Judge Brian Curtin has taken proceedings in the High Court seeking to prevent evidence gathered for his trial being used in the impeachment proceedings planned by the Government, write Carol Coulter, Legal Affairs Correspondent, and Mark Brennock, Chief Political Correspondent
The Irish Times has learned that a plenary summons was lodged yesterday in the High Court by solicitors for Judge Curtin seeking a declaration that evidence collected unlawfully cannot be used in any proceedings. The defendants are named in the summons as the Garda Commissioner, the Director of Public Prosecutions, the Government and the Attorney General.
Judge Curtin was acquitted of the charge of possessing child pornography by direction of the trial judge in Tralee Circuit Court last April. Judge Carroll Moran told the jury to acquit because he ruled inadmissible the evidence collected by the gardaí when they raided Judge Curtin's house with a warrant that was out of date. The use of the out-of-date warrant was found to be a breach of his constitutional rights.
Judge Curtin is now seeking a declaration from the High Court that no further use can be made of this evidence, and that it cannot be given by any of the named defendants to a third party. He is also seeking damages for trespass and breach of his constitutional rights.
It could take a number of weeks for this case to be heard. While there is no major backlog for such cases in the High Court, it normally takes about eight weeks for cases like this to be heard. Substantial legal arguments will be made on both sides.
The Taoiseach yesterday laid out the detailed procedures the Government is proposing to be followed by the Oireachtas, with a Government spokeswoman saying motions to put these into effect would be put to the Dáil and Seanad today or tomorrow.
Mr Ahern revealed that on Monday night Judge Curtin's solicitors had said they had been instructed to begin legal proceedings on behalf of the judge against the State, including the Taoiseach. However, he insisted that the efforts to remove the judge from office were continuing.
"I am satisfied, in the light of the legal advice which I have received from the Attorney General and senior counsel, that the procedure which we have proposed to adopt is constitutionally sound", he told the Dáil.
Judge Curtin's solicitors are understood to have said that there was no constitutional provision for an Oireachtas Committee to deal with the matter, as proposed by the Government. They said it had to be dealt with by the entire Dáil and Seanad.
Mr Ahern said the changes to Oireachtas standing orders required to allow the process to go ahead would be finalised "shortly". All-party discussions on these changes continued last night.
A Government spokeswoman said the motion calling for the removal of Judge Curtin would be moved today or tomorrow. This motion will then be adjourned until a special Oireachtas committee has gathered all relevant evidence. A motion setting up the committee will be put to both Houses, also this week.