Neutral Citation Number: [2017] IECA 48
[2015 No. 321]
The President
Finlay Geoghegan J.
Irvine J.
BETWEEN
ALAN SHATTER
APPLICANT/APPELLANT
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.
