A man who is among six males found by a jury to have been sexually assaulted by Circuit Court judge Gerard O’Brien on dates during the 1990s has urged the judge to resign from the bench.
O’Brien was convicted at the Central Criminal Court last month of sexually assaulting six young men, who were aged between 17 and 24 at the time of the offences. He was also convicted of attempted rape of one of the six.
The offences occurred on dates between 1991 and 1997, when O’Brien worked as a teacher at a second-level school in Co Dublin. Four complainants were pupils or former pupils.
The trial heard O’Brien, now aged 59 and with an address in Thurles, Co Tipperary, was born without arms and with just one leg and needs assistance dressing and going to the toilet.
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Five complainants told the trial they had stayed overnight in his residence to assist him, and woke to find him performing sexual acts on them. The sixth complainant said O’Brien had sexually assaulted him while he was bringing him to the toilet in a pub.
[ Judge convicted of sexually assaulting six males on dates in the 1990sOpens in new window ]
Following O’Brien’s conviction on December 22nd, Mr Justice Alexander Owens adjourned sentence to March 4th next when victim-impact statements are expected to be heard.
Immediately following the conviction, the Minister for Justice, Helen McEntee, said these were “appalling cases of sexual assault” and she was seeking advice from the Attorney General about the options open to the Government and the Oireachtas concerning the matter.
Reiterating her aim of “zero tolerance” for all forms of domestic, sexual and gender-based violence here, the Minister said O’Brien’s conviction was “clear proof” that nobody is above the law or immune from prosecution for such crimes.
One of the survivors of the offences, who cannot be identified for legal reasons, told The Irish Times on Friday he believed the judge should resign.
“Gerard O’Brien put the six of us through the arduous process of going to trial in order to achieve justice,” the survivor said. “He could have saved us that hardship.
“If Gerard O’Brien refuses to resign, he will drag both the political and legal systems through a similar legal quagmire. He should resign and save everyone from this unnecessary journey.”
O’Brien, who denied the offences, is entitled to appeal his conviction and/or sentence. He has not to date indicated whether he intends to resign as a judge but the expectation is he will do so.
The case has prompted some discussion about the options available to the Government and judiciary where resignation is not forthcoming.
The Constitution provides the Oireachtas may remove a judge from office for “stated misbehaviour or incapacity”.
The first regime here for dealing with complaints of judicial misconduct, provided for under the Judicial Council Act, 2019, came into legal effect from October 3rd, 2022. The Act provides a complaint against a judge shall be made not later than three months after the date of the alleged judicial misconduct.
Dr Laura Cahillane, a constitutional law expert, has suggested the Judicial Council may have a role in matters that predate the coming into effect of the new regime.
The Act, she said, provides the council’s Judicial Conduct Committee (JCC) may, on referral of a complaint by its registrar or complaints review committee, extend the time for making the complaint with the effect it would be admissible.
Even where there is no complaint, or a complaint has been withdrawn, the Act provides the JCC may refer any matter relating to the conduct of a judge for investigation by a panel if it is satisfied there is prima facie evidence of judicial misconduct by the judge, and it considers it necessary to do so to safeguard the administration of justice, she noted.
According to Dr Cahillane, that provision appears to give the Judicial Council jurisdiction to consider “any matter”.
“The argument could be made that this is intended to apply despite the time limit because the time limit only refers to making complaints, not to the occurrence of misconduct more generally,” she said.
The fact that O’Brien’s conviction postdates the commencement of the conduct regime may be another factor for consideration should the need arise, she outlined.
Dr Cahillane said she believes the council is unlikely to seek to get involved in the O’Brien matter because the task of removing judges remains the function of the Oireachtas.
“The Act has unfortunately not clarified any of the murkiness around this whole process,” she said.
In response to queries to the Judicial Council, a spokesman said: “The matter referred to is currently before the courts. In the circumstances, it would be inappropriate for the Judicial Council to comment.”
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