Court allows declaration of unfair procedures but refuses direct orders against a functus officio witness.

THE COURT OF APPEAL

Neutral Citation Number: [2017] IECA 48

[2015 No. 321]

The President

Finlay Geoghegan J.

Irvine J.

BETWEEN

ALAN SHATTER

APPLICANT/APPELLANT

AND

SEAN GUERIN

RESPONDENT

JUDGMENT (No.2) ON RELIEF ISSUE delivered by the President on 2nd March 2017

1. Following delivery of the court's judgments on 10th November 2016, the case was mentioned on Tuesday 22nd November 2016 for

the purpose of making orders including provision for costs. Counsel for Mr. Shatter, Mr. Paul Sreenan S.C., submitted a list with five

orders that he proposed the court should make. There is no difficulty about numbers 1 and 5, but numbers 2, 3 and 4 are opposed by

Mr. Paul Anthony McDermott S.C. for Mr. Guerin, the respondent in the appeal. Number 1 seeks a declaration that the conclusions in

Mr. Guerin’s report of 6th May 2014 that were critical of Mr. Shatter were reached in breach of fair procedures and constitutional and

natural justice; Mr. McDermott accepts that this is an appropriate order for the court to make. Number 5 is an order providing for

costs in the High Court and in this Court on the appeal, on which Mr. McDermott does not consent but neither does he offer

resistance. That is correct and appropriate in view of the decision by this Court in favour of Mr. Shatter.

2. The orders in dispute are, respectively, an order of certiorari quashing the said conclusions, an order requiring Mr. Guerin to deliver

to An Taoiseach a copy of the order of the court, and finally, an order requiring Mr. Guerin to amend his report by deleting the

conclusions that are the subject of the order of certiorari and that he deliver to An Taoiseach a copy of the amended report.

3. The present position is that Mr. Shatter has succeeded in his claim. This Court has found that the respondent acted in breach of

the requirements of natural justice in coming to the conclusions and making the statements that he did about Mr. Shatter in the

report that he submitted to the Taoiseach in May 2014. Those conclusions are specific and identifiable in the report and they are

criticisms made by Mr. Guerin of Mr. Shatter and this Court has found that they are seriously damaging. Mr. Guerin is functus officio

because he has submitted his report to the Taoiseach and events have followed on from there. He does not actually have possession

or control of the original report that he submitted.

4. The report was a process undertaken at the request of the Government which is now in ownership and control of the report. The

Terms of Reference were carefully drafted with the assistance of the Attorney General. The matters were of urgent national

importance, as the trial judge held. Mr. Guerin was selected as a distinguished Senior Counsel experienced in criminal law. Although

the process of review was non-statutory, it was intended to achieve an important public purpose in relation to the administration of

justice, broadly defined. It was envisaged that the report would be published. The examination of the process was a matter of public

law.

5. It is possible to excise the offending parts and yet leave the report in a condition where it makes sense. It is true that Mr. Guerin

based his conclusions or some of them and his recommendation to the Government that it should set up a statutory Commission of

Inquiry at least in part on what he said about Mr. Shatter. But the report would still make sense in all the other contents and

chapters besides Chapter 19, in which almost all of the offending material is contained, and a single paragraph in Chapter 20. A note

could be inserted in the amended report to say that it was altered as a result of this court’s decision. Whether the material is actually

removed or is blacked out by way of redaction and a suitable note is included is not important.

6. It would, on the face of it, be a hollow victory for Mr. Shatter if he secured a declaration only without any amendment of the

report as it stands on the public record. The criticisms of Mr. Shatter that this Court held to have been made in breach of his

constitutional rights would remain as a permanent record. A person who looked for the report or who encountered it in course of

research or who referred to descriptions of the report would not know about the proceedings brought by Mr. Shatter or the outcome

in which his claim was found to be justified. Neither would there be any way of knowing from the report which particular parts the

court found were the offending paragraphs.

7. Counsel for Mr. Shatter seeks to achieve the amendment or redaction of the report by formally placing the judgment of the court

before the Government, but I do not think that he can obtain the result he seeks by the means that he has proposed. In this respect

I agree with my colleagues that it is not open to the court to make the orders that are in dispute. But my objection is adjectival

rather than substantive. It seems to me that it would be unjust and unreasonable to allow the objectionable conclusions about Mr.

Shatter to stand in the report unaffected by the decision of the court. The question is how a just result can be achieved, but I do

not think that orders made against Mr. Guerin are the answer. I think that the answer is to be found in the constitutional obligations

of the State and all its organs.

8. It is not only the courts that have the obligation of upholding the Constitution. The State and the Government are also bound.

Obviously, in case of dispute, it is the court that adjudicates on the matter. In face of a clear declaration of the infringement of

rights that Mr. Shatter complained about, I do not think that the State can ignore the situation and stand aloof. Article 40.3.2 of the

Constitution provides:

“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done,

vindicate the life, person, good name and property rights of every citizen”.

9. I think that this Court should hesitate to make any suggestions as to procedure. That is not the function of the court and any

issue raised may have to be decided by the court after argument. Nevertheless, I do not think that Mr Shatter is without options. It

seems to me to be proper and legitimate for Mr. Shatter’s solicitors, in light of the judgment of the court and of these comments, to

put proposals on paper so that the Government can consider them and respond. There is no reason to suppose that the State will not

wish to vindicate Mr Shatter’s good name. One obvious mode of correction as mentioned above in light of the court’s judgment is by

redacting the report and explaining in a marginal note or footnote that this was done in response to the judgment of the Court of

Appeal in this case. I do not think one should assume that there will be resistance or even controversy on this matter, but if that did

arise it would be a matter for the courts to resolve.

10. In respect of the reliefs sought by Counsel on behalf of Mr. Shatter, I would allow numbers 1 and 5. I do not think that the orders

that are sought at numbers 2, 3 and 4 should be made as against Mr. Guerin because he is functus officio. It seems to me that the

consequences of the judgment of the court are now a matter between Mr. Shatter and the State. I believe that the State has an

obligation, as expressed above, to see that Mr. Shatter’s constitutional rights are vindicated, but I leave the mode of achievement of

that constitutional imperative to be negotiated and agreed. Failing accord between those parties, the option of returning to the

courts is available. This is an appellate Court which would be unable to embark on the hearing of a fresh dispute involving a new party

or parties.