Procedure to remove judge is unlawful, court told

The proposed procedure for the removal from office of Circuit Court Judge Brian Curtin is unconstitutional because it could lead to the judge being removed without any "finding" or "adjudication" being made on the allegation that he accessed child pornography on his computer, the Supreme Court was told yesterday.

Without a finding of "stated misbehaviour" against the judge and a subsequent resolution of the Houses of the Oireachtas that this misbehaviour required the judge's removal from office, the judge cannot be constitutionally removed from office, John Rogers SC argued.

Mr Rogers said the procedure set up by the Oireachtas to inquire into the judge's alleged misbehaviour involved a Select Committee gathering and presenting to the Oireachtas contradictory testimony as to whether the judge had knowingly accessed child pornography.

The committee's report could only contain transcripts of evidence and associated audio-visual material and the committee could not make findings of fact. That report would then go to members of the Oireachtas who would have no opportunity to assess witnesses and their credibility before debating and voting on a motion to remove the judge.

Nothing in that process would involve a determination by anybody that the allegation of misbehaviour against Judge Curtin is true, counsel said. It was his case that, because of the independence of the judiciary, there could not be a removal of a judge without proof of misbehaviour.

He was opening an appeal before a seven-judge Supreme Court, presided over by the Chief Justice, Mr Justice John Murray, against a High Court ruling last May that the procedures put in place by the Oireachtas to inquire into Judge Curtin's alleged misbehaviour are constitutional.

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. Judge Curtin's side argue that "stated" means "found" or "determined".

Mr Rogers said the motion for removal was based on a recital of information from the Minister for Justice to the effect that gardaí had in August 2001 received information from the US postal inspectorate service. That information included names, passwords and credit and charge card details of a number of persons, one of whom was stated to be Judge Curtin.

A warrant was issued to search Judge Curtin's home in May 2002 and his computer and other materials were seized by gardaí. The DPP later instructed that the judge be prosecuted on a charge of knowingly having child pornography. Judge Curtin was sent for trial but was acquitted because the warrant issued to search his home was out of date.

Mr Rogers said the motion calling for the judge's removal stated this was for "stated misbehaviour", being his conduct in relation to subscribing to and accessing websites containing child pornographic images. That motion had been put before the Houses of the Oireachtas and, on the motion being set down, a Select Committee was appointed to inquire into "the matters" - apparently the information recited by the Minister for Justice.

The committee, counsel said, had no jurisdiction to embark on any other inquiry. The only allegation was that Judge Curtin appeared to be subscribing to and accessing child pornography websites. The committee's role was as a commission of evidence, it could only gather evidence relevant to that allegation and must put that material in unedited form before the Dáil. The crucial element that was missing was fact finding. "My real complaint is that this material does not constitute a finding about anything," Mr Rogers said.

There was a real dispute about how the material got on to the judge's computer. Judge Curtin contended his computer was invaded by "Trojans", computer viruses, and a garda accepted that in a statement in the Book of Evidence.

The appeal continues today.