The proposed procedure for removing Judge Brian Curtin from the Circuit Court is unconstitutional because it could lead to his sacking without any "finding" being made against him, the Supreme Court was told today.
Judge Curtin is alleged to have possessed child pornography on his personal computer but his trial collapsed in 2004 because the gardai used an out-of-date warrant authorising the search in which his PC was seized.
An Oireachtas Committee is seeking his removal but Judge Curtin is resisting, arguing it does not have the authority to investigate his affairs.
John Rogers SC for Judge Curtin argued today that without a finding of "stated misbehaviour" and a subsequent resolution of the Houses of the Oireachtas, his client cannot be constitutionally removed from office.
Mr Rogers said the investigation procedure involved a select committee gathering and presenting to the Oireachtas contradictory testimony as to whether the Judge had knowingly accessed child pornography on his computer.
The Committee's report could only contain transcripts of evidence and associated audio/visual material but 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.
There was nothing in that process which would involve a determination of truth or falsehood by anyone, counsel said. Mr Rogers said that because of the position and 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".
Outlining the background to the appeal, Mr Rogers said the motion for removal was based on a recital of information from the Minister for Justice to the effect that gardai had in August 2001 received information from the US postal inspectorate obtained during a search of premises at Fort Worth, Texas.
That information included names, passwords and credit and charge card details of a number of people, one of whom was stated to be Judge Curtin.
Mr Rogers said the motion before the Oireachtas calling for the Judge's removal from office stated it was for "stated misbehaviour" - his conduct in relation to subscribing to and accessing websites containing child pornographic images.
That motion had been put before the Houses and, on the motion being set down, a 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 made in the broad sense 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 and testimony relevant to that allegation and must put that material in unedited form before the Dail.
"My real complaint is that this material does not constitute a finding about anything," Mr Rogers said.
There was a very real dispute about how the material got onto the Judge's computer. Judge Curtin contended his PC was invaded by "Trojans", computer viruses, and a Garda accepted that in a statement in the Book of Evidence.
Mr Rogers also argued that the power given by the Oireachtas to the Committee to direct the Judge to produce his computer was also unconstitutional. Mr Justice Adrian Hardiman said this appeared to be a procedure to get around the unconstitutional seizure of the computer which was fatal to the case against Judge Curtin in the Circuit Criminal Court.
Mr Rogers said the computer remained in the possession of the gardai and his client had not sought its return. If the Judge sought and obtained the computer and if there were pornographic images on it, this could leave him open to prosecution. The appeal continues tomorrow.
