Minister should have been interviewed prior to adverse findings in report to government

Ryan P (nem diss): Judicial review - report to Taoiseach concerning alleged Garda misconduct - application by former Minister for Justice - report by senior counsel at request of government - damaging findings and conclusions - Minister not given opportunity to rebut or reply - report resulted in resignation - dismissal of claim in High Court (Noonan J) - terms of reference - whether Minister or his department had taken all appropriate steps - ministerial powers - Section 42 of the Garda Síochána Act 2005 - Regulation 8(2) of the Garda Síochána (Confidential Reporting of Corruption or Malpractice) Regulations 2007 (S.I. No. 168 of 2007) - application for order to quash conclusions - alleged breach of fair procedures and constitutional and natural justice - conclusions adverse to former minister - whether a justiciable controversy - Article 40.3.1 and Article 40.3.2 of the Constitution - locus standi - alternative remedy - whether words of report were deleterious of former minister's good name - whether conclusions in report were within the terms of reference - whether exercise of report was susceptible to judicial review - whether report was in the nature of counsel's opinion - whether constitutional rights were in jeopardy by reason of conclusions in report - audi alteram partem.

"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."
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"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."
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"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."

Finlay Geoghegan J (concurring): Terms of reference of report - conclusions of report - findings as to adequacy of investigation by Minister - whether report amenable to judicial review - vires and fair procedures - whether factual examination concerned a review of documents - whether writer of report was required to express an opinion on matters considered.

"To express an opinion in the Report to the Taoiseach on behalf of the Government in the context of the matters under review that “there is 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” was objectively critical of and seriously adverse to the good name and reputation of the appellant as the person then holding the office of Minister in the context of the nature of the complaints and the Minister’s powers under review in chapter 19 of the Report. It affected his constitutionally protected right to his good name."

Irvine J (concurring): Whether inquiries or other processes were amenable to challenge by way of judicial review - need for judicial restraint - right to good name.

"It is clear beyond doubt that the terms of reference directly concerned matters relating to Mr. Shatter’s reputation and good name, namely, the adequacy of any investigation carried out by him as Minister and whether there was reason to be concerned as to whether he, enjoying as he did a number of relevant statutory powers that he had been asked to deploy, had taken the appropriate steps to investigate and address certain specified complaints. Likewise, the outcome of the inquiry, leaving aside altogether the consequences that the Report had for Mr. Shatter as these may well have been influenced by political considerations, was destined to impact on his constitutionally protected right to his good name."