THE HIGH COURT
[2014 No. 478 JR]
BETWEEN
ALAN SHATTER
APPLICANT
AND

SEAN GUERIN
RESPONDENT

JUDGMENT of Mr. Justice Noonan delivered the 20th day of May, 2015.
Introduction
1.

The applicant is the former Minister for Justice and Equality. He resigned that

office on the 7th May, 2014. On the 6th May, 2014, the respondent furnished a report
to An Taoiseach on a review of the action taken by An Garda Síochána pertaining to
certain allegations made by Sergeant Maurice McCabe (“the Report”). The applicant
alleges that the Report contains what are described as “conclusions” and “findings”
which are critical of him in his ministerial capacity and which have caused significant
damage to his political, professional and personal reputation.
2.

The applicant claims that these conclusions and findings were arrived at by the

respondent without according fair procedures to the applicant.

In these judicial

review proceedings, the applicant claims the following reliefs:
1.

An order of certiorari quashing the relevant conclusions.

2.

An order of mandamus directing the respondent to delete those
conclusions from the report.

 3.

A declaration that the respondent reached those conclusions in breach of
fair procedures, constitutional and natural justice.

4.

A declaration that the drawing of the conclusions by the respondent was
ultra vires the powers conferred on him under the relevant terms of
reference.

Background Facts
3.

Sergeant McCabe became a member of An Garda Síochána in August, 1985,

attaining the rank of sergeant in January, 2000. Between October, 2004 and March,
2008, Sergeant McCabe was the sergeant-in-charge at Bailieboro Garda station.
Towards the end of that period, Sergeant McCabe became concerned in relation to a
range of issues including the manner in which certain incidents were investigated and
dealt with by colleagues in the force.
4.

These concerns ultimately became the subject of complaint by Sergeant

McCabe to a number of different parties including his superiors in An Garda
Síochána, the Department of Justice and Equality (“the Department”), the Garda
Síochána Ombudsman Commission (“GSOC”) and the Garda Síochána Confidential
Recipient (“the Confidential Recipient”).
5.

Sergeant McCabe’s interaction with the Department appears to have

commenced on the 23rd March, 2009, when he sent an email to the applicant’s
predecessor, the then Minister for Justice, Equality and Law Reform (“the Minister”).
In that email, Sergeant McCabe made a complaint about the conduct of an internal
Garda investigation in relation to malpractice and corruption in Bailieboro Garda
District and about comments made by a senior Garda officer in the press in relation to
that investigation.

Sergeant McCabe asked the Minister to provide an independent

party to oversee the investigation.

There was intermittent contact between the
2

 Department and Sergeant McCabe and his solicitors over the next few years. On the
4th September, 2012, Sergeant McCabe’s solicitors wrote to the Minister raising a
number of issues and enclosing three volumes of documents setting out details of
Sergeant McCabe’s complaints. The first of those volumes contained details of ten
different incidents which Sergeant McCabe felt were of a serious nature and matters
of public concern.
6.

On the 19th February, 2014, this volume was furnished to An Taoiseach by Mr

Micheál Martin TD. On the 21st February, 2014, a further document was furnished to
An Taoiseach which is described as part of a letter understood to be from Sergeant
McCabe to the Confidential Recipient dated the 23rd January, 2012.
7.

On the 25th February, 2014, An Taoiseach made a statement in the Dáil in

relation to the matter. He referred to the material given to him by Mr Martin which
contained very serious allegations against members of the Gardaí, many of which had
been published in the media. An Taoiseach said:
“I am, however, acutely conscious that the scale of the 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 Sean Guerin SC, to examine and access all the relevant papers and
recommend what further action might be taken. If he recommends that a
Commission of Investigation should be established, it will be done. The terms
of reference for this work are currently being finalised. The report, which we
hope will be completed before the Easter recess, will be laid before the
Oireachtas by me and published. I believe this is a prudent way to proceed in

3

 view of all the comments, allegations and documents that surround these
matters.”
8.

On the next day, the 26th February, 2014, the applicant made a statement in the

Dáil and answered questions from Deputies, to which I shall refer further.

The Terms of Reference
9.

On the 27th February, 2014, the following appeared on the website of the

Department of An Taoiseach, www.taoiseach.gov.ie:
“27 February 2014
Government announces terms of reference for Guerin inquiry
The Government has appointed Mr Sean Guerin SC to conduct the
independent inquiry into allegations made by Garda Sergeant Maurice
McCabe and related matters.

The Terms of Reference for the Inquiry were

agreed by the Government today, on the advice of the Attorney General.
They are as follows.
Terms of Reference
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 compiled by Sgt Maurice McCabe and furnished to An
Taoiseach on the 19th February 2014 and
b) The letter understood to be from Sgt Maurice McCabe to the Confidential
Recipient, Mr. Oliver Connolly, dated 23rd January 2012, part of which was
furnished to An Taoiseach on the 21st day of February 2014.
4

 2. To interview Sgt 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 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 into the incidents
and 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 pursuant to the Commissions of Investigation
Act 2004 and, if so, the matters to be investigated .
5

 8. At the conclusion of the aforesaid review, within eight weeks of 27th
February, 2014 or so soon as may be thereafter, to deliver a Report to An
Taoiseach on the matters set out at 1, 5, 6, and 7 above.”

Subsequent Events
10.

By letter of the 5th March, 2014, the respondent wrote to the applicant in the

following terms:
“Re: Review of action taken by An Garda Síochána relating to certain
allegations made by Sergeant Maurice McCabe
Dear Minister,
As you know, I have been appointed by the Government to review and
examine certain matters and report to An Taoiseach thereon.

I enclose

herewith a copy of my terms of reference.
I understand that the Secretary General to the Government, Mr Martin Fraser,
has written to you to request you to nominate a single point of contact with
whom I might liaise in relation to these matters. I would be most obliged if
you could furnish these contact details to me at your earliest convenience.
I would also be obliged to receive copies of whatever documents you may
have in relation to these matters.

It would be my preference to receive

documents in both electronic format (on disc) and on paper. If, however, such
documents, or any of them, are not at present available in electronic format, it
would assist me greatly to receive such documents in whatever form they may
be available as soon as possible. By “documents” I mean, of course, not just
paper documents but any form of document, including computer records or
records maintained in any electronic or mechanical storage system, notes,

6

 photographs, videos, etc. I enclose a list of the matters coming within my
terms of reference to which this request for documents relates.
Perhaps the individual you nominate as a point of contact would contact me
directly to make arrangements for the transfer of these documents.
Thank you for your assistance.”
11.

This letter was replied to on the 12th March, 2014 by Mr Kevin Clarke, a

principal officer in the Garda Division of the Department. Mr Clarke enclosed with
that letter a copy of relevant documentation together with a schedule of same. On the
4th and 9th of April, 2014, Mr Clarke forwarded additional documentation to the
respondent.
12.

On the 11th April, 2014, the respondent replied to Mr Clarke in the following

terms:
“Dear Mr Clarke,
I refer to your letters of the 12th March, 4th April and 9th April enclosing
documents on foot of the request for documents made in my letter of the 5 th
March. I am obliged to you for your assistance to date.
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 power under
1. Section 42 of the Garda Síochána Act 2005; or
2. Regulation 8(2) of the Garda Síochána (Confidential Reporting of
Corruption or Malpractice) Regulations 2007,
3. or in respect of any other matter.
7

 I note that I have not been provided with copies of the annual reports (or
relevant extracts therefrom) required to be made to the Minister by the
Commissioner under regulation 15 of the Garda Síochána (Confidential
Reporting of Corruption or Malpractice) Regulations 2007.
My original request for relevant documents was not confined in any way and,
in particular, was not confined to external correspondence. Accordingly, I
would be obliged if you would now make further enquiries to establish
whether all relevant documents have been provided to me. Having regard to
the very limited period of time within which to complete my review and report
to An Taoiseach thereon, I look forward to hearing from you at your earliest
convenience.
Thank you again for your assistance.”
13.

Mr Clarke responded to that letter on the 14 th April, 2014 enclosing further

documents. On the 17th April, Mr Clarke forwarded further additional documents and
concluded the correspondence by stating that he believed that all relevant documents
had now been provided.
14.

On the 6th May, 2014, the respondent provided his Report to An Taoiseach, two

days short of ten weeks from the 27 th February, 2014. In the course of his covering
letter to the Secretary General of the Department of An Taoiseach, the respondent
said:
“The report has not been furnished within the time period mentioned in
paragraph 8 of the terms of reference and I regret that. I hope, however, that,
having regard to the volume of material involved and the time it took for
various parties to assemble it, the delay will not be considered unreasonable.
I am happy to report that the various parties who provided documentation cooperated fully with the review, and their co-operation is noted in the report.
8

 Unfortunately, I have not received any documentation from the Garda
Síochána Ombudsman Commission and I have therefore had to complete the
review without reference to any such material, save insofar as copies of it were
available on the files of other agencies. This is somewhat unsatisfactory,
although it has not impeded the review in relation to other agencies. GSOC
has indicated, through its solicitors, that it is willing to furnish documentation
and that it has “voluminous” documentation available, but it was unwilling to
release it without certain safeguards being put in place. While that is not
unreasonable, no indication of these difficulties was given to me until the
process of drafting the final report was well underway, and notwithstanding
repeated requests to GSOC to furnish relevant documentation.

In those

circumstances, I had no opportunity to review such documentation with the
care required and I have proceeded to finalise my report accordingly.
I am conscious that, although there is no specific reference to publication in
the terms of reference, it has been stated publicly by An Taoiseach that it is his
intention to lay the report before the Dáil…”
15.

On the next day, the 7th May, 2014, the applicant resigned as Minister for

Justice and Equality. In his second affidavit sworn herein on the 25th November,
2014, he avers at para. 22:
“While I do not believe that this is of any relevance to the issues for
determination in these proceedings, it is important that this Honourable Court
understands that I did request of An Taoiseach an opportunity to consider the
contents of the report in detail. However, that opportunity was not afforded to
me and it was made clear to me by An Taoiseach that, in light of the contents
of the respondent’s report, he would have difficulty in expressing confidence
in me if asked.”
9

 16.

In his letter of resignation addressed to An Taoiseach, the applicant said:
“Dear Enda
Thank you for furnishing me this morning a copy of the report received from
Sean Guerin SC on a “review of the actions taken by An Garda Síochána
pertaining to certain allegations made by Sergeant Maurice McCabe”. As you
know, the report runs to over 300 pages and I have neither had the time to fully
read or fully consider the contents of the report. I have, however, fully read
chapters 1, 19 and 20 of the report and a copy of the letter accompanying it of
the 6th of May 2014 by Sean Guerin SC.
I note that Mr Guerin states that “it is beyond the scope” of the review “to
make any determination of the complaints Sergeant McCabe has made”.
However, having regard to all of the controversy surrounding allegations made
by Sergeant Maurice McCabe and the seriousness of the various issues raised
by him, I agree with Sean Guerin’s conclusion (his having examined the garda
files and accessed information not furnished to me) that it is appropriate that
these matters be the subject of a statutory inquiry.
I would, however, be less than honest if I did not also record my concerns and
reservations with regard to his report and, in particular, certain conclusions
reached by him. I was surprised to learn that he received no documentation
from the Garda Síochána Ombudsman Commission (GSOC) and, as he states
in his letter, that “the process of drafting the final report was well underway”
when he learned of “difficulties” being expressed by GSOC with regard to the
furnishing of documentation to him. Complaints made to GSOC and GSOC’s
dealings with those complaints and the statutory role of GSOC were all,
amongst other matters, of relevance to the consideration given by me to issues
raised by Sergeant McCabe. Under the terms of reference furnished to Mr
10

 Guerin, he was requested to conclude his review within eight weeks of the 27 th
Feb 2014 “or as soon as maybe thereafter”. In his letter, he notes that GSOC
was willing to release what is described as its “voluminous” documentation
subject to certain safeguards which he stated to be “not unreasonable”. I
would have expected that, prior to finalising his report, he would have agreed
reasonable safeguards with GSOC and obtained and considered documentation
held by it with regard to the matters under review prior to formulating his
conclusions. Moreover, I note that, under the terms of reference, Mr Guerin
was authorised to “interview Sergeant Maurice McCabe and any other person
as he considered necessary and capable of providing relevant and material
assistance”.
At no time did he ask to interview me and I would have expected, if it was his
intention to reach a conclusion or form an opinion with regard to my approach
or the extent of my concern with regard to issues raised by Sergeant McCabe,
that he would have done so.
I am anxious that any controversy that may arise on publication of the report
does not distract from the important work of the Government or create any
difficulties for the Fine Gael or Labour parties in the period leading into the
European and local government elections. It is my judgment that the only way
in which such controversy can be avoided is by my offering you my
resignation from Cabinet…”

The Report
17.

The respondent’s report runs to 336 pages covering twenty chapters. Chapter 1

consists of an introduction in which the applicant’s terms of reference are set out. The
documents referred to in paragraph 1 relate to sixteen individual incidents, events or
11

 matters about which complaint was made by Sergeant McCabe. Chapter 1 also gives
details of all documents received from the various agencies concerned including the
Department. Reference is also made to the fact that no documentation was received
from GSOC although it expressed a willingness to provide it, late in the day, subject
to conditions. The respondent felt that it was by then too late to engage meaningfully
with GSOC regarding the “voluminous” documentation in its possession.

The

respondent also referred to the fact that he had interviewed Sergeant McCabe on four
separate occasions for a total of just under nineteen hours. No other person was
interviewed save in relation to the operation of the Garda PULSE system.
18.

Chapter 2 sets out the factual background and chapter 3 the structure and

method adopted by the respondent. At para. 3.4, he states:
“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 law.
Insofar as any views are expressed on factual matters, these 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.”
19.

Chapter 19 considers the role of the Department and is central to the issues that

arise in this case. In this chapter, the respondent sets out a detailed chronology of all
correspondence between the Department and other parties regarding Sergeant
McCabe’s complaints including Sergeant McCabe, his solicitors, his wife, the Garda
Commissioner, the Confidential Recipient and the Office of the Attorney General.
12

 The concluding section of this chapter contains an analysis of the correspondence and
relevant documents from para. 19.91 to 19.104. It is to this analysis that the applicant
takes objection and in particular, he alleges that it contains seven “Conclusions” or
“Findings” which are adverse to his interests as follows:
1.

that the applicant did not cause the allegations of Sergeant McCabe to be

investigated.
2.

that the response of the Commissioner of An Garda Síochána to the

confidential report was accepted without question by the applicant.
3.

that the process of determining Sergeant McCabe’s complaints went no

further than the applicant receiving and acting upon the advice of the
Commissioner of An Garda Síochána, the individual who was the subject of
the complaint.
4.

that the applicant was satisfied by a brief summary of the conclusions of

the internal investigation by An Garda Síochána rather than seeking a copy of
the investigation report for review.
5.

that in the light of the absence of written internal records made by the

Minister (in particular between the 23rd January and the 7th February) meant:
(i) that Mr Guerin was unable to shed any light on the reasons for the
approach adopted by me as Minister to the exercise of those (statutory)
functions;
(ii) that he could only conclude that the approach adopted by me had the
result that there was no independent investigation of Sergeant McCabe’s
complaints;
(iii) that the absence of records “that one would expect of a careful and
reasoned exercise of an statutory function was a matter of some
concern”;
13

 (iv) it appeared that the applicant acted on advice received from the
Commissioner without that advice being questioned or analysed.
6.

that as a consequence of the above there was sufficient basis for concern

as to “whether all appropriate steps had been taken by the Minister for Justice
and Equality to investigation and address the specified complaints.”
7.

that the applicant failed to heed the voice of Sergeant McCabe in

relation to his complaints.
20.

The final chapter of the report, chapter 20, contains the respondent’s

conclusion and recommendations. He said:
“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
supervisors held 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.
20.12 In my opinion, having regard to the number, range and importance of
the issues arising, it is desirable in the public interest that a comprehensive
Commission of Investigation be established pursuant to the Commissions of
Investigation Act 2004 to investigate the issues that remain unresolved arising
out of the complaints made by Sergeant Maurice McCabe and examined in
this report. Such commission is, in my opinion, desirable in the public interest
to ensure continuing confidence in the institution of An Garda Síochána and
the criminal justice system.
14

 20.13 If that recommendation is accepted, I suggest that the terms of reference
might usefully include the following definite matters of urgent public
importance:…
j. the investigation by An Garda Síochána and the Minister for Justice and
Equality of the complaints made by Sergeant Maurice McCabe in relation the
above matters, and such other like matters as may seem appropriate;”

The Proceedings
21.

By order of the 30th July, 2014, Baker J. granted leave to the applicant to seek

the reliefs referred to above on the following grounds set out in the applicant’s
statement required to ground the application:
1.

The respondent drew the Conclusions in circumstances where he did not

interview the applicant prior to making the Findings nor did he engage in any
substantive communication with the applicant on the issues on which he drew
the Conclusions.
2.

The respondent drew the Conclusions in circumstances where he did not

in any fashion put the Conclusions and Findings to the applicant prior to
embodying them in the report.
3.

The respondent drew Conclusions in circumstances where he did not

furnish the applicant with a draft of the Conclusions nor afford the applicant
an opportunity to make such submissions as deemed necessary to the
respondent.
4.

The respondent’s terms of reference did not empower him to draw the

said Conclusions.

15

 5.

The respondent erred in the exercise of his discretion and/or acted

unreasonably and/or unfairly, contrary to the principles of fair procedures,
natural and constitutional justice in that:
(a) the respondent did not seek to obtain any relevant information from the
applicant by way of interview, statement or other means.
(b) The respondent did not obtain and consider documentation in the
possession of the Garda Síochána Ombudsman Commission (GSOC) and
failed to fully consider the statutory role of GSOC and its relevance to the
approach taken by the respondent.
(c) The respondent felt compelled to conclude his review within a fixed time
frame and failed to take such additional time as permitted under his terms
of reference and as was required to consider all documentation and
information of relevance to ensure that his findings and conclusions were
reached on the basis of all available information relevant to his terms of
reference.
6.

The respondent erred in fact and in law in his consideration of the

advices of the Office of the Attorney General dated the 18 th of December 2013
and in his consideration of the conduct of the applicant in that context.
7.

The drawing of the conclusions by the respondent in the following

circumstances gives rise to a reasonable apprehension of bias;
(a) the respondent was a member of Professional Practice Committee which
engaged in criticism of the applicant as Minister in respect of the Legal
Services (Regulation) Bill 2011, which bill the applicant was centrally
involved in promoting through the legislature;”

16

 22.

In his grounding affidavit, the applicant sets out details of his qualifications

and experience from which it is clear that he is both an extremely accomplished and
experienced politician and an eminent and distinguished practising lawyer.
22.

He exhibits the relevant correspondence and documents including the two

letters from the respondent to the Department. He avers that during the course of the
respondent’s review and preparation of the Report, he was given no notice whatsoever
by the respondent that he intended to examine and pass judgment on his actions as
Minister. He says that at no time did the respondent raise any issues with him or his
Department regarding that handling of Sergeant McCabe’s complaints. He says he
believed that it was appropriate to ensure that there was public confidence in the
process that the respondent was engaging in and thus to avoid even the slightest
perception of inappropriate interaction with the respondent.
23.

He complains of the fact that conclusions were drawn by the respondent

without the applicant being given any opportunity to respond to them. Had he been
given such an opportunity, he believes that he could have provided the respondent
with relevant information which may well have resulted in different conclusions being
drawn. He avers that he would have been able to inform the respondent, if asked, of a
number of difficulties that arose in relation to Sergeant McCabe’s complaints. One of
the difficulties identified by the applicant is the failure of departmental officials to
furnish him with correspondence of relevance of which he only became aware
following the publication of the Report.
24.

He refers to a letter of advice from the Office of the Attorney General of the

18th December, 2013, upon which the respondent incorrectly relied. He says that the
respondent misread that letter with significant consequences for him. Furthermore,
the content of the letter was never brought to his attention by officials in his own
Department and he only learned of its existence for the first time following receipt of
17

 the Report. He says that in reaching his Conclusions, the respondent failed to take
account of relevant provisions of the Garda Síochána (Confidential Reporting of
Corruption or Malpractice) Regulations 2007.
25.

The applicant avers that the drawing of the Conclusions by the respondent has

caused him severe and irreversible reputational damage both as a public official and
as a lawyer.

He expresses concern that the issues dealt with in the report will

unnecessarily and unfairly fall to be considered by a Commission of Investigation.
26.

In para. 39 of his grounding affidavit, the applicant avers that whilst the

respondent was conducting his review, he was a member of the Professional Practices
Committee of the Bar Council which was involved in public criticism of the Legal
Services Bill relating to reform of the legal profession and with which the applicant
was closely identified. He expresses concern as to the possibility that the respondent
was biased in drawing the Conclusions although says that he is not asserting actual
bias.
27.

The respondent delivered his statement of opposition on the 28 th October,

2014. The grounds include the following:
1.

The respondent provided an expert professional opinion which is not

amenable to judicial review.
2.

The applicant as a private citizen does not have standing to seek judicial

review of a report relating to the Minister for Justice and Equality.
3.

The only party entitled to litigate the issue as to whether the respondent

exceeded the terms of reference or was biased is the Government who
commissioned the report.
4.

These proceedings amount to a collateral attack by the applicant on

decisions of the Government of which he was a member and in effect the
applicant seeks to judicially review himself.
18

 5.

The report is not justiciable at the suit of the applicant and does not give

rise to a requirement for fair procedures or natural justice.
6.

Any damage allegedly suffered by the applicant arises from the

Government’s decision to publish the report.
7.

The applicant took no steps to either prohibit publication of the report or

address any issues arising therefrom prior to publication. These proceedings
constitute a collateral attack on the decision of the Government to establish a
Commission of Investigation which in any event provides the applicant with
an alternative appropriate remedy.
8.

The applicant is not entitled to discretionary relief because he failed to

keep himself informed of the respondent’s correspondence and has made an
allegation of bias without establishing that it is factually sustainable.
9.

The applicant had the opportunity to furnish any comments,

explanations or submissions that he wished to the respondent who accorded
the appropriate level of fair procedures.
10.

Fair procedures and natural justice do not apply to a report which is

legally sterile and makes no findings of fact or law but merely expresses
opinions.
11.

The terms of reference did not require the applicant to be interviewed by

the respondent.
28.
2014.

The respondent’s principle replying affidavit was sworn on the 28th October,
In it, the respondent identifies the core task of the review as being an

examination and assessment of all relevant papers and the making of
recommendations for further action. He avers that the terms of reference required him
to review the adequacy of any investigation or enquiry not just by An Garda Síochána
but any other relevant entity or public body which included the Department. Having
19

 done so, he was required to consider whether there was a sufficient basis for concern
as to whether all appropriate steps were taken by those bodies to address the
complaints of Sergeant McCabe. The respondent was required to conduct a limited
exercise expeditiously to assess what further measures might be warranted in order to
address public concerns. The review had no legal effect.
29.

Any relevant comments made by the respondent related to the Office of the

Minister for Justice and Equality and not to the applicant in his capacity as a private
citizen. The Report draws no conclusions of fact or law.

The decision of the

applicant to resign was a political one of which the respondent has no knowledge
beyond what is in the public domain. There has been no complaint about the Report
from either An Taoiseach or the Government.
30.

The respondent says that insofar as his contact with the Department was

through a nominated point of contact, Mr Kevin Clarke, he considered that to be
contact with the applicant in his official and only relevant capacity.

He had no

knowledge of the decision not to bring correspondence to the personal attention of the
applicant. He expresses particular surprise that the letter of the 11 th April, 2014 was
not brought to the applicant’s attention.
31.

At no time did the respondent purport to pass judgment on the applicant and

he takes issue with the applicant’s averment that he had no notice whatsoever that he
intended to examine and pass judgment on his actions as Minister. He avers that he
cannot understand how the applicant could have been unaware that the report would
involve consideration of the performance of the ministerial functions which were his
responsibility as Minister. His letter of the 11 th April, 2014 makes perfectly clear that
this was being considered. There was no need to interview the applicant in
circumstances where the Department files spoke for themselves and would be

20

 expected to record any information relevant to the exercise of the Minister’s statutory
functions.
32.

However, if there was information known to the applicant relevant to the

exercise of his statutory powers which was not recorded in the Department files, the
applicant was free to communicate that information to the respondent and there would
have been nothing improper about such communication.
33.

The respondent further avers that there is no reality to the suggestion that in

addition to reviewing the voluminous documentation, interviews with the various
concerned parties should also have been conducted as part of the review given the
urgency of the situation. The purpose of the review was to conduct a preliminary
analysis of the available information which was almost entirely in documentary form,
to identify matters of concern and advise what further measures might be warranted.
Each of the alleged conclusions and findings of which the applicant complains were
simply a narrative account and summary of the documents provided. Insofar as he
expressed an opinion on what the documents demonstrated, the terms of reference
required him to do so. He deals with each alleged conclusion and finding of which
complaint is made in turn.
34.

The respondent avers that nothing in the applicant’s affidavit could have

justified any material amendment to those parts of the report of which the applicant
complains.

With regard to the letter of advice from the Attorney General, the

respondent says that paragraph 19.89 of the report contains an inadvertent typo insofar
as it refers to the relevant booklets from Sergeant McCabe being forwarded to the
Minister without further ado.

The word “Commissioner” should have appeared

instead of “Minister” but he says read in context the meaning is perfectly clear.
35.

With regard to the applicant’s complaint that the respondent misunderstood

GSOC’s statutory role and the fact that GSOC had power to independently investigate
21

 complaints received through the confidential recipient, all of which might be relevant
considerations for the exercise by the Minister of his statutory functions, the
respondent says that there was nothing in the Department files to indicate the
existence of any such investigation by GSOC or whether the Minister took any such
matter into account with regard to his own statutory functions.
36.

With regard to the time taken to complete the report, the respondent avers that

he cannot understand how the applicant, as a member of the Government that
appointed him and as an experienced practising lawyer, could possibly have expected
a report to be completed within eight weeks, or anything like it, if the full panoply of
procedural arrangements contended for were to be applied to him and every other
person mentioned in the report.
37.

With regard to the allegation of bias, the respondent avers that whilst he was at

the material time a member of the Professional Practices Committee of the Bar
Council, neither he or the Committee had any involvement in making submissions or
public comment regarding the Legal Services Regulation Bill, which would in any
event be entirely outside the scope of the work of that committee which is concerned
with matters of professional practice and ethics. The respondent’s averments in this
regard are confirmed in a separate affidavit sworn by the Director of the Bar Council,
Mr Jerry Carroll.
38.

In his second affidavit sworn on the 25th November, 2014, the applicant avers

that the work done by the respondent was not in the nature of the provision of legal
advice by a senior counsel which would be private and privileged but was to be
published publicly.

He says that the respondent was not limited to examining and

assessing relevant papers as suggested. He says that the respondent was required to
interview or at least correspond with him and he ought to have furnished the applicant
with a draft of any findings he intended to make against the applicant and afford him
22

 an opportunity to make submissions in relation to such draft findings.

He says he

would have been able to provide significant additional information beyond that
contained in the documentation which information may have altered the respondent’s
findings.
39.

The applicant refers to media coverage of the report to demonstrate that its

effect was very damaging personally and professionally to him. He contrasts the
procedures adopted in other enquiries with those adopted by the respondent. He avers
that when he obtained the report, he requested of An Taoiseach an opportunity to
consider the contents of the report in detail. However, that opportunity was not
afforded to him and it was made clear to him by An Taoiseach that, in the light of the
contents of the report, An Taoiseach would have difficulty in expressing confidence in
the applicant if asked. He says that if the respondent had not reached conclusions in
relation to him, those would not have formed part of the terms of reference of the
proposed Commission of Investigation. Much of what is contained in this affidavit is
in the nature of argument and submission.
40.

Prior to this affidavit being sworn, the applicant’s solicitors wrote to the

respondent’s solicitors on the 18th November, 2014 referring to the affidavit of Mr
Carroll and stating that in the light of same, the applicant was withdrawing the ground
in the statement of grounds that the drawing of the Conclusions by the respondent
gave rise to a reasonable apprehension of bias.

In an affidavit sworn on the 8 th

December, 2014, the respondent’s solicitor Ms Alison Fanagan of A & L Goodbody,
refers to this letter and states that the allegation of bias having been made on affidavit
must be withdrawn on affidavit.

She refers to the fact that although the applicant’s

second affidavit post dates this letter, he makes no reference to the bias allegation in
this affidavit. She avers that the respondent is maintaining the ground of opposition
that the applicant is not entitled to discretionary remedies by way of judicial review
23

 by reason of his conduct in making this allegation without conducting the minimum
enquiries to establish whether it is factually sustainable.
41.

Consequent upon Ms Fanagan’s affidavit, the applicant swore a third affidavit

on the 15th December, 2014 in which he formally withdrew the allegation of bias and
acknowledged that he was mistaken in his belief, held at the time of swearing the
grounding affidavit, that the Professional Practices Committee of the Bar Council of
which the respondent was a member criticised the Legal Services Bill.
42.

In his fourth affidavit sworn on the 10th February, 2015, the applicant revisits

the issue of the establishment of a Commission of Investigation and the fact that by
virtue of the respondent’s challenged conclusions, the applicant would now wrongly
be faced with participation in such commission. The applicant avers that he is
concerned about the overlap between the work of the Commission of Investigation
and the within proceedings. In that regard, the applicant considered it necessary to
write to An Taoiseach and the Ceann Comhairle of the Dáil highlighting his concerns
in this regard. He exhibits the relevant correspondence to which I shall refer further.
He says that the Minister for Justice and Equality publicly announced on the 19 th
December, 2014 the establishment of a Commission of Investigation with the
proposed terms of reference including all of those recommended by the respondent.
The terms of reference were confirmed by Dáil Eireann on the 28th January, 2015.
The terms of reference of the Commission of Investigation are exhibited in a second
affidavit of Alison Fanagan sworn on the 4th March, 2015.
43.

In his final affidavit sworn on the 24th March, 2015, the applicant refers to the

fact that he had made a request under the Freedom of Information Act 2014 addressed
to the Secretary General of the Department of An Taoiseach for copies of all
correspondence and material pertaining to the respondent’s inquiry.
relevant correspondence in that regard.
24

He exhibits

 The Arguments
44.

The applicant’s case is relatively simple. The primary contention advanced by

Mr Sreenan SC on behalf of the applicant is that if the respondent was going to draw
conclusions critical of the applicant in circumstances where the respondent must have
known that such criticism was potentially very damaging to the applicant, he had a
duty to consult with the applicant and put the matters giving rise to concern to him so
as to afford the applicant an opportunity to respond before the conclusions were
drawn. It is contended that this is a matter of basic fair procedures and natural justice.
The applicant further argues that in any event, the drawing of the conclusions by the
respondent was ultra vires the terms of reference. The applicant referred to a number
of well known authorities which deal with the concepts of natural and constitutional
justice including International Fishing Vessels Ltd v. Minister for the Marine (No. 2)
[1991] 2 I.R. 93 and McAuley v. Commissioner of An Garda Síochána [1996] 3 I.R.
208.

Counsel also referred to the applicant’s constitutionally protected right to his

good name and relevant authorities in that regard including Maguire v. Ardagh [2002]
1 I.R. 385 and State (Quinn) v. Ryan [1965] I.R. 70.
45.

The applicant also relied on a number of cases involving determinations by

inquiries and tribunals and the well settled jurisprudence regarding the necessity to
afford fair procedures to any party in respect of whom adverse findings or orders were
to be made. These included Haughey v. Moriarty [1999] 3 I.R. 1, Bailey v. Flood
[2000] IESC 11, Prendiville and Murphy v. The Medical Council [2007] IEHC 427
and O’Callaghan v. Mahon [2009] IEHC 428.
46.

The applicant submitted that the principles of natural and constitutional justice

require the respondent to adopt one or more of the following courses of action before
embodying the conclusions in the report:

25

 (a)

If the respondent had queries arising from the documents concerning the

applicant’s conduct, he ought to have furnished that documentation to the
applicant who should then have been given a fair opportunity to consider it
and reply to the respondent’s queries.
(b)

Insofar as may be further necessary that the respondent should have

interviewed the applicant in relation to the matters of concern to him.
(c)

The respondent should have furnished the conclusions in draft form to

the applicant and afforded him an opportunity to make written submissions.
(d)

The applicant’s responses should have been either reflected or

reproduced in the report.
47.

The applicant further submitted that the respondent was in breach of his duty to

comply with fair procedures in failing to obtain the GSOC documentation. The
respondent appears to have fallen into error in considering that he did not have
sufficient time to obtain these documents because of the eight week deadline without
having regard to “or so soon as may be thereafter”.

The respondent misinterpreted

the provisions of the Garda Síochána (Confidential Reporting of Corruption or
Malpractice) Regulations 2007 and in particular Regulation 10 in concluding that
there had been no investigation of Sergeant McCabe’s complaints because the relevant
provisions of the Garda Síochána Act 2005 do not permit complaints to be made to
GSOC by a member of An Garda Síochána. However, it was contended that the
respondent clearly overlooked Regulation 10, which obliges the Garda Commissioner
to notify GSOC of every confidential report which may then be investigated by
GSOC.

It was further submitted that the respondent made a significant error in

relation to the advice of the Attorney General’s Office referred to above and this
caused further damage to the applicant.

26

 48.

In support of the contention that the conclusions were arrived at ultra vires the

terms of reference, the applicant placed reliance on Caldwell v. Mahon [2011] IESC
21 as authority for the proposition that the terms of reference should be construed
strictly as against the respondent.
49.

In dealing with the grounds raised by the respondent regarding the non

justiciability of the report, the applicant submitted that the fact that it was “legally
sterile” could not be taken to mean that it was not amenable to judicial review.
Reliance was placed on Becker v. Duggan [2009] 4 I.R. 1 and De Burca v. Wicklow
County Manager [2009] IEHC 54 and the authorities therein referred to.

The fact

that no legal consequences flow from the report is immaterial. The essential question
is whether or not it has the potential to affect the applicant’s good name and all that
goes with it.

If the report were not amenable to judicial review, it would set the

applicant’s constitutional rights at nought, contrary to all authority.
50.

It was further submitted that the applicant could not be precluded from relief

because he was a member of the Government at the time of the respondent’s
appointment and relied on Ahern v. Mahon [2008] 4 I.R. 704 in that regard. A number
of other authorities involving tribunals were cited. In answer to the contention that
the applicant had failed to challenge the decision to publish the report and thus could
not now challenge it, reliance was placed on De Róiste v. Minister for Defence [2001]
1 I.R. 190, State (Vozza) v. O’Floinn [1957] I.R. 227 and McGrath Limestone Works
Ltd v. An Bord Pleanala [2014] IEHC 382. On the alternative remedy point, the
applicant referred to McGoldrick v. An Bord Pleanala [1997] 1 I.R. 497.

On the

point of discretionary relief, reference was made to GD v. Minister for Justice
Equality and Law Reform [2006] IEHC 344 and Carr v. Minister for Education and
Science [2001] 2 I.L.R.M. 272.

27

 51.

With regard to the issue of justiciability, the applicant relied upon the very

helpful analysis by Barrett J. in Grange v. Commission for Public Service
Appointments [2014] IEHC 303.
52.

Mr Gallagher SC for the respondent submitted that the applicant’s primary

complaint is that he was denied an opportunity to consult with the respondent when
the converse is in fact the case. The fact that any of the respondent’s correspondence
was not brought to the applicant’s attention is entirely a matter for the applicant.
Counsel contended that there has been a very significant change in the applicant’s
position with regard to the Commission of Investigation that has now been
established.

The applicant initially sought to prevent his role as Minister being

examined by the Commission on the basis that it would be an unwarranted
interference with the function of the court in these proceedings whereas the applicant
now says that the terms of reference of the Commission were entirely a matter for the
Government. This was in fact the reason for the institution of these proceedings but
it has now been overtaken by events, thus rendering this claim moot.
53.

The respondent argued that what was now being contended for by the applicant

in these proceedings is that the respondent should have carried out the task which the
Commission is now carrying out. In circumstances where it is clear that the
respondent was required by the Government of which the applicant was a member to
carry out a review of the documents supplied by the applicant himself, the applicant
knew that his role was to be examined on the basis of those documents and he was
free to make any submissions he wished if there was information not contained in the
documents of relevance to the respondent’s enquiry.
54.

Counsel submitted that the respondent arrived at no determinations and made

no “findings”.

His Conclusions, insofar as they could be described as such, were

28

 simply narrative recitals of what the documents disclosed on their face and what any
educated reader of the documents would conclude from reading them.
55.

The Report, as described by An Taoiseach, was in the nature of a scoping

report carried out by a private expert retained by the Government on a contractual
basis to carry out an exercise which was preliminary and urgent in nature.

The

Report was no different from any opinion that might be sought by the Government
from a member of the Inner Bar and the only distinguishing feature was that the
Government decided to publish it, which was a purely political decision. Counsel said
that all of the applicant’s complaints in reality stemmed from purely political
decisions: the decision to publish, the alleged loss of confidence expressed by An
Taoiseach in relation to the applicant, the decision to establish a Commission of
Investigation and the applicant’s own decision to resign.
56.

It was submitted that the applicant’s contention that the respondent’s failure to

obtain document from GSOC somehow amounted to a denial of fair procedures was
fundamentally misconceived. If there was a failure in that regard, or the respondent
had acted in some way ultra vires the terms of reference, the only party who could
complain about that was the Government who commissioned the report, not the
applicant as a private citizen.

The GSOC documents could only be relevant to the

Minister’s role if they were part of the Department’s file. There was no suggestion
being made that there was somehow information communicated to the Department by
GSOC which did not appear on the files.

The suggestion that the respondent

misunderstood the statutory architecture was incorrect as was the alleged mistake
regarding the Attorney General’s advice.
57.

The applicant’s complaint that he was denied the opportunity to vindicate his

good name would in fact now be entirely addressed by the Commission of

29

 Investigation where every such opportunity would be afforded him including the full
panoply of fair procedures.
58.

With regard to the allegation of bias, the respondent contended that this was a

very serious allegation made against a professional person that never had any factual
basis which when challenged, was eventually withdrawn.

The basis upon which it

was made was never explained by the applicant and as a matter of discretion, the
applicant should be refused relief on this ground alone.

It was said that the

applicant’s change of position regarding the Commission of Investigation was also
something going to the court’s discretion.
59.

The according of natural and constitutional justice is not an absolute but

dependant on the particular circumstances that gave rise to the Report in this case.
The respondent relied on Mooney v. An Post [1998] 4 I.R. 288. The applicant as a
private citizen was not entitled to challenge any determinations in relation to the
office of Minister for Justice and Equality and only the holder of that office could
bring such a claim. The decision in A. v. Governor of Arbour Hill Prison [2006] 4
I.R. 88 was cited in support.

Given that the applicant was a member of the

Government that commissioned the report, drew up its terms of reference, received it
and published it, the applicant could not on the basis of collective cabinet
responsibility in effect judicially review himself. It was further argued that no benefit
could accrue to the applicant if the reliefs sought were granted to him on the basis that
the role of the minister was now to be examined by the Commission of Investigation,
something he had sought to prevent. Reliance was placed on Somjee v. Minister for
Justice [1981] I.L.R.M. 324, Todd v. Murphy [1999] 2 I.R. 1, Kelly v. Minister for
Justice [2015] IEHC 218, G. v. Collins [2005] 1 I.L.R.M. 1 and W. v. HSE [2014]
IESC 8 in that respect.

30

 60.

The respondent submitted that the report was not justiciable at the suit of the

applicant but only at the suit of the Government who made no complaint about it.
Further, the report was limited in scope and nature and had no legal effect. All of the
political considerations central to the case are non justiciable. The cases relied upon
by the applicant were not applicable to the facts herein.
61.

In support of the contention that there was no justiciable controversy arising in

this case, counsel relied on Ryanair v. Flynn [2000] 3 I.R. 240 and Murtagh v. Board
of Management of St. Emer’s National School [1991] 1 I.R. 482.

It was submitted

that the reality of the applicant’s case was an attack on the merits of the report which
the court could not engage in and Bailey v. Flood (Unreported, High Court, 6th March,
2000), Kenny v. Judge Coughlan [2008] IEHC 28 and O’Callaghan v. Mahon [2008]
2 I.R. 514 were referred to.

The Nature of the Report
62.

In order to determine what level, if any, of fair procedures were the applicant’s

due, it is necessary to analyse the task given the respondent by the Government. The
respondent was identified by the Government as a senior counsel of standing with
particular expertise in the areas to which Sergeant McCabe’s complaints related. The
respondent’s standing and independence were of course critical to the integrity of his
review and there is no dispute about that. The respondent is a private citizen and as a
member of the Inner Bar, he was instructed to provide a service to the Government on
a contractual basis. His expert opinion was sought.

He had no statutory or other

powers and those who interacted with him in relation to his review did so on a purely
voluntary basis.

31

 63.

His instructions were contained in the terms of reference. The matters in issue

were of national public concern and there could be no doubting the urgency of the
situation.
64.

The review was to be carried out within eight weeks of the 27 th February, 2014

“or so soon as may be thereafter.” Whilst therefore the eight week deadline could be
extended, such extension must be construed by reference to the initial eight week
period. Thus, it seems to me that the phrase “or so soon as may be thereafter” must
be taken to refer to a period of some weeks as distinct from months or years. Indeed,
An Taoiseach, in his address to the Dáil on the 25th February, 2014, expressed the
hope that the report would be completed before the Easter recess.
65.

The only party that the respondent was specifically mandated the interview

was Sergeant McCabe, although he was free to interview 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” (emphasis supplied).
Those allegations are referred to in para. 1 of the terms of reference as being of grave
deficiencies in the investigation and prosecution of crimes in the county of Cavan and
elsewhere as specified by Sergeant McCabe in the documents referred to.

One

assumes that the Minister would not have been in a position to provide any assistance
regarding those allegations. Presumably, the importance of interviewing Sergeant
McCabe arose from the necessity for the respondent to be satisfied that the allegations
were credible since clearly if they were not, there was little point in proceeding
further.
66.

Beyond interviewing Sergeant McCabe and any other person who might be

able to assist regarding the allegations, it would appear that the respondent’s review
was to be largely confined to the examination of documentation held by any relevant

32

 entity or public body, two of which were specifically identified namely An Garda
Síochána and the Department.
67.

Even at that, it is clear from even a cursory perusal of the Report that this was

a mammoth undertaking to be completed within eight weeks or shortly thereafter.
Indeed, the time span in itself is a clear indication of the nature of the review required
of the respondent.
68.

There is a significant number of people identified in the report as having an

involvement in the many events of which Sergeant McCabe made complaint. If the
respondent were in fact tasked with interviewing all of these parties and affording
them the full gamut of fair procedures such as contended for by the applicant, there
would be no remote possibility of the permitted time scale being in any way realistic.
Recent experience of tribunals of inquiry would suggest that a timeframe for such an
exercise would be measured in terms of many months if not years.
69.

Quite apart from that, I am satisfied that the respondent was entitled to

interpret his terms of reference in the way that he did regarding his remit being
confined to a documentary review – see Redmond v. Flood [1999] 3 I.R. 79.
70.

Paragraph 5 of the terms of reference mandated the applicant to review the

adequacy of any investigation or inquiry instigated by An Garda Síochána or any
other relevant entity or public body into the events in question. Such other relevant
entity or public body clearly included the Minister and his Department, whose
documentation the respondent had been directed to examine. Having examined the
documents and reviewed the adequacy of any investigation or inquiry, para. 6 then
required the respondent to express a view as to whether there was a sufficient basis for
concern as to whether all appropriate steps were taken by An Garda Síochána or any
relevant entity or public body, which included the Department, to investigate and
address the specified complaints. Following that, para. 7 required the respondent to
33

 advise whether further measures were warranted in order to address public concerns
including whether the establishment of a Commission of Investigation was considered
desirable in the public interest.
71.

Accordingly, it seems to me that whether one could appropriately describe the

report as a “scoping” report or not, it was intended as a preliminary exercise to assist
the government in determining whether further steps required to be taken.
72.

The respondent was not required to make definitive findings of fact but rather

to express an opinion on the basis of what the documents disclosed. The applicant
submits that the respondent arrived at “Conclusions” which are to be equated with
“Findings”. They are not necessarily the same thing. When one speaks of “findings”,
in the normal way one has in mind the determination of some issue in controversy
between opposing sides or perhaps arising from conflicting evidence on a particular
topic.

“Findings” tend to be determinations of facts that are not otherwise self

evident. Conclusions are somewhat different. To take an example, if a dispassionate
observer was asked to read A’s file of correspondence which showed a letter from B
but no copy of a reply from A, then it would be reasonable to conclude that A had not
replied to B’s letter. That could be described as a conclusion but is hardly a finding
of fact. It is no more than a conclusion that any reasonably intelligent reader might
draw but of course does not exclude the possibility that A might have telephoned B or
met B in the street and responded verbally without keeping a note of that response on
the file.
73.

What the applicant here contends for is that it was not open to the respondent

to draw such a conclusion without consulting him first. I do not think that this is what
the respondent was required to do by his terms of reference which was in the nature of
expressing a preliminary view based on what the documents disclosed.

The

respondent was asked to look at the documents and offer an opinion as to whether
34

 cause for concern existed and if so, what should be done about it. The expression of
such an expert opinion could not to my mind be reasonably described as a finding of
fact or in any sense a final determination of an issue. The respondent did not purport
to make such determinations and expressly said so in the report.
74.

It seems to me that the unreality of the position being adopted by the applicant

here is drawn into focus by the list of rights he says ought to have been accorded to
him before any conclusion could be drawn which was potentially critical of him in his
capacity as Minister.

That list of rights as set out above at para. 46 is virtually a

facsimile of the rights that will be accorded to him pursuant to the provisions of the
Commissions of Investigation Act 2004 arising from his participation in the
Commission of Investigation now established by the Government. To suggest that the
applicant or any other party mentioned in the Report as being potentially the subject
of a critical opinion by the respondent ought to have been accorded these rights would
transform the respondent’s review into something radically different from that
envisaged by the terms of reference.
75.

The applicant in effect is contending that the respondent should have done

what the Commission of Investigation is now doing. That proposition is untenable.

Justiciability
76.

The applicant contends that his constitutionally protected right to his good

name has been infringed by the report which is thereby rendered justiciable. He says
that the fact that the report does not determine any rights and is “legally sterile” does
not alter the position.

He says that the fact that the respondent’s enquiry or review

was non statutory and carried out on a private basis is neither here nor there.
77.

In De Róiste, the applicant was a member of the Defence Forces who had

been involuntarily retired in 1969 on the grounds that he was suspected of associating
35

 with persons engaged in subversive activities. The Minister for Defence, the second
respondent asked the Judge Advocate General, the first respondent, to carry out a
statutory review of the circumstances surrounding the applicant’s retirement.

In

conducting the review, the first respondent had access to documents but such access
was denied to the applicant. He was invited to make written submissions but said he
could not make any informed submissions in the absence of access to the
documentation which was the focus of the inquiry.

He sought to have the ensuing

report quashed. The respondents claimed that the report was not justiciable because
it was legally sterile and interfered with no legal right of the applicant. In the light of
the foregoing facts, it is perhaps unsurprising that the court did not accept that
proposition and quashed the report, holding that it was justiciable insofar as it affected
the applicant’s reputation and right to his good name.

The court held that the

procedure adopted was patently unfair as the applicant was deprived of an effective
opportunity to make representations which could have affected the first respondent’s
conclusions.
78.

Under the heading of “justiciability”, Quirke J. considered Ryanair and said (at

p. 507)
“The principle identified by the High Court in Ryanair Ltd v. Flynn [2000] 3
I.R. 240 is not in dispute. The courts will only intervene by way of judicial
review (a) in matters where there is a public law dimension, and (b) in respect
of a decision, act or determination which will affect some legally enforceable
right or a right so close to such a right that ‘a probable, if not inevitable, next
step’ will be ‘that some legal right will, in fact be infringed”.
In Ryanair Ltd v. Flynn the court was satisfied that no decision, act or
determination had been made by the respondent which affected any such right
or contingent right then vested in the applicant. In that case the respondents
36

 had been commissioned as submit to the Minister a “mere fact finding
report”…
In the instant case the position is different…”
79.

Quirke J. went on to explain in some detail why the position was different from

that obtaining in Ryanair. He said (at p. 508):
“The process undertaken by the first respondent was significantly more than a
review of documentation for the purpose of submitting to the second
respondent a ‘mere fact finding report’. It was a process which required the
first respondent to reach conclusions and make findings of fact and
recommendations to the second respondent.”
80.

And further in the same vein at p. 509:
“The process conducted by the first respondent was investigative in nature. It
was focussed entirely and exclusively upon matters directly concerned with
the applicant’s reputation and good name.

It addressed four specific

questions, including a question which the courts had, in 2001, declined to
address (i.e. the provision of fair procedures for the applicant in 1969). It
reached conclusions. It made findings of fact. It made recommendations to
the second respondent which resulted from those findings of fact…
The second respondent established this investigative process, on behalf of the
Government, by assigning to the first respondent a "duty" which entitled her to
reach conclusions and make findings of fact and recommendations. The
assignment was effected pursuant to the provisions of s. 15(3) of the Defence
Act 1954. The conclusions, findings and recommendations of the first
respondent directly and almost exclusively concerned the applicant's
reputation and good name. The applicant was invited to participate in the
process by making representations to the first respondent. Those
37

 representations were, presumably, intended to influence the outcome of the
process and to have an impact upon the conclusions findings and
recommendations of the first respondent.”
81.

The applicant placed specific reliance on the following passage in the

judgment (at p. 512):
“It is inescapable that the findings and conclusions resulting from the process
had the capacity to affect the applicant’s reputation and good name whether
favourably or adversely. He enjoys the right to right (sic) to a reputation and a
good name. That right is constitutionally protected.
I am satisfied that since the process undertaken directly concerned matters
relating to the applicant’s reputation and good name, its findings and outcome
affected his constitutionally protected right to his reputation and good name.
Accordingly, he had a legitimate, fundamental significant interest in the
process and is entitled to seek the relief which he has sought in these
proceedings.”
82.

In De Burca, the applicant was a member of Wicklow County Council. The

respondents were the County Manager and Chairperson of the Council respectively
and the notice party was also a member of the Council and a local solicitor.
83.

At a meeting of the County Council held for the purpose of discussing the

county development plan, the notice party proposed rezoning certain lands and this
proposal was adopted.

The applicant made a complaint to the council’s ethics

registrar against the notice party on the basis that the notice party’s firm represented
the owner of the lands that had been rezoned and the notice party had failed to declare
an interest in the matter in contravention of Part XV of the Local Government Act
2001. The respondents investigated the complaint pursuant to s. 174 of the 2001 Act.
When the report was published, it made findings critical of the applicant which appear
38

 to have attracted negative media reporting about her.

However, the applicant’s

complaint was not that she had not been accorded natural justice or fair procedures
but rather that the respondents had made a fundamental error of law in misconstruing
their function under Part XV of the 2001 Act and accordingly their findings were
ultra vires. The issue of justiciability arose in the context of a submission by the
respondents that their determination was not amenable to review by the court
essentially because it was “legally sterile”. Hedigan J. rejected this proposition saying
(at para. 50):
“(b) Justiciability
50.

It is well established that formal reports or other investigative

determinations reached by public bodies may be subject to judicial review in
certain circumstances. The fact that a report such as that in the present case is
portrayed as a mere fact-finding exercise does not, of itself, prevent it from
impacting upon the rights of the parties involved. In Maguire v. Ardagh [2002]
1 IR 385, Hardiman J. was unconvinced by the argument that an Oireachtas
Committee Inquiry into a fatal shooting by members of An Garda Síochána
was 'legally sterile' and therefore immune from judicial review. He stated at
page 670:‘I have to say that I find the phrase ‘legally sterile’ extremely
unattractive in any realistic human context. Counsel for one of the
respondents, on being asked whether he would repeat the phrase
without the qualifying adverb said, very naturally, that he could not do
so. 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 affect
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
39

 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. If this is the law then it can only be described as a legal fiction.
No ordinary person, such as one of the applicants, on receiving the
letter of directions to attend, could possibly interpret it in the artificial
sense suggested. 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
finding of fact or conclusion by the sub-committee will not amount to a
conviction and will not determine any persons 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 effects: these effects would sound, inter alia, in the area
of the affected person's constitutional rights. When, later in this
judgment, I consider the United States cases on the House unAmerican Activities Committee, it will be seen that many persons have
been economically ruined and socially outcast by virtue of decisions
which are ‘legally sterile’.’
51. A similar approach was taken by Quirke J. in De Róiste v. Judge Advocate
General [2005] 3 IR 494. In that case, the High Court held that an inquiry into
the reasons for the applicant's dismissal from the Defence Forces could not be
regarded as a simply inquisitive process and therefore unamenable to judicial
review. In particular, Quirke J. placed emphasis on the aspersions which could
be cast on the conduct and character of an individual in such a report…
40

 53.

As a public representative, the reputational rights guaranteed to the

applicant by Article 40.3.2º 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 audiovisual 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 criticisms 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.”
84.

In Ryanair, following the temporary enforced closure of Dublin Airport the

Minister for Enterprise and Employment ordered a statutory inquiry into a dispute
between the applicant and a trade union. The respondents were appointed to conduct
the inquiry.

The report of the inquiry made a number of findings of fact which

contradicted certain assurances given by the applicant to its staff. The applicant
sought to quash to the report on the basis that the conclusions drawn were
unreasonable, irrational, based on manifest error and arrived at in breach of natural
and constitutional justice. The respondents argued that the report was not amenable to
judicial review. In dealing with issue, the High Court (Kearns J., as he then was) said:
“I am satisfied in the instant case that the matter raised before this court is not
justiciable because there is no decision susceptible to being quashed in the
sense that no legal rights of the applicant are affected by what is a mere fact
41

 finding report. The inquiry team had an extremely limited function as was
expressly recognised by the applicant’s solicitor by letter dated the 13 th March,
1998. At the applicant’s own insistence, the inquiry could not attempt
mediation or dispute resolution.

It could not impose duties, penalties,

liabilities or consequences of any sort.
Accordingly, it seems to me that the application fails both because there is ‘no
decision’ and secondly, even if there was, ‘no legal right of the applicant was
thereby affected’.
My conclusion would be in no way different even if I were to adopt the views
expressed by Diplock L.J. in R. v. Criminal Injuries Compensation Board ex p.
Lain [1967] 2 QB 864 where he expressed at p. 884 recognition for legal rights
which would be sufficiently comprehensive to include ‘merely one step in a
process which may have the result of altering the legal rights or liabilities of a
person to whom it relates’.
Insofar as the supposed rights contended for by counsel for the applicant are
concerned, the only possible legitimate concern would be the imposition of
some adverse requirement on the applicant by the Minister on foot of the
findings contained in the report. However, any such connection is entirely
speculative. It can in no sense be described as a ‘probable consequence or
next step’.
I do not accept that the word ‘report’ is not conclusive if, of course, some
decision is nonetheless made which imposes duties or liabilities.
However, it must also be stated that there can be decisions with adverse
implications for the person affected thereby which nonetheless fall short of
infringing their legal rights. In Murtagh v. Board of Management of St.
Emer’s National School [1991] 1 I.R. 482, the Supreme Court found that a
42

 three day suspension of a pupil from a national school was an ordinary
application of disciplinary procedures inherent in the school authorities which
did not involve an adjudication or determination of rights and liabilities and
therefore the remedy of certiorari did not lie.
Hederman J. stated at p. 488:"Judicial review is a legal remedy available on application to the High
Court, when any body or tribunal having legal authority to determine
rights or impose liabilities and having a duty to act judicially in
accordance with the law and the Constitution acts in excess of legal
authority or contrary to its duty.
A three day suspension of a pupil from a national school either by the
principal or the board of management of that school is not a matter for
judicial review. It is not an adjudication on or determination of any
rights, or the imposing of any liability. It is simply the application of
ordinary disciplinary procedures inherent in the school authorities and
granted to them by the parents who have entrusted the pupil to the
school."
It follows from the foregoing that there are, quite apart from the public law
dimension (which was not an issue in Murtagh), 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
inevitable, next step that some legal right will, in fact, be infringed.”
85.

These and a number of other relevant decisions are very helpfully summarised

in the judgment of Barrett J. in Grange.
43

 86.

The report in issue here clearly comes within the description of “legally

sterile” insofar as it does not purport to, and could not in fact, confer any rights or
liabilities or make an final determinations of fact or law. That is not of course
conclusive.

Indeed, when one analyses the authorities above referred to, it would

appear that they all concerned decisions or determinations that were intended to be
final, whether they affected legal rights or not. The Report here was not the precursor
to some further inevitable or probable step that might affect such rights. It appears to
me that it comes back to the question of the nature of the task embarked upon by the
respondent.
87.

The applicant appears to concede that if the Government or one of its

departments sought an opinion from senior counsel on a legal issue and that opinion
were critical of the actions of one or more parties, that could not give rise to a right to
a public law remedy at the suit of the party criticised. The applicant says that the
situation here is entirely different given the nature of the assignment and the fact that
it was known in advance that the report would be published. The nature of the
distinction sought to be drawn is not obvious. In reality, the complaint appears to be
of the publication and the subsequent political consequences.
88.

Reverting to the terms of reference, the respondent was required to identify

concerns arising from his review of, inter alia, the Department’s documents.
Concerns could only arise if there were potentially criticisms of actions taken or not
taken. If there was no criticism, there could be no concern. The applicant submits
that the respondent should have abstained from expressing any critical opinion, in the
absence of consulting the applicant, and simply said that there were concerns. It is
difficult to understand how the requirements of the Government could be satisfied by
a report which simply said “I have reviewed the documents and there are concerns”.

44

 That would have amounted to a total abdication of the respondent’s professional
obligation to explain why such concerns arose.
89.

Far from being ultra vires the terms of reference, it seems to me that the

respondent was required and mandated by those terms to express the views described
as

“Conclusions”. However, none of these were more than a narrative account of

what the documents disclosed and where views were expressed, these were no more
than expressions of opinion based on those documents. They were not findings of fact
or final determinations of anything. They were not the precursors to an inevitable next
step which would infringe any right of the applicant. On the contrary, they were the
precursor to the establishment of a Commission of Investigation in which the
applicant has a statutory guarantee that his rights will be fully respected.
90.

Accordingly, I am of the view that the terms of the Report cannot give rise to

any justiciable controversy between the parties and does not attract an entitlement to a
public law remedy.

Fair Procedures
91.

The concepts of fair procedures and natural justice are not absolute and

whether and to what extent they apply to a given set of circumstances depends on
those circumstances. As Keane J. (as he then was) remarked in Mooney (at p. 116):
“the next question that accordingly arises is as to what the requirements of
natural justice were in the present case. As has often been pointed out, the
concept is necessarily an imprecise one and what its application requires may
differ significantly from case to case. The two great central principles – audi
alterem partem and nemo iudex in causa sua – cannot be applied in a uniform
fashion to every set of facts.”

45

 92.

Similar sentiments were expressed by Hamilton C.J. delivering the judgment

of the Supreme Court in McAuley were he said (at p. 217):
“The requirements in relation to basic fairness of procedures and the rules of
natural justice have been dealt with in many cases and in this connection it is
sufficient to refer to the judgment of Henchy J. in Kiely v. The Minister for
Social Welfare [1977] I.R. 267 when he stated as follows at p. 281: "This Court has held in cases such as In re Haughey [1971] I.R. 217
that Article 40, s. 3 of the Constitution implies a guarantee to the
citizen of basic fairness of procedures. The rules of natural justice must
be construed accordingly. Tribunals exercising quasi-judicial functions
are frequently allowed to act informally - to receive unsworn evidence,
to act on hearsay, to depart from the rules of evidence, to ignore
courtroom procedures and the like - but they may not act in such a way
as to imperil a fair hearing or a fair result. I do not attempt an
exposition of what they may not do for, to quote the frequently-cited
dictum of Tucker L.J. in Russell v. Duke of Norfolk [1949] 1 All E.R.
109, 'There are, in my view, no words which are of universal
application to every kind of inquiry and every kind of domestic
tribunal. The requirements of natural justice must depend upon the
circumstances of the case, the nature of the inquiry, the rules under
which the tribunal is acting, the subject matter that is being dealt with,
and so forth'."

95.

It is thus important to examine the factual background that led to the

respondent’s review. I have already referred to An Taoiseach’s statement to Dáil
Eireann on the 25th February, 2014.

On the following day, the 26th February, 2014,
46

 the applicant made his own statement to the Dáil and answered Deputies’ questions,
the transcript of which was put in evidence during the trial. At page 93 of the relevant
Dáil debates, the applicant said:
“I wish to commence by stating that initially, Deputy Martin was entirely right
to hand over to the Taoiseach last week material he had received from a
member of An Garda Síochána, Sergeant Maurice McCabe. The Taoiseach
acknowledged that they were serious matters and undertook to review them.
Had Deputy Martin's primary motivation been to have these allegations
examined, the proper course of action would have been to let the Taoiseach,
who made it clear that he was treating the matter as one of the utmost
seriousness, proceed with that examination and respond to the Deputy. Instead,
Deputy Martin came into this House last Thursday brandishing a document he
states was in my possession for two years. What the Deputy's allegations
amounted to was that serious allegations against the Garda had not been
addressed, that I had done nothing about them and that I had not responded to
correspondence from Sergeant McCabe.”
96.

The applicant continued at page 397:
“This brings me to the question of contacts between Sergeant McCabe and my
Department and, in particular, the allegation that I took no action in regard to
correspondence received from him.”

97.

And further on the same page:
“I should explain that reports from the confidential recipient are only
forwarded to me where an allegation is made against the Commissioner. I took
the letter so seriously that on 24 January, the following day, my Secretary
General, at my request, wrote to the Garda Commissioner seeking an urgent
report… The assurances I received were essentially to the effect that these
47

 matters had been fully investigated in accordance with the law in place at the
time. On 7 February, I wrote to the confidential recipient and informed him of
the response of the Garda Commissioner.”
98.

The applicant continued on page 400:
“What is clear is that I did everything possible to try to move this issue
forward, taking into account Sergeant McCabe's position on the matter. I very
much welcome the fact that I will be able to provide this documentation to Mr.
Sean Guerin SC.”

99.

The applicant concluded his remarks on page 402:
“I hope that the processes we have put in place will deal effectively with any
wrongdoing, but also avoid clouds of suspicion being allowed linger unfairly. I
look forward to the report of Mr. Sean Guerin and, like my colleagues in
Government, I am fully committed to our taking any action necessary on foot
of that report.”

100.

In response to the Minister’s statement, Deputy Martin addressed the House

and in the course of his reply said (at page 403):
“While the Minister believes he has been smeared because others had the
nerve to question him, he should remember that the Taoiseach explicitly stated
that I have handled this matter responsibly. He must also face the inconvenient
fact that while he announced today that he has reviewed the matter and found
he was right in everything he has done, the Cabinet stated yesterday that the
matter needed to be reviewed externally. That is a significant point, as it is the
view of the Cabinet, in particular, the Taoiseach, having read the dossier.”
101.

Arising from these statements in Dáil Eireann, it seems to me that it could not

possibly be suggested by the applicant that he was unaware that his role in relation to
Sergeant McCabe’s complaints was to be examined by the respondent.
48

Serious

 allegations had been made against the Minister by the opposition concerning his
alleged failure to respond to correspondence from Sergeant McCabe. This moved the
applicant to give a very detailed explanation to the House as to what steps he took
regarding those contacts and it is clear from Mr Martin’s response that, perhaps
unsurprisingly, the explanation was not accepted and was now to be the subject matter
of external scrutiny. It is therefore somewhat surprising, to say the least, to find the
following averment contained in para. 20 of the applicant’s first affidavit grounding
this application:
“During the course of his review and preparation of the report, I was given no
notice whatsoever by Mr Guerin that he intended to examine and pass
judgment on my actions as Minister.”
102.

That carefully worded averment is undoubtedly strictly speaking correct but it

is a very different thing from saying that the applicant was unaware that his actions as
Minister would be examined. I do not believe that the applicant could credibly make
such an assertion in the light of his statement to Dáil Eireann. Yet, in the very next
sentence of para. 20 he goes on to say:
“Secondly, not once in the correspondence does Mr Guerin raise any queries
regarding my department’s handling of the complaints of Sergeant McCabe.”
103.

Again this may be strictly true but insofar as it purports to convey an

impression of ignorance on the part of the applicant that his involvement in the entire
matter was being considered, it cannot be correct.
104.

If there was any doubt about the matter, and I believe there was none, it was

laid to rest by the content of the respondent’s letter of the 11 th April, 2014 to Mr
Clarke referred to above.
105.

In the second paragraph of that letter, the respondent drew attention to the fact

that there appeared to be virtually no departmental documents relating to any
49

 consideration of the Minister’s statutory powers to investigate the complaints that had
been made by Sergeant McCabe. The respondent was saying in effect that not only
was there no evidence of any investigation being carried out by the Minister pursuant
to his statutory powers but there was no evidence of it ever having been even
considered. Indeed, this is the very first “finding” that the applicant complains of. To
suggest in the light of this correspondence that the conclusion drawn from the
documents, or lack of them, that there had in fact been no investigation or
consideration of one came as a surprise to the applicant is hardly credible.
106.

Indeed, any reasonably intelligent person reading this letter would immediately

appreciate that a “conclusion” was going to be drawn in the absence of any further
evidence or explanation being forthcoming from the Minister. Yet, we have the
applicant stating on affidavit that no queries were raised by the respondent regarding
the department’s handling of Sergeant McCabe’s complaints.
107.

The applicant’s response to the issue of this correspondence is somewhat

curious. He says he knew nothing of it. It is curious because in the light of all that
had recently transpired, the applicant says on affidavit that there was no need for any
such correspondence to be brought to his attention because it only related to the
provision of documents. In paras. 25 and 29 of his affidavit, he blames officials in his
department for failing to bring correspondence to his attention, including the advice
from the Attorney General’s Office of the 18th December, 2013.
108.

Accordingly, the applicant as the former Minister for Justice and Equality and

an eminent lawyer says he bears no responsibility for correspondence addressed to his
Department not specifically brought to his attention.
extraordinary as it is unstatable.

That proposition is as

The Minister as a corporation sole is legally

identified with his Department and correspondence with the Department is
correspondence with the Minister.
50

 109.

The applicant says in his grounding affidavit that he was constrained from

making contact with the respondent to avoid any hint of impropriety. However, on the
other hand the applicant complains that the respondent did not make contact with him.
It seems to me that if the applicant had an explanation to offer for the absence in his
Department of any documents relevant to an investigation of Sergeant McCabe’s
complaints, he ought to have proffered it at the outset of the respondent’s review and
in any event no later than following receipt of the letter of the 11 th April, 2014. In my
view, he cannot have failed to appreciate that the absence of documentation called for
explanation and could only be construed in one way in the absence of such
explanation. Yet, he offered none and when the inevitable and obvious conclusion is
drawn, complains that had he been consulted he could have explained matters. What
is notable about this is that nowhere in his evidence does the applicant identify what
the explanation is nor indeed does he appear to actually say that any of the so called
“Conclusions” and “Findings” are in fact wrong and if so, why they are wrong.
110.

Thus, whilst the applicant complains extensively of damage to his reputation

and career as a result of the conclusions of the report, he singularly fails to explain
why those conclusions are manifestly wrong and how that has resulted in damage to
him.
111.

A significant part of the applicant’s case that he was not accorded fair

procedures centres on the alleged failure of the respondent to obtain the GSOC
documents.

It was also said that the respondent failed to correctly appreciate the

statutory architecture with the result that he was unaware of GSOC’s statutory power
to conduct investigations in relation to complaints received through the Confidential
Recipient.

It was suggested that the respondent was labouring under the

misapprehension that GSOC could not investigate complaints made by members of
An Garda Síochána. Thus, if the documents had been obtained, the applicant says that
51

 they may well have disclosed the existence of an investigation of Sergeant McCabe’s
complaints by GSOC and this in turn could have impacted on the Minister’s
consideration of the exercise of his own statutory powers regarding the initiation of an
independent investigation.
112.

However, the applicant has not explained how his approach was or might have

been affected when there are in fact no documents from GSOC or relating to GSOC
on the files of the Department to indicate the existence of such an investigation or that
one was being considered or indeed of any event relative to GSOC that could have
influenced the Minister in discharging his own statutory functions. If there was
relevant information available in this regard which was not recorded on the
Department files, in itself an unlikely scenario, the applicant was free to pass it on to
the respondent. Here again, the applicant does not allege that any such information
did in fact exist or if so, how it might have influenced any conclusion arrived at by the
respondent.

I fail to see therefore how the alleged failure to obtain the GSOC

documents could be viewed as a denial of fair procedures to the applicant.
113.

In summary therefore on this issue, I am satisfied on the evidence that the

applicant knew that part of the respondent’s review would involve an examination of
the role of the Minister in relation to Sergeant McCabe’s complaints. The applicant
was aware that the review was being conducted for the purpose of identifying
concerns that might require investigation.

He knew that the review was being

conducted by reference to the documents he himself furnished and not by reference to
any third party allegations which needed to be put to him for a response. If there was
information not contained in the Department’s documents which had a bearing on the
applicant’s role, he was perfectly free to submit that information in circumstances
where he must have known that the documents on their own would give rise to
conclusions reasonably obvious to any intelligent reader.
52

 114.

A further matter of which a complaint is made by the applicant is the alleged

misunderstanding or misreading by the respondent of the letter of advice from the
Attorney General’s Office of the 18th December, 2013. The Attorney’s advice was that
two of Sergeant McCabe’s files should be forwarded to the Commissioner “without
further ado”. In para. 19.89 of the report, the respondent said:
“The advice was to forward the two booklets relating to the complaints of
malpractice and corruption to the Minister ‘without further ado.’ ”
115.

The report goes on to state that it is unclear whether or not the documents were

ultimately forwarded to the Commissioner. The applicant submitted that the clear
inference to be drawn from this mistake is that notwithstanding the Attorney General’s
advice that the documents be furnished to the Minister without further ado, it wasn’t
clear whether the Minister had done anything with those folders or whether they
simply remained sitting on his desk.
116.

In response to this criticism, the respondent says that the reference to the

Minister was simply a mistake and should have been a reference to the Commissioner.
As previously stated, chapter 19 of the report sets out details of all correspondence
with the Department regarding Sergeant McCabe’s complaints including the fact that
his solicitors wrote to the Department on the 4 th September, 2012 enclosing the three
booklets which were the subject of the Attorney’s advice over a year later. The
correspondence between Sergeant McCabe’s solicitors and the Department from
September, 2012 onwards was concerned, inter alia, with requesting the solicitor’s
consent to the documents being sent to the Commissioner.

Paragraph 19.88

immediately preceding the paragraph of which complaint is made refers to these facts
and that the Minister had sought agreement to his sending the three booklets to the
Commissioner. The subsequent paragraph, 19.90, says that it is unclear whether the
documents were in fact forwarded to the Commissioner.
53

 117.

Therefore, the reference to forwarding booklets to the Minister which were

already in his possession for over a year is a patent error, the true meaning of which is
obvious to anybody reading the Report. It could not in my view be reasonably
suggested that anybody would be misled by this, less still would form some adverse
impression of the applicant as a result.
118.

Accordingly, even if the Report could be regarded as justiciable, I am satisfied

that there was no want of natural justice arising here and that the applicant was
accorded fair procedures entirely commensurate with the nature of the review being
undertaken by the respondent.

Can the Applicant Mount this Challenge?
119.

Article 28.4.2 of the Constitution provides:
“The Government shall meet and act as a collective authority, and shall be
collectively responsible for the Departments of State administered by members
of the Government.”

120.

Accordingly, all members of the Government are collectively responsible for

decisions of the Government. The Government instructed the respondent on a private
contractual basis to conduct a review and prepare a report. The Government drafted
the respondent’s terms of reference which included a direction to examine the
documents of one of its Departments and review the adequacy of any investigation or
inquiry by, inter alia, that Department. The Government directed the respondent to
consider if there was a sufficient basis for concern as to whether all appropriate steps
were taken by, inter alia, that Department to investigate and address the specified
complaints and advise whether further measures were warranted.
121.

The Government further decided to accept the Report, to publish it to the

general public, to accept the recommendations contained in the Report and to
54

 establish a Commission of Investigation.

These are all decisions for which the

applicant bears responsibility as a member of the Government that made them.
122.

To take an analogy, if the board of a company resolved to instruct a private

consultant to review the management and governance of the company and such
consultant offered the view in a report that there were shortcomings in the manner in
which one or more of the directors had acted, could such director seek to judicially
review the consultant’s report? I think not.
123.

It is not easy to see in principal how the applicant’s position is any different. If

he were still a member of the Government and sought to bring these proceedings it is
difficult to escape the conclusion that he would, in effect, be seeking to judicially
review himself. He can hardly improve his position by resigning and then bringing
proceedings as a private citizen.
124.

In my view, most if not all of the consequences of which the applicant makes a

complaint arose from purely political decisions. These included the matters already
identified but in addition the alleged determination of An Taoiseach not to allow the
applicant an opportunity to consider the report before it was published, the alleged
decision by An Taoiseach that he would be unable to express confidence in the
applicant if asked and ultimately the applicant’s decision to resign.
125.

All of these matters are quintessentially political decisions which, having

regard to the separation of powers, the court cannot consider less still adjudicate upon.
Collateral Attack
126.

The within proceedings were commenced on the 30th July, 2014 when leave to

seek judicial review was granted by Baker J.
127.

On the 9th September, 2014, the applicant’s solicitors wrote to An Taoiseach in

relation to the proposed establishment of a Commission of Investigation as

55

 recommended in the respondent’s report. In the course of that letter, the solicitors
drew attention to the High Court proceedings which had been initiated and said:
“Our client is gravely concerned that the terms of reference of such
commission of investigation set pursuant to part 2 of the Act of 2004 would
include the matters expressed in the Guerin report in respect of his conduct
and his understanding as to the statutory functions of the office of Minister for
Justice and Equality and concerning his challenge to certain aspects of the
report of Mr Guerin.
In the court proceedings, our client is seeking to quash and to have erased
from the record certain conclusions/expressions of opinion made by Mr
Guerin in respect of our client’s conduct as Minister for Justice and Equality
and in respect of his understanding of the statutory duties of the Office of the
Minister for Justice and Equality. These conclusions can usefully be found at
the schedule attached to the statement of grounds in the proceedings. For ease
of reference, we attach a copy of this schedule to this letter.
It seems to us that the inclusion of these issues in the terms of reference of any
commission of investigation under the Act of 2004 to be established has the
potential inter alia to interfere with extant court proceedings and therefore risk
a breach of the sub judice rule. Furthermore, in the light of the fact that there
are currently proceedings touching upon and concerning the above issues, it
appears to us that an order establishing a commission of investigation
containing terms of reference which seeks to investigate and determine the
above issues concerning our client may well constitute an unwarranted
interference by the Oireachtas with the judicial function…
In plain terms, unless and until the proceedings issued by our client are
conclusively determined, the matters in the Guerin report of which our client
56

 complains ought not form part of the terms of reference of any such
commission of investigation.
I am therefore seeking your assurance as Taoiseach that the matter is the
subject of challenge in the High Court will not form a part (s) of the terms of
reference of any commission of investigation to be established in respect of
the matters referred to in the report of Mr Guerin, directly or indirectly.
In the event that you cannot and/or will not give this assurance, we will be
forced to bring this issue to the attention of the High Court. In particular, but
without limitation, the issue of a potential risk to the sub judice rule will be
raised.”
128.

The private secretary to An Taoiseach replied to this letter on the 7th November,

2014 saying:
“The decision to establish a commission of investigation is for the
Government under the provisions of the Commissions of Investigation Act
2004 and the content of the earlier report from Sean Guerin S.C., which was in
the nature of a scoping exercise, as well as the conduct by him of that exercise
and his procedures or methodologies, cannot have any bearing on the
investigation to be undertaken by a commission under that Act.
The commission process is wholly independent, separate and distinct and is
governed by statute in all material respects.
The Taoiseach has asked me to reassure you that the concerns raised in your
letter of 9th September have been considered carefully.

Nonetheless, the

government intends to proceed shortly to initiate the necessary steps under the
Commission of Investigation Act 2004 to establish a commission of
investigation. He will arrange a copy of the proposed terms of reference to be
provided to your firm, for information, when approved by Government.”
57

 129.

Matters did not however rest there and the applicant’s solicitors again wrote to

An Taoiseach’s private secretary on the 17th November, 2014 in the following terms:
“Accordingly, should the issues raised by Mr Guerin, touching upon and
concerning our client, in any sense, form part of either or both the matter(s) of
public concern as determined under s. 3 of the Act of 2004 and the terms of
reference of any such commission of investigation, it is our clients contention
that same would constitute an unlawful and unjustifiable trespass on court
proceedings issued by him and would tend to interfere with the proper
administration of justice…
We suggest that it would be bizarre, utterly unconstitutional and in breach of
the European Convention right to an effective remedy were our client
precluded, on the one hand, from challenging the Guerin report and on the
other, were forced to become involved with a commission of investigation
undeniably arising in the first instance from conclusions contained in the same
report, we unhesitatingly suggest that such a scenario is Kafkaesque.
It is our client’s considered view that as a consequence of the above, the issues
raised in the Guerin report concerning our client ought not now form part of
such commission as may be established. We will ask for confirmation within a
period of seven days from the date of this letter that this will be so. Absent
such confirmation, our client intends to bring these matters to the attention of
the High Court and due to the highly exceptional circumstances as so patently
arise from the above to seek such relief as may be appropriate.”
130.

Accordingly, An Taoiseach was now being advised by the applicant’s solicitors

in clear and unequivocal terms that if the applicant was not excluded from the terms
of reference of the Commission of Investigation, the applicant would be applying to
the High Court to prevent that happening. An Taoiseach’s private secretary responded
58

 on the 21st November, 2014 advising the applicant’s solicitors that the Government at
its meeting of the 19th November, 2014 had approved a draft order to establish a
Commission of Investigation and a copy of the draft was attached to the letter. This
draft made clear that despite the applicant’s correspondence, his role as Minister
would be included in the terms of reference of the Commission of Investigation.
131.

Rather than apply to the High Court presumably to injunct the Government

from proceeding on foot of the draft terms of reference of the Commission of
Investigation, as he had threatened to do, the applicant instead on the 25 th November,
2014 wrote directly to the Ceann Comhairle setting out details of these proceedings.
He referred to the fact that the draft order sent to him by the Taoiseach’s private
secretary on the 21st November, 2014 establishing a Commission of Investigation
included at para. 1 (j) reference to his role as Minister. In the course of the letter, the
applicant said:
“Should the Dáil include unamended within the terms of reference of the
commission para. 1 (j) and , in particular, the express reference therein to ‘the
Minister for Justice and Equality’, it will be a direct and overt encroachment
and interference by Dáil Eireann in judicial proceedings that are presently
before the courts and will be a dangerous and unprecedented encroachment by
the Dáil on the function of the courts.
I appreciate that the draft order enclosed with the letter received from the
Taoiseach’s office at the time of my dictating this letter may not yet have been
tabled but I expect it will be tabled shortly and I felt it important to bring it to
your attention. Dáil Standing Order 56 (3) prescribes that a ‘matter should not
be raised in such an overt manner so that it appears to be an attempt by the
Dáil to encroach on the functions of the Courts or a Judicial Tribunal’. I am
asking that the reference to the ‘Minister for Justice and Equality’ insofar as it
59

 refers to my occupying that office contained in para. 1 (j) of the draft order be
ruled out of order as raising in an overt manner a matter that is presently
before the courts and as encroaching on the function of the courts. I also wish
to draw to your attention Order 56 (5) which states the onus on members ‘to
avoid, if at all possible, comment which might in effect prejudice the outcome
of proceedings.’ It is inevitable that if the ruling I am seeking herein is not
made that comment will be made in the Dáil which ‘might in effect prejudice
the outcome’ of the above mentioned proceedings…
In simple terms, it is my view that the rule of law and the Constitutional
principle of the separation of powers should be upheld and respected and that
the Dáil should not take to itself a part to subvert or override the outcome of
proceedings which are properly before the courts and await hearing.”
132.

This letter appears not to have been immediately replied to and a further letter

was written to the Ceann Comhairle, this time by the applicant’s solicitors, on the 8 th
January, 2015. The previous correspondence with the office of An Taoiseach and with
the Ceann Comhairle was referred to.

The solicitors stated that the purpose of the

letter was to ask the Ceann Comhairle to rule out of order para. 1 (j) of the order to
establish a Commission of Investigation. A detailed account was given of the High
Court proceedings and the request to rule para. 1 (j) was repeated. The solicitors said:
“The specific principle we envoke is the principle of judicial independence, an
integral part of the constitutional separation of powers. The effect of Article 6
and of Articles 34 to 7, inclusive, of the Constitution is to vest in the courts the
exclusive right to determine justiciable controversies between citizens or
between citizens and the State. In bringing his proceedings our client is
exercising a constitutional right and he is entitled to have the matter in dispute
determined by the judicial organ of the State.
60

Dáil Standing Orders 56 (3)

 and 56 (5) are anchored in this constitutionally paramount principle. By
reference to Standing Order 56 (3), we submit that para. 1 (j) of the draft order
by mentioning our client’s role as Minister for Justice and Equality in relation
to Sergeant McCabe’s complaints overtly raises a matter that falls to be
adjudicated upon by the High Court and appears to encroach on the functions
of the High Court.

Moreover, by reference to Standing Order 56 (5) we

submit that it is impossible to debate para. 1 (j) of the draft order without
comment that might in effect prejudice the outcome of the proceedings … we
respectfully submit that the order will interfere with our client’s legal
proceedings before the High Court and will prejudge the outcome of those
proceedings…because para. 1 (j) of the terms of reference for the Commission
of Investigation prejudged the issues of which the High Court is seised, a
decision to proceed with them in their present form would constitute an
invasion of the constitutional separation of powers and, more specifically, the
independence of the courts.”
133.

The letter concluded in the following terms:
“You are not only entitled, but, we believe, obliged, to rule out of order either
the entirety of para. 1 (j) of the order, or the reference therein to the Minister
for Justice.
In conclusion, it is our strong view that to set up the Commission of
Investigation with a remit under para. 1 (j) would be to force our client to
submit to a legally tainted inquiry process that amounts to an unwarrantable
interference by the Oireachtais with the operations of the High Court in a
purely judicial matter.”

134.

The Ceann Comhairle replied separately to both the applicant and his solicitors

on the 27th January, 2015 setting out his ruling in the matter. The Ceann Comhairle
61

 indicated that he would rule out of order any debate on the issues raised in the
applicant’s correspondence but that there was no provision for the House to amend or
delete the terms of reference in the draft order laid before it.
135.

In yet a further letter of the 28 th January, 2015 from the applicant personally to

the Ceann Comhairle, he sought to again persuade the Ceann Comhairle to reconsider
the ruling he had already given. The Commission of Investigation was established on
the 3rd February, 2015 by S.I. No. 38 of 2015 entitled Court Commission of
Investigation (Certain Matters Relative to the Cavan/Monaghan Division of the Garda
Síochána) Order 2015. The schedule to the S.I. sets out the terms of reference of the
commission which include the controversial para. 1 (j).
136.

The foregoing correspondence clearly demonstrates that following the

institution of the within proceedings, the applicant was making the case in the
strongest possible terms that the inclusion of para. 1 (j) in the Commission’s terms of
reference would be unlawful and unconstitutional and any attempt to do so would be
met by proceedings to injunct such inclusion. Yet no such proceedings were initiated
either against the Government or the Commission itself. On the contrary, when these
proceedings came before the court at a the time when the applicant’s complaints about
the inclusion of 1 (j) had been overtaken by events, no mention at all is made of this
issue in the applicant’s written submissions and in oral submissions, counsel for the
applicant said that the setting up of the Commission was entirely the prerogative of
the Government and essentially an executive decision.

It had nothing to do with

these proceedings or the relief being sought by the applicant.
137.

That is, by any standards, an extraordinary change of position that is entirely

unexplained by the applicant. In the light of that, it seems to me that it is very
difficult to resist the conclusion that these proceedings were initiated by the applicant

62

 with a view to preventing his role in the matter being examined by the Commission of
Investigation.
138.

It would appear that the applicant still hopes to achieve this aim. Mr. Sreenan

SC said in argument that if the applicant’s claim succeeds, it would be open to the
Government or the Commission to amend its terms of reference by a form of
consensual procedure to exclude the applicant from its remit. Despite that contention,
it is clear that a conscious decision was made by the applicant not to join either the
Government or the Commission in these proceedings.
139.

That is, it seems to me, a matter that goes to the court’s discretion in deciding

whether or not to grant relief by way of judicial review. Judicial review is of course a
discretionary remedy. In State (Abenglen Properties Limited) v. Corporation of
Dublin [1984] I.R. 381, O’Higgins C.J. observed (at p. 393):
“In the vast majority of cases, however, a person whose legal rights have been
infringed may be awarded certiorari ex debito justitiae if he can establish any
of the recognised grounds for quashing; but the Court retains a discretion to
refuse his application if his conduct has been such as to disentitle him to relief
or, I may add, if the relief is not necessary for the protection of those rights.
For the Court to act otherwise, almost as of course, once an irregularity or
defect is established in the impugned proceedings would be to debase this
great remedy.”
140.

The great remedy of judicial review is a powerful weapon in the armoury of

the court deployed to vindicate the constitutional rights of the citizen and protect them
against unjust attack. It does not exist to facilitate the adoption of stratagems or
tactical positions designed to achieve a different purpose. The court ought not permit
its process to be used in this way.

63

 The Allegation of Bias
141.

In his statement of grounds, the applicant alleged at para. E7 that the drawing

of the Conclusions by the respondent gave rise to a reasonable apprehension of bias.
Six separate grounds were listed as underpinning this plea, the first of which was that
the respondent was a member of the Professional Practices Committee of the Bar
Council which had criticised the applicant as Minister in respect of the Legal Services
(Regulation) Bill 2011 in which the applicant was centrally involved. This pleading
was supported by the following paragraph in the applicant’s grounding affidavit:
“39. Since publication of the report, I have become aware that whilst
conducting his review, Mr Guerin was a member of the Professional Practices
Committee of the Bar Council, which committee has openly criticised the
provisions of the Legal Services Bill, and the approach taken in the Bill to a
number of reforms that will impact on the legal profession.

Until my

resignation as Minister on May 7 th 2014, I was singularly associated with
progressing this Bill through the legislature. Accordingly, I am concerned as
to the possibility that Mr Guerin was biased in drawing the conclusion as to
my apparent (and denied) lack of action/communication with regard to
Sergeant McCabe’s complaints. I wish to make it clear that I am not asserting
what is legally termed ‘actual bias’ on the part of Mr Guerin.”

142.

The application for leave was made ex parte in the normal way and might

reasonably have been expected to attract considerable media attention having regard
to the subject matter. Leave was granted by Baker J. on ground E7 (a) but refused in
respect of the subsequent five.
143.

A number of things emerge from para. 39 of the applicant’s affidavit. The first

is that the facts alleged therein are said to be matters of which the applicant has
64

 become aware since publication of the Report. It would thus appear that the applicant
was unaware of these matters prior to publication of the Report and one assumes that
following its publication, the applicant caused enquiries to be made in the context of
the within proceedings in relation to matters which might be relevant to this claim.
Those enquiries apparently disclosed that the respondent was a member of the
Professional Practices Committee. They further disclosed that the committee had
openly criticised the provisions of the Legal Services Bill. By “openly”, I take the
applicant to mean that the criticism was made publicly in the media. Indeed, one
assumes that the applicant must not have been aware of any of these matters before
the respondent’s appointment having regard to the fact that he was a member of the
Government that appointed the respondent having, through the Taoiseach, described
him as “an independent and objective legal expert.” Of course, the respondent could
have been neither independent nor objective if what was sworn in para. 39 were true.
Although the applicant was at pains to say that he was not asserting actual bias, he
nonetheless averred that he was concerned as to the possibility that the respondent
was biased. It is thus far from clear if the applicant was asserting subjective or
objective bias contrary to what is stated in the affidavit.
144.

In his first replying affidavit sworn on the 28 th October, 2014, the respondent

makes clear that there was never any basis for the allegation of bias which is simply
factually wrong and in that respect, he is supported by an affidavit sworn on the same
day by the Director of the Bar Council.
145.

The first response of the applicant came in a letter of the 18th November, 2014

from his solicitors.

This letter was written in response to a letter of the 12 th

November, 2014 from the respondent’s solicitors which had requested copies of
certain correspondence passing between the applicant’s solicitors and the Chief State

65

 Solicitor’s office. After that issue is dealt with, and almost as an afterthought, the
applicant’s solicitors said:
“We refer to the affidavit of Jerry Carroll sworn the 28 th October 2014 herein.
In the light of same, the applicant withdraws the ground, in the statement of
grounds, that the drawing of the conclusions by the respondent gives rise to a
reasonable apprehension of bias.”
146.

No apology was offered or even any expression of regret. Indeed, quite to the

contrary, in his next affidavit sworn on the 25th November, 2014, despite that
correspondence, the applicant does not even refer to the issue of bias so that his sworn
position remained as before.
147.

Exception was taken to this, rightly in my view, in a subsequent affidavit

sworn by the respondent’s solicitor on the 8th December, 2014, in which Ms Fanagan
averred that the allegation of bias having been made on affidavit must be withdrawn
on affidavit.
148.

This finally prompted the applicant to swear a third affidavit on the 15th

December, 2014 withdrawing the allegation of bias, four and a half months after it had
been publicly made and some six weeks after it had been demonstrated to be entirely
without foundation. In this affidavit, the applicant swore:
“4.

I acknowledge that the Professional Practices Committee, of which the

respondent was a member, did not criticise the Legal Services Bill and I
acknowledge that I was mistaken in my belief, held at the time of swearing my
grounding affidavit that it had done so. Accordingly, I am no longer pursuing
my challenge to the report of the respondent on the ground of bias. I reiterate
that, as I believe is clear from para. 39 of my grounding affidavit, the
challenge was only ever on the ground of objective bias. I never sought to
challenge the report of the respondent on the ground of actual bias, nor was it
66

 ever asserted by me that the respondent had personally criticised the Legal
Services Bill.”
149.

Accordingly, there is again no hint of apology or regret but rather, almost an

attempt to excuse the applicant on the basis that it was only ever an allegation of
objective bias and thus, presumably, of little significance in any event. Furthermore,
there is not the slightest attempt to explain how this very serious error was made by
the applicant.
150.

The allegation of bias, objective or subjective, made by the applicant against

the respondent was of the utmost gravity. If it were true, it meant the respondent had
accepted instructions from the Government in relation to a matter in which he knew,
or ought to have known, that he could potentially be regarded as objectively biased. If
he appreciated this fact, then he would clearly be acting unethically, a serious matter
for any barrister but particularly one who was a member of a committee charged with
overseeing the ethics of the Bar.

On the other hand, if he failed to appreciate the

possibility of a perception of bias, then as a minimum this would be a matter going to
his professional competence and judgment.

Furthermore, it would potentially taint

his entire Report and be a matter of enormous embarrassment for the Government
who appointed him on the basis of his independence and objectivity. In addition to
all that, to have this allegation made very publicly by the former Minister for Justice,
himself an eminent lawyer, could hardly be more serious with all the implications it
carried for the respondent’s professional reputation and future career.
151.

In Adams v. DPP [2000] 4 JIC 1201, this court (Kelly J.) considered the

relevant principle applicable to disclosures by applicants in ex parte applications. In
the course of his judgment dealing with this issue, he said (at page 8):
“APPLICATIONS MADE EX PARTE

67

 Whilst the St. George’s Healthcare case which I have just mentioned is not
authority for the proposition which was made, it is of relevance to an aspect of
this case which I find very troubling. That is the obligation on the part of
counsel in seeking orders ex parte. In the course of the judgment of the court
delivered by Judge L.J. he said (at page 966):
‘An interim injunction is granted ex parte only in exceptional
circumstances, and then only subject to the triple safeguards of (i). the
duty of full and frank disclosure; (ii). the cross undertaking in damages
which is required as a matter of course and (iii). the right of the party
enjoined to apply to vary or discharge the ex parte order. If an interim
declaration were a remedy known to English law it could hardly be
obtainable without the same safeguards being put in place.’
Reference is there made to the duty of full and frank disclosure. That is
reminiscent of the statement made by Kennedy C.J. in Brennan v. Lockyer
[1932] I.R. 100 at 107, where he said in relation to the order in question there:
‘That, in my opinion, is one of the very matters to which on an ex
parte application of this kind, the long established rule requiring
uberrima fides on the part of the applicant ought to be strictly applied.’
On any application made ex parte the utmost good faith must be observed, and
the Applicant is under a duty to make a full and fair disclosure of all of the
relevant facts of which he knows, and where the supporting evidence contains
material misstatements of fact or the Applicant has failed to make sufficient or
candid disclosure, the ex parte order may be set aside on that very ground.
One such fact which ought to have been disclosed was that the Applicant had
unsuccessfully sought judicial review of the certificate in suit in the High

68

 Court of Northern Ireland. That was made known only during the course of
this hearing.
The obligation extends to counsel. There is an obligation on the part of
counsel to draw the judge’s attention to the relevant Rules, Acts or case law
which might be germane to his consideration. That is particularly so where
such material would suggest that an order of the type sought ought not to be
made.”
152.

That any applicant, never mind one in the applicant’s position, could make

such a serious allegation without even the most basic attempt to verify the facts is a
matter of significant concern. When the applicant is taken to task and an explanation
called for, there is a somewhat grudging withdrawal of the allegation and no attempt
to offer an explanation or apology to the respondent or the court which merely serves
to heighten that concern.
153.

The situation is compounded by the following statement in the applicant’s

written submissions:
“6.40

In relation the allegation of bias, this was an allegation of objective

bias based on information available to the applicant at the time the
proceedings were issued. Once the applicant was apprised of the full facts,
that allegation was immediately withdrawn. In the circumstances, there can be
no basis for the suggestion that this disentitles the applicant to relief.”
154.

I beg to differ.

The applicant had a duty to apprise himself of the full facts

before swearing on oath that those facts were true. It is not in dispute that the true
position could have been easily established and yet when called upon to explain the
basis for his mistaken belief, the applicant chooses to say nothing.
155.

In my view, the applicant’s approach to this issue is entirely unacceptable.

69

 Summary and Conclusions
156.

I am satisfied that the nature of the exercise undertaken by the respondent was,

where the applicant was concerned, limited to a consideration of documents of the
Department for the purposes of advising the Government, of which the applicant was
a member, whether concerns existed regarding the investigation of Sergeant McCabe’s
complaints such as would warrant further action. The respondent was required to
express a view and he did so. His report was in the nature of an expert opinion from
an independent senior counsel obtained by the Government on foot of a contractual
arrangement privately entered into. It does not in my view give rise to any justiciable
controversy between the parties such as would permit the applicant to seek judicial
review. The preliminary nature of the Report did not attract the requirements of
natural justice but even if it did, there was in fact no denial of fair procedures to the
applicant. I cannot see how the applicant as a member of the Government that decided
to obtain and publish the report can complain of the consequences. It is clear that the
applicant is very dissatisfied with the contents of the Report and what he alleges is a
denial of the opportunity to tell his side of the story. However, that opportunity
together with the full panoply of fair procedures will be afforded him by the
Commission of Investigation now established.
157.

Many, if not all, of the matters which form the basis for the applicant’s

complaints occurred as a result of purely political decisions of the Government and
indeed the applicant himself. It is not the function of the court to adjudicate on any of
these matters having regard to the constitutionally enshrined separation of powers.
158.

It is clear from the evidence that the principle focus of these proceedings

following their commencement was an attempt by the applicant to prevent the
Commission investigating his role in relation to Sergeant McCabe’s complaints. That
is now a fait accompli yet the applicant still seeks to curtail the statutory investigation
70

 by undermining the conclusions on which he says it is based. In that respect, I am of
the view that the applicant seeks to mount a collateral attack on the Commission
where a conscious decision was made not to join either the Commission or the
Government in these proceedings. That cannot be permitted. It is a matter that goes
to discretion as does the totally unwarranted allegation of bias publicly made against
the respondent at the ex parte stage. Thus, even in the absence of the foregoing
conclusions, I would exercise my discretion against granting relief.
159.

For these reasons, I must dismiss this application.

71