Oireachtas must decide on judge, State argues

The test of public confidence in a judge is at the core of procedures put in place by the Oireachtas that could lead to the removal from office of Judge Brian Curtin, counsel for the State told the Supreme Court.

Senior counsel Donal O'Donnell said it will be the Oireachtas that will decide if there was misbehaviour by the Circuit Court judge that required his removal from office.

Members of the Oireachtas would make that decision on evidence gathered by a select committee. It would be inquiring into information received from the US that websites containing child pornography had been accessed and subscriptions paid by a number of people.

Credit card details had been supplied in the names of several people, including one person stated to be Judge Curtin.

Counsel said Judge Curtin had said his computer was invaded by "Trojan" viruses. He did not deny it was his credit card but said he had not knowingly subscribed to, nor accessed, a website containing child pornography.

Mr O'Donnell said that after the select committee had gathered all the evidence, it would prepare a report for the Oireachtas that would set out the contested and uncontested facts.

The report would not set out the findings of the committee. The Oireachtas would receive that report, transcripts of the committee's hearings and audio-visual material.

The judge would also have an opportunity to make submissions. After that the Oireachtas would vote on a resolution for the removal of the judge.

The putting down of a motion for removal of the judge prior to there being an inquiry into his alleged "misbehaviour" did not amount to prejudgment by the Oireachtas, counsel argued.

The motion stood adjourned pending the establishment of a select committee and the outcome of its inquiry.

The State rejected arguments that there must be a finding of "stated misbehaviour" before a motion for removal was proposed, counsel added. He also disagreed with a suggestion by Mr Justice Adrian Hardiman that there might be "a distinct level of ambiguity" in the motion.

Mr O'Donnell was opening the State's opposition to an appeal by Judge Curtin against the High Court's rejection of his claim that the procedures put in place by the Oireachtas to investigate his alleged misbehaviour are unconstitutional.

Judge Curtin was acquitted in March 2004 by direction of a Circuit Court judge on a charge of knowingly having child pornography because the warrant to search his home, during which the judge's computer and other materials were seized, was out of date. The Oireachtas subsequently established a select committee to inquire into the judge's alleged misbehaviour. The High Court last May rejected Judge Curtin's challenge to that procedure and a seven-judge Supreme Court is hearing the judge's appeal against that decision.

The appeal centres on the construction of Article 35.4.1 of the Constitution which provides that a judge shall not be removed from office except for "stated misbehaviour" or "incapacity" and only after a resolution for removal is passed by the Houses of the Oireachtas.

Lawyers for the judge have argued that the proposed procedure is unconstitutional because it could lead to the judge being removed from office without any "finding" or "adjudication" being made on the truth or otherwise of the allegation that he accessed child pornography.

The judge is also challenging the constitutionality of provisions under which the select committee has directed him to produce the computer that was seized from his home by gardaí.

Earlier yesterday, in further submissions for the judge, senior counsel John Rogers said the Oireachtas, in enacting measures under which the committee had directed the judge to produce the computer, was seeking to circumvent the Circuit Court's finding that the computer was unlawfully seized.

In exchanges with some of the judges, counsel said there had been a vindication of Judge Curtin's constitutional right to the inviolability of his home by the Circuit Court and the legislature was seeking to circumvent that.

Mr Rogers argued that the computer was wrongfully in the possession of the Garda Commissioner and ought to have been destroyed.

The appeal continues today.