The procedures adopted by the Oireachtas to inquire into the alleged misbehaviour of Judge Brian Curtin of the Circuit Court are unconstitutional because they could lead to Irish judges being removed from office by Oireachtas resolutions and without any trial, the High Court heard yesterday.
Mr John Rogers SC, for Judge Curtin, argued that an investigation must involve a process of adjudication on the charge of stated misbehaviour before a debate or the passing of resolutions for the judge's removal.
Yesterday was the second day of the judicial review proceedings by Judge Curtin, who is seeking to stop an Oireachtas select committee from carrying out an investigation and to receive evidence on the judge's alleged misbehaviour.
Eleven months ago Judge Curtin was acquitted by a Circuit Court judge in Tralee of having child pornography when it emerged that a warrant under which his computer was seized was out of date.
Subsequently, the Government informed Judge Curtin of procedures it would propose to the Houses of the Oireachtas for his removal from office for stated misbehaviour. The Government said the procedures were under the provisions of Article 35(4) of the Constitution and Section 39 of the Courts of Justice Act 1924.
A motion calling for his removal was adjourned pending the receipt of a report from the select committee set up to investigate and receive evidence.
The select committee hearings have been held in private. They have been adjourned pending the the High Court hearing's outcome.
Mr Rogers yesterday said, under Article 35(4) of the Constitution, which deals with the removal of judges from office, Judge Curtin was entitled to an independent inquiry into the allegations against him. Judge Curtin was entitled to preferment of a charge by one House of the Oireachtas and entitled to a trial at law by the other House on a charge of stated misbehaviour, and that must occur before there could be any vote on the motion to remove the judge from office.
Mr Rogers reviewed the history of the independence of the judiciary starting with the Act of Settlement of 1701, which codified into English law a requirement that judges could only be removed by an "address" from each House of Parliament to the sovereign. Judge Curtin relied on that historical precedent as the basis for his assertion that a trial is mandated by Article 35(4) of the Irish Constitution.
Mr Rogers said Judge Curtin could not be removed from office by resolutions of the Houses of the Oireachtas. Based on an 1830 case, a judge could not be removed by anything short of a trial.
The hearing continues today.