Curtin awarded substantial costs for failed legal bid

Circuit Court Judge Brian Curtin has been awarded substantial costs of his unsuccessful legal challenge to the procedures adopted by the Oireachtas which could lead to his removal from office.

Judge Brian Curtin

Those costs are to be paid by the State, the Supreme Court ordered today.

The seven-judge court ruled that Judge Curtin was entitled to half of the costs of the High Court hearing and also to half of the costs of the Supreme Court appeal because of the "novel but crucial constitutional questions" raised in "an uncharted constitutional terrain" in relation to how a judge may be removed from office.

Although Judge Curtin could not be treated as if he had succeeded in the appeal, the Supreme Court had clarified for the future the constitutional norms in a core area of constitutional governance as between the three organs of State, irrespective of the issues in the case, the Chief Justice, Mr Justice John Murray said.

In the case, it was necessary for the court to interpret and define the meaning and ambit of Article 35 of the Constitution as a whole in order to identify the appropriate balance between the function of the Houses of the Oireachtas to call for the removal of a judge for stated misbehaviour and the separation of powers between the judiciary and the other organs of State as guaranteed by Article 35 itself, he added.

In doing so, the Supreme Court has to consider questions that went to some extent beyond the specific issues raised and determine how the final adjudication process must be addressed by the Houses of the Oireachtas, when and if they come to a final decision, the Chief Justice said.

In addressing those broader issues, the court had "provided certainty and obviated the risk of later litigation regarding them as well as providing a guide for the Oireachtas as to the procedures to be followed in the future".

In those circumstances, Mr Justice Murray said the Supreme Court had decided that Judge Curtin should be refused his application for full costs but should get half of the costs of the High Court proceedings and half of the costs of the Supreme Court appeal.

The decision means the Judge will receive from the Attorney General half of the costs incurred in the High Court proceedings and also half of the costs of the Supreme Court. It also means he will have to pay the costs of his own legal team, which included three senior counsel, but it is unclear how much those costs might be.

The proceedings arose after Judge Curtin was acquitted in March 2004 on a charge of knowingly having child pornography. The acquittal was by direction of a Circuit Criminal Court judge after he found the warrant which grounded a search of Judge Curtin's home, during which a computer and other materials were seized by gardai, was out of date.

Last month, in the first ever judgment since the foundation of the State on issues relating to how a judge may be lawfully removed from office, the Supreme Court unanimously ruled that the Joint Committee set up by the Oireachtas in 2004 to inquire into and report on the Judge's alleged misbehaviour does have power under the Constitution to require Judge Curtin to appear before it and to produce to it a computer unlawfully seized from his home by gardai which allegedly contains images of child pornography.

It also found the Oireachtas was entitled to adopt a rule providing for either a single vote on the resolution to remove the Judge or to divide the issue in the way Judge Curtin wished.

However, while noting it was therefore "premature" to deal with the matter, the Chief Justice said the court believed Judge Curtin should be entitled to a distinct hearing and decision on the issues of fact before he must confront "the ultimate and draconian decision to remove him from office", the court said.