The procedures adopted by the Houses of the Oireachtas to investigate the alleged misbehaviour of Circuit Court Judge Brian Curtin are "repugnant" and unconstitutional, lawyers for the judge told the High Court yesterday.
John Rogers SC, for Judge Curtin, said the procedures failed completely to provide any mechanism by which facts could be found which might constitute stated misbehaviour.
Mr Justice Thomas C Smyth is hearing the first case of its kind where the High Court is being asked to decide the meaning of Article 35 of the Constitution (which deals with the appointment and removal of judges from office).
Judge Curtin was not in court yesterday for the opening of his challenge to the legality of measures passed in the Dáil and Seanad for the purpose of inquiring into his conduct. He claims it is not open to the Oireachtas to seek to remove him from office under Article 35 and he wants a declaration that the standing orders of the Dáil and Seanad setting up, in June 2004, a select committee to inquire into his conduct are unlawful, unconstitutional and of no legal effect.
He is also seeking an order quashing the decision of the select committee ordering him to produce his personal computer and its hard drive, which was seized by gardaí.
Eleven months ago Judge Curtin was acquitted, by direction of a judge at Tralee Circuit Court, on a charge of possessing child pornography when it emerged that a warrant under which Judge Curtin's computer had been seized was out of date.
However, a select committee of members of the Dáil and Seanad later ordered the judge to hand over his computer and other materials held by the gardaí to the committee.
In judicial review proceedings, lawyers for the judge are submitting that he is being ordered to produce material he does not have, to answer against himself and to effectively "hang himself." The hearing is expected to run into next week, when judgment will be reserved.
Mr Rogers said yesterday the enormity of what was being suggested by the State defendants was repugnant - that a judge might be removed by a resolution and by undetermined testimony.
He said Judge Curtin was appointed a judge in November 2001. In November 2002, he was served with a summons alleging an offence of possession of child pornography on May 27th, 2002.
On April 20th, 2004, the trial on that charge began at Tralee Circuit Court. On November 23th, Judge Curtin was found not guilty by the jury on the direction of the trial judge after it was found by the court that the material seized from Judge Curtin's home had been obtained in breach of his constitutional rights.
Later, in a reply to Government correspondence, Judge Curtin's solicitor had denied impropriety on the judge's part. Mr Rogers said that matters which involved a right to an investigation and adjudication should be regulated by law. There would be no finding of fact by the select committee.