Before there could be "a trial" in the Oireachtas of Circuit Court judge Brian Curtin, there would have to be, at least, a fact-finding adjudication by an independent body, counsel for the judge has argued at the High Court.
John Rogers SC said yesterday that the select committee set up by the Oireachtas to investigate alleged misbehaviour by the judge had apparently no mandate to find facts but merely proposed to find a sequence of evidence.
The court is hearing a judicial review application on behalf of Judge Curtin, who claims the mechanism used by the Dáil and Seanad (select committee hearings) to inquire into his behaviour is unlawful and unconstitutional.
Judge Curtin was acquitted 11 months ago at Tralee Circuit Court of having child pornography when it was held that an out-of-date warrant was used to seize his computer.
The Government later told Judge Curtin of procedures, under Article 35 (4) of the Constitution (concerning the appointment and removal of a judge) and section 39 of the Courts of Justice Act, 1924, which it intended to propose to the Oireachtas for his removal from office for stated misbehaviour.
A select committee was set up. A motion calling for his removal was adjourned pending the receipt of a report from the committee. It was directed not to make any findings of fact or recommendations or express any opinion to the Oireachtas.
If the Oireachtas had the power to remove a judge from office by resolution, and if natural justice required a hearing and that facts be determined, then that power might be devolved to either a tribunal or to a committee.
Mr Rogers said the Oireachtas had devolved a body, which Judge Curtin was impugning, with a power not to find any facts.
At the very least, if the Oireachtas made such a devolution, then his client was entitled to a trial by the Oireachtas. He was entitled to maintain that position because that was what the Constitution said.
Judge Curtin had a right to have issues of relevance, admissibility and prejudice adjudicated and determined; to be tried only if there was sufficient lawfully obtained evidence; to have the charge dismissed by an impartial body if there was no such evidence and a procedure of adjudication on relevant and admissible evidence to prove the charge.