Supreme Court dismisses appeal against independent expert's report on Garda corruption allegations.

THE SUPREME COURT

Supreme Court Record No: S:AP:IE:2017:000051

Court of Appeal Record No: 2015/321

High Court Record No: 2014/478 JR

O’Donnell J. McKechnie J. Dunne J. Charleton J. O’Malley J.

BETWEEN

ALAN SHATTER

Applicant/Respondent

AND

SEÁN GUERIN

Respondent/Appellant

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 26th day of February, 2019.

Introduction/Background:

1. Controversy of a public nature is never far from the surface in any state which practices democratic principles. Simmering for some time before taking rooted foothold, were allegations made by one Sergeant McCabe, then a member of An Garda Síochána, in which he questioned both the proper investigation and prosecution of crime in the Cavan area and elsewhere. His views in this regard were made known to the Commissioner and other senior management in the force. By way of a letter dated 23rd January, 2012, he had made a complaint to the confidential recipient under An Garda Síochána (Confidential Reporting of Corruption or Malpractice) Regulations S.I. No. 168/2007 (“the 2007 Regulations”), in respect of the then Commissioner which because of his rank gave rise to the statutory reporting of the matter to the Minister for Justice and Equality (“the Minister for Justice”). Given the subject of the complaint and the obvious connection between justice and An Garda Síochána, the Minister and his department became very much involved in “the McCabe affair”. This led to the issues being discussed on several occasions in the Dáil, written copiously about in the newspapers and being debated intensely on the networks. Eventually on the 19th and 21st February, 2014, the Taoiseach of the day received a dossier compiled by Sergeant McCabe outlining the matters of concern and also a copy of the complaint letter which I have referred to. The response was swift and so began the events giving rise to this litigation.

2. On the 25th February, 2014, An Taoiseach addressed the Dáil, the first section of his speech reads as follows: - “I am, however, acutely conscious that the scale of public discussion around these matters could have implications for confidence in the administration of justice in our country. There is a need to address these concerns and put in place a process that can do so quickly and effectively. For that reason, the government has asked an independent and objective legal expert, Mr. Seán Guerin S.C., to examine and assess all the relevant papers and recommend what further action might be taken.” He continued by saying that if recommended, a Commission of Investigation would be established, and that the report would be laid before the Oireachtas and published.

3. Some two days later the government announced the terms of reference for this inquiry, the salient features of which are as follows: - “(1) To conduct an independent review and undertake a thorough examination of the action taken by An Garda Síochána 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 complied 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 February, 2012, part of which was furnished to An Taoiseach on 21st February, 2014.

(2) To interview Sergeant Maurice McCabe and any other such person as may be considered necessary and capable of providing relevant and material assistance to this review in relation to the aforesaid allegations and to receive and consider any relevant documentation that may be provided by Sergeant McCabe or such other person.

(3) To examine all documentation and data held by An Garda Síochána, the Department of Justice and Equality, and any other entity or public body as is deemed relevant to the allegations as set out in the documents at 1(a) and (b) above.

(4) To communicate with An Garda Síochána and any other relevant entity or public body in relation to any relevant documentation and information and to examine what steps, if any, have been taken by them, to investigate and resolve the allegations and complaints contained in the documentation referenced at 1(a) and (b) above,

(5) To review the adequacy of any investigation or inquiry instigated by An Garda Síochána or any other relevant entity or public body entity, into the incidents or events arising from the papers furnished at 1(a), 1(b) and 2 above.

(6) To consider if, taking into account relevant criminal, civil and disciplinary aspects, there is a sufficient basis for concern as to whether all appropriate steps were taken by An Garda Síochána or any other relevant entity or public body to investigate and address the specified complaints.

(7) To advise, arising from this review, what further measures, if any, are warranted in order to address public concerns including whether it is considered desirable in the public interest for the government to establish a Commission of Investigation and, if so, the matters to be investigated.” At the conclusion of this assignment, a report to An Taoiseach was to be furnished.

4. The person who was nominated to conduct such an exercise, Mr. Seán Guerin, S.C., is a highly respected and experienced Senior Counsel, and although perhaps better known for his expertise in the field of criminal law, there is no doubt but that his knowledge extends much further and well beyond that particular area. On the 4th March, he accepted the undertaking which had an indicative timeframe of eight weeks. In fact, he completed the task with admirable expedition, presenting his report on the 6th May, 2014: in total it contained a page number of 336.

5. Mr. Alan Shatter has been a well-known figure in this jurisdiction for many years, both as a lawyer and as a politician, being a member of the Fine Gael party. He was first elected to the Dáil in 1981 and shadowed a number of Ministries whilst his party was in opposition. In March, 2011 he was appointed Minister for Justice and Equality and Law Reform (“Minister for Justice”) and as such was part of the government decision to establish the Guerin Inquiry. On the morning of the 7th May, 2014, he was furnished with a copy of the report by An Taoiseach, who indicated that, if asked to express confidence in him as Minister, he could not do so. This evidently was based on his reading of the report, in particular the sections thereof which dealt with the Minister for Justice and his department. Later that day, Mr. Shatter resigned and in his letter to that effect complained that, if Mr. Guerin had intended to reach conclusions adverse to him, he should have been interviewed and by implication given an opportunity of responding to any proposed criticism. This he regretted had never happened.

6. In the judicial review proceedings which followed on the 30th July, 2014, Mr. Shatter mounted a widespread attack on the legality/lawfulness of the report and the process by which such was arrived at. He sought, on the basis that his good name had been severely damaged, inter alia,:

(i) An order of certiorari viz-a-viz, the report and its conclusions, and an order of mandamus deleting the offending parts, of which there were a number.

(ii) A Declaration that fair procedures, natural and constitutional justice were not afforded to him,

(iii) A Declaration that the appellant, by reason of his membership of the Professional Practices Committee of the Bar of Ireland, which had criticised the Legal Services (Regulation) Bill 2011, a project, at least in part, promoted by the respondent through the legislative process, gave rise to a reasonable apprehension of bias, and finally

(iv) An Order that the findings and conclusions in question were ultra vires the terms of reference. The allegations of reputational damage are set out at para. 16 below.

7. The action was dismissed on all grounds by Noonan J. in the High Court ([2015] IEHC 301). The resulting appeal was successful before the Court of Appeal, largely on fair procedure grounds, where President Ryan and Ms. Justice Finlay Geoghegan delivered the main judgments on 10th November, 2016: Irvine J. in a short judgment concurred with the conclusions reached by her colleagues and specifically endorsed the call for ‘judicial restraint’ made by Finlay Geoghegan J. at para. 33 of her judgment. These were followed by further judgments delivered on 2nd day of March 2017, which dealt with the precise nature of what relief should be granted so as to reflect the substantive decision. The various orders made in respect of costs followed the event, and thus the appeal outcome.

8. In its Determination dated 21st July, 2017, [2017] IESCDET 80, this Court granted leave to Mr. Guerin to argue the following issues: - “(a) Whether Mr. Shatter’s claim is justiciable in the circumstances in which and/or at the point in time at which it was initiated,

(b) • The applicability and scope of fair procedures and constitutional issues to a task of the kind undertaken by Mr. Guerin, and the nature of requirements imposed thereby

• Whether or not the judicial review amounted to a collateral attack on the

decision to establish the Commission of Investigation, and, in particular, an attempt to have Mr. Shatter excluded from the Terms of Reference of such Commission,

(c) Whether or not the duty to make full disclosure when seeking leave for judicial review continues to have force as a legal principle, and if so was it breached in this case by the allegation of bias against Mr. Guerin.” Extensive submissions, both in written and oral form, were furnished and made to this Court. The following is my judgment on the relevant issues. The Report:

9. The Report consists of twenty chapters, running to 336 pages. Whilst most of it makes interesting reading, it will be necessary however, in the interests of brevity, to confine one’s reference to those sections of the report which deal with the role of the Minister for Justice and the Department for which he is responsible (paras. 18-24 below). Those sections are also important as establishing the basis by which the report should be understood and interpreted. (paras. 39: and 86 below).

10. In Chapter 3, headed “Structure and Method”, the author explains that his task involved a detailed examination of the individual matters of complaint identified in the dossier and in the letter to the confidential recipient, Mr. Connelly under the 2007 Regulations. Having referred to the amount of documentation generated by or existing within An Garda Síochána, in respect of these matters, and to an internal investigation of Sergeant McCabe’s complaints led by Chief Superintendent McGinn under the direction of Assistant Commissioner Byrne, Mr. Guerin states at para. 3.3:- “3.3 Ultimately, all of these matters were brought to the attention of the Department of Justice and Equality in either one or other of the documents referred to above. What happened as a result has also been reviewed by reference to the files of the Department and the files maintained by An Garda Síochána in relation to the complaints forwarded from the Department.”

11. In para. 3.4 the following appears, which has been heavily relied upon by the appellant to suggest that by reason of his stated approach, judicial review both in its procedural format and in its substantive remedial provisions is inappropriate and should be rejected: - “3.4 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 of law. Insofar as any views are expressed on factual matters, those 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.”

12. Chapter 19 is headed “Role of the Department of Justice and Equality”. In the initial part of this section the department’s role in relation to the “McCabe complaints” is set out, as well as touching on the request by Sergeant McCabe for the establishment of a Commission of Investigation. From paras. 19.28 – 19.90 the report deals with the complaint to the Minister received by him via the confidential recipient. A brief reference to events surrounding this letter is important, so as to understand the subsequent remarks of Mr. Guerin on this issue: -

(i) On 23rd January, 2012, Sergeant McCabe, sent a report to the confidential recipient, in which he made a complaint against the then Commissioner, Mr. Martin Callinan. On the same day that report was forwarded to the Minister for Justice with a covering letter from Mr. Oliver Connolly, the then occupant of that office. In that letter it was pointed out that where such complaint is made against a Commissioner, it is required to be transmitted to the Minister under Regulation 7(2) of the 2007 Regulations.

(ii) Regulation 8(2) deals with what the Minister ought to do having been notified of such a complaint:- “On receipt of such a report, the Minister, 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, shall cause the allegation to be investigated or take such other action as he or she considers appropriate in the circumstances”.

(iii) On the 24th January, the Secretary General of the Department of Justice sent the report to the Commissioner asking him to comment on it and to do so as a matter of urgency, with reference being made to the said Regulation 8(2).

(iv) The Commissioner replied on the 27th January, 2012: amongst the many observations made was that in his view, these complaints had already been fully explored at both Chief Superintendent and Assistant Commissioner level, both of whom were satisfied with the investigation which had taken place (para. 10 supra).

(v) The response and reaction from the Minister, as best one can tell from the available documentation, was via a letter dated the 7th February, 2012, sent by him to the confidential recipient. It concluded as follows: - “The Garda Commissioner advises me that, having regard to the outcome of the investigation and review, he is of the view that no evidence was found of any wrongdoing (corruption or malpractice) on the part of the named Superintendent, or Assistant Commissioner Byrne. On the basis of these findings, there is no evidence to support any further action by me in relation to the allegation made in the confidential report against the Garda Commissioner”.

13. At that point in the report, Mr. Guerin states the following: - “This letter is, in effect, a communication of the decision of the Minister on the complaint transferred to him by the Confidential Recipient. The files that I have received from the Department of Justice, insofar as they relate to the handling of that complaint, consist of the relevant correspondence outlined above. I have not seen any memorandum or submission to the Minister from his departmental staff, to assist him in the exercise of his function under Regulation 8(2) of the An Garda Síochána (Confidential Reporting of Corruption or Malpractice) Regulations 2007. Nor have I seen any internal departmental minute or memorandum of the Minister’s decision. On

11 April 2014, I specifically sought internal departmental documents relating to the exercise of this function (and other matters). None have been produced relating to this exercise of the Minister’s specific function under the Regulations.” (19.60)

14. Under the heading “Analysis” the following appears:-

“19.91 The Minister for Justice and Equality has an important and independent investigative function in relation to An Garda Síochána. In the papers that I have reviewed it is apparent that the Minister was invited to exercise two specific statutory functions. They are: the power to establish a special inquiry pursuant to s. 42 of the An Garda Síochána Act 2005, as amended, and the function provided for in Regulation 8(2) of the…. (There was also a request to establish a Commission of Investigation under the Commission of Investigations Act 2004. Although there may be cases in which that approach is called for, it is not a specific statutory function arising in relation to the Minister’s functional responsibility of An Garda Síochána). What is important about these specific Ministerial functions is that they enable the Minister to ensure that an investigation, in the true sense, independent of An Garda Síochána, can be conducted in the matters that might be the subject of a complaint made to the Minister.

19.92 Section 42 of An Garda Síochána Act empowers the Minister to appoint a person to conduct a special inquiry “with respect to any matter considered by [the Minister] to be of public concern”. The Act contains no specific criteria for the exercise of that power but, presumably, it requires some assessment by the Minister of whether or not any particular complaint is a matter “of public concern” which might warrant such an inquiry.

19.93 The options open to the Minister upon receipt of a report under the Confidential Reporting scheme which makes an allegation against a Commissioner are set out in Regulation 8(2) and were, in fact, stated in the Secretary-General’s letter of 24 January, 2012 to the Commissioner. The first option open to the Minister was to determine that “he has reason to believe that the allegation… was not made in good faith or is false, frivolous or vexatious”. If the Minister does not have such reason, he has two options. The first is to “cause the allegation to be investigated”. The second is, instead of an investigation, to “take such other action as he considers appropriate in the circumstances”, which appears to allow the Minister a broad discretion as to how to deal with the matter. 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.

19.94 In this case substantial and reasonably allegations of significant misconduct were made in 2011 and 2012. In January, 2012, those allegations included an allegation of misconduct by the Commissioner, through the statutory confidential reporting mechanism, for listing a Superintendent for promotion despite it being alleged that he was unsuitable for promotion by reason of his alleged involvement in the matters complained of. By September 2012, those allegations included all of the allegations contained in the dossier (although the supporting documentation, including PULSE printouts, had not been and so far as I can tell, never were furnished to the Minister, despite requests to do so). There was also complaint about the conduct of the existing internal garda investigation, in a number of respects, and an assertion of a loss of confidence in such an internal investigation.

19.95 From the papers I have seen, I have had difficulty finding material which demonstrates that the Department identified and understood the significant independent statutory role which the Minister had to perform in respect of those matters. The practice adopted when matters were brought to the Department’s attention was invariably to refer the issues that had been raised to An Garda Síochána. While 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, it is a different matter altogether to be entirely satisfied by that response.

19.96 The initial response of the Commissioner in January 2012 was almost entirely lacking in any detailed account of the substance of the allegations or the conduct and findings of the internal investigation. The only exception concerned the allegations arising out of the events in the Hillgrove Hotel in October, 2010, which received a somewhat more detailed treatment. The twelve complaints identified in the confidential report of 23 January 2012, were disposed of in a single paragraph.

19.97 There is no record that I have seen of that response from the Commissioner having been the subject of any submission to the Minister by his officials and there is no record of what decision the Minister made on foot of that information, apart from the contents of the letter to the confidential recipient which appears to have been sent on 7 February 2012. That letter is unclear as to whether the Minister had decided that there was reason to believe that the allegation was “not made in good faith or is false, frivolous or vexatious”, or whether the Minister was not of that view but was satisfied that he had taken such action “as he considered appropriate in the circumstances”. 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.

19.98 That response appears to have been accepted without question (at least until further correspondence from Sergeant McCabe the following December) and the Minister’s response to the Confidential Recipient included express reference to the Commissioner’s having advised the Minister of the findings of the internal investigation. 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.

19.99 A more detailed response was sought almost a year later after further correspondence from Sergeant McCabe and his solicitors. That response was contained in the letter of 26th February, 2013.

19.100 Again, as had occurred when the Commissioner’s initial response was received in January, 2012, there does not appear to have been any written submission to the Minister by his officials in relation to the Commissioner’s response, and 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. (The specific issues arising are considered in detail in the relevant chapters of this report). It is 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. Indeed, in all the papers furnished by the department, I can find no evidence of any detailed assessment within the Department of any of the allegations made by Sergeant McCabe or of responses received from the Commissioner.

19.101 There is a near-total absence in the papers I have seen of written records of any submissions made or advice given to the Minister by his officials, in particular at the time when the exercise of specific statutory functions by the Minister arose.

Similarly, I have seen no written internal records of decisions made by the Minister (in particular between 23 January and 7 February, 2012). As a result, this review is 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.

19.102 The advice of the Commissioner was to the effect that no evidence of wrongdoing was found on the part of the named Superintendent. The analysis in this report of the allegations made by Sergeant McCabe and of their investigation by An Garda Síochána suggests that there are important issues concerning the conduct of criminal investigations under the direction and management of that named Superintendent which remains unresolved.

19.103 In all the circumstances I am of the opinion 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.

19.104 In my opinion these matters warrant further inquiry in an appropriate forum in the public interest.”

15. Finally, reference must be made to para. 20.11, in chapter 20 which is headed “Conclusion and Recommendations”. That particular paragraph reads as follows:- “20.11 No complex organisation can expect to succeed in its task if it cannot find the means of heeding the voice of a member whose immediate superiors 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.”

16. By reference to this material, the respondent to this appeal alleges that his good name and reputation, in three respects, namely personally, as a lawyer and as a government Minister, have been severely compromised: he summarises the offending passages as indicating the following: -

(i) That he did not cause the allegations of Sergeant McCabe to be investigated (paras. 19.93, 19.97 and 19.98);

(ii) That the response of the Commissioner to the confidential report was accepted without question by him (para. 19.98);

(iii) That the process of determining Sergeant McCabe’s complaint went no further than the respondent receiving and acting upon the advice of the Commissioner, the very individual who was the subject of the complaint (para. 19.98);

(iv) That the respondent was satisfied to act on a brief summary of the conclusions of the internal investigation by An Garda Síochána, rather than reviewing the investigation report himself (para. 19.100);

(v) That in light of the absence of written internal records (in particular between 23rd January and 7th February, 2012);

(a) Mr. Guerin was unable to shed any light on the reasons for the approach adopted by the respondent, as Minister, to the exercise of the statutory functions as identified at paras. 19.92 and 19.93 of the report;

(b) He could therefore only conclude that the approach adopted by the Minister had the result that there was no independent investigation by him of Sergeant McCabe’s complaints and that;

(c) The respondent acted on advice received from the Commissioner without that advice being questioned or analysed (para. 19.101); finding also that

(d) The absence of records “that one would expect of a careful and reasoned exercise of an important statutory function was a matter of some concern”, and so,

(e) In consequence of the above matters, there was a sufficient basis for concern as to “whether all appropriate steps had been taken by the Minister for Justice…to investigate and address the specified complaints” (para.

19.103); and finally,

(f) That the respondent had failed to heed the voice of Sergeant McCabe in relation to this complaint (para. 20.11).

17. Arising from the above there are a number of broad issues for determination: firstly, that of justiciability as properly understood, secondly, if justiciable, does the case fall on the public law or private law side? Thirdly, even if on the public side, is judicial review appropriate to this particular cause of action, fourthly, the issue of fair procedures and finally, if it arises, what relief should be granted? In addition, further matters arise including the collateral attack point, the bias allegation made by the respondent against Mr. Guerin, and the fact that Mr. Shatter was a member of the government which established the inquiry. Before however embarking on any of these matters, I would like to dispose of the following point. Department of Justice viz-á-viz Minister for Justice:

18. One of the arguments advanced by the appellant is that even if the report could be classified as damaging reputation, such was that of the Department of Justice and not that personal to the Minister: accordingly, it is said that Mr. Shatter has no standing to make this point. This submission is not correct: it does not accurately reflect the constitutional or legal positioning of either a Department of State or a Minister thereof, in this jurisdiction.

19. Article 28.12 of the Constitution provides that the organisation and distribution of business amongst Departments of State is to be regulated by law; such law is essentially still that contained in the 1924 Ministers and Secretaries Act (“the 1924 Act”). It is by virtue of those provisions, together with some later amending and supporting legislation, that the executive branch of government is structured.

20. The Act of 1924 established the holder of the office in charge of a department as a corporation sole, with perpetual succession and an official seal (s. 2(1)): such office is quite distinct from the individual who might occupy that role from time to time. As it happens and of course as totally expected, the Department of Justice was one of those specifically provided for in the 1924 Act (s. 1(iii)) with the opening words of the section being as follows: “There shall be established in Saorstat Eireann the several Departments of State specified and named in the eleven following subparagraphs, amongst which the administration of business of the public services in Saorstat Eireann shall be distributed as in the said subparagraphs is particularly mentioned, and each of which said Departments and the powers, duties and functions thereof shall be assigned to and administered by the Minister hereinafter named as head thereof” The associated Department of each Minister is the administrative entity or machinery by which those functions are exercised, with the government being given wide and diverse powers to alter the name of a department, to transfer the administration and business of one department to another and so forth. (s. 6(3) of the Ministers and Secretaries (Amendment) Act 1939).

21. However, despite the clear division provided for, the office holder, as Minister, has the overall legal responsibility for the activity, or for that matter, the non-activity of his or her Department, even if he was not directly involved in the decision making which might be under legal scrutiny. Hogan & Morgan (Administrative Law in Ireland), puts the matter well:- “The result of those provisions [as in the 1924 Act] is that the Minister is not only Head of the Department: he also personifies the Department, in law: and as corporation sole bears responsibility in law for its every action…And this is so, although most of those actions are performed by departmental civil servants rather than the Minister himself…” (3-40, 4th edition)

22. The individual powers and responsibilities so conferred are subject only, in a substantive legal sense, to the provisions of Article 28.4.2° of the Constitution which requires the government to be “collectively responsibility for the Departments of State administered by the members of the Government”. Section 5 of the 1924 Act makes clear that nothing within its provisions shall operate as a derogation from that collective responsibility of the government, then the Executive Council of Saorstat Eireann.

23. In 1997, the Oireachtas passed the Public Service Management Act, which was a significant piece of legislation in this area of administration. However, it can be said with confidence that it left untouched, as a matter of accountability, the legal responsibility of a Minister for his Department: in fact, it expressly confirmed the position “A Minister of the Government having charge of a department shall, in accordance with the Ministers and Secretaries Acts 1924 – 1995, be responsible for the performance of functions that are assigned to the department pursuant to any of those Acts” (s. 3).

24. Accordingly, it is I think beyond argument but that criticism of any particular Department must be understood as reflecting on the stewardship of the Minister in charge of that department. So even if it was correct to say that those impugned sections of the report reflected on the Department of Justice and not directly on the Minister, the latter undoubtedly must be associated with and identified as the person who is the subject matter of that censure. Consequently, in my view, the distinction sought to be made by virtue of this submission, is not well founded. Justiciability – Separation of Powers:

25. It is futile to discuss questions of vires, fair procedures or any of the other live issues in this case unless the litigation itself, is subject to court determination. By virtue of Article 6 and Article 34 of the Constitution, justice and its administration is the sole preserve of the judicial branch of government, save as the Constitution might otherwise provide or allow, such as the derogation in Article 37. The only prohibition in the Constitution from courts exercising judicial scrutiny is to be found within the provisions, themselves, of Article 15.12 and .13 thereof: one may also refer to Article 15.10, but for a slightly different reason, in that subject to and within the remit of that measure, there is an area of Dáil and Seanad autonomy. Accordingly, when so determined by the courts, matters touching upon or relating to these measures, can be truly said to be non-justiciable, with the form of the proceedings being irrelevant in that regard.

26. Apart from the Constitution, the courts in a series of cases have declined jurisdiction in matters which, as put by Costello J. - even if he did so in political speak rather than in legal terms - “…should be advanced in Leinster House rather than in the Four Courts” (O’Reilly v. Limerick Corporation [1989] I.L.R.M. 181). In that case as the provision of serviced halting sites would involve social and economic issues affecting state finances, it would be inappropriate for the court to intervene by way of mandatory order. In trying to identify boundary lines, the learned judge distinguished between what he termed “commutative justice” and “distributive justice”. The former was justiciable: the latter was not.

27. There then followed several other cases which adopted a similar approach. Issues such as discrimination in the tax and welfare code, policy matters regarding the provision of a specific type of education and the construction and staffing of high support units for vulnerable children, were all considered as not being suitable for court resolution. (Mhic Mhathúna v. Attorney General [1995] 1 I.R. 484, Sinnott v. Minister for Education [2001] IESC 63, [2001] 2 I.R. 545 (four members of the court holding this view), and T.D. v. Minister for Education [2001] IESC 101, [2001] 4 I.R. 259 (a majority of the court so deciding)). A further example might be that of Horgan v. Ireland [2003] IEHC 64, [2003] 2 I.R. 468, where intervention was again declined in matters of international relations and foreign policy (Articles 28 and 29 of the Constitution).

28. This type of approach however will only come about after conducting a searching examination of the facts and having applied an exacting standard, for otherwise any lesser yardstick would be incompatible with key constitutional provisions. Accordingly, the court must always reserve for itself the power to interrogate the complaint, to determine its true nature and to decide whether the circumstances are so particular, that this distinctive and limiting jurisdiction should be resorted to. Despite its existence however, it is clear that in cases where individual rights are involved, the court will readily intervene where necessary (Crotty v. An Taoiseach [1987] I.R. 713). Such will happen even with matters which are thought to rest in the political sphere, particularly if the executive branch does not respect the constitutional restraints imposed on the exercise of its powers. (McKenna v. An Taoiseach (No.2) [1995] 2 I.R. 10. Another case might be Murphy v. Minister for the Environment [2007] IEHC 185, [2008] 3 I.R. 438, where the High Court (Clarke J. as then) was prepared to intervene in certain circumstances if the Oireachtas did not implement by statutory measures, the results of the 2006 census so as to review constituency boundaries. On the facts however, intervention would have been premature at the date of hearing. What is evident however, is that the learned judge was satisfied that the court had jurisdiction to involve itself in such matters if there had been an unjustifiable delay in enacting the required legislation.

29. In this context it is also relevant to note what Keane C.J. said in his dissenting judgment in Maguire v. Ardagh [2002] IESC 21, [2002] 1 I.R. 385; having referred to Article

15.12 and 13 of the Constitution, the Chief Justice continued: -

“That is not to say that the courts will accept every invitation to interfere with the conduct by the Oireachtas of its own affairs: such an approach would not be consistent with the separation of powers enjoined by the Constitution.”(537) In effect, this represents a form of judicial restraint, the expression of which will vary depending on circumstances.

30. As can be seen therefore, the judicial approach evident from the cases cited has its foundation in what can be described as the separation of powers doctrine, being that derived from the Constitution (para. 3.2.74 et. seq.: Kelly: The Irish Constitution, 4th Ed.), even if also influenced to a minor extent by the common law. In my opinion, it is within these areas, examples of which are given that the “concept of justiciability” should only be positioned.

31. Notwithstanding this view however, there is widespread use of the word “justiciable” or of phrases with similar effect, to describe a whole range of other principles by which litigation can be terminated prior to a decision on the merits. These rules, which have been developed incrementally over the years, are based on a variety of longstanding common law principles, and may be applied at different stages of the litigation, from outset to near traditional/ natural conclusion. Locus standi, res judicata, the rule in Henderson v. Henderson [1843] 3 Hare 100. are some that come to mind. A further is “mootness” where the court normally concludes, if successfully pleaded, that there is no “justiciable controversy” between the parties. This is intended to convey that the dispute in issue, no matter how troublesome for those involved, is not of such a nature as will attract judicial intervention. The reasons behind this approach are well understood (Lofinmakin v. Minister for Justice [2013] 4 I.R. 274 at 290 – 300 (McKechnie J.)). However, this and the other rules or principles mentioned are wholly unrelated to the notion of justiciability as previously discussed.

32. In addition, one also finds quite frequently that certain issues which arise in judicial review proceedings are both classified and determined by reference to “justiciability”. Each of the three cases which are later dealt with illustrates this very point (paras. 45-63 below). Was the report of the Judge Advocate General “legally sterile” as having no impact on rights so that Mr. De Roiste’s case was not actionable? (paras. 54-60 below). In face of an assertion that the report was a mere fact finding exercise, could Ms. De Burca identify a “right” of hers which was adversely impacted upon so that she could access the judicial review window? (paras. 61-63). Both issues were dealt with as an aspect of “justiciability” (paras. 61 – 67 of De Roiste and para. 50 of De Burca). Pretty much the same question arose in Ryanair: did the report of the inquiry impact upon a “legally enforceable right” of the airline, an argument presented as one of justiciability (pp. 264-264 of report). In truth, none of these cases raised any issue of “justiciable” in its meaning as properly understood. Certainly issues arose as to whether or not judicial review was available, but for reasons other than justiciability. In all such cases the point was whether or not an essential element of judicial review was lacking: if so, of course there would be no cause of action on the public law side.

33. As can therefore be seen, confusion abounds as to what “justiciability” really is or more accurately how it should be defined: such can be avoided at least for the greater part if this concept was properly described by reference only to the constitutional context as above outlined and as exemplified by the cases mentioned.

34. In the instant case, the “justiciability” issue is not founded on common law principles nor is it of the type which arises in judicial review: indeed, it is also not of the constitutional type which means that cases such as Wireless Dealers Association v. Fair Trade Commission (Unreported, Supreme Court, Maguire C.J., 7th March, 1956), O’Malley v. An Ceann Comhairle & anor [1997] 1 I.R. 427 and Callely v. Moylan [2014] IESC 26, [2014] 4 I.R.

112 do not feature. Equally so, the line of authority stemming from Maguire v. Ardagh [2002] IESC 21, [2002] 1 I.R. 385, is not in play under this heading. Rather, the issue before the court is whether or not the actual form of the proceedings, in the nature of judicial review and the remedies normally associated with that form, are available for this particular cause of action. Public Law/Private Law:

35. The distinction between public law and private law has always played an important part in determining what form of proceedings, and thus what type of relief, might be obtainable in any given case. In the most general terms, for a litigant to obtain a public law remedy before 1986, recourse was had to the process of making a State Side application seeking, in the first instance, a conditional order and if the cause shown was unsuccessful, an absolute order. The remedies so available included certiorari, prohibition, mandamus etc (paras. 77-78 below). There was a strict division between public and private law, both as to form and remedy: whilst the relief available was interchangeable within the public side it was not so with the private side, an example of which was that one could not obtain a declaration or damages if the proceedings had commenced on the state side. That distinction was in part lessened when the then, new “judicial review” regime was first established by O. 84 of the Rules of the Superior Courts 1986 (S.I. 15/1986), within which one could thereafter and for the first time, also obtain declarations, injunctions and damages. Nether that change, however significant, or the subsequent versions of O. 84 dispensed with the necessity to still make a judgment call on the cause of action being classified as one of public law or private law.

36. By reason of the diversity of circumstances which attract judicial review, the courts have adopted a variety of analytical and flexible tools to help determine on which side of the dividing line, a given case should fall. Even when this is decided however, a further question arises as to what type of remedy is appropriate to address the underlying grievance. The sectors in which these issues arise are truly multiple and represent a wide spectrum of society. A complication exists however, as even with an issue within the private law realm, the courts have long since held that in some circumstances natural justice or its constitutional associate may apply: cases of employment dismissal and disciplinary proceedings so testify, Glover v. BLN Ltd [1973] I.R. 388, McGrath & O’Ruairc v. Trustees of Maynooth College [1979] I.L.R.M. 166, Georgopoulos v. Beaumont Hospital Board [1998] 3 I.R. 132 are but examples. Further, the decision of O’Neill J. in Becker v. Duggan [2005] IEHC 376, [2009] 4 I.R. 1, (in part, difficult to explain), seems to have held in any event that where a person has no effective remedy in private law litigation, resort may be had to the public remedial side, if the

decision maker was bound to act judicially and if the decision affected rights or imposed liabilities. There is therefore what might be described as a ‘blurring’ of the lines, at least to some extent, in the case law.

37. As a result, some judges see the last mentioned line of authority as being overexpansive, with an alternative approach being evident in some other decisions. Keane J., as then, held that an Academic Appeals Board was not a public body for the purposes of judicial review, (Rajah v. Royal College of Surgeons [1994] 1 I.R. 384). From a reading of that judgment as a whole, it is reasonable to say that the learned judge would be a proponent of maintaining more strictly, the orthodox distinction and of avoiding one area encroaching upon the other. See also Carna Foods Ltd v. Eagle Star Insurance Company (Ireland) Ltd [1995] 1 I.R. 526 (H.C.) [1997] 2 I.R. 193 (S.C.), and in more recent times Quinn v. The Honourable Society of King’s Inns [2004] IEHC 220, [2004] 4 I.R. 344, both of which, broadly speaking, are along the same lines.

38. Further important cases in this evolving area include Geoghegan v. Institute of Chartered Accountants [1995] 3 I.R. 86, Murphy v. Turf Club [1989] I.R. 171 (holding that the respondent was not amenable to judicial review: Barr J.:) but which decision is no longer good law in view of the majority judgment in the changed circumstances of O’Connell v. Turf Club [2015] IESC 57, [2017] 2 I.R. 43. Whilst there are several other judgments which could be mentioned, those referred to are sufficient for the purpose of trying to extract some common strands from the overall case law, which is not altogether an easy matter. What can be said however at a general level is that when considering this issue, one is entitled to look at the nature of the body in question, the assignment, undertaking and function involved, the process by which that is conducted, the rights of the aggrieved party and the extent of their impact by the decision/process complained of. Other factors of course may well arise specific to individual facts or circumstances.

39. Accordingly, it seems to me that to determine the public law point by reference solely to the task which Mr. Guerin was asked to perform is too narrow an approach: such gives the impression that it is the subject matter only which determines the outcome. Rather, I think the question, particular to this case must be whether, in light of all cognisable circumstances, including the reasons for the appointment, the manner in which it was made, the task of the engagement, the process by which that was carried out, the resulting report, the inevitability of its publication, the effect and impact of its terms on any ‘rights’ of the respondent as legally understood, can it be said that the challenge of Mr. Shatter is within the realms of public law? Application of Relevant Principles:

40. May I start by pointing out that the only aspect of this case that can properly be regarded as “non-justiciable”, as that terms is used by the parties, is the professional position of Mr. Guerin, who is in private practice and who conducts his legal work from that standpoint. In that regard, he is not at all “employed”, in the employment law sense of that term, much less in any public sector or by any entity which has a public association to it. That however, is not decisive: private persons or companies are routinely asked to perform functions which can be said to be public in nature. In any event, every other factor underpinning these events, belong to the public sphere.

41. To name but some:-

(i) The manner (of appointment): The commissioning of Mr. Guerin was made by the government in the exercise of the State’s executive power (Article 28.2 of the Constitution): neither the permission or concurrence of any other entity or body was required.

(ii) The reasons (for such appointment):

(a) Arose out of widespread concern, as determined by government, that the McCabe allegations made by a serving member, had the capacity to undermine public confidence in the public administration of justice:

(b) To allay that public fear, the executive, by government right, established the above machinery and procedure to achieve that purpose;

(c) Observation: It hardly requires comment but that the absence of public credibility in the justice system would have consequences of enormity for all organs of the state and its citizens.

(iii) The subject matter (of the inquiry):

(a) The propriety of garda conduct, not simply at rank and file level but also at the highest management level and, not solely at individual level, but also at representative level:

(b) With such conduct involving both their investigative and prosecutorial functions.

(c) Observation: The role of the gardaí, as the national police force, is so critical that without an effective force, the safety and security of the state, the preservation of individual liberty, the safeguarding of property rights and the general rule of law itself, all designed to permit citizens to live in a free and democratic society, could not be maintained.

(iv) The Bodies (involved):

(a) An Garda Síochána:

(b) The Department of Justice:

(c) Any other public body of relevance:

(d) Observation: the inclusion of “other entity” in this regard must be read ejusdem generis (terms of reference: point No. 3).

The public importance of the exercise is therefore self-evident as is the significance of its public dimension.

42. May I pause at this point for fear of over burden, and simply add the following, firstly, the obvious level at which the relationship between Mr. Guerin and An Taoiseach/Government stood in this matter, secondly, the statement of An Taoiseach, with government approval, that if recommended, a formal statutory Commission of Inquiry would be established and thirdly, that in any event the report would be laid before the Oireachtas and published. In fact, if the only connection in a public sense was the publication of the report and the Oireachtas referral, such in my view may well have been sufficient to establish the required association with public law.

43. The above factors compel me to the inescapable conclusion that in every material respect, the undertaking and its exercise were overwhelmingly public in nature. This

conclusion can be tested on the spot so to speak, by posing the question conversely, namely was the assignment in all of its material aspects a matter of private law: in fact, I go further and ask was any significant facet of it, a matter of private law? The answer to both is, with respect, not in doubt. This notwithstanding the rather faint hearted suggestion by the respondent that his engagement was comparable to bar library counsel being retained to advise a client. That submission entirely overlooks each of the points which have been outlined. Apart from the personal nature of any such retainer including that of confidentiality, there can be no comparison between the nature of a barrister’s advisory work and the task required of and carried out by Mr. Guerin in this case. Therefore, I reject this suggestion. Consequently, the proceedings cannot be dismissed on the basis that the cause of action is a private law matter and not within the realm of public law. That however is not an end of this related issue as it has also been submitted that a number of key components of judicial review are lacking, and that as a result, the proceedings as presently constituted, cannot be maintained. Amenability to Judicial Review:

44. The respondent further alleges that no “legally enforceable” right of Mr. Shatter has been engaged by the furnished report and that he has suffered no consequences recognisable in law: as a result the report in his view must be regarded as “legally sterile”. There are two features to this point, firstly, whether the existence of such a right, as so described, is an essential pre-condition to judicial review and secondly and in any event, whether ‘good name and reputation’ qualify in that respect. In relation to the former, the recent case law is virtually all one way and shows how modern thinking has moved from what might have been, originally, a requirement on the applicant to establish the existence of ‘an enforceable right’ or that he or she has suffered the ‘imposition of some liability’ (State (St. Stephen’s Green Club) v. Labour Court [1961] I.R. 85 and State (Pharmaceutical Society) v. Fair Trade Commission [1965] 99 ILTR 24). The one exception to this trend is the case next mentioned. With reference to reputation, it is difficult to see how there could be any disagreement in this regard: however, since it was argued, it must be addressed. Since both aspects under discussion, “the right” and “good name” find mixed expression in some of the cases which follow, it is appropriate, where that occurs, to consider them as part of one exercise. Enforceable Right – Imposition of Liability:

45. The case of Ryanair Limited v. Flynn & McAuley (Respondents) and the Irish Productivity Centre (Notice Party) [2000] IEHC 36, [2000] 3 I.R. 240 (“Ryanair”), which has been cited on a number of occasions as an authority on accessing judicial review and which has been heavily relied upon by the respondent, involved a serious industrial dispute between the company and S.I.P.T.U., which was seeking recognition and the right to represent their members who, at the time were employed as ground handling staff of the airline, at Dublin Airport. The escalation of the dispute forced the closure of the airport on the evening of 7th March, 1998, the first time for this to have occurred in its then sixty year history. Being seriously concerned at this development, the appropriate Minister, invoked s. 38(2) of the Industrial Relations Act 1990, by appointing the respondents “…to conduct an inquiry into the escalating dispute at Dublin Airport and to furnish a report to the Minister”. One of the three principle issues which needed to be addressed, required the carrying out of a comparative study between the pay and conditions of the employees involved and their counterparts in other airlines also operating within the airport: this aspect of the inquiry was conducted by the notice party, (I.P.C.), which had been asked to do so by the respondents. The exercise was concluded and the report furnished to the Minister as requested. Ryanair, which disagreed with much of its content (paras 3.20 – 3.27: 7.27, in particular) sought by way of judicial review to have the report (or sections of it) quashed on the basis, inter alia, that it was in part ultra vires and secondly, that fair procedures had not been adhered to. The resulting decision of the High Court has been referred to on a number of occasions as an authority on accessing judicial review.

46. Having cited Murtagh v. Board of Management of St. Emer’s National School [1991]

1 I.R. 482 (Hederman J. at p. 488) as an example of where decisions, even with adverse consequences, are not amenable to judicial review, Kearns J. continued at p. 264: - “If follows from the foregoing that there are, quite apart from the public law dimension…two other requirements which must be fulfilled before the court can intervene by way of judicial review, namely there must be a decision, act or determination and it must affect some legally enforceable right of the applicant. If the right is not a “legally enforceable right” it must be a right so close to it as to be a probable, if not an inevitable, next step that some legal right will, in fact be infringed.” (emphasis added)

That latter aspect of a “legally enforceable right” was picked up from the judgment of Diplock L.J. in R v. Criminal Injuries Compensation Board, Ex Parte Lain [1967] 2 Q.B. 864 at 884 where it was stated “…that the tribunal need not be one whose determinations give rise directly to any legal enforceable right of liability. Its determination may be subject to certiorari, notwithstanding that it is merely one step in the process which may have the result of altering the legal rights or liabilities of a person to whom it relates”. In his application of these principles, the learned judge dismissed the action.

47. At the outset could I say that, I am not certain that this judgment is as influential or as persuasive as it is sometimes said to be: certainly on what type of action is susceptible to judicial review. The passage from Murtagh, which was relied upon in Ryanair, was not supported by authority, certainly none was cited. In any event, Hederman J. did not use the phrase “legal enforceable rights” at all, instead simply referring to the fact that the School’s Board was not a body which ‘determined rights or imposed liabilities’. By making this observation, I very much doubt if he did or even intended to diverse from the then established case law. In any event, the essence of the point being made by the learned judge was that a three-day suspension was “simply the application of ordinary disciplinary procedures inherent in the school authorities…” (p. 264). His decision was no wider than that. His colleague, McCarthy J., expressly stated that he was not to be taken as deciding that judicial review did not apply to a decision by a Board of Management in circumstances such as those in that case: his conclusion was based on a different point. The third member of the court, O’Flaherty J., felt that the entire proceedings had been “a ridiculous waste of public time” and should never have been initiated: but as they had been, they should never have been entertained and were quite inappropriate for judicial review. The learned judge did not outline any reasons for his conclusion nor did he offer support for what either of his fellow judges had said. What I sense from his judgment is that O’Flaherty J. was outraged by the most offensive note left by the applicant, an eleven-year-old pupil for a school teacher; and I suspect that his reference to judicial review was strongly influenced by that sentiment: which let me immediately say is fully supported by any reading of the case. Of interest also is that the trial judge (Baron J.), felt that at the level of principle fair procedures did apply, but that on discretionary grounds relief should be refused. Accordingly, given the diversity of the views so expressed, it is hard to see how the case of Murtagh, and in particular the judgment of Hederman J. added much in this general area.

48. There are a number of other grounds why Ryanair must be viewed with considerable caution. Firstly, even if that passage from Murtagh (Hederman J.) could be read as the learned trial judge thought so, it is clear that the courts’ approach to its review jurisdiction has moved considerably since then. It could hardly be argued presently that damage to reputation, even if not legally actionable at a particular time for whatever reason, would not be sufficient in principle to attract public law intervention. Secondly, Kearns J. took the view that the exercise demanded and carried out by the inquiry, was purely “…a mere fact finding” one: accordingly, the issues raised were not “justiciable” on the basis that there was “no

decision susceptible to being quashed” in the sense that no legal rights of the applicant were affected. This was justified as I have said, by reference to his description of what the respondents were asked to do. With great respect to the learned judge, I very much doubt if this be correct.

49. My reasons are based on the following: firstly, the undertaking required of Mr. Flynn and Mr. McAuley inevitably involved the carrying out of some comparative analysis of the pay and conditions of the ground handling ground staff at Dublin Airport: secondly, in its report of that study (para. 45 above), I.P.C., sets out, (i) the many areas of dispute which were canvassed and the various assertions of both parties in that regard, (ii) all of the information which was generated and the submissions thereon, which were compared and evaluated, and

(iii) the findings made, opinions expressed and conclusions reached by it. In the process the report rejected, or at least cast considerable doubt on Ryanair’s repeated public assertion that in a non-union situation their relevant employees fared much better than those of their rivals. If that is correct, as I believe it to be, it is difficult to understand how the learned trial judge yet felt that there was ‘no impact on reputation’.

50. In addition, even if Kearns J. was correct in saying that the only real consequence for the airline was the possibility that the Minister might impose some adverse requirement on the company, that, for such an international business broadly based throughout the European Union and elsewhere, could hardly be said to be devoid of impact. Further, I do not believe that the decision can be explained by saying that the report “simply [posed] internal management difficulties” for the airline (De Burca: para. 52 of judgment): it did far more than that. In any event, in light of In Re Haughey [1971] I.R. 217 (“In Re Haughey”), and in view of subsequent authority, if an inquiry in fact results in adverse findings being made which impacts upon, inter alia, the good name or reputation of an individual or other legal personality, whether enforceable by action or not, redress in principle must be available. (Maguire v. Ardagh, De Róiste (paras. 54 – 60) and De Burca (paras. 61 – 63)). I therefore would have grave reservations on the precedential value of Ryanair. A ‘Decision’ Finding with no Consequences:

51. Whilst the case of Maguire v. Ardagh [2002] IESC 21, [2002] 1 IR 385 (“Maguire v. Ardagh”) is in many important respects quite unlike the present case, nonetheless, the judgments of this Court are highly material to two relevant issues above referred to (para. 44 above): namely, whether a ‘decision’ as such, although carrying no civil or criminal consequences (“legally sterile”), is of sufficient a character to form a basis for court intervention and secondly, against the background of In Re Haughey, whether reputational damage qualifies as a “right” deserving of recognition and protection in this, a public law context. In truth, the existence of a ‘finding’ or a ‘decision finding’ in that case could not be in doubt in view of the reference to the “unlawful killing” of Mr. Carthy, being described as a finding of fact (sub-committee): neither was it seriously disputed, in fact it was conceded by counsel for the Attorney General, that such a finding was capable of affecting the good name of the individual concerned: any other viewpoint would I believe be totally untenable. Yet it was stringently submitted that because the report as a whole was without legal effect and devoid of legal consequence, no redress or relief could be granted.

52. As pointed out by Hardiman J., the phrase “legally sterile” seems to have grown out of Goodman v. Hamilton [1992] 2 I.R. 542, though its existence has an antiquity greater than that (Victoria v. Australian Building Construction Employees and Building Labourers Federation [1982] 152 C.L.R. 25). Accepting that the finding of unlawful killing had no legal effect in the sense of creating a liability or imposing a sanction, and even further accepting that such finding could be described as “legally sterile”, nonetheless those consequences in themselves did not prevent the finding from having an effect recognisable in law. Hardiman

J. continued:-

“Moreover, I have to say that I find the phrase ‘legally sterile’ extremely unattractive in any realistic human context…One is therefore left with an entity described as a “finding of fact or conclusion” which, it is agreed, could in practice have an adverse effect on an individual. But that, the respondents contend, does not take away from the central truth that “in law” it is of no effect at all. I do not find appealing a line of argument which sets up a distinction between a universally accepted state of fact in real life and a quite contrary state of law. …Even more significantly, no ordinary person hearing that a parliamentary committee had found as a fact that a named person had unlawfully killed another would be expected, by anyone other than a small minority of lawyers to reflect that that of course was merely a matter of opinion. It is true that even the most adverse imaginable findings of fact or conclusion by a sub-committee will not amount to a conviction and will not determine any person’s rights and liabilities in civil law, and will not expose him to any penalty or liability. But that is not the same as saying it has “no” effect. Not merely is it conceded that it would have affects: these effects would sound inter alia in the area of the affected person’s constitutional rights.” (p. 669-670) Although expressed in somewhat different terms, it is obvious that the majority of the court were of like mind on the matters discussed in this passage.

53. It is clear therefore on this authority alone that a decision or finding, which adversely impacts on an individual, even if the consequences are not grounded in civil or criminal law, can nevertheless establish a sufficient basis for the court to intervene on the public law side. Amongst the many cases quoted was the State (Shannon Atlantic Fisheries Limited) v. McPoilin [1976] I.R. 93, in respect of which Hardiman J. said “Although these [findings in that case] had no direct legal effect, Finlay P. felt it was sufficient that there remained on record in the department with damaging consequences to the ship owner’s reputation as such, to confer locus standi on the latter to challenge the report. On any view however, the case is authority for the proposition that, in some circumstances at least, a preliminary inquiry without direct legal effect may give rise to an obligation to apply principles of procedural justice”. (p. 127 of the report) (paras. 112-113 infra). Clearly therefore, Maguire v. Ardagh, which remains good law to this day, is sufficient to deal with the present issue but in deference to the submissions made, there are two further cases which should be referred to.

The Decision in De Róiste: (DeRoiste v. the Judge-Advocate General & Ors [2005] 3 I.R.

394 (« De Roiste ») :

54. In 1969, the applicant, then a serving member of the Defence Forces, was involuntarily retired - “in the interests of the service” - on the grounds that he was suspected of associating with persons engaged in subversive activities. His judicial review application in 1997 to challenge that decision on the basis of fair procedures, was ultimately dismissed by the Supreme Court in 2001, largely on delay grounds. Following a request under the Freedom of Information Act 1997, the authorised officer dealing with such request decided to afford Mr. De Róiste access to the relevant files and papers regarding his forced retirement. The furnishing of those documents was however deferred at the request of the second respondent (“the Minister”) until the inquiry which he was about to set up had been concluded. As he had no copies and as otherwise had no means of knowing what those files or papers contained, it followed that the applicant had sight of no such documentation, for the entire duration of this inquiry.

55. In July, 2002 the Minister in exercise of powers vested in the government, “…charged…” the Judge Advocate General, under s. 15(3) of the Defence Act 1954, with conducting an inquiry in accordance with certain terms of reference. This involved, investigating the circumstances surrounding the 1969 retirement of the applicant, such to be conducted by means of a complete review of the documentation held by the Defence Forces and by the Department, with full access being available to any civil or military personnel who could contribute to an understanding of that documentation or those events. When finished, a report was to be furnished to the Minister with such conclusions and recommendations as thought fit. Some two weeks later a further reference point was added which enabled the Judge Advocate General to seek written representations from any party she considered appropriate. One such person from whom representations were sought was Mr. De Róiste, who in his first instance reply, requested copies of the relevant papers and sought to be interviewed as part of the process. Both were refused, so the resulting submission made on his behalf was poorly informed and therefore, of little value.

56. The Judge Advocate General interpreted the terms of reference as requiring her to consider and respond to a series of questions which she herself posed, all being introduced by asking whether it was possible for her, on reviewing the documentation: -

(i) to determine the circumstances which led to the applicant’s retirement, in 1969,

(ii) to conclude that the government’s decision to advise the President of Ireland to force retire the applicant - “in the interest of the service” - had been “reasonable”,

(iii) to conclude that fair procedures had been applied or were breached, and finally,

(iv) to outline what further steps if any should be taken by the Minister. The answers in essence were (i) that she could determine what the circumstances were, (ii) that the government decision was reasonable or certainly not unreasonable, (iii) that it was not possible to say whether or not fair procedures had been complied with but that either way the decision to retire the applicant may well have been reached in any event on the merits and finally, (iv) the only further step advised was to release the documentation previously granted under the FOI application, but deferred at the instance of the Minister.

57. In the resulting judicial review proceedings to quash the report, it was argued that constitutional justice had not been afforded to the applicant in that, having been prevented from having sight of the documents, he could not make any meaningful representation to the inquiry. Furthermore, he requested but was denied an opportunity to make an oral presentation. In effect, the response to these claims by both the Judge Advocate General and the Minister was that the report was ‘non-justiciable’, was merely a fact finding exercise, did not have any legal consequences, did not affect any legal right of Mr. De Róiste and accordingly, should be classified as “legally sterile”. The High Court disagreed on virtually every such ground.

58. Whilst Quirke J. seems to have accepted what was said in Ryanair (para. 74 of his judgment: para. 46 above), nonetheless his approach to setting the parameters within which judicial review may be taken was in many critical respects quite different from that case. The learned judge noted the fact that the appointment of the Judge Advocate General had a statutory basis, and that the terms of reference required her to reach conclusions, to make findings of fact and to provide recommendations. Even accepting that no right, in a legally enforceable sense, could be relied upon, which followed from the dismissal of his 1997 proceedings and that the report had no mandatory consequences, in that the Minister for Defence was not obliged to act upon it, nevertheless, as Mr. De Róiste’s good name and reputation had been damaged by the events of 1969, the report could not be said to have no effect. In the following passage (p. 509) the learned judge dealt with the “legally sterile”

argument in this way:-

“It is true that the conclusions, findings of fact and recommendations contained within the report…will not have a mandatory consequence for the applicant in terms which are strictly legal in nature. This is so because the second respondent is not required by law to act upon these conclusions, findings and recommendations. However, the so called “legally sterile” nature of those conclusions, findings and recommendations is not by itself, a sufficient ground to deprive the applicant of the right to seek the relief which he seeks.” (para. 87)

In support of this express view, the learned judge referred to two passages from the judgment of Hardiman J. in Maguire v. Ardagh,, firstly, where a finding of fact and its associated status were discussed (pp. 668/669: para. 88 of Quirke J.) and secondly, the passage quoted at para.

52 of this judgment when describing what a finding of fact was and when highlighting the associated status of such a finding together with the passage from his judgment quoted at para. 53 above, were relied upon in support of this expressed view.

59. The learned judge then went on to consider the issue of fair procedures, in respect of which he was quite satisfied that such were in play at the inquiry, but such in his view were violated for two essential reasons: firstly, as the applicant had been denied access to the documentation, this made the furnishing of any meaningful submissions impossible and secondly, as his request for oral intervention was denied, he was thus not afforded an opportunity of being heard.

60. In conclusion, Quirke J. held that despite the fact that as a result of court order (para.

54 above), the retirement in 1969 of the applicant must be “deemed” to have been validly made and secondly, that the report of the Judge Advocate General had no legal effect in the sense that neither the Minister for Defence or any other person was obliged to take action on foot of it, nonetheless as the process in question directly concerned matters relating to the applicant’s reputation and good name, his claim was amenable to judicial review. Accordingly, Mr. De Róiste “had a legitimate, fundamental and significant interest in the process and is entitled to seek relief which he has sought in these proceedings”. (para. 96 of judgment)

The Decision in De Burca: (De Burca v. Wicklow County Manager & Ors (Respondents) and Whittle (Notice Party) [2009] IEHC 54 (“De Burca”):

61. Arising out of a complaint made to the Ethics Registrar for Wicklow County Council by the applicant against the notice party, both of whom were elected members of the Council at the time, a report was produced pursuant to Part 15 of the Local Government Act 2001. Ms. de Búrca sought to have the report quashed, firstly on the basis that the provisions of s. 176(2) of the Act, dealing with “beneficial interests” requiring disclosure had been misconstrued and secondly, that the notice party in his professional capacity had in fact such an interest in a particular motion or resolution moved before the Council, contrary to the opposite finding contained in the report. The proceedings were defended on several grounds, only one of which is relevant to us. It is that of ‘justiciability’.

62. Hedigan J., quoted extensively from and relied on both Maguire v. Ardagh (Hardiman J., 670) and De Róiste at p. 511-512 (paras. 94 – 96). Reference was also made to Ryanair v. Flynn [2004] 2 I.R. 240, and in particular to that part of the judgment of Kearns J. where he said that since the exercise undertaken in that case was purely that of “fact finding”, it followed that there was no decision capable of being quashed as the same did not involve any legal rights of the airline.

63. Having stated that even where a report is portrayed as a mere fact finding exercise, that does not of itself prevent it from impacting upon the rights of the parties affected, the learned judge then continued: - “53. As a public representative, the reputational rights guaranteed to the applicant by Article 40.3.2° of the Constitution maintain particular importance. It seems to me that, following the publication of the report, much of the criticism which was levelled against her in the print and audio-visual media was unfair and vitriolic. The findings of the report, especially its criticisms of her, were at the foundation of this assault on her reputation.

54. The fact that the criticism contained in the report now form part of the public record of the State serves only to amplify the ramifications for her, in particular should she wish to continue her career in public office. To allow such undue criticism of a conscientious local councillor to go unconsidered on the basis that it is of no consequence, or that it has no implications, would in my view involve a kind of legal fiction with potentially far reaching consequences for the public service as a whole. In my view therefore the report did have material implications for the applicant.” What is interesting to note is that the impact on Ms. de Búrca was in her capacity as a public representative, a position not entirely dissimilar from that of a Minister of Government. However, it is not necessary to further dwell on this aspect of the judgment: rather, drawing on Maguire v. Ardagh, and De Róiste, the learned judge clearly concluded that although the impact on Ms. de Búrca could not give rise to a legally enforceable right, nonetheless her claim was amenable to judicial review and in fact an order of certiorari issued in respect of the said report. Accordingly, Hedigan J. added a further voice to the strong reservations which must now be accepted as valid, regarding the generalised comments made by Kearns J. in Ryanair.

Conclusion on Amenability:

64. In addition to what is obviously deducible from the authorities cited, I wish to add my personal view in rejecting the suggestion that the threshold for intervention is as high as having to establish that the finding, decision or report, however so described, must be shown to have contravened some “legally enforceable” right of an applicant. Rights, the infringement of which can have very serious consequences for an individual can fall short of that classification, depending on how the latter is understood and applied. For me any ‘right’ or interest which is deserving of recognition in law, legal protection or constitutional vindication qualifies: its infringement does not have to give rise to a recognised cause of action, much less a cause of action that is capable of enforcement: damnification of one’s good name may not be actionable for multiple reasons such as delay, want of malice or protection by privilege, but even so, that right may still have to be valued and respected in public law. It therefore seems to me that where some prejudice has been suffered, or detriment caused, or harm inflicted, such may well be sufficient to meet this requirement of accessing a public law remedy. This position is neatly encapsulated by the following observation, namely that “many people have been economically ruined and socially outcast by virtual decisions which are legally sterile” (Maguire v. Ardagh: Hardiman J. at 670, quoting cases on the House un – American Activities Committee). Accordingly, even that type of damage, impact or injury must be considered when the court is asked to intervene on the public law side.

65. It is perhaps a little surprising that some doubt may have existed as to whether, for the purposes of interacting with the public law process, in form and remedy, the right to reputation constitutes a sufficient interest. This Court in Re Haughey [1971] I.R. 217 said at p. 264 :- “…[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 procedure which will restrict or prevent the party concerned from vindicating those rights.” From this statement, which, although considerably debated has never been seriously disputed, much less discarded, it seems quite clear that where any personal right is in danger or has been jeopardised, the Constitution is alive. As the supreme and ultimate protector of its position, so too are the courts, which can of course provide whatever corrective redress of either a public or private nature, as is necessary (State (Quinn) v. Ryan [1965] I.R. 70 at 122). Such a stand point is simply indispensable to fundamental rights.

66. The position therefore with regard to reputation is utterly clear: Article 40.3.2° of the Constitution obliges the State to protect the good name of a person from unjust attack and if injustice should be done to vindicate that good name. There therefore could be no higher authority on this point than the Constitution itself: In Re Haughey so testifies. It is hardly stretching matters greatly to include within this protection, the circumstances last mentioned by Hardiman J. (para. 64 above), which surely should command the respect of those who are conscious of and appreciate what human interaction at societal level involves: this is real life, real living, even if, sometimes for good reason, courts stand aside: in this case, there are no such reasons. (See also De Róiste and De Búrca). Consequently, it seems clear to me that where a competent body makes a finding of fact, reaches a conclusion, or expresses an opinion, which has the potential to and certainly where it impacts upon an individual, in the manner herein described, including of course that of his good name, then if the other requirements on the public law side are met, the remedies normally associated with judicial review should in principle be available.

67. There is one further aspect which should be mentioned, namely what should be regarded or recognised as a “determination” in this context. Traditionally it was once the case that remedies such as certiorari, prohibition and mandamus did not apply unless there was a ‘decision’ or a ‘determination’ recognised as such in our legal order: and probably one which was either ‘binding’ or ‘conclusive’. That strict position has eased considerably over the years, with that type of rigid classification now rejected. (Administrative Law in Ireland: Hogan & Morgan: 4th Ed.: 16.14 – 16.17). Accordingly, it is no longer the case that before a pronouncement can be said to amount to a ‘decision or determination’, it has to be badged in some formulistic way: the issue concerns substance not appearance: what was said, what it means and what impact does it have?

68. Notwithstanding such relaxation however, it is pretty much self-evident from the contents of the report in this case (paras. 10-15 above) that the same must be regarded as a ‘determination or decision’ for the purposes of judicial review. In addition, could I simply highlight two immediate aspects of the overall process which for me carry very significant weight, not simply under this heading but which permeate every issue in this case. Firstly, although there is no reference to this in the terms of reference, the Taoiseach in his Dáil statement, committed himself to publishing the report. Mr. Guerin was fully alive to this: express reference is made to this fact in his letter of 6th May, 2014, when furnishing his report: such was therefore prepared with that fore knowledge. Secondly, although again not referred to in the terms of reference, it was as the Taoiseach said, laid before the Oireachtas: it therefore became an official report of the House: it was thus part of the official record: a fact which the appellant was fully aware of. These are very significant steps, which, when considered with its terms, must render the report a ‘determination’ for present purposes.

69. Accordingly, as I am satisfied that the necessary pillars for accessing relief on the public side have been established by Mr. Shatter, the individual harm as asserted by him can now be examined in a case specific way: so as to see (i) if some protected interest has in fact been adversely affected: if so, (ii) is the public law remedy of certiorari engaged, and if in principle available, (iii) does the vires issue merit its application? Was Respondent’s Good Name Damaged:

70. In asking whether or not the report made findings adverse to the then Minister, the Court of Appeal, (Ryan P.), having referred to Chapter 19.93 up to 19.103 and also Chapter 20.11, felt that such conclusion was irresistible from these passages. The president then continued: - “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.” (para. 63) The conclusion of the learned President was that both as a Minister and as a person, Mr. Shatter’s good name had been seriously damaged.

71. In her judgment, Finlay Geoghegan J., said the following:-

“However, as already stated in this judgment, I am of the view that, at minimum, the final opinion in paragraph 19.103 whilst, intra vires, was objectively seriously adverse to the good name and reputation of the appellant. 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 a 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. Certain, but not all, of the earlier opinions or conclusions of which complaint is made whilst there are expressions of opinion based on the documents are also expressions of opinion critical of the appellant as Minister in relation to the conduct of the investigation into the specified complaints. These include the last sentence in 19.98 and comments in 19.100.” (para. 57) Whilst it is true that the learned judge described the content of para. 19.101 of the report as “for the most part expressions of opinion” (para. 51) and felt that para. 20.11 was not “central to the issues on appeal” (para. 54), nonetheless her criticism was more widespread than simply being directed at para. 19.103, although undoubtedly for her that was by far the most important.

72. Although to a lesser extent and with some difference of emphasis, both O’Donnell J. and Charleton J. in their respective judgments agree that certain sections of the conclusions reached were adverse to the good name and reputation of Mr. Shatter.

73. At the outset may I say that all events which took place after delivery of the report to an Taoiseach and all consequences of such events must be regarded as political in nature and therefore should not be considered for the purposes under discussion: such cannot sound in any form of legal redress for Mr. Shatter. Accordingly, I confine my remarks to the report which in my view contains several sections which are clearly critical and condemnatory of the respondent, both personally and professionally as a lawyer, as well as in his capacity as Minister for Justice. It is not however necessary to undertake a detailed analysis in this regard, as the report for this purpose has been extensively parsed in some of the other judgments delivered, which for the most part, I generally agree with. Could I simply however highlight, as important criticisms, the following, (i) that despite his statutory functions when a complaint is made against a Commissioner, he did not react as his role demanded, (ii) that in effect he was satisfied with what the Commissioner told him of the internal investigation into the complaints and accordingly, exercised no independent judgment on such matters, and (iii) that both he and his Department for which he was responsible failed to follow up on the McCabe complaints. By reference to these and the other matters referred to, it seems to me that on any objective reading of the report, it was highly critical of the Minister. In this regard, it is unnecessary to make any distinction between findings of fact, conclusions reached or opinions expressed. Any suggestion that it was a purely narrative account of documents is much wide of the mark. Clause 3.4 of the Report:

74. In his submission, the respondent relied upon para. 3.4, and to a far lesser extent 3.3 of the Report (paras. 11 and 10 supra), so as to exclude from the area of judicial review the reputational complaints of Mr. Shatter. He says, as explained in that paragraph, that the purpose of the report was not to make findings of fact or to determine disputed questions of either fact or law, and that the views expressed by him are derived only from the documentation available. Further, that he has not adjudicated upon any matter affecting any person so named or referred to: that is undoubtedly what para. 3.4 states. However, it is totally unclear on what precise basis this clause is being relied upon: it could be for one of two reasons: on the one hand it might be suggested that it operates as a kind of “disclaimer” or on the other that the exercise undertaken, including the report’s content and findings, did not transcend the parameters which Mr. Guerin outlined in that paragraph.

75. The first suggested use is not in my view open. Given the nature of the inquiry, it is very difficult to see how if constitutionally protected rights have been adversely affected, a clause, unilaterally inserted by the author could render immune from redress any action by an aggrieved person, if otherwise well founded. Mr. Shatter had no forewarning of para. 3.4, he did not seek its inclusion, did not consent to it and accordingly, there is no way in which it could be said that he acquiesced in its suggested meaning or waived his good name rights, if such should be affected. The fact that he was a Minister at the time is for this purpose irrelevant. Secondly, even if the context permitted an examination for ‘disclaimer’ purposes, which I very much doubt, the paragraph is, by its nature, scope and terms, insufficient and inadequate to that end: it could not achieve the restriction, limitation or ouster if such was its intention. One may add the paragraphs’ locational remoteness from Chapters 19 and 20, and also that some doubt must exist as to whether its intended focus was confined only to the personnel mentioned in the last sentence of the paragraph. Whether or not, I cannot agree that it has the suggested or any exclusionary effect on these proceedings.

76. On the second possible application of para. 3.4, can I say that even if the language used was of sufficient clarity to specifically exclude any intention to make findings of fact or to reach conclusions, or otherwise to speak in a manner which could give rise to a public law issue, such language in itself, whilst important, could not settle the point at issue: either as the conclusiveness of the views expressed or as to whether the written word, properly contextualised, did as a matter of fact impact upon some protected right of Mr. Shatter. The true meaning of the impugned sections of the report cannot be determined by the declared purpose and intent of the reporter: rather, the focus has to be on the content and on the text ultimately produced. It follows that even at the highest aspirational level which an author might set for himself and hope to follow, if through inadvertence or otherwise such has not been achieved, but rather findings adverse to others are in fact made, the latter will outreach any desired yet unattained objective of the writer: substance will prevail over intent. Thus, by reason of the views previously expressed and those further stated at para. 87 below, the clause in question cannot be availed of by the respondent. Potential Remedies:

77. At a general level, the best known and most widely relied upon remedies in public law are those of certiorari, mandamus, declarations, injunctions and damages (para. 35 above). Quo warranto is now virtually obsolete (State (Lycester) v. Hegarty [1941] 75 ILTR 121). In any such proceedings of course, fair procedures will apply and concepts such as reasonableness and proportionality are frequently utilised. Whilst several cases are unsuccessful by reference to these and other rules, it is of interest to note that once proceedings are within this classification, there are very few cases, reported or unreported where the availability of relief is discounted as a matter of principle. Almost always the precise relief granted or refused will be case individual and circumstance specific.

78. The respondent seeks a variety of these remedies (para. 6 above), two of which will be considered, firstly, he seeks an order quashing and thereafter excising from the report, the sections complained of on the basis, inter alia, that such are “ultra vires”, and secondly, a declaration to the same effect on the basis that fairness of process was not applied. Vires - The Ask of Mr. Guerin:

79. The vires issue at least from a legal perspective is not in my view that difficult. The respondent claims that Mr. Guerin exceeded his authority in reaching and expressing the offending views which he did. As he was entitled to, the appellant interpreted the terms of reference: some latitude or margin of appreciation must be afforded to such an exercise: he gave an insight into his approach in Chapter 3.1: paras. 3.3 and 3.4 are more informative. Whilst respecting the author’s view of what he was empowered to do, if however, on an objective basis what he in fact did, exceeded the underlying terms, then the conferred authority by the executive would have been overreached.

80. On this interpretive issue, several approaches, all permissible, might be adopted in any given situation so as to conduct an undertaking such as that asked of Mr. Guerin. One person’s style or manner of expression may be quite different from another, even when performing the same task. Some speak in a self-effacing, diffident or retiring manner: not everyone is expressively vibrant. Any and all such variations which remain within the working remit will not fall foul of the vires rule.

81. As pointed out elsewhere (paras. 3 and 87 herein), Mr. Guerin was requested to study, analyse and report, in effect, on the adequacy of not simply what investigation took place, but also on what steps were taken to resolve the McCabe allegations. Having done so, he was asked to make a call on whether having regard to his views, there still remained a sense of unease or disquiet regarding what was identified by An Taoiseach in his original Dail statement, which was also reflected in para. 7 of the terms of reference: namely public concern for the administration of justice. And then Mr. Guerin was required to advise on how and by what means that concern might be addressed and finally, to specify the nature of any ongoing matters which required further investigation.

82. Acknowledging that the appellant has a good deal of flexibility in both the interpretation of the reference and in how he conducted the exercise demanded, I am satisfied that Mr. Guerin stayed within the overall parameters of his instructions. When one interrelates, in particular the conclusion section of the report with the terms of reference, I do not believe it can be said that he exceeded the mandate given to him. In so saying, I am not in any way suggesting that the phraseology of the analysis section in Chapter 19 and of the

conclusion section in Chapter 20, was the only method by which the undertaking could have been performed; rather the point is that the approach adopted was open to him: it was one which he was entitled to exercise. I therefore do not accept the vires argument and accordingly, no order of certiorari could be made on this ground of objection. The Fair Procedures Point:

83. Having rejected that ground of appeal, the follow on question is whether the investigation demanded, could have been carried out within the limitations which the author set for himself in para 3.4 of the report: if it could have been and was in fact so conducted, it would have been exceedingly difficult to sustain a challenge on this basis: if it could not have been or was not in fact so confined, it is abundantly clear that as a most experienced lawyer and given the reasons which motivated para. 3.4 in the first instance, Mr. Guerin was on high alert of activating procedural safeguards in those circumstances. That being so, it is difficult to see how there should be such controversy as to whether this fundamental and treasured constitutional principle, has any role in this case. It is even more so, as if the vires argument succeeded, the public law remedy of certiorari, unless refused on discretionary grounds would undoubtedly have issued. Be that as it may, this remains a contentious issue.

84. This was not a documentary review assignment only: nor was Mr. Guerin confined to interviewing Sergeant McCabe as the sole person in the investigative process. The dominant subject of the inquiry were the allegations of grave garda deficiency in the investigation and prosecution of crime in a particular area. Paragraph 1 of the terms is “to conduct an independent review and undertake a thorough examination”, of the steps taken in respect of these allegations. Each and every other reference point related back to this controlling imperative. Whilst Point No.2 specifically refers to Sergeant McCabe for interview, it also includes in the same breath, “any other person” who may be relevant to these allegations. I therefore do not accept any suggestion that the Minister for Justice and his Department were involved only at a documentary level. True, that is how it turned out, but that was not in any way mandated by the terms of reference: that was a decision made, of choice by Mr. Guerin.

85. The terms asked a number of questions of the author: the task required of him never envisaged that the report would simply be privately viewed or anonymously archived. Rather, as previously stated, the undertaking involved the following:-

(i) To examine all documentation and data held by any public body, including the Gardaí and the Department of Justice into the allegations made, (point (3))

(ii) To examine what steps if any had been taken to investigate and resolve these allegations (point (4)),

(iii) To review the adequacy of any such investigation and the steps taken to resolve issues (point (5)),

(iv) To pass some judgment on whether as a result of what An Garda Síochána, or other public body did or did not, there remained a residual concern about the adequacy and appropriateness of their actions, and if so, (point (6)),

(v) What further measures were required in the public interest to address the concerns of the public so remaining (point (7)). All of these steps were specified because of government fear that, if the investigative and resolution seeking process, inter alia, of An Garda Síochána was found wanting, the same could jeopardise confidence in the administration of justice. For such to occur and be left unaddressed would be very damaging indeed from a national perspective.

86. As with my approach to examining the public law point (paras. 38 – 39 above), it is likewise on the constitutional and natural justice issue (the “fair procedural point”): therefore, one should not view the report by segregating the sections complained of and considering them in individual isolation. That approach is far too narrow and could be damaging to both parties: it could operate quite unfairly from Mr. Guerin’s perspective, as well as from the respondent’s. The better viewpoint is I feel to have the entire picture considered, which includes the offending sections as well as those which it is said, immunise the conclusions from having legal consequences. This latter exercise has in part been conducted in an earlier section of this judgment (paras. 74-76).

87. In this case, I do not believe that Mr. Guerin was required by the terms of reference to make any findings of fact, reach any conclusions on disputed issues or convey damning imputations against any individual: the entire exercise could have been conducted without taking that step or going that far. If therefore the report and its underlying process was involved only with what could be described accurately as a ‘fact finding’ operation, that would not be subject to court review. Inherent within such an exercise is the absence of any critical or evaluative appraisal at an individual level on what the exercise discloses. Certainly it would not involve the making of any unnecessary comment adverse to a person’s good name. Accordingly, and as stated, if the strictures outlined in para. 3.4 of the report had been maintained, it would have required a great deal of creative thinking to mount a review objection on this ground of appeal. But, that was not the case. Whilst not acting outside the terms of his remit, the approach adopted carried with it the risk of procedural obligations arising from the manner in which the inquiry was conducted. That Mr. Guerin was conscious of this divide line is in my view not in doubt (para. 83 above). Scoping Exercise:

88. At the outset, I should deal with a submission by the respondent that since the undertaking was a “scoping exercise” that in itself may be sufficient to exclude fair procedures. I reject this. In the first instance I do not know what is meant by a “scoping exercise”? Is it different from the type of investigation which takes place between a holding suspension and a decision to proceed with a full inquiry? How does it compare, if at all, with a “preliminary” inquiry and if the same or similar, why not use that adjective instead of “scoping”? Is it designed to simply ascertain what information is within the knowledge or possession of the subject person, to identify and tabulate that information and to forward the results to the requesting party? Would all such exercises, once so labelled or described, be similarly classified for procedural fairness and substantive justice and would these attract the same prohibition as now alleged?

89. I very much doubt if the latter can be the case. As a matter of common sense, every “exploration” of events, to use a most benign term, will be different. As will the terms of reference and precisely how the exercise demanded can and has been carried out: as well of course as the content of, and how and in what manner, the report will be written. It therefore seems to me, as oft repeated earlier, that it is the substance which one must have due regard to and not the headline designation of the exercise. (paras. 112-113 infra) Case Law on Process Fairness:

90. If this cause of action is amenable to judicial review and its various remedies, as I hold it is, why should Mr. Shatter, in this case be deprived of having fair procedures apply to the process which gave rise to those sections of the Guerin Report in respect of which he makes complaint? In looking at this question, it becomes helpful to consider briefly, but only at a general level for reasons which will become obvious, the following areas of law in which fair procedures have been considered. Whilst this limited reference is sufficient for the purposes of illustrating the underlying point, it must be readily acknowledged that there are numerous other examples which could be mentioned: in truth, as the topic of procedural fairness is so diverse, it would be well beyond the scope of this judgment to go further than what appears.

91. On the employment/right to work side, or on the right to practice a profession side, it may become necessary from time to time to effect the suspension of an employee or a practitioner if the circumstances warrant such immediate action. Justification may range from the obviousness of a theft, to unacceptable conduct such as physical or psychological behaviour or the risk of such to fellow employees, or the perceived risk of harm to the public. It has sometimes been said that such suspensions, may not at the initial stage attract fair procedures. In Morgan v. Trinity College Dublin [2003] 3 I.R. 157, the plaintiff, a lecturer, was immediately suspended but with pay on a complaint of bullying and harassment by a fellow member of staff in the Department of English at Trinity College. His application for an injunction, to prevent the college from conducting a disciplinary inquiry or from removing him from office was refused by reference, inter alia, to the nature of the suspension and the follow on inquiry in which full procedural rights would be available. In his judgment, the learned judge quoted from and relied upon Deegan v. Minister for Finance [2000] E.L.R. 190 at 198/200, in support of the conclusion reached (Kearns J., p. 170).

92. A characteristic of this type of suspension is that it is purely a holding exercise properly so called: it is not based on and does not imply any finding of misconduct, irregularity or breach of rules, and is not intended as the imposition of a sanction or penalty. Moreover, the person must be informed of the reasons for his or her suspension (Flynn v. An Post [1987] 1 I.R. 68), and a point emphasised in some of the case law is that the same will inevitably be followed by an inquiry or investigation within which full rights are afforded to the affected person. Where however the suspension is imposed by way of punishment, the necessary procedural safeguards will have to be applied at that point in the process. (Quirke v. Bord Luthchleas na hEireann [1988] I.R. 83).

93. In some situations, issues have also arisen in circumstances where the suspension is imposed without pay or where its duration may be considered exceedingly long, or where it interferes with the individual’s livelihood or reputation, or obviously where it imputes grave misconduct. In a series of cases the courts have looked at these various situations, including O’Ceallaigh v. An Board Altranais [2000] 4 I.R. 54 (“O’Ceallaigh”), McNamara v. South Western Area Health Board [2001] IEHC 24 at para. 62 and O’Donoghue v. South Eastern Health Board [2005] 4 I.R. 217. Apart from O’Ceallaigh, where this Court discussed in some depth at what point in a staged process would the requirements of fair procedures have to be applied, the other cases mentioned do not significantly, if at all, add to this general discussion.

94. A further variation in the above theme, but particular to its own facts, might be illustrated by the case of Dunnes Stores Limited & Ors v. Maloney and the Minister for Enterprise, Trade and Employment [1998] IEHC 165, [1999] 3 I.R. 542. Mr. Maloney (who on resigning was replaced by Mr. Ryan) was appointed by the Minister as an “Authorised Officer” for the purposes of s. 19 of the Companies Act 1990, in respect of two companies in the “Dunnes Stores Group”. Under that and other provisions of Part II of the Act, his task was to examine the books and documents of the companies with a view to determining whether an Inspector should be appointed to investigate their affairs. On several grounds this appointment was challenged. Laffoy J. held: -

(i) that despite the discretionary nature of s. 19 (“the Minister may…give directions…” (subs (1)), the exercise of the power carried with it a duty to ensure that fair procedures were afforded to anyone affected thereby. (East Donegal Co-operative v. Attorney General [1970] I.R. 317). Accordingly, the

decision to appoint “is reviewable for compliance with the requirement of fair procedures” (p. 556).

(ii) that the Minister was not obliged to give advanced notice of, or an opportunity for the applicants to make representations, in respect of the appointment: that appointment did not necessarily mean that the applicants had suffered any particular prejudice or detriment which would require such notice. In any event, the decision once more was subject to review.

(iii) that if the companies were required to produce documents they would at that stage have to be given an opportunity to make representations.

(iv) that having made a bona fide request for reasons, procedural fairness required the giving of such, which had not been done, and

(v) that the request for documents was in the nature of a “trawl” with “the only reasonable inference being that the decision was excessive in content” (563 –

564 of the report).

Furthermore, the learned judge dealt with the reputational damage that might be caused by knowledge of the appointment as follows:- “The risk that the [Authorised Officer’s] investigation will become public knowledge and that the company may be perceived as being “tarred with the same brush” as other companies which have been subject to the s. 19 procedure…is part of the price which the company’s proprietors pay for the benefit of incorporation.” ([1993] 3 I.R. 542 at 560) This perhaps was a rather surprising way of dealing with the point.

95. From this brief survey, it seems clear that there is no similarity with employment related situations either on the regulatory side or otherwise, or with suspensions on whatever side these may fall; in addition, and quite obviously, neither is there any real association with tribunals established under the Tribunal of Inquiry (Evidence) Act 1921, as amended. Perhaps therefore, the closest analogy is a process or regime which ultimately involves more than one step, act or even inquiry before conclusive finality is reached. Multi-Step Process:

96. Assuming that the process as a whole attracts fair procedures and assuming that it should be regarded in law as a composite undertaking as distinct from one with separate and distinct steps, the question of what satisfies fairness even with such a process, which involves more than one act or decision, is difficult and has troubled the courts for some time. For example, even with this simple formulation of the issue many questions arise, for example, is it truly a unitary event, what is the nature and subject matter of the initial “inquiry”, what is it designed to undertake and achieve, what consequences or impact does it, on its own, have for the individual in question, and what is the nexus between that and the follow on step: in respect of which, may I say, the very same questions arise. Moreover, are the bodies which conduct both stages different and is the second in the nature of an appeal or a confirmation/revocation of a previous decision? They are but some of the matters which come to mind. It is therefore extremely difficult to generalise on this point and as the case law shows, judges have to build on the individual constituents in any given case, so as to reach a conclusion on this issue.

97. As with any general area, there are several cases from many jurisdictions which have grappled with this issue, without it must be said much, if any, notable success: by which I mean that no clear or authorative criteria has emerged by which this vexed question can be determined. In the 4th Edition of his work, De Smith offers this view: “Where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a person’s interest, the courts will generally decline to accede to that person’s submission that he is entitled to be heard in opposition to this initial act, particularly if he is entitled to be heard at a later stage.” (emphasis added) (Judicial Review of Administrative Action) (1980 at 119). In later editions the matter is put differently: “The degree of proximity between the investigation in question and an act or decision directly adverse to the interests of the claimant may be important. Thus, a person conducting a preliminary investigation with a view to recommending or deciding whether a formal inquiry or hearing (which may lead to a binding and adverse

decision) should take place is not normally under any obligation to comply with the rules of fairness. But such a person may be placed under such an obligation if the investigation is an integral and necessary part of a process which may terminate in action adverse to the interests of a person claiming to be heard before it.” (Emphasis added) (6th Ed.): (2007 at 8-034). In fact, this same passage is contained in the 2013 version and in the 8th Ed. (2018 at 8-055).

98. Apart from the evident generality of Professor De Smith’s text, it is quite informative to note the paragraphs immediately preceding, where, having pointed out that this is one of the “most troublesome problems” in relation to procedural fairness, and that the authorities are in conflict with each other (8-053), it is said “Even if we ignored the existing authorities altogether and the problem is examined entirely in light of the need for fairness to be shown to individuals and for efficiency to be displayed in the context of public affairs, it is unlikely that any neat set of answers will emerge. It may not be very difficult to give the best available answer to a problem set in a given legislative and factual context; it is very difficult to supply satisfactory answers couched in general terms. However, the following tentative observations based on principle as well as authority are offered”. (Emphasis added) (8th Ed.)

(2018) (8-054). There then followed the passage above quoted from the latest edition of his work.

99. In another distinguished text, published in this area, Wade puts the matter like this: “Natural justice is concerned with the exercise of power, that is to say, with acts or orders which produce legal results and in some way alter someone’s legal position to his disadvantage. But preliminary steps, which in themselves may not involve immediate legal consequences, may lead to acts or orders which do so. In this case the protection of fair procedures may be needed throughout, and the successive steps must be considered not only separately but also as a whole. The question must always be whether, looking at the statutory procedure as a whole, each separate step is fair to the persons affected.” (Wade, Administrative Law, (6th Ed.) 1988 at 570 – 571). The 11th Ed., 2014, (Wade & Forsyth) contains exactly the same passage as that quoted.

100. Both of these works were cited in O’Ceallaigh (p. 123), but before I briefly mention that case, could I refer to two decisions on the public licensing side, often referred to in this context, the first of which is Ingle v. O’Brien [1975] 109 I.L.T.R. 7, where it was held that a right of appeal, with full procedural rights, was not sufficient to neutralise the absence of affording the holder an opportunity of making representations before his license to drive a public service vehicle was revoked under the Road Traffic (Public Services Vehicle) Regulations 1963 (Article 36: No. S.I. 191). Moran v. The Attorney General & Ors [1976] I.R. 400, applied the same reasoning in similar circumstances even if Mr. Moran had already exercised his right of appeal to the District Court against the revocation in question. Notwithstanding the dismissal of that appeal, the High Court (Doyle J.) held that the failure to afford an opportunity of being heard prior to the original decision being taken, was a violation of procedural standards. The decision to revoke was that of the Commissioner of An Garda Síochána or his nominee (Article 2 of the Amending Regulations 1970: No. S.I. 200/1970).

101. A different approach however is evident from the second case, namely Gammel v. Dublin County Council [1983] I.L.R.M. 413 (“Gammel”), where the local authority, under the Local Government (Sanitary Services) Act 1948 made an order, following a site inspection, prohibiting the erection or retention of temporary dwellings on the lands of the applicant. Any person aggrieved by such order could apply to the relevant Minister within fourteen days after its publication for an annulment of that order, which he had power to do so or to confirm it with or without conditions (s. 31(3)). If no such application was made, the order would come into effect thirty days after its publication (subs (8)). As Mrs. Gammel had no notice of either the prior inspection of her caravan park or of the making of the order, she sought to have the latter set aside on the grounds of audi alteram partem. Carroll J. held that, as the statutory regime in question had the effect of affording to her, as an aggrieved person, via an application to annul, the right to make any representations she saw fit, there was no want of fairness within the overall process. The opportunity for such was provided for, before the order became final. In so deciding, the learned judge distinguished Ingle on the basis that the revocation order so made in that case had immediate effect, with a stand alone appeal to a different body: whereas by virtue of the suspensory nature of the order in Gammel, the required opportunity of making one’s case was provided for in the manner indicated.

102. From time to time thereafter, the Gammel line of authority has been quoted and on occasions followed. The fact that an annulment application is made to the Minister and not the local authority which made the order, prevented any objection on the decision maker being a judge in his own cause. In one sense, given that different bodies were involved, the application to the Minister seems very close indeed to a separate and distinct appeal, as in Ingle v. O’Brien. In any event, the real point behind Gammel is that an opportunity of making representations was afforded before the rights of the land owner could be said to have been finally affected, whereas in Ingle/Moran it was held that such an opportunity is required at first instance level, that is independent of any appeal process.

103. A good example of the Gammel type of approach is to be found in McNamee v. Revenue Commissioners [2016] IESC 33, a case where the Revenue Commissioners formed an opinion that a particular “transaction” was a tax avoidance transaction within the meaning of s. 811 of the Taxes Consolidation Act 1997, as a result of which the tax advantage previously afforded to the tax payer was withdrawn with further tax consequences for him. The process by which this occurred was that an officer of the Revenue Commissioners submitted a “Report” to the “Nominated Officer”, also of the Revenue Commissioners, who then formed the opinion in question and gave notice thereof to the tax payer, all within the meaning of that section of the Act. Despite demand, the Report was not furnished and neither were reasons given as to why in the first instance the Revenue Commissioners decided to invoke s. 811. Consequently, it was alleged that there was a breach of fair procedures in that the tax payer was given no opportunity of making submissions prior to these steps being taken. On this aspect of the case, Laffoy J. speaking for this Court, in adopting Gammel held that, since Mr. McNamee had a right of appeal to the Appeal Commissioners under s. 811(7) of the Act, and since the impugned opinion would not become final or conclusive until that appeal had been determined, fair procedures were provided for and available to him: this even if the scope of the appeal was limited. On that basis, she was satisfied that the circumstances were analogous to those presenting in Gammel.

104. Could I revert to O’Ceallaigh for a moment, itself a rather complicated case, which arose out of a decision by the Nursing Board to hold an inquiry under s. 38 of the Nursing Act 1985, without notifying the applicant, a nurse practising midwifery in respect of home deliveries, of three of the complaints which formed the basis of such decision, and obviously without affording her any opportunity to comment on such complaints. Hardiman J., giving the majority judgment, pointed out that Professor De Smith did not “purport to lay down a general rule, but [rather] a statement of what will usually occur” (123), with the learned judge favouring the more general version outlined in Wade. On such a basis he held that, since a

decision to hold an inquiry into the alleged misconduct of a professional person is a “very grave matter” indeed (p. 126), the appellant should have been put on notice of the complaints in question and should have been given a reasonable opportunity to comment on them. As this had not occurred, the appeal on the s. 38 aspect of the case was allowed.

105. The Gammel line of authority is one I find troublesome. Firstly, it fails to give due significance to the initial decision or the process by which that comes about: undeniably, rights or liabilities were at stake in the cases mentioned and it could hardly be said that at the end of the process such rights and liabilities had not been affected or impacted upon. Secondly, to treat the availability of an appeal as if it were part of the original decision, which is the basic rationale behind this approach, defies the logic of many situations and forces an appellant into taking that step so as to attain fair procedures when in fact such, should be an intrinsic part of that process in the first instance. Why should one have to take that step to obtain what is after all the most basic concept of justice, namely fairness? In the absence of an application to annul, it is impossible to believe that Mrs. Gammel’s property rights were not seriously affected by the decision of the local authority which was made without she being even aware of it. Similarly, in the case of Mr. MacNamee, where the opinion of the Revenue Commissioners would become final and conclusive by operation of law if no appeal was taken (s. 811(5)(e)(i)). Moreover, the grounds of appeal in that case were seriously restricted (subs 7), as were the powers of the Appeals Commissioners to hear and determine such an appeal (subs 8). If “…the existence of an appeal to the courts cannot restore constitutionality to a tribunal whose decisions, if one appealed, amount to administration of justice” (In Re Solicitors Act, 1954, I.R. 239 at 274), how can such a step excuse the preceding utter disregard of fairness? As the reasons offered for distinguishing Gammel from Ingle/Moran (para. 102 above), are highly questionable, I believe that such line of authority should only be followed where the underlying decision-making structure or the individual facts are clearly analogous to the principle pillars in that case. For otherwise it has potential implications for other cases, only one of which I will mention.

106. In Stefan v. Minister for Justice, Equality and Law Reform [2001] 4 I.R. 203, the issue centred on the Hope Hanlan appeal procedure which pre-dated the process set up by both the Refugee Act 1996, and later by the International Protection Act 2015. At the relevant time an application for refugee status involved two stages. In the first instance a decision was taken by an officer in the Department of Justice from which there was an appeal to the Refugee Appeals Authority. The Supreme Court held that the process involved “two separate distinct decisions” (p. 211): as the original decision had breached fair procedures and as “The applicant is entitled to a primary decision in accordance with fair procedures and an appeal from that decision. A fair appeal does not cure an unfair hearing” (p. 218). Even allowing for the suggested differentiation between both lines of authority, this principle cannot be allowed to become submerged for what is perceived to be more productivity in public administration: it must retain its important and significant role in this area of law.

107. This general issue was again referred to in “Crayden” (Crayden Fishing Company Limited v. The Sea Fisheries Protection Authority, the Minister for Agriculture, Food and the Marine & Ors [2017] 3 I.R. 785), which involved a challenge to the European Union (Common Fisheries Policy) (Point System) Regulations 2014 (S.I. No. 3) (“the 2014 Regulations”), which were introduced to give effect, inter alia, to Council Regulations known as “the IUU Regulation” and “the Control Regulation” which were enacted by the Union so as to implement the Common Fisheries Policy by combating illegal, unreported and unregulated fishing. The 2014 regulations created a regime of enforcement, independent of any other criminal or administrative sanction, in that it provided for a stand alone points system, with the first named respondent being the “competent authority” for that purpose. On 2nd December, 2014, a particular fishing vessel of which the applicant was the licensed holder, was boarded and its catch inspected by sea fishery protection officers. In the weeks which followed, Crayden was furnished with a copy of the inspection report and was told that a “determination panel”, having considered the evidence presented by the fishery officers, had concluded that the infringement was “serious” and as a result, had assigned 12 points to the license holder in respect of such infringement. It was also informed that it could appeal to an independent appeals officer but if no such appeal was taken or withdrawn or unsuccessful, then the points would be applied to the license by the appropriate licensing authority. All of these matters were provided for by the 2014 regulations. The applicant lodged an appeal, but prior to its hearing, instituted judicial review proceedings in which it argued that it was denied an opportunity of being heard, before the panel made any decision in respect of the incident. In response, it was claimed that the role of the panel and that of the appeals officer should be regarded as part of a single unitary process, requiring fairness only at the latter stage. So viewed in that way, there was no want of fair procedures.

108. In a wide ranging decision, O’Donnell J., speaking for this Court, discussed many of the cases above referred to and endeavoured to put a structured perspective on both the Gammel/McNamee line of authority and that evident in O’Ceallaigh. He also referred to De Smith and other authorities. Frequently however, it is only the following which is highlighted from his judgment, “…Rather, I would approach the case on the basis that the default position is that a person conducting a preliminary investigation, which itself does not lead directly in law to a binding and adverse decision, is not normally under an obligation to comply with a requirement of a fair hearing” (para. 32). The reference to “not [leading] directly in law to…” must be read subject to the discussion previously had on the issue of a “legally enforceable right”. Apart from that however, to treat the passage in isolation would be out of context and indeed erroneous, as one must also have regard to other observations of the learned trial judge, such as that “the cases cannot be understood by isolating them from their factual context and seeking to deduce a single abstract principle…” (para. 27), as a result of which in his view neither Gammel/MacNamee or O’Ceallaigh should be elevated to a position which would have general application. He agreed with Hardiman J. in Maguire v. Ardagh “that the legal analysis of a particular activity should not readily be detached from factual reality” (para. 27), and went on to say “that I do not consider it appropriate, necessary or indeed possible at this stage to offer a single bright line rule resolving all of these issues” (32). Whilst for the reasons outlined in his judgment the appeal was allowed in that case, it is important not to lose sight of what can also be deduced, at a general level, from the decision, namely that each presenting circumstance will offer different challenges to the overall requirement of ensuring that before a decision with adverse consequences takes place, fairness of process will have been applied. (See the associated case of O’Sullivan v. Sea Fisheries Protection Authority [2017] 3 I.R. 751). The Instant Case:

109. This general line of argument constitutes a further submission of the appellant which runs like this: it is that from the outset it was said that if a Commission of Investigation was recommended, it would be established and that in fact is what occurred, and what gave rise to the “O’Higgins Report”. The Guerin Report should therefore be considered as a first step in a two stage process, and since the follow on “O’Higgins Inquiry”, under the Commission of Investigation Act 2004, afforded the respondent his full rights, such was therefore a sufficient discharge of all, if any, procedural obligations.

110. An essential aspect of this argument therefore was that the Guerin undertaking was in the nature of an inquiry, “preliminary” to the subsequent Commission and should be considered as such: in the first instance, I do not accept the implication of such a description. The report in question was conditioned by its terms of reference which were assessed, analysed, reviewed and commented upon. On its presentation, its content reflected the final view of what was asked of the appellant. His function and involvement with these matters were then over. That was a piece of work which had been concluded. It could not be said to have been ongoing after this point in time. No two people would necessarily have had a common view of what was asked. A decision was made and a determination reached by him.

111. True, a Commission of Inquiry followed, but with a scope and remit not in any way identical to that asked of Mr. Guerin. The terms of reference were twelve in number, with six subparagraphs being added to point (l). These matters were for the greater part specific as to date, event, location and incident, and were followed by regulation 2 which reads: “2. The Commission should exercise discretion in relation to the scope and intensity of the investigation it considers necessary and appropriate having regard to the general objective of the investigation.” (Commission of Investigation (Certain Matters relative to the Cavan/Monaghan Division of An Garda Síochána) Order 2015: S.I. No. 38/2015). On any reading of these, whilst undoubtedly having a broad theme similar to that set up in February, 2014 there were differences in detail and in substance. Of course that is what one would expect, but the point remains relevant in asking whether the O’Higgins report and the Guerin report, in effect, constituted one decision, one determination. I do not believe that they did. Moreover, as above stated, the Guerin investigation was initiated in February, 2014 with Mr. Guerin accepting the commission on 4th March. His report was delivered in May, 2014. It was another full nine months before the formal Commission was established and a further fourteen months followed before the O’Higgins Report was submitted on 25th April, 2016. In such circumstances, it is apt to recall the “proximity” point made by De Smith (para. 97 above), with the result that the consequences for Mr. Shatter continued to be in the public domain, uncorrected or adjusted, for this period of time. Given this timeline, it could not be said that there was the type of contiguity, as envisaged by De Smith, so as to establish the necessary and associated link, one with the other. I therefore reject this submission.

112. As previously noted (paras. 88-89 above), it is not the title, name or designation given to an exercise which is key to this issue: it is in fact the significance of what has occurred; what is the substance of the event in question. That this is so is evident from The State (At the prosecution of Shannon Atlantic Fisheries Ltd) v. The Minister for Transport and Power & D.J. McPolin [1976] 1 I.R. 93. This case arose out of the shipwrecking of MV “Colm Pádhraig”, which occurred on 2nd June, 1972, off the Galway Coast. The Minister appointed Mr. McPolin as the investigator. The statutory description of the undertaking involved was that of “a preliminary inquiry” under s. 465(1) of the Merchant Shipping Act 1894, as subsequently adapted for this jurisdiction. The precise details of the case do not require to be fully outlined: what should be noted are as follows:-

(i) Despite its description as being “preliminary”, it was the substance of the process and what actually occurred which the court looked at;

(ii) The powers of such an appointee are the same as a Board of Trade Inspector under the 1894 Act, and include those as set out in s. 729: such being described by the court as “relatively extensive powers to enter on and inspect boats and premises, to summon persons to attend before him, to examine them and require answers to his inquiries, to require and enforce the production of books, papers and documents and to administer oath” (p. 97 of the report)

(iii) Whilst that section conferred on the person holding the inquiry a decision making function, neither it or any other provision of the Act necessarily mandated him to so do, or to decide on conflicting evidential versions of events; in fact, the Act does not appear to “expressly” provide for the making of a report, even if by implication it does and certainly not what its content should be.

(iv) Mr. McPolin however as a matter of fact exercised the decision making function in that he made a call on such evidence, and thereby necessarily reached a conclusion on one version over another;

(v) The fact that it was the Minister who wrote the offending letter of 23rd May, 1973, in which several allegations of wrongdoing and criminal conduct were alleged, did not matter as the same was based on the report; and finally

(vi) The fact that it was only a step, “preliminary” to a decision whether a formal investigation should be held under s. 466 of the Act, likewise did not matter. In addition, as the owners of the motor vessel were not interviewed, were not told of the depositions taken by Mr. McPolin from the crew, and were not afforded an opportunity of cross examining or asking any questions of them, it was held firstly, that despite its designation as being “preliminary”, fair procedures applied and secondly, that such had been disregarded in the manner indicated. Consequently, the report and the said letter from the Minister to the owners, in which it was alleged that the provisions of the 1894 Act had been breached in a number of respects, were quashed.

113. There is another reason why Shannon Atlantic is of some significance. It derives from the decision of Hardiman J. in O’Ceallaigh, who discussed the judgment in the context of what then appeared in the 3rd Ed. of Hogan & Morgan, Administrative Law in Ireland, which read “Traditionally, it thought that the principles of constitutional justice should not apply in the case of persons conducting preliminary statutory inquiries (e.g. such as where the report of an inspector requires confirmation by decision making authority). However, this argument has been rejected by the Irish courts”. The authority cited was of course Shannon Atlantic, with the learned judge outlining his views on that case (quoted at para. 53 above), part of which only I will repeat “On any view however, the case is authority for the proposition that, in some circumstances at least, a preliminary inquiry without direct legal effect may give rise to an obligation to apply principles of procedural justice”. ([2000] 4 I.R.

54 at 127). I agree with such proposition.

114. In all of the cases where this point might be open for consideration, the subsequent inquiry was inevitable, unless the issue giving rise to the process in the first place was resolved. When I say “inevitable”, I mean that the same was provided for, sometimes by statute, sometimes by contract or consensual agreement and sometimes by an established mechanism of adjudication resolution. In other words, the necessary link by which both parts were integrated had a legal basis, howsoever arising. In this case no such relationship exists.

115. Quite evidently the appellant did not have the authority to decide on whether a subsequent commission of inquiry would take place: that was not within his power: it was for the government to so decide. I do not accept the irrelevancy of the point as some would suggest, nor do I believe that De Smith supports such a viewpoint, with the only two examples given in the relevant passage, being those of magistrates conducting a preliminary investigation into an indictable offence and secondly, “prosecuting decisions”, whether in the criminal or disciplinary area (8-056). Furthermore, again I do not accept that the reference in De Smith to “a person conducting a preliminary investigation with a view to recommending…” a formal inquiry or a further hearing, is necessarily conclusive to that end (emphasis added: para. 97 above). The two English cases cited do not in my respectful view, support that aspect of the relevant paragraph, with the Australian cases being largely dependent on statutory interpretation. Unless therefore, fully argued and fully debated, I would be hesitant to rely on that suggestion which De Smith itself indicates is “tentative”.

116. To recap on this case: when addressing the Dáil on 25th February, 2014, An Taoiseach said that if Mr. Guerin should recommend a Commission of Investigation, that would be done. Whilst I do not for a moment question the absolute integrity of An Taoiseach, nonetheless that statement was purely a political one. This was followed by the government announcement on 27th February, which contained the terms of reference. Strikingly, whilst reference point No. 7 requires Mr. Guerin to advise the government on the establishment of such a Commission, neither in that paragraph or elsewhere is to be found a similar commitment to that previously given by An Taoiseach. In any event, and again accepting fully the bona fides of that announcement, it remains one entirely made within the political sphere. There is no comparison at any level between adverting to the circumstances of the appellant’s appointment and the undertaking requested in the context of the public law aspect of the case, with relying on the Dáil statement as constituting, in a legal sense, the necessary basis to render both reports, effectively, a single stage event. Consequently, I am satisfied that the critical basis of linkage so as to establish the individual steps as a unitary process is lacking. I therefore reject this submission.

117. Following the above review, I am not persuaded that any of the situations so described where the issue of fair procedures was central, are in any way comparable to this case: all of those examples are distinct in terms of type, nature and subject matter of the complaint from the instant case. Accordingly, I feel justified in taking an overall view of the process from the Dáil speech by an Taoiseach on 25th February, 2014, until the report was delivered on 6th May, 2014 (para. 86 above). As such, it seems to me that the proposition advanced in Wade & Forsyth (para. 99 above) is the most appropriate to reflect the situation at hand. As stated by the authors, the question should be whether, when “looking at the procedure as a whole, each separate step is fair to the persons affected”. On that basis, and having found that each essential pillar or requirement to access judicial review has been satisfied, as well as remaining conscious of the manner in which Mr. Shatter’s good name and reputational damage came about, I have no hesitation in concluding that fair procedures were required.

118. In the context of fair procedures, I do not think it is justified to criticise the Court of Appeal for not having particularised what aspect of fairness should have been afforded to Mr. Shatter, and with great respect I think it is even less so in suggesting that it should have been capable of establishing in a precise way, the procedural protections applicable, before any ‘recommendation’ might be made to hold a further inquiry: in other words, precommencement of the process. Save perhaps for either party seeking a declaration to that end, which could be largely meaningless, I cannot see how any court would be in a position to foresee what would or would not be required. This because of the latitude afforded to Mr. Guerin as to the manner and way in which he could conduct the investigation. As stated, he had a wide discretion in that regard and could have finalised his report without any aspect of fair procedures being required.

119. The situation is not unlike that which gave rise to the following observation of Clarke J., when speaking for this Court in the context of a disciplinarylike process, when he said: “Decision makers in such a process have a significant margin of appreciation as to how the process is to be conducted…Thus the exact point at which parties may become entitled to exercise rights such as an entitlement to know in sufficient detail the case again him, the entitlement in appropriate cases to challenge the credibility of evidence and the right to make submissions are, at least to a material extent, matters of detail to be decided by the decision maker in question provided that the procedures adopted do not to an impermissible extent impair the effectiveness of the exercise of the rights concerned.” (Rowland v. An Post [2017]

1 I.R. 355 at 360). Given the diversity of how any exploratory-type process is conducted, it would be very onerous, highly conditional and of little practical value to be so prescriptive, before the

decision maker specifically outlined how the procedure would be conducted. In this case as by common accord no element of fair procedures was provided, I cannot find fault with the manner in which the Court of Appeal approached this matter.

120. In his judgment in the instant case, O’Donnell J., having adopted (para. 22 of judgment) part of the above passage from De Smith (para. 115 above), concludes in effect that Mr. Guerin was not “required to afford such procedures, whether by way of legal representation, submission, cross examination, or some process for submitting a draft report to interested parties and receiving comments thereon before delivery” (para. 57 of judgment). In other words, no element whatsoever of fairness was required. Quite evidently, but with great respect, I profoundly disagree with this view.

121. I cannot accept, as an element of the justification offered, that the application in general of fair procedures to a process such as that undertaken by Mr. Guerin, would lead to any gross inefficiency or ineffectiveness in matters of public affairs. To suggest that the report in this case would have been delayed by the standard of fairness which I deem appropriate, is unrealistic and impracticable and highly improbable, given the public nature of the undertaking it would hardly have been in the interests of the respondent to obstruct the

conclusion of that inquiry. Furthermore, whilst there may be some overlap between the Guerin project and the O’Higgins report, the former cannot be said to constitute a duplication without value. Therefore, whilst conscious of the need for good administration in such affairs, the risk as perceived cannot trump fairness if otherwise its application is what the circumstances demand.

The Nature of the Requirement in this Case:

122. Before outlining my views on this matter, could I mention two further points. In the first instance, I am highly dubious of the suggestion made by Mr. Shatter that his understanding of the terms of reference was that his Department was involved, but only so to speak, in providing whatever documentation was asked of it. If this was his true perception, it is impossible to appreciate how, as a long-standing politician and a most experienced lawyer, he could have come to that conclusion. It is abundantly clear as I have repeatedly demonstrated in this judgment, that Mr. Guerin was asked to examine how the relevant bodies dealt with the complaints of Sergeant McCabe: “dealt with” in the sense of what investigations were carried out, and what attempts were made to try and resolve these complaints. Moreover, he was also asked to review the adequacy of whatever those steps were and in light of his conclusion, to form a view as to whether the same had dispelled the public disquiet which had existed: or if not, should a Commission of Investigation be established. Not only as “a public body” within the terms of reference, but also given its unique role viz-viz An Garda Síochána, it was inevitable, when both are combined that the position of the Department would be directly in focus and deeply involved.

123. The second point relates to the letter dated 11th April, 2014, addressed to Mr. Clarke, the nominated individual within the Department of Justice to receive such communication. In that letter, Mr. Guerin said: “Having reviewed the papers furnished by you, it appears that they are almost exclusively in the nature of correspondence with outside parties. There are almost no internal departmental documents and, in particular, no notes or memorandums to the Minister and no notes or memorandums of any decision made by the Minister, whether in respect of the exercise or possible exercise of his statutory powers under

(i) Section 42 of the An Garda Síochána Act 2005: and/or

(ii) Regulation 8(2) of An Garda Síochána (Confidential Reporting of Corruption or Malpractice) Regulations 2007, or in respect of any other matter.” A request that further inquiries be conducted in this regard was then made.

124. The respondent says that this letter was never brought to his attention, indeed he saw no reason why any of the correspondence between Mr. Guerin and his Department should ever have been notified to him. I am frankly mystified by this stance.

125. It is abundantly clear that this letter was conveying a sense of deep surprise, if not unease, regarding what appears to have been the paucity of written records travelling between the Department and the Minister and vice versa, on this major issue of public concern. In particular, the absence of any material which might have recorded decisions made or advices given by the Minister as to his approach when dealing with the continuing situation. In addition, the letter requested that further inquiries should be had to this end. Whilst immediately acknowledging that I am not au fait with the internal workings of a Department of State, nevertheless from even an outside perspective, given the seriousness of Sergeant McCabe’s complaints and the public controversy surrounding it, I would have expected that the Minister would have expressly wanted to be kept fully informed of the obvious concerns of Mr. Guerin, as expressed in this letter. Be that as it may, as the evidence seems to be that he was not so informed, I can hardly put the matter much further, save to reiterate that I remain utterly perplexed by such position.

126. The ultimate point however, is what in the nature of fair procedures should Mr. Guerin have afforded to Mr. Shatter? In this context, I do not accept that the failure by the appellant to make contact with Mr. Guerin absolves the latter from affording fairness of process, if otherwise required. He was the person in charge of the inquiry and thus, was the person obligated to that end. In any event, the level of fair procedures must relate to and be a proportionate engagement (i) with the declared concerns of the decision maker, which if left at such level, would be published in that form and (ii), with a reasonable appreciation, objectively realised, of the imputations on character which such published concerns may give rise to. In light of my views on these issues, I am satisfied that an opportunity to answer should have been given.

127. In this case I do not believe that an interview with Mr. Shatter was necessarily required: that was a matter for Mr. Guerin. Nor do I think that the furnishing of a draft of his proposed conclusions was essential. Even though I have rejected the unitary argument, one must nevertheless be conscious of the nature of this review. What ultimately became the source of complaint were the definite views of Mr. Guerin, howsoever expressed, that the Minister for Justice did not appear to have discharged his functions, as an independent, impartial and competent Minister would have been expected to do. This criticism, was in part based on the absence of documentation or on what the available documentation did not show. Accordingly, in my view it was necessary that Mr. Shatter should have been afforded some possibility of engaging with these matters. As no such opportunity at any level was given, it is not necessary to particularise precisely what would have been required, as it would have been, if some aspect of fairness had been rendered. Purely in passing however, I would suggest that a communication, worded in stark terms regarding those concerns may have been sufficient, at least if such did not lead to further inquiries. But certainly some form of opportunity should have been afforded. In my view it was not. Accordingly, there was a breach of fair procedures to that extent.

128. In so finding, I have not repeated once again the precise offending sections of either the analysis or the conclusion, which have led me to this view. My approach throughout the judgment has been to take an overall view. It is however important to point out that such an approach does not in any way mean that Mr. Guerin could not have complied with reference points Nos. 6 and 7 of the terms of reference, without being compelled to apply fair procedures. To that extent, I disagree with the judgment of Finlay Geoghegan J. in the Court of Appeal. I am satisfied for example that outlining the allegations, indicating the existence of evidence to support these and then adding a mere expression of continuing concern with regard to such matters, could not be said to so reflect on the Minister in any capacity which would justify procedural fairness. Caution however has to be taken in the phraseology used. Once that is exercised, I have no doubt but that the requirements so imposed by these reference points, could have been discharged without any fear of engaging fair procedures.

129. Finally, may I say that it would be a total over-read of my view to suggest that an exercise of this nature can no longer take place. I fully realise the worthwhile value of trying to identify areas of concern so as to narrow the remit of any follow-on inquiry that may be required. That can only be in the public interest so as to further efficient administration and good governance. However, respect for rights which attract legal or constitutional recognition or protection must be adhered to. Whilst I see some tension between both, such is not at a level that renders either incompatible with the other. Care of course must be taken in not only drafting the terms of reference, but in how the resulting inquiry is conducted and the report so framed. It must be thus. Whilst a degree of latitude has to be afforded, it cannot exceed the parameters of which I speak. Bias:

130. One of the most troublesome aspects of this case was the allegation of bias made by Mr Shatter against Mr Guerin. It was a complaint which was utterly groundless and should never have been made if any responsible or appropriate inquiries had been conducted at the outset. When the true situation had become known Mr Shatter should have taken immediate steps to apologise for this unfounded allegation and should have withdrawn the same from the record. Whilst some steps were taken in this regard they were of a begrudging nature and far less fulsome than what the situation demanded. Save for the important issues at stake in this case, I would have been minded to refuse any relief on discretionary grounds because of this misconduct. Other Issues:

131. It was further argued that Mr. Shatter should be denied relief because he was a Minister of the Government that commissioned the report and secondly, because the proceedings constituted a “collateral attack” on the Commission of Investigation. Whilst in some circumstances these may have significance, I do not think so in this case.

Conclusion

132. Accordingly, I would dismiss the appeal on the rather narrow ground herein identified, and would vary the orders made in the Court of Appeal to reflect this view.