Government moves to impeach Curtin as child porn case collapses

THE Cabinet will meet next week to consider taking the unprecedented action of impeaching a serving judge, following the collapse of the trial of Judge Brian Curtin on charges of possessing child pornography.

No judge has ever been removed from office since the foundation of the State. And last night, a senior legal source said that such a move was possible but would take the Oireachtas into "uncharted waters" that would be fraught with Constitutional difficulties.

The source said that since the controversy over judicial interference in the Philip Sheedy case, it has been recognised that any resolution passed by the Dáil and Seanad to impeach a judge would "not stand up in the courts."

Under Article 35.4.1 of the Constitution, the Dáil and Seanad can pass a resolution calling for the removal of a judge for "stated misbehaviour or incapacity."

The legal source, an authority in this area, pointed to the fact that allegations against Judge Curtin had been contested by him. It would create difficulties in establishing a case of "stated misbehaviour" as would the fact that the judge would have to given a full hearing in his defence before both the Dáil and the Seanad.

Government sources conceded that it would be theoretically possible for Judge Curtin to resume his duties as a Circuit Court judge, but said it was not a realistic option given the nature of the case and the publicity surrounding it. The judge would be totally compromised in carrying out the duties by the serious and controversial charges he faced, they added.

There is a now a real possibility that the Cabinet may ask the judge to voluntarily step down in return for financial compensation. The retirement age for judges is 70. On that basis, Judge Curtin, 52, would be entitled to salary payments of €4 million between now and his retirement. Any such deal would prove to be highly controversial, given the nature of the case. Government reaction followed dramatic developments yesterday when Judge Curtin was found not guilty by direction of Judge Carroll Moran.

Judge Moran ruled that gardaí raided Mr Curtin's home after the search warrant had expired. Moreover, the judge also found that the State had been aware that the warrant had expired.

In a seven-page judgment, Judge Moran excoriated the manner in which the prosecution had been conducted. He described submissions that the prosecution made on the validity of the search warrant as "untenable and nonsensical." The issue, he said, was "crystal clear" and the law on the matter could not be more simple. Saying it was wrong for the prosecution to bring the case to trial when it knew, or ought to have known, the warrant had expired, he went on to say that any evidence collected as a result of the execution of the warrant was inadmissible.

Judge Curtin's counsel Patrick McEntee told the court that this flaw had been known to the prosecution since September 2002. However, his application for costs on behalf of Judge Curtin, estimated to be about €80-€100,000, was turned down.

Justice Minister Michael McDowell said he would consult the Attorney General, and his Government colleagues, as to the implications of the decision.

How the case fell apart

AT 3.20pm on May 20, 2002, a search warrant for Judge Brian Curtin's home was issued by the President of the District Court, Judge Peter Smithwick.

The gardaí had seven days to execute the warrant.

The legal argument centred on whether the seven-day period began from 3.20pm on May 20 or from midnight on May 19.

At 2pm on May 27, Gardaí gained entry into Curtin's home in Tralee and seized a computer and disks alleged to contain visual images of under-17-year-olds engaged in explicit sexual activity.

Paddy MacEntee, senior counsel for Judge Curtin, argued that there was no ambiguity and that the law gave gardaí the power to enter and search Judge Curtin's home within seven days from the date of the warrant.

This would effectively mean that the warrant had expired at midnight on May 26 more than 14 hours before gardaí raided the home of Judge Curtin. The court ruled the computer and discs were seized illegally and could not possibly be put before a jury as evidence.

The ruling was based on the simple rule that the warrant under which the alleged evidence was seized was defective, therefore any evidence accrued pursuant to that warrant is therefore also defective.

"A warrant that's spent has lost its efficacy it's no more than a piece of paper with no efficacy," Mr Paddy MacEntee insisted.