Decision to acquit judge sparked two-year legal wrangle

THE road to yesterday’s historic constitutional ruling began in a Tralee court two years ago when Judge Brian Curtin was acquitted of possessing child pornography.

The decision came after it emerged a warrant under which his computer had been seized was defective.

Disquiet at the turn of events led to a motion calling for the circuit court judge’s removal from office being set down before the Oireachtas.

That landmark motion was adjourned while a select committee was established to inquire into and compile a report on Judge Curtin’s alleged misbehaviour.

The committee met in private several times and an order was granted in the run-up to Christmas 2004 allowing access to a computer seized by gardaí from Judge Curtin’s home.

As time ticked down to the handover of the computer, the committee’s work was suspended, pending the outcome of the judge’s legal challenge to its legal and constitutional status.

Mr Justice Thomas Smyth upheld the basis of the procedure adopted by TDs and senators in the High Court last May.

Matters then moved swiftly, by legal standards, to the Supreme Court.

Judge Curtin’s appeal began in October and was lodged challenging the right of the Oireachtas to gather evidence of his alleged misbehaviour for the purposes of an impeachment motion.

It was heard by seven of the nine judges on the court.

The Supreme Court was asked to decide the precise meaning of Article 35 of the Constitution, which deals with the appointment and removal of judges from office, and whether the procedures put in place by the Oireachtas in the Curtin case conform to it.

In yesterday’s ruling, the court found that the Oireachtas can give a joint committee the power to report without making findings of fact, making recommendations or expressing opinions.

It said the committee and the Oireachtas can and must give Judge Curtin his full rights to constitutional justice and fair procedures.

The power to call a judge as a witness does not involve any invasion of judicial power or independence and the committee can order the judge to produce his personal computer, the ruling concluded.

Legal sources noted that as the ruling was unambiguous and arrived at by seven Supreme Court judges unanimously, it limited scope for further court action by Judge Curtin.

The importance given to the case was highlighted by the number of judges considering it.

The Chief Justice has power to empanel more than five judges to hear appeals or cases of grave or serious constitutional or national importance.

A small number of cases centred on constitutional considerations have been heard before seven judges in recent years, including the Abbeylara and Jamie Synott cases and the referral by President Mary McAleese in December 2004 of the Government Bill to give retroactive legal standing to charges imposed in nursing and residential homes.

The joint committee report will go before both Houses of the Oireachtas which will consider the impeachment of the circuit court judge.