role of Garda Síochána Ombudsman Commission. Chapter 19 addresses the role of the Department of Justice and Equality and Chapter 20 contains Conclusions and Recommendations.
“At no time did he ask to interview me and I would have expected, if it was his intention to reach a conclusion or form an opinion with regard to my approach or the extent of my concern with regard to issues raised by Sergeant McCabe, that he would have done so.”
7. The statements of which the appellant complains appear in Chapters 19 and 20. Chapter 19 contains details of relevant correspondence, concluding with a section headed ‘Analysis’. Before setting out the relevant material, it is important to note the contents of Chapter 3, para. 4 and also the statutory and regulatory context in which the report’s contents are to be viewed. Para. 3.4 states:
8. Two ministerial powers are relevant. Section 42 of the Garda Síochána Act 2005 provides that the Minister may appoint a suitably qualified person to inquire into and report on the administration, practice or procedure of the Garda Síochána with respect to any matter the Minister considers to be of public concern. Secondly, Regulation 8(2) of the Garda Síochána (Confidential Reporting of Corruption or Malpractice) Regulations 2007 (S.I. No. 168 of 2007) requires that in the case of an allegation of corruption or malpractice on the part of the Commissioner, the confidential recipient shall transmit the report to the Minister, who must either have it investigated or take appropriate action:
“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.”
9. The following is my brief summary of the contents of the report that are relevant to this appeal in order to provide context for the statements that gave rise to the application for judicial review. It obviously is not intended to be complete or comprehensive but merely to give some background. To understand the material fully in its proper and complete context, it would be necessary to refer to the report.
“Unless he or she has reason to believe that the allegation contained in it was not made in good faith or is false, frivolous or vexatious”.
10. The first statement is in the conclusion to para. 19.93 where it is stated that:
11. Referring to a confidential report containing an allegation of misconduct by the Commissioner in relation to the promotion of an officer alleged to be unsuitable, as well as to Sergeant McCabe’s dossier and a complaint about an internal Garda investigation, Mr. Guerin recorded that it was the Department’s invariable practice to refer matters to An Garda Síochána, which he thought was reasonable. However, he did not think it was right that the Department should accept the response unquestioningly. Mr. Guerin could find no record of any submission by Department officials to the Minister on the subject of the Commissioner’s response, and the only relevant document was a letter to the Confidential Recipient dated 7th February 2012. That did not reveal any conclusion by the Minister from among the options available under the Regulations. The report concluded at para. 19.97:
“There appears to be no question of the allegations having been investigated at the instigation of the Minister. It is not clear, however, which of the other options the Minister adopted”.
12. Paragraph 19.98 concluded that:
“Whichever course the Minister was taking, it is clear that the only action taken on foot of the confidential report was to seek a response from the Commissioner.”
13. Following further correspondence, the Department responded in February 2013, but again, as the report states at para. 19.100, there did not appear to have been any written submission to the Minister by his officials in relation to the Commissioner's response, and:
“In effect, the process of determining Sergeant McCabe's complaints went no further than the Minister receiving and acting upon the advice of the person who was the subject of the complaint.”
Mr. Guerin also found it:
“There is no record I have seen of the Minister making any decision or forming any view in relation to that response. Had it been probed and tested in any reasonable way, further important questions would have come to light.”
14. The report noted that there were no written records of advice or submissions to the Minister by his officials, in particular when the exercise of specific statutory functions by the Minister arose. Neither did he see records of decisions made by the Minister. The review was:
“Surprising that, having been informed that complaints had been investigated internally by An Garda Síochána, the Minister appears to have been satisfied by a brief summary of the conclusions of the investigation, rather than seeking a copy of the investigation report for review”.
15. At para. 19.103, Mr. Guerin gave his opinion, as required by the Terms of Reference, that there was cause for concern as to the adequacy of the investigation of the complaints made by Sergeant McCabe to the Minister for Justice and Equality and a sufficient basis for concern as to whether all appropriate steps were taken by the Minister for Justice and Equality to investigate and address the specified complaints.
“Unable to shed any light on the reasons for the approach adopted by the Minister to the exercise of those functions. For whatever reason, the approach adopted had the result that there was no independent investigation of Sergeant McCabe's complaints. The absence of the records that one would expect of a careful and reasoned exercise of an important statutory function is a matter of some concern. Insofar as the letter of 7 February 2012 records reasons that are not otherwise apparent, it appears that the Minister acted as he did on foot of advice received from the Commissioner, without that advice being questioned or analysed.”
16. Mr. Shatter also complains about para. 20.11 in a chapter with general conclusions:
Mr. Guerin recommended that there should be a Commission of Investigation suggesting that the terms of reference include:
“20.11 No complex organization can expect to succeed in its task if it cannot find the means of heeding the voice of a member whose immediate supervisors hold him in the high regard in which Sergeant McCabe was held. Ultimately, An Garda Síochána does not seem to have been able to do that. Nor does the Minister for Justice and Equality, despite his having an independent supervisory and investigative function with specific statutory powers. The same appears to be true of GSOC, although this review is hampered in making any assessment in that regard by the fact that GSOC has not made documentation available.”
17. It is clear that the Taoiseach’s withdrawal of confidence and Mr. Shatter’s response by resigning happened because they considered that the statements in the report contained serious criticisms of the latter in the performance of his responsibilities as Minister for Justice and Equality.
“j. the investigation by An Garda Síochána and the Minister for Justice and Equality of the complaints made by Sergeant Maurice McCabe in relation the above matters, and such other like matters as may seem appropriate.”
18. The Government proceeded to do as Mr. Guerin recommended by establishing a Commission of Investigation, appointing Mr. Justice Kevin O’Higgins to be the sole member to conduct the formal investigation pursuant to the statutory machinery.
19. Following his resignation, Mr. Shatter instituted proceedings in the High Court seeking judicial review of the report of Mr. Guerin, claiming an order of certiorari quashing the relevant conclusions; an order of mandamus directing Mr. Guerin to delete those conclusions from the report; a declaration that the respondent reached those conclusions in breach of fair procedures, constitutional and natural justice; and a declaration that the drawing of the conclusions by the respondent was ultra vires the powers conferred on him under the terms of reference. By order of 30th July 2014, Baker J. granted leave to the applicant to seek the reliefs referred to above.
20. The applicant alleges that the cited paragraphs contain seven ‘Conclusions’ or ‘Findings’ that are adverse to his interests with the meanings as follows:
21. In his judgment on the application, which he delivered on 20th May 2015, Noonan J. rejected Mr. Shatter’s complaints on all grounds. The judge helpfully provided a summary of his conclusions at the end of a substantial judgment. For ease of reference and consideration, these may be presented in an adapted and enumerated form as follows:
“1. That he did not cause the allegations of Sergeant McCabe to be investigated.
2. That the response of the Commissioner of An Garda Síochána to the confidential report was accepted without question by him.
3. That the process of determining Sergeant McCabe’s complaints went no further than the applicant receiving and acting upon the advice of the Commissioner of An Garda Síochána, the individual who was the subject of the complaint.
4. That the applicant was satisfied by a brief summary of the conclusions of the internal investigation by An Garda Síochána rather than seeking a copy of the investigation report for review.
5. that in the light of the absence of written internal records made by the Minister (in particular between the 23rd January and the 7th February) meant:
(i) that the applicant was unable to shed any light on the reasons for the approach adopted by me as Minister to the exercise of those (statutory) functions;
(ii) that he could only conclude that the approach adopted by the applicant had the result that there was no independent investigation of Sergeant McCabe’s complaints;
(iii) that the absence of records “that one would expect of a careful and reasoned exercise of an statutory function was a matter of some concern”;
(iv) it appeared that the applicant acted on advice received from the Commissioner without that advice being questioned or analysed.
6. That as a consequence of the above there was sufficient basis for concern as to “whether all appropriate steps had been taken by the Minister for Justice and Equality to investigate and address the specified complaints.
7. That the applicant failed to heed the voice of Sergeant McCabe in relation to his complaints.”
22. In his appeal to this Court, Mr. Shatter challenges each of these conclusions. Counsel on his behalf also applied to introduce the contents of Mr. Justice O’Higgins’s Commission report that was published after the case was heard and judgment was given by the High Court.
1. Insofar as Mr. Shatter was concerned, the nature of the exercise undertaken by Mr. Guerin was limited to a consideration of documents of the Department for the purpose of advising the Government, of which the applicant was a member, whether concerns existed regarding the investigation of Sergeant McCabe’s complaints such as would warrant further action.
2. The respondent was required to express a view and he did so.
3. The report was in the nature of an expert opinion from an independent senior counsel obtained by the Government on foot of a contractual arrangement privately entered into. It did not give rise to any justiciable controversy between the parties which would permit an application for judicial review.
4. The preliminary nature of the report did not attract the requirements of natural justice; even if it did, there was in fact no denial of fair procedures to the applicant.
5. The applicant as a member of the Government debt decided to obtain and publish the report cannot complain of the consequences.
6. The opportunity to tell his side of the story, which Mr. Shatter claimed had been denied to him by Mr. Guerin, will be afforded to him by the Commission of Investigation under Mr. Justice O’Higgins.
7. Many if not all of the applicant’s complaints occurred as a result of purely political decisions of the Government and of the applicant himself; it is not the function of the courts to adjudicate on those matters because of the separation of powers.
8. The principal focus of the proceedings was an attempt by the applicant to prevent the Commission of Investigation investigating his role in relation to Sergeant McCabe’s complaints. This represents a collateral attack on the Commission without joining it in the proceedings, a matter that cannot be permitted.
9. The previous point 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” on which basis the trial judge would have refused relief “even in the absence of the foregoing conclusions”.
Conclusions which were adverse to the Appellant in a manner that was ultra vires his terms of reference
23. The appellant takes issue with the trial judge’s interpretation of the Terms of Reference, specifically that the review was to be “largely confined to the examination of documentation”, submitting that this cannot be correct in circumstances where the respondent’s Terms of Reference expressly made provision for him to conduct interviews and to “communicate with bodies and individuals”.
24. The appellant submitted that nowhere in the Terms of Reference was Mr. Guerin conferred with the power to draw conclusions in relation to the conduct of an individual; indeed, he is not empowered to draw any conclusions. In the alternative, if the respondent’s terms of reference empowered him to draw conclusions, it is submitted that he was only empowered to do so in circumstances where the appellant had been afforded an opportunity of being heard on the conclusions prior to their inclusion in the report.
25. The appellant submitted that the respondent was obliged to communicate with him in relation to what steps he took to investigate and resolve the allegations of Sergeant McCabe. The respondent did not do so and, accordingly, drew conclusions which were adverse to the appellant in a manner that was ultra vires his terms of reference.
No Justiciable Controversy
26. The High Court judge determined that there was no justiciable controversy between the appellant and the respondent given the nature of the report. In so doing, his starting point appears to have been the fact that the respondent was a Senior Counsel retained by the Government on a private contractual basis. At para. 62 of the judgment, he states that:
The judge reiterates this remark at para. 120, stating that:
“. . . the respondent is a private citizen and as a member of the inner bar, he was instructed to provide a service to the Government on a contractual basis. His expert opinion was sought.”
27. The appellant submitted that the High Court judge erred in concluding that the views expressed by the respondent were no more than the expressions of opinion based on the documents. Clearly, the expression of an opinion by an individual asked by the Government to carry out an independent review that the appellant did not heed the voice of Sergeant McCabe is capable of being and, as is clear from the media reporting at the time, was taken as being a finding of fact made by the respondent.
“…the Government instructed the respondent on a private contractual basis to conduct a review and prepare a report”.
28. It was further submitted that the High Court judge conflated what the respondent was requested to do and what he actually did. Had the respondent expressed an expert opinion that further action i.e. a Commission, was warranted, that would have been unobjectionable. However, he argues that the judge went beyond that and drew the conclusions critical of the appellant and embodied them in the report: it does not matter if that criticism is described as an expert opinion. An expert opinion of a Senior Counsel that the appellant, as Minister for Justice, had not done his job properly is a finding or at the very least the expression of an expert opinion as to fact. It is not an opinion of law. It was submitted that this was an error of reasoning by the learned High Court judge. The appellant has a constitutional right to his good name, which right was infringed by the drawing of the conclusions by the respondent in the report. The appellant has a constitutional right of access to the courts to have that right vindicated. The Courts’ powers in aid of the protection of the appellant’s constitutional right are as ample as that task requires.
Fair Procedures, Constitutional and Natural Justice
29. The appellant relies on Article 40.3.1 and Article 40.3.2 of the Constitution which identifies particular rights in respect of which the State has a duty to vindicate. In State (Quinn) v. Ryan  I.R. 70, the Supreme Court had occasion to consider the nature of the rights guaranteed to every citizen under the Constitution, O’Dalaigh CJ stating:
30. In the present case, Mr. Shatter claims that as a matter of basic constitutional and natural justice, the protection and vindication of the appellant’s right to his good name required the respondent to apply fair procedures in the preparation of the report. The appellant relies on the cases of Bailey v. Flood  IESC 11, Prendiville & Murphy v. Medical Council  IEHC 427 and O’Callaghan v. Mahon  IEHC 428 as authority for the proposition that fair procedures demand, at a minimum, that the subject of proposed criticism must be notified of such criticism and afforded an opportunity to make representations in respect of same. Indeed, he says that is acknowledged by the respondent at para. 19.95 of the report where he states that:
“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at naught or circumvent them, and that the Courts' powers in this regard are as ample as the defence of the Constitution requires”.
Moreover, in paras. 5.66 to 5.68 of his report, the respondent is critical of the fact that Sergeant McCabe “did not have an opportunity to comment” on evidence uncovered in an investigation, and references this as “an important procedural right”, the breach of which he describes as “a fundamental procedural flaw in the investigation”.
“It would, of course, be entirely reasonable to expect that, where a complaint is made, opportunity will be given to the person the subject of the complaint to respond to it”.
31. It is submitted that the learned High Court judge erred in concluding that the appellant was afforded fair procedures. Furthermore, it is submitted that the High Court judge erred in concluding that the appellant was on notice of the fact that his conduct was to be the subject of examination by the respondent and that he may be the subject of criticism. The Government, having appointed the respondent to report, the appellant was entitled to assume that if he was to be the subject of any proposed criticism he would be afforded an opportunity of being heard. He could not initiate contact with the respondent with a view to saying anything that might be seen as an attempt by him to influence the course of the respondent’s inquiry.
32. The appellant submitted that the respondent should have awaited receipt of all relevant information from GSOC and consulted with him regarding any concerns that the respondent had about the adequacy of any steps taken by him in relation to Sergeant McCabe’s complaints. At a minimum, in circumstances where the respondent intended to complete his inquiry without awaiting receipt and consideration of the “voluminous” relevant documentation from GSOC, he was under a particular duty, as a matter of fair procedures, to afford the appellant an opportunity to address any concerns he had regarding his conduct. On that basis, the High Court judge erred in holding that there was no denial of fair procedures in the respondent concluding his inquiry, finalising the report and drawing the conclusions in the absence of any consideration, and consultation with the appellant in respect of the information in the possession of GSOC.
33. It was submitted that the High Court judge erred in concluding that the appellant was precluded from instituting these proceedings on the basis that he was seeking to challenge matters in respect of which he was collectively responsible as a member of the Government at the relevant time. Rather, the appellant had sought judicial review of the respondent’s conduct in concluding a report in circumstances where he had been criticised in that report without having been afforded any or any reasonable opportunity to respond in a meaningful and effective way.
34. The High Court judge determined that the appellant ought not to obtain relief from the court because he had an alternative remedy for the vindication of his constitutional right to his good name. It was submitted that this was erroneous. If fair procedures have been denied, the vindication of the appellant’s good name requires prompt relief by the court. It is submitted that the establishment of a Commission of Investigation does not remedy the wrong done to the appellant which resulted in a report being put on the public record in which the appellant’s good name was sullied and he suffered the loss of a public office.
35. The appellant submitted that the trial judge erred in concluding that he was attempting to use the remedy of judicial review for “tactical positions designed to achieve a different purpose”. At the time the appellant initiated these proceedings, the Commission of Investigation had yet to be established. Its terms of reference had yet to be drawn up so the initiation of the proceedings could not amount to a collateral attack on the Commission of Investigation.
36. He argued that proceedings legitimately instituted by the appellant for the purposes of vindicating his constitutional rights could not be held to be a collateral attack on the subsequent, independent establishment of a Commission of Investigation.
Conduct allegedly bars Appellant from Relief
37. It was submitted that the making of the allegation of bias and subsequent withdrawal of same did not constitute conduct that disentitled the appellant to the relief sought in these proceedings. If the appellant established that his constitutional rights were infringed, he was entitled to relief ex debito justitiae and the court could only exercise its discretion in one way. It was difficult to imagine conduct on the part of the appellant that would disentitle him to relief in protection of his constitutional rights. Conduct relating to the process whereby relief was sought cannot be a reason to disentitle the appellant. The plea of objective bias was withdrawn speedily once the replying affidavits were served.
The Respondent’s Submissions
Conclusions which were adverse to the Appellant in a manner that was ultra vires his Terms of Reference
38. The respondent submitted that to describe the conclusions as ultra vires was not only to mischaracterise the exercise in which the respondent was engaged, but also to rely on a concept which had no application to that exercise. The respondent was engaged by the Government to furnish a report by reference to Terms of Reference set by the Government which were clearly not intended to be treated as some form of statutory prescription or a piece of legislation. They were wholly different from the Terms of Reference under consideration in Caldwell v. Mahon. The Government took no issue with the respondent's interpretation of his Terms of Reference and the appellant, as a member of the Government who commissioned and received the report, is clearly not entitled to question the respondent's interpretation of those Terms of Reference.
No Justiciable Controversy
39. The respondent submitted that the harm and unfairness which the appellant alleges, if they were contributed to by the report, arise out of the decision of the Government to publish the report in its entirety (save for certain redactions to protect the victims of crime etc.), and what is alleged by the appellant to be the decisions of An Taoiseach not to allow the appellant to consider the contents of the report in detail, and to express the view that he no longer had confidence in the appellant. It was submitted that the proceedings were misconceived since they had not sought to impugn the decision to publish the report in its entirety and had not sought any relief as against the Government or as against An Taoiseach.
40. Mr. Guerin argued that the publication by the Government of the report which reviewed the performance of certain executive functions of the State, but without making any findings of fact, for the purpose of addressing public concerns in relation to such performance was not justiciable and, in particular, was not justiciable at the suit of the appellant as a private citizen. In De Róiste v. Judge-Advocate General  3 I.R. 494, the High Court held that a statutory inquiry into the reasons for the applicant's dismissal from the army could not be regarded as a simple inquisitive process and therefore unamenable to judicial review. Quirke J stated:
41. The respondent submitted that the Commission which was set up made judicial review moot and futile. In circumstances where the current Minister for Justice and Equality, An Taoiseach, the Government and both Houses of the Oireachtas made a democratic decision that a Commission of Investigation was to examine the role of the Office of Minister for Justice and Equality, despite the appellant's challenge to the contents of the report and in circumstances where that Commission was now up and running, the proceedings were entirely inappropriate, non-justiciable, futile and moot. Any issues arising from the conduct of the appellant in his capacity as Minister would now be determined by the Commission and its findings will supersede anything commented upon in the report.
"The instant proceedings concern a process established by statute by the government of a sovereign State. It was conducted by a statutory personage entitled 'The Judge Advocate General'. The process was concerned directly with matters relating to the reputation and good name of the applicant. The report which resulted from the process was adopted on behalf of the government and published.
It is inescapable that the findings and conclusions resulting from the process had the capacity to affect the applicant's reputation and good name whether favourably or adversely. He enjoys the right to a reputation and a good name. That right is constitutionally protected.
I am satisfied that since the process undertaken directly concerned matters relating to the applicant's reputation and good name, its findings and outcome affected his constitutionally protected right to his reputation and good name. Accordingly, he had a legitimate, fundamental significant interest in the process and is entitled to seek the relief which he has sought in these proceedings."
42. The courts will not grant relief where it would be futile to do so since no benefit would accrue to the appellant. The authors of de Smith's Judicial Review (7th Ed. 2013) state that:
This principle has been applied by the Irish courts on a number of occasions. The respondent relies on the cases of Somjee v. Minister for Justice  ILRM 324; Todd v. Murphy  2 I.R. 1; Kelly v. Minister for Justice  IEHC 218 and G v. Collins  1 ILRM 1 in this regard. The respondent submitted that the courts will not grant relief where the matter in question has been overtaken by other events and that is what was occurred in this case. The respondent relied on W v. Health Service Executive  IESC 8, in which the Supreme Court stated:
"The court may exercise discretion not to provide a remedy if to make an order would serve no practical purpose." (Para. 18-054).
43. It was submitted that the judicial review was misconceived and sought to litigate non-justiciable issues which related to the nature of the relationship between An Taoiseach, the Government, individual Ministers and the Houses of the Oireachtas. It is submitted that there was no basis on which the appellant could be entitled to an order of mandamus compelling the respondent to delete certain conclusions from the report in circumstances where a Commission of Investigation had been established in respect of all of the matters of concern raised in the report, including the matters relating to the Office of Minister, at a time when the appellant was the holder of that office. This underlined the fact that the appellant's real complaint was about the political consequences which he had suffered in connection with matters which were part of the Commission's remit.
“Courts do not decide hypothetical or moot points of law unless there is a special jurisdiction such as under Article 26 of the Constitution, or in exceptional cases where it appears to the Court that there are compelling reasons why a court would consider hearing an issue that is moot.”
Fair Procedures, Constitutional and Natural Justice
44. The respondent submitted that the procedures adopted by the respondent were appropriate having regard to the task assigned to him by the Government and the timescale for the completion of the said task. The respondent had taken the time required to comply with the Terms of Reference set for him by the Government. The fact that the appellant did not dispute the accuracy of the summary of the contents of the documents was indicative that all appropriate care was taken by the respondent.
45. The appellant had a unique position as a person who was familiar with the allegations made by Sergeant McCabe and an experienced practising lawyer and a member of the Government which appointed the respondent to conduct the review. He submitted that the appellant could not have expected a report to be completed within eight weeks or anything like it, if the full panoply of procedural arrangements which he now contends for were to be applied, not just to him but to every other person mentioned in the report.
46. The respondent submitted that the appellant's central complaint, both in the court below and in this appeal (namely, that the report was written without first affording him a chance of being heard) was simply wrong. The appellant was aware that the conduct of his Department was relevant and was one of the matters likely to be commented on. The appellant was free to make any submission that he wished to make and to provide any information that he wished to provide. At all material times, the appellant was in a uniquely privileged position. He was a member of the Government who commissioned the respondent to write the report and who drafted the respondent's Terms of Reference. He had an insight into the process that nobody else had. He had a nominated point of contact with the respondent. Thus, far from being a case where the appellant was denied an opportunity to consult, he was afforded every opportunity to consult.
47. The respondent argued that there are many things which may affect an individual’s reputation but in respect of which they do not enjoy the full panoply of rights to natural justice. In Mooney v. An Post  4 I.R. 288 at 298, Barrington J., giving the judgment of the Supreme Court, held that:
The Government and the Taoiseach can make all sorts of decisions which affect the reputation of a Minister, or indeed of other persons, and it cannot be contended that all such decisions can only be made following observance of fair procedures.
"The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case."
Locus Standi Submission
48. The respondent submitted that his review referred to the appellant solely and exclusively in his capacity as Minister for Justice and Equality (the Minister) as a corporation solely charged with the performance of certain executive functions of the State and not in his personal capacity as a citizen. It followed that the only person with standing to institute and maintain the within application is the person currently occupying the post of Minister for Justice and Equality, as head of the Department of Justice and Equality and a corporation sole and not (as asserted) the appellant, a person who previously held that office but who no longer does.
49. In the alternative, he claimed that the appellant was a Minister and a member of the Government that made the decision, announced on 27th February 2014, to instruct the respondent to conduct the impugned review. In attacking the review, the appellant was, in effect, seeking to mount a collateral attack on decisions made by a Government of which he was a member, and/or by the leader of the Government of which he was a member, and which said Government acted on the basis of collective responsibility. In the circumstances, the appellant cannot, as a private citizen, judicially review himself and/or is estopped and guilty of acquiescence as regards both the said decisions and the consequences of the said decisions.
Alternative Remedy Submission
50. Judicial review is discretionary and the courts are entitled to have regard to the existence of alternative and more appropriate remedies which are open to someone to vindicate their rights. The fact that the Commission has now been established to look into the very comments in the report of which the appellant makes complaint means that the within judicial review serves no purpose. As stated above, the appellant has not challenged the terms of reference of the Commission and would now be out of time to do so.
Collateral Attack Submission
51. The respondent submitted that the appellant ignored the fact that the Government, of which he was a member, which commissioned the respondent's report makes no complaint concerning same and did not contend that the respondent misinterpreted what he was required to do. The appellant also ignored the fundamentally political aspect of this challenge which affects all of his complaints. In substance, he ignored the fact that this was a report to An Taoiseach on behalf of the Government; that An Taoiseach determined that the appellant should not have an opportunity to review the report and to address any issues arising therefrom; that the Government decided to publish the report; that for political reasons the appellant decided to resign from office and that it was that resignation, and the publication of the report by the Government, which lay at the heart of his claim. These are not matters for the courts. The appellant was asking the court to intervene in order to address or mitigate political consequences which he alleges he suffered, as a result of purely political considerations and decisions.
Conduct allegedly bars Appellant from Relief Submission
52. The respondent submitted that the learned trial judge's conclusion that relief ought to be refused by reason of the appellant's conduct in making and subsequently withdrawing the assertion of objective bias and initiating proceedings as a collateral attack on the Commission were entirely correct. The discretionary nature of judicial review is clear from the judgment of Denham J. (as she then was) in DeRoiste v. Minister for Defence  1 I.R. 190 where she stated:
53. The respondent relied on Lynch v. Anderson  IEHC 284; Yeagar v. O’Sullivan  IEHC 67; O’Malley v. District Judge Paul Kelly  IECA 67 and R.L. v. Her Honour Judge Heneghan  IECA 120 in supporting the proposition that the High Court was not precluded from looking at the overall justice of the case and the conduct of the parties in coming to its conclusions.
"Judicial review is an important legal remedy, developed to review decision-making in the public law domain. As the arena of public law decision-making has expanded so too has the volume of judicial review. It is a great remedy modernized by the Rules of the Superior Courts, 1986, and by precedent. However, there is no absolute right to its use, there are limitations to its application. The granting of leave to apply for judicial review and the determination to grant judicial review are discretionary decisions for the court. This has been set out clearly in precedent."
Issues on the Appeal
54. Issues arising in consideration of the judgment of the High Court include vires, justiciability, fair procedures, whether the appellant can mount this challenge to the report as a member of the Government that established the inquiry and whether the proceedings constituted an illegitimate collateral attack on the Commission of Investigation that was established following the report. There is also an important fundamental and preliminary question in respect of the material in the report to which the appellant raises objection.
55. Many judgments have been cited in written submissions and oral argument, but there is no single, clear authority that disposes of the issue of whether the report that Mr. Guerin submitted to the Government following the review that he carried out on their instructions is susceptible to judicial review. The trial judge firmly rejected the claim made on Mr. Shatter’s behalf that his good name was impaired by the conclusions of the report that were reached by the respondent in circumstances in which the appellant ought to have been given an opportunity of responding.
56. Some of the issues do not involve law. The first requires simple interpretation or understanding of the meaning of words to determine whether the statements made in the report are actually deleterious of Mr. Shatter’s good name. In my view, they are. If it were otherwise, that would be the end of the case because if his good name was not impaired by the conclusions reached by Mr. Guerin in the report, that is the end of the matter. It means that Mr. Shatter resigned unnecessarily in the sense that there was no good reason for him to do so. Admittedly, the fact that the Taoiseach, in effect, required the Minister’s resignation clearly meant that the head of Government required no convincing as to the meaning of the judgments in the report. Nevertheless, it is not the meaning that the Taoiseach or the Minister ascribed to the contents of the report but what they mean when considered objectively outside and independent of the political arena that is critical.
57. The second question is another exercise as to the meaning of words. Were the conclusions reached by Mr. Guerin in his report within his powers having regard to the terms of reference of the review? It was for him to interpret the reference but subject to review by the court allowing for the reasonable margin of appreciation afforded to a person in his position. In my judgment, Mr. Guerin was permitted by the terms to reach conclusions. The trial judge found that Mr. Guerin was required to do so but while I respectfully disagree that there was actually an obligation on the reporter, the fact that I am satisfied of his entitlement to come to his conclusions means that there is no difference in practice in the result.
58. The third issue is crucial to the case and does involve law. It is whether the exercise carried out by Mr. Guerin is susceptible to judicial review by the courts. This is where there is an absence of direct applicable authority. Despite the several volumes of case law that the parties have produced, no one decision gives specific guidance on the point. In my view, the question comes down to a choice of applicable principle, as found in a very small number of cases, that deal with matters at the level of relatively high generality. Some of the cases are undoubtedly of assistance, but only by analogy and come with the difficulty that each side considers them supportive.
59. I propose to deal with the issues arising in the case in the following order.
The Statements of which the Applicant Complains
• Do the statements cited from Chapter 19 and Chapter 20 damage Mr. Shatter’s good name as Minister for Justice and Equality?
A. Did the statements cited from Chapter 19 and Chapter 20 damage Mr. Shatter’s good name as Minister for Justice and Equality?
B. Were the statements ultra vires the powers of the respondent under the terms of reference?
C. Did the nature of the brief given to Mr. Guerin in the terms of reference mean that the rules of fair procedures and/or natural justice did not apply?
D. Did the Minister
a. Actually have the opportunity or facility through the Department of Justice and Equality contact person Mr. Clarke or otherwise to put material before Mr. Guerin for his consideration?
b. If so, did the applicant Mr. Shatter fail to assist the respondent Mr. Guerin by furnishing explanations and responses which he knew or ought to have known were required in the circumstances?
c. If so, did those circumstances or any of them militate against the claim of fair procedures and/or the applicant’s entitlement to judicial review?
E. Is Mr. Shatter debarred from relief
a. Because he was a Minister in the Government that commissioned the review and report?
b. Because his proceedings constitute a collateral attack on the Commission of Investigation?
c. Because he made a claim of bias against Mr. Gearan notwithstanding that he later withdrew it?
d. Otherwise in the exercise of the Court’s discretion?
• If so, is the effect qualified and/or negatived by paragraph 3.4?
60. The respondent submits that the trial judge correctly found that the views expressed in the report to the Government were no more than:
61. I find it difficult to understand how these and the other challenged conclusions in the report can be described as a narrative account of what was in documents. Whatever else they are, they are not a narrative. They seem to me, on any legitimate interpretation of the words, to be comments or evaluations or judgments on the performance of the Minister for Justice and Equality. That is not the end of the matter because there are other substantial issues raised in the proceedings, but as to the actual meaning of the words, I cannot agree with the description given to them by the trial judge and suggested by Mr. Guerin in his replying affidavit.
"A narrative account of what the documents disclosed and where views were expressed, these were no more than expressions of opinion based on those documents. They were not findings of fact or final determinations of anything. They were not the precursors to an inevitable next step which would infringe any right of the applicant. On the contrary, they were the precursor to the establishment of a Commission of Investigation in which the applicant has a statutory guarantee that his rights will be fully respected”. (Para. 89).
62. The question is whether the report did in fact make findings adverse to Minister Shatter. On this, I think that the former Minister’s argument is correct and even irresistible. The paragraphs that he cites from Chapter 19.93 up to 19.103 and also at para. 20.11 do seem to me to be severe criticisms directed at Minister Shatter.
63. They say that he failed to fulfil his responsibilities properly as Minister for Justice and Equality in dealing with the complaints made by Sergeant McCabe. He failed to exercise the powers that he had to direct a proper, independent investigation. Instead, he approved of a wholly inadequate approach consisting of merely inviting comment and going no further. An analysis of the words makes that clear. The full paragraphs in which the material appears do not lessen the impact; it cannot be said that the offending passages have been taken out of context.
64. It is correct to say that the responses by the Taoiseach and the Minister to these parts of the report were represented political judgments. Counsel for the appellant also sought to introduce Press material to show how the report was considered by the media. If these evaluations of the contents of the report relating to Mr. Shatter were different interpretations of what I think is the meaning of the words, it may be that consideration would have to be given to the impact on political actors and media, but I do not think that arises when I am in agreement about the meaning of the statements. However, irrespective of how they were considered by others, it seems to me that these observations amount to findings of fact or conclusions or opinions that reflect serious criticism of the Minister in the conduct of his office. The fact that they are expressed in a report prepared for the Government by an independent legal expert adds authority and weight to the judgments.
65. I do not leave out of account the statement at para 3.4 of the report:
That qualification is, however, not a sufficient restriction or limitation of the conclusions in chapter 19 and para. 20.11. First, it is in my opinion inadequate in its context, it is too far away and not made relevant to these statements. Secondly, this qualification appears in the early part of the report that introduces consideration of the specific Garda incidents in the McCabe dossier and could be considered as relating only thereto, an impression that would be reinforced by the last sentence of this paragraph. Thirdly, the purpose of the review as stated in the first sentence is inconsistent with any unnecessary findings or determinations but that is the very thing that these conclusions express.
“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.”
66. The statements reflect on Mr. Shatter’s good name because they impair his reputation generally as a competent Minister who is discharging his responsible position efficiently and with integrity. They also indicate or suggest that he is not interested in ascertaining the truth about grave allegations of misconduct by Gardaí.
67. My conclusion, therefore, as to the meaning of the words is that they are not merely narrative as claimed. They are seriously damaging to Mr. Shatter’s good name. This applies to him in his capacity as Minister for Justice and Equality but the impact is not limited to Mr. Shatter’s role as Minister only. A person in that position has a capacity in law of a corporation sole as the head of the Department. That is a political and legal function. The occupant of the office does also have a personal function and it is that capacity that is in question here. The conclusions with which we are concerned are directed, not at a disembodied formal functionary, but at Mr. Alan Shatter TD who, according to the report, has been found to be neglecting his duty. I also consider that the damaging effect of the conclusions is not negatived or mitigated by the qualification at paragraph 3.4.
68. Are the statements ultra vires the powers of the respondent under the terms of reference? The Terms of Reference were carefully drafted by or with the assistance of the Attorney General. The terms permitted but did not require some such conclusions. This inquiry and report involved a decision about the adequacy of the performance by the appellant of his functions, including statutory responsibilities, as Minister for Justice and Equality.
69. It seems clear from the final part of the Terms of Reference that a scoping of investigation function was one of the purposes, although it was not the only one. The earlier-listed terms of reference envisage that the report will make findings, to use that term in a general rather than a specific, legally-loaded sense, in relation to the Garda investigations of the matters in the McCabe files. The inquiry was intended, at least in part, to come to some conclusions and another purpose was to recommend a Commission of Inquiry if the investigator came to that conclusion.
70. The terms of reference that were given to Mr. Guerin by the Government required Mr. Guerin, at para. 1, to conduct an independent review and undertake a thorough examination of the action taken by An Garda Síochána pertaining to allegations made by Sergeant McCabe as specified in his dossier and in a letter to the Confidential Recipient, Mr. Connolly; para. 2 required him to interview Sergeant Maurice McCabe and such other person as might be considered necessary and capable of providing relevant assistance; para. 3 required him to examine documentation and data held by An Garda Síochána, the Department of Justice and Equality and any other public bodies or entities; para. 4 required Mr. Guerin to communicate with An Garda Síochána and other relevant bodies in relation to documentation; para. 5 required him to review the adequacy of any investigation or inquiry instigated by An Garda Síochána or any other relevant entity; para. 6 required him to consider if there was sufficient basis for concern as to whether all appropriate steps were taken by An Garda Síochana or any other relevant body to investigate and address the specified complaints; para. 7 required him to advise what further measures were warranted in order to address public concerns including whether it was considered desirable to establish a Commission of Investigation; para. 8 set out his task as follows:
It is clear, therefore, that Mr. Guerin was required to report on his review and examination under Item 1; his review of the adequacy of the investigation under Item 5; his consideration as to a sufficient basis for concern under Item 6 and to advise what further measures were warranted including whether it was desirable to establish a Commission of Investigation. Other parts of the terms of reference related to process and focused particularly on documents. Mr. Guerin interviewed Sergeant McCabe a number of times, but not any other person. It seems to me to follow that it was not only open to Mr. Guerin to reach conclusions, make assessments and furnish opinions, but that his function under the terms of reference was to perform those exercises. Just how he chose to express his evaluations was for Mr. Guerin to decide. He did not have to make critical determinations, but he was entitled to make determinations and reach conclusions while adhering to the instructions in the terms of reference. I would accordingly reject the ground of attack put forward on behalf of the appellant on the report’s contents on the basis that what Mr. Guerin did was not warranted or permitted by the instructions contained in his terms of reference.
“At the conclusion of the aforesaid review, within eight weeks of 27th February 2014 or so soon as may be thereafter, to deliver a report to An Taoiseach on the matters set out at 1, 5, 6 and 7 above.”
71. In my opinion, it was open to Mr. Guerin to carry out his work as a documentary review and not by conducting extensive interviews. He was expressly authorised to interview persons but he was not obliged to do so. I do not think he can be criticised for deciding to proceed as he did.
Does the nature of the brief given to Mr. Guerin in the terms of reference mean that the rules of fair procedures and/or natural justice did not apply because:
72. The trial judge held that the question whether the report was justiciable or not came back to the nature of the task that Mr. Guerin had to perform. He was providing a service to the Government on a contractual basis that was in the nature of Counsel’s opinion. He acknowledged that:
(1) it was a preliminary/scoping exercise?
(2) it consisted of a review of documents?
(3) it was a mammoth task to be completed in a very short time?
(4) it was succeeded and superseded by a Commission of Investigation that employed the full panoply of procedural rights?
(5) this process was in the circumstances not justiciable?
Although the judge was satisfied that Mr. Guerin’s work was intended to be largely confined to examining documents, it was nevertheless a mammoth undertaking. In those circumstances, there was no realistic possibility that there would be time for him to afford the full range of fair procedures to everybody who was interviewed. Mr. Guerin:
“The matters in issue where of national public concern and there could be no doubting the urgency of the situation”.
The judge said that the expression of such an expert opinion could not reasonably be described as a finding of fact or in any sense a final determination of an issue. Mr. Guerin did not profess to make such determinations and expressly said so in the report. The standard that Mr. Shatter was seeking to impose on the Guerin process was actually what he was entitled to expect from the Commission of Investigation and that was an untenable contention. Although adverse consequences followed publication of this report, they happened because of political decisions to publish the report and the Taoiseach denying confidence in Minister.
“Was asked to look at the documents and offer an opinion as to whether cause for concern existed, and if so, what should be done about it.”
73. The judge cited the judgment in De Roiste v. Judge-Advocate General  3 I.R. 194, a case relied on by both parties. In that case, Quirke J. held that the applicant was entitled to seek judicial review because he had a legitimate, fundamental significant interest in the process which directly concerned matters relating to his constitutionally protected reputation and good name: see para. 96 of the judgment of Quirke J. Relevant also is De Burca v. Wicklow County Council. On the other side of the line are cases that did not involve interference or diminution or damage to a constitutional right such as a person’s good name.
74. For justiciability to be present, there must be a public law dimension and there must be some identifiable interest to be protected which is in danger of being impaired or which has been significantly impaired by the conduct or process in question: see Ryanair Ltd v. Flynn  3 I.R. 240. Noonan J. said that the authorities all concerned decisions or determinations that were intended to be final, whether or not they affected legal rights. This review came into the category of legally sterile, using that controversial expression, but the judge did not consider that to be conclusive. The judge held that the conclusions by Mr. Guerin that are in issue were not more than a narrative account of what the documents disclosed and/or opinions based on the documents.
75. It is too late now in the present state of our jurisprudence on inquiries to try to restore legally sterile to its original, useful status as the distinction between any public process of inquiry, to which the expression may be applied, and a court process in which legal liabilities are routinely imposed. Characterising the review by Mr. Guerin as being legally sterile is not a point of distinction with other inquiries. In respect of the other features of this examination process, as identified by the judge, none of the points highlighted is, in my view, a justification for abandoning every element of fair procedures. Time constraints, the number of persons involved, the nature of their involvement and particularly the extent to which they are exposed to interference with their constitutional or legal rights and the general nature of the investigative process are all relevant matters when it comes to determining the level of protection that is required by law. What cannot be done lawfully is to decide that there is no or no sufficient time to allow for procedural rights to be exercised. In this case, the complaint that Mr. Shatter makes is not that he was deprived of all of the Haughey rights that were enumerated in  IR 217. He actually claims no more than the second of the classic rules of natural justice that have long since been subsumed into fair procedures or constitutional rights, namely, audi alteram partem.
76. There is no doubt that Mr. Guerin was asked to perform a Herculean task. It is not easy to see how he could have completed his work in the time permitted if he had conducted his examination in accordance with the full gamut of fair procedures. It is reasonable to say that that might well have been impossible. There were other witnesses and there were Gardaí who might have been interviewed in addition to Sergeant McCabe, not to mention the Minister and his officials. That is not Mr. Shatter’s case. It was not that he sought or demanded the full extent of Haughey-type rights, but he did contend that before Mr. Guerin included material in the report that declared firmly that he Mr. Shatter had failed to discharge his Ministerial responsibilities properly or adequately, he should have been afforded an opportunity of commenting and responding.
77. I do not think it accurate to describe this report as being Counsel’s opinion. Mr. Guerin was entrusted with an important and urgent undertaking on a matter of national concern. Mr. Guerin is an eminent Senior Counsel experienced in criminal law and was instructed on that basis. The fact that this exercise may be described as a preliminary report is not, in my view, decisive or dispositive of the question as to whether fair procedures were required.
78. I would not quarrel with the view of the trial judge that the respondent’s function could not “be reasonably described as a finding of fact or in any sense a final determination of an issue”. However, I must part company with the court when the judgment proceeds to say that Mr. Guerin “did not purport to make such determinations and expressly said so in the report”.
79. In order to identify the relevant legal principle, it is sufficient, in my view, to cite one of the most quoted statements of principle in the whole of our jurisprudence, in which Chief Justice Ó Dálaigh set down the cornerstone of the now very substantial edifice of fair procedures and constitutional justice to which so much of our attention in the courts is directed. In Re Haughey 1971 I.R. 217 Ó Dálaigh CJ said at 264:
80. Having regard to the terms of reference that Mr. Guerin was given, my judgment is that he was entitled to express opinions and make judgments or reach conclusions. My view is that he was able to adopt that course if he chose, but I do not think he was obliged to do so. Whichever understanding of his function Mr. Guerin proceeded with, there were legal procedural consequences. There was no need for the second principle of natural justice, namely, the obligation to hear the other side in the event of potential criticism, if there was not going to be any criticism of particular persons. But the situation was quite different if criticism of individuals was in question. Mr. Guerin had to be clear which course he was following.
“In proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution, the State, either by its enactments or through the Courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.”
81. If it was a preliminary scoping report and no more, care was needed to keep any opinions and conclusions to what was appropriate to that function. That means that they should have been preliminary, general and enquiring. Was there an issue for investigation by a Commission of Inquiry? It ought not say that this person or these specific people made these errors or fell to be criticised. If those precepts were not observed, the danger was that the intended preliminary inquiry might trespass on the remit of the proposed Commission of Investigation. In my judgment, that is what happened in this case. Mr. Guerin’s report reached specific conclusions critical of Mr. Shatter which were subsequently investigated by Mr. Justice O’Higgins as sole member of the Commission.
82. Mr. Shatter’s contention was that the conclusions reached – “findings” – were ultra vires the terms of reference. He proposed, in the alternative, that if they were intra vires there was an obligation on Mr. Guerin to employ fair procedures, which meant at a minimum affording him an opportunity of answering criticisms before they were published as conclusions in the report. Mr. Guerin’s report said that Mr. Shatter did not properly discharge his functions and responsibilities as Minister in dealing with Sergeant McCabe’s complaints. It follows that the process leading to that and the other conclusions of which Mr. Shatter complains was one in which he was "on risk of having his good name . . . jeopardised".
83. It seems to me that the starting point in inquiries with a public law dimension that involve serious issues such as are commissioned by the State or State agencies is that fair procedures in the shape or form appropriate to the nature of the investigation are required. Natural justice and fair procedures are required unless there are particular reasons for excluding them – it is the absence of rights that requires justification. In the case under consideration, Mr. Guerin was not in a position to exclude fair procedures or audi alteram partem on the basis that there was going to be a further inquiry and he was only going to examine documents.
84. Mr. Guerin was mistaken in thinking that he was under no obligation to ensure the appropriate level of concern for Mr. Shatter’s position as Minister for Justice and Equality in light of what he was proposing to submit to the Government as his conclusions.
A. Did the Minister have the opportunity or facility through the Department of Justice and Equality contact person Mr. Clarke or otherwise to put material before Mr. Guerin for his consideration?
B. If so, did the applicant Mr. Shatter fail to assist the respondent Mr. Guerin by furnishing explanations and responses which he knew or ought to have known were required in the circumstances?
C. If so, did those circumstances or any of them militate against the claim of fair procedures and/or the applicant’s entitlement to judicial review?
85. The judge referred to statements in Dáil Éireann, including some by the Minister and held that:
The judge contrasted Mr. Shatter’s statement in the Dáil with the contents of his affidavit, holding that his averments in his affidavit might have been technically correct, but in substance any impression that was conveyed of ignorance on his part that his involvement in the entire matter was going to be and was in fact being considered by Mr. Guerin could not be correct.
“It could not possibly be suggested by the applicant that he was unaware that his role in relation to Sergeant McCabe’s complaints was to be examined by the respondent. Serious allegations had been made against the Minister by the opposition concerning his alleged failure to respond to correspondence from Sergeant McCabe”.
86. The court referred to the correspondence between Mr. Guerin and Mr. Clarke, the Principal Officer in the Department of Justice and Equality who was the contact person for correspondence from Mr. Guerin. In particular, in a letter of 11th April 2014 to Mr. Clarke. Mr. Guerin said that there appeared to be virtually no departmental documents in relation to any consideration of the Minister’s statutory powers to investigate the complaints by Sergeant McCabe. In those circumstances, Noonan J. felt that the conclusion drawn from the lack of documents that there had in fact been no investigation or consideration of the Minister’s statutory powers to investigate could not have come as a surprise to Mr. Shatter. Noonan J. was sceptical and unsympathetic to the case made by the applicant in respect of this correspondence from Mr. Guerin. The judge held that anybody reading the letter of 11th April 2014 would have appreciated immediately that a conclusion was going to be drawn in the absence of any further evidence or explanation from the Minister. The applicant maintained that he did not know anything about that correspondence. He also contended that it only related to the provision of documents.
87. Noonan J. refers to the applicant’s affidavit and its averment that Mr. Shatter was constrained from making contact with Mr. Guerin to avoid any hint of impropriety. He found it inconsistent with that proposition that Mr. Shatter complained that Mr. Guerin did not make contact with him. If Mr. Shatter had any explanation to offer for the absence of documents relevant to an investigation of Sergeant McCabe’s complaints, he should have proffered it at the outset, and certainly following the receipt of the letter of 11th April 2014. The judge also referred to the absence of any documentary materials from GSOC.
88. Noonan J. was satisfied on the evidence that Mr. Shatter knew that part of Mr. Guerin’s review would involve an examination of his role in relation to Sergeant McCabe’s complaints. He knew the terms of reference. If there was information not revealed in the Department’s documents that had a bearing on Mr. Shatter’s role, he was:
The judge discounted a mistake in reference in the report as having no materiality to the issues in the case.
“Perfectly free to submit that information in circumstances where he must have known that the documents on their own would give rise to conclusions reasonably obvious to any intelligent reader”.
89. The judge concluded, accordingly, that even if the report could be regarded as justiciable, there was no want of natural justice and the applicant was given fair procedures commensurate with the nature of the review being undertaken by Mr. Guerin.
90. It is once again necessary to come back to fundamentals. It is true that the cases are clear in declaring that there is no one size fits all set of procedures that must apply to every inquiry or investigation or process undertaken by or on behalf of the Government or a Department. But the basic principle is clear. Not only that, before people spoke of the full panoply of fair procedures or In Re Haughey rights, there were the two classic principles of natural justice, nemo iudex in causa sua and audi alteram partem. It is only one function of those rules and of fair procedures generally that they afford protection of rights; they also operate to enhance the validity of any conclusions reached.
91. It is true in this case that Mr. Shatter may be criticised for not appreciating, first, that there was an absence of documentary evidence in the Department to demonstrate concern or his part in response to the complaints by Sergeant McCabe. Secondly, it is reasonable to level criticism at him for not appreciating that there would be some arrangement in the Department for communicating documents to Mr. Guerin. It is understandable that Mr. Shatter, as the Minister, would have been reluctant, not only to get involved in correspondence directly with Mr. Guerin without being invited to do so, but that he would legitimately be concerned as to allegations that he was seeking to interfere in the process being conducted by the respondent. It is unfortunate that the correspondence culminating in the 11th April 2014 letter was not brought to the attention of the Minister, but that is the evidence that is available. It was certainly predictable, and the Minister may well be criticised for not appreciating – if that was the case – that his conduct was going to be under scrutiny in the review being carried out by Mr. Guerin. But I am not sure that he was to be taken as being so naive as to be unaware that his conduct was under the microscope. He might well have understood that in the fullness of time, Mr. Guerin would be in contact to know what his response was as to particular comments or conclusions that Mr. Guerin was going to make. It is also legitimate, in my view, that the Minister might well have thought that this preliminary exercise was not actually going to reach anything like definite conclusions of the kind that appear in Chapter 19 and in para. 20.11.
92. These observations only cement the importance and the applicability of the principles of natural justice as part of the rules and requirements of fair procedures. It must be considered absolutely fundamental that before a person is severely criticised in a significant public undertaking by an eminent person in a report to the Government in regard to a matter of urgent national importance that he or she would be afforded at least some notice of the criticisms and opportunity to comment on them: audi alteram partem.
Bars to Relief
94. The trial judge held that the applicant was not entitled to bring the proceedings for judicial review because he had been a member of the Government that set up the inquiry. The point is that he would be challenging his own investigation or in some sense suing himself. An analogy is the bar on a person suing a club of which he is a member. For my part I do not see how this arises. A Minister has an official position as a member of the Government which means that he has collective responsibility. In his official capacity the Minister for Justice and Equality had legal status as a corporation sole. However, in the inquiry with which we are concerned, it was not the Minister in his disembodied capacity as a persona designata such that it did not matter who occupied the office whose conduct was in issue. The question here concerned a particular Minister or rather a particular person, namely, Mr. Alan Shatter, TD. And although his name is not actually mentioned in the report in the challenged conclusions section, it was his personal and individual conduct in relation to the complaints made by Sergeant McCabe that was actually in issue.
93. Is Mr. Shatter debarred from relief
95. Noonan J. held by reference to Article 28.4.2 of the Constitution that the matters complained of by Mr. Shatter:
The judge went on to consider the doctrine of collective responsibility in circumstances where the Government had accepted the report and its recommendations and decided to publish it. That being so, the court held that the applicant was, in effect, to judicially review himself. Moreover, the consequences, or most of them, of which Minister Shatter was complaining arose from purely political decisions. By this he was referring to the fact that the Taoiseach did not allow an opportunity to the Minister to consider the report before it was published other than in the limited sections described. That also applied to the Taoiseach’s decision that he would be unable to express confidence in Mr. Shatter and Mr. Shatter’s own decision to resign.
“Are quintessentially political decisions which, having regard to the separation of powers, the court cannot consider, less still, adjudicate upon”.
96. I do not agree with this conclusion by the trial judge. It is true that Mr. Shatter, as Minister, had collective responsibility with his colleagues in Government for commissioning the report from Mr. Guerin. It is also the case that unlike his colleagues in Government, or most of them, Mr. Shatter, as the Minister, was in the spotlight in respect of the report and in his capacity as the political head of the Department which was itself in the focus of the terms of reference, and specifically Ref. No. 5. Mr. Shatter, as a person holding the position of Minister, had his right to his good name and his reputation as a matter of constitutional and common law rights. I do not understand how it can be suggested that because he was a member of the Government that commissioned the report, he thereby abrogated any rights that he might have to fair procedures. I do not think that such a position makes legal or constitutional sense and I do not also believe that it accords with logic. It seems to me to be clear that Mr. Shatter had the capacity of Minister which meant that he was part of the Government and collectively responsible. He also had a function and a role as political head of the Department which he occupied as a corporation sole. But thirdly, he had a personal and individual identity as the person holding the office and it was in his personal and individual identity that he faced the criticisms that Mr. Guerin levelled at him in chapters 19 and 20 of his report. Therefore, it seems to me that Mr. Shatter had capacity under this rubric in which to make his claim for judicial review of the Guerin Report.
97. Under this head, the trial judge held that Mr. Shatter was debarred from seeking the relief claimed in the judicial review proceedings because he had previously, in correspondence, first with the Taoiseach and then with the Ceann Comhairle, complained about the inclusion of a term of reference in the brief of the Commission of Investigation of O’Higgins J. of an item dealing with the role of the Minister for Justice and Equality. The point was made in solicitors’ correspondence on behalf of Mr. Shatter that he was seeking judicial review of the conclusions of the Guerin Report and that debating the matter and including those matters in the remit of the Commission of Investigation would be an interference with the principle of separation of powers and the functions of the courts. The judge held that this correspondence demonstrated that Mr. Shatter was making the case that the inclusion of the item concerning the conduct of the Minister for Justice and Equality, namely, himself, in the terms of reference would be unlawful and unconstitutional. He threatened legal proceedings but did not bring any such proceedings. In due course, the Commission of Investigation began its work and was in the process of completing its remit at the time when the High Court action was heard and the judge was critical of the fact that when Mr. Shatter’s complaints were overtaken by events:
The judge went on to hold that judicial review did not exist to facilitate:
“No mention at all is made of this issue in the applicant’s written submissions and in oral submissions, Counsel for the applicant said that the setting up of the Commission was entirely the prerogative of the Government and essentially and Executive decision. It had nothing to do with these proceedings or the relief being sought by the applicant”.
Noonan J. condemned what he saw as the use of judicial review for what he considered a collateral purpose and the applicant, as he felt and held, had adopted an inconsistent position subsequently compared with what he had initially asserted. In those circumstances, the court felt that the remedy of judicial review ought not to be available to him.
“The adoption of stratagems or tactical positions designed to achieve a different purpose. The court ought not permit its process to be used in this way”.
98. I am unable to agree with the conclusion of the learned trial judge. Mr. Shatter maintained in correspondence that he was the subject of unfair treatment and criticisms in the Guerin Report and that he was challenging that report in the courts in respect of its conclusions that were adverse to him. In those circumstances, he was claiming that the Commission of Investigation ought not to have a term in its reference that related to the very issue that he was seeking to overturn in the courts. I cannot see how his legal correspondence in relation to that matter debars him from proceeding with his claim that he was damaged by the procedure adopted by Mr. Guerin. There is not a logical connection. I do not think it follows that Mr. Shatter was pursuing his judicial review application for some illegitimate or nefarious or dishonourable purpose. He was seeking to assert and protect his rights in the courts and he was also making his case to the Taoiseach and the Ceann Comhairle in respect of other matters that were reasonably and legitimately of concern to him. Whether those political personages responded positively or negatively is not a matter for the courts and I do not see that Mr. Shatter’s posture in regard to the upcoming Commission as it then was can be considered so unacceptable as to out-rule any entitlement on his part to claim judicial review.
The Allegation of Bias
99. Under this heading, the trial judge held that Mr. Shatter had made a serious allegation against Mr. Guerin without making any attempt to find out the factual situation. When the true position was revealed he provided “a somewhat grudging withdrawal of the allegation and no attempt to offer an explanation or an apology to the respondent or the court which merely serves to heighten that concern”. Noonan J. held that Mr. Shatter had a duty to apprise himself of the full facts before swearing on oath that those facts were true. The true position could have been easily established and yet when called upon to explain the basis for his mistaken belief, he did not say anything. The judge found that behaviour was entirely unacceptable.
100. It seems to me that this is legitimate criticism made by Noonan J. of Mr. Shatter. He was too quick to reach for the allegation of bias against Mr. Guerin which was bound to be troubling and hurtful and potentially damaging to the latter in his professional reputation. However, the fact that he overreacted or jumped to wrong conclusions has to be tempered by two considerations. In the first place, the applicant did in fact withdraw the allegation when it was established that there was no basis for it. So he did acknowledge that the true position was otherwise than he had stated it. He could undoubtedly have been more gracious in his response, but that fact needs to be acknowledged. The second point, which is really more fundamental, is that whatever legitimate criticism may be levelled at Mr. Shatter for jumping to unfair and unjust conclusions, a court should be very reluctant to withhold the protection of human rights as guaranteed by common law and the Constitution because the person was too ready to jump to an unfair conclusion in order to explain how or why another person is alleged to have committed a wrong. Yes, people should behave fairly, reasonably and moderately but that is not always the case. Law and justice and protection of human rights do not exist only for those who are moderate, careful and reasonable or ready to apologise when they should do so.
101. If a lawyer had to choose only one passage from all the judicial writing about the importance of hearing a person who might be the subject of adverse findings, Sir Robert Megarry’s celebrated observations on the rules of natural justice and in particular the right to be heard would be in the forefront. In John v. Rees  2 WLR 1294 at 1335 he said the following:
102. It is often forgotten that while fair procedures are required as a matter of protection of human rights, that is not their only purpose. The fact that somebody is given a fair hearing or an opportunity to answer a case means that the outcome of the process of inquiry should be better because of the procedures that were adopted. It is important that an inquiry or a tribunal or a court has the opportunity of considering information that a person has or a point of view that contradicts other testimony which would if it remained uncontested be accepted. So, it is not just that procedures are there to protect people; they are also there to improve the quality of the outcome of the investigative process.
“It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’they may say, ‘why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.” Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence events.”
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.
104. Issues may arise as to the availability or the implementation of appropriate remedies in circumstances in which the respondent’s function has been discharged and his report is no longer under his control. I do not doubt, however, that any impediments to obtaining just relief can be overcome by use of appropriate procedural measures. Whatever is necessary is within the legal capacity of the court, whose powers are as ample as the Constitution requires, to adapt a celebrated phrase. I would not, however, anticipate objection to dispositions the court makes in light of its findings. I would propose that the parties should be heard on the reliefs and the terms of the orders that should follow from the judgments of the court.
105. In conclusion, I am in entire agreement with the trial judge as I hope I have made clear above as to the pressure under which Mr. Guerin was working in dealing with such a large amount of documentary material under severe time constraint. It seems to me that he was in error, but in the overall context of what he had to do I am very far from being personally critical of him.