Circuit Court judge can only be removed by impeachment

THE starting point for any analysis of events in Tralee Circuit Court yesterday must be a reiteration of the fact that Judge Brian Curtin went into court this week enjoying a presumption of innocence and he came out of the courtroom yesterday afternoon with his innocence unimpugned in any way in law.

The jury was directed by the trial judge to bring a non-guilty verdict. The assignment of an individual judge to hear cases is ultimately an administrative arrangement overseen by the president of the Circuit Court.

Since Operation Amethyst in May 2002, Judge Curtin, although continuing to be a member of the Circuit Court, has not sat in any court or heard any cases. Notwithstanding the outcome of yesterday’s hearing it can be expected that this arrangement will stay in place, at least until next September.

In terms of what will happen after that, a number of possible scenarios arise. One possibility, although unlikely, is that Judge Curtin will ultimately resume normal judicial duties and be assigned cases in the usual way. Another possibility is that efforts will be made to initiate an impeachment procedure.

While sources in the Department of Justice were hinting at impeachment proceedings last night, it should be noted that no judge has ever been impeached in this country. High Court and Supreme Court judges enjoy strong constitutional protection for their independence and the security of their posts and cannot be removed from office except for stated misbehaviour or incapacity, and then only on resolutions passed by the Dáil and Seanad.

The prospect of the Oireachtas embarking on the uncomfortable legal and constitutional journey to a judicial impeachment did raise its head at the time of the so-called Sheedy controversy in 1999. However, before the details of such a procedure were explored further, the High Court judge, Cyril Kelly, and the Supreme Court judge, Hugh O’Flahery, resigned their positions.

Under the 1924 Courts of Justice Act, Circuit Court judges enjoy the same protection of tenure as High and Supreme Court judges. Therefore, the only way that a Circuit Court judge can be removed from office is through an impeachment procedure.

All impeachment procedures bring uncertainties, but in this instance the difficulties would be further complicated by the fact it would it be dealing with conduct unrelated to the judge’s judicial function and, more importantly, would be examining matters about which a criminal court has already given a verdict of not guilty.

While the balance of proof required in any such inquiry might not be as high as that which applies in a criminal court, any exploration of allegations of possession of child pornography would run the risk of falling foul of the judge’s constitutional right to his good name and fair procedures.

There is, in a 1949 Act, a procedure for the holding of an inquiry into allegations of misconduct on the part of a District Court judges.

This procedure was first used in 2002 when suggestions of misconduct concerning a District Court judge were made in the media following the Catherine Nevin case.

However, there is no such procedure for a public inquiry into allegations of misconduct by a Circuit Court judge.

If the Government takes any steps on foot of these events, it is likely to ask the chief justice or the president of the Circuit Court to conduct some kind of private inquiry, the report of which would be published.

Noel Whelan is a qualified barrister.