Curtin fails to halt child pornography probe

Judge Brian Curtin today failed to halt an Oireachtas committee investigation into the discovery of child pornography on his home computer.

The Circuit Court judge was acquitted last April on charges of possessing child pornography after the Garda warrant used to search his house was found to be out of date.

At the High Court today Judge Thomas Smyth said he was satisfied that the Oireachtas committee had acted within its powers in setting up an investigation into the judge.

“In my judgement, the applicant’s constitutional rights have not been compromised by the procedures set up in this case,” he said.

Judge Smyth refused all the reliefs sought by Judge Curtin, which included a declaration that the committee had no right to use material found on the computer as evidence.

He said he was satisfied there were extraordinary circumstances which required that the evidence seized by the Gardaí should be available to the committee because of the importance of maintaining public confidence in the judiciary.

He added that the committee should have the power to compel Judge Curtin to attend and provide documents.

Judge Smyth said if a judge was not compelled to do so he might not attend and this would frustrate the provisions of the Irish Constitution.

The Oireachtas committee, which was set up last year, is now free to proceed with its investigation into Judge Curtin with a view to preparing a report for the House of the Oireachtas. A vote can then be called to remove Judge Curtin for stated misbehaviour under Article 34.5 of the Constitution.

Judge Smyth said it was possible that the evidence given by Judge Curtin to the committee might exculpate him rather than incriminate him. He added that the judge had proffered understandable distress from being publicly vilified without having a chance to give his side of the case.

“Then he is being given an opportunity to give his side in private or in public,” he said.

The court heard the Secretary General of the Government, Dermot McCarthy, wrote to Judge Curtin last year in the wake of his acquittal to request a full and frank disclosure of the circumstances surrounding the case.

The judge was granted a two week extension to reply but provided only a brief response which the Government was disappointed with.

He was then informed that a report would be compiled by an Oireachtas committee and a motion would be moved to remove him from his position as a judge on the grounds of stated misbehaviour.

Judge Curtin is taking a separate action against the Garda Commissioner for damages for trespass following the unlawful seizure of his home computer.

However, in his lengthy five hour judgment, Judge Smyth said he was satisfied that the computer and the material contained on it would be admissible as evidence to the committee.

“The committee cannot ignore the fact that this computer exists. They are entitled to take lawful steps to act on that knowledge,” he said.

Lawyers for Judge Curtin had argued that the committee could not adjudicate on alleged child pornography offences when he had already been acquitted in the Circuit Criminal court. However Judge Smith said the principle of double jeopardy did not arise.

“Even if it does, it takes second place to the need for public confidence in the judiciary,” he said.

He said the concept of judicial independence should not be confused with judicial integrity.

“The applicant’s (Judge Curtin) submission in equating judicial independence with judicial non-accountability is in error.

“Judges are answerable under the Constitution and the law within the terms of Article 34.5,” he said.

Judge Smith said that judges were not pillars of wisdom or paragons of virtue but fallible human beings.

“A judge is entitled to no more and no less protection of the Constitution than any other citizen,” he said.