Former minister for justice Alan Shatter wrote to the Taoiseach and Ceann Comhairle urging that aspects of the Guerin report concerning his handling of allegations by a Garda whistleblower not be investigated by an intended Commission of Investigation pending the outcome of legal proceedings, the High Court has heard.
Correspondence from Mr Shatter and his lawyers, and replies to that, was read during the hearing of Mr Shatter's judicial review challenge aimed at quashing parts of the report by barrister Seán Guerin concerning Mr Shatter's handling of Maurice McCabe's allegations.
Mr Shatter claims Mr Guerin breached fair procedures in how he reached allegedly adverse conclusions which, it is claimed, left the then Minister with no option but to resign the day after the report was published on May 6th, 2014.
Mr Guerin's counsel read correspondence by Nick Reddy, private secretary to Taoiseach Enda Kenny, in the court. The letter, from last November, was a reply to a September 2014 letter from Mr Shatter's lawyers noting Mr Shatter was concerned the terms of reference of the proposed Commission might include matters in Mr Guerin's report concerning Mr Shatter's conduct of his statutory function as minster for justice.
Mr Reddy said the decision to establish a Commission was for the Government to make and neither the content of Mr Guerin’s report nor how he carried out that report, could have a bearing on the Commission’s investigation. Mr Reddy described the Guerin report as a “scoping exercise”.
The Commission process was “wholly independent” and the Government intended to proceed with its establishment, he added
Mr Shatter’s solicitors replied on November 17th stating, should the issues concerning Mr Shatter raised by Mr Guerin form part of the Commission’s terms of reference, or the matters of public concern to be investigated, that would amount to “unlawful and unjustifiable” trespass on court proceedings.
It would be “bizarre” and “Kafkaesque” if Mr Shatter was forced to become involved with a commission arising from conclusions in a report which he was challenging, they said.
They sought confirmation within seven days that those aspects of the report Mr Shatter was challenging in his legal action would not form part of the terms of reference pending the outcome of his case.
On November 21st, Mr Reddy replied the Government had on November 19th approved a draft order for a commission and attached the terms of reference.
Those terms directed the commission to investigate a range of matters including the investigation by the Garda, and Minister for Justice, of complaints by Sgt McCabe related to nine specified incidents, including a Garda investigation into an April 2007 assault on tax driver Mary Lynch in Co Cavan.
Mr Justice Seamus Noonan also heard Mr Shatter and his lawyers wrote to Ceann Comhairle Sean Barrett seeking to raise his concerns in the Dáil about the remit of the commission and to have excluded from that remit the matters Mr Shatter complained of in the Guerin report.
The Ceann Comhairle replied on January 27th to solicitors for Mr Shatter there was no provision for the Dáil to amend or delete the Commission’s terms of reference.
Mr Gallagher said the correspondence showed the Commission was a “real” concern of Mr Shatter whose case was an “extraordinary” attempt to have the courts “exonerate” Mr Shatter concerning his handling of Sgt McCabe’s allegations.
Mr Shatter’s case against Mr Guerin, a private citizen, over aspects of the report, was “quite unique” as Mr Shatter’s subsequent resignation was “par excellence, a political decision”.
This challenge touched on “fundamental political issues” and Mr Shatter essentially wanted the court to adjudicate on the basis for his resignation when the court could not do so, the court heard.
The case was based on a “fundamental misunderstanding” of Mr Guerin’s role and also involved a misunderstanding of Mr Shatter’s own responsibility for actions taken by him or by his Department.
This was “some retrospective attempt” to deal with issues which are either political or which must be addressed by the Commission of Investigation, counsel said.
The commission is the mechanism for clearing Mr Shatter’s name “if he is in a position to do so”, he must engage with it like anyone else and had no special right to be excluded from its purview.
Mr Guerin had conducted a “scoping” inquiry and the aspects of his report which Mr Shatter disputed were based on documents provided by the Department of Justice. Mr Guerin’s report was compiled with “great fairness”, was extremely detailed and careful and records with great precision the material he obtained, counsel said.
Mr Guerin had painstakingly set out contents of the Department documents and those documents clearly justified what he had said.
It was also wrong to suggest Mr Guerin failed to carry out his terms of reference by not obtaining and analysing certain documents from the Garda Síochána Ombudsman Commission, counsel added.
In an affidavit, Mr Guerin denied he “passed judgment” on Mr Shatter in his report. His report recorded the contents of documents provided by the Department of Justice among others and expressed an opinion as to whether concerns arose given those contents.
His report had not commented on the personal actions of Mr Shatter but on performance of his ministerial functions as a corporation sole charged with the performance of certain executive functions of the State, Mr Guerin said.
In affidavits, Mr Shatter said he has been interviewed by Judge Nial Fennelly for an inquiry into various Garda related matters.
The procedural methodology and protections afforded to him by Judge Fennelly were in “stark contrast” with the approach adopted by Mr Guerin, he said.
It was also incorrect for Mr Guerin to say his report had no legal effect, he said. The report had the very real and immediate legal effect “of causing damage to my good name and reputation, both personally and professionally”.
The case continues.
