Court judgment: The Supreme Court has unanimously dismissed the challenge by Judge Brian Curtin of the Circuit Court to a scheme put in place by the Oireachtas, which could lead to the judge's removal from office for "stated misbehaviour" - alleged possession of child pornography.
The ruling yesterday is the first judgment since the foundation of the State on issues relating to how a judge may be lawfully removed from office,
The seven-judge court also ruled that an Oireachtas joint committee has power to direct the judge to give it a computer, seized from his home, which contains images of child pornography.
However, while rejecting the challenge by Judge Curtin on all grounds, the court did express support for his claim that he should be entitled to a decision by the Oireachtas on whether he was guilty of the stated misbehaviour, before the Houses vote on a resolution for his removal from office.
Judge Curtin contended that the scheme devised by the Oireachtas, involving a joint committee inquiring into the stated misbehaviour and gathering evidence, but making no findings and merely presenting a report to the Houses, had deprived him of this.
Chief Justice Mr Justice John Murray, said the Oireachtas was entitled to appoint such a committee and to adopt a rule providing for either a single vote on the resolution to remove or to divide the issue in the way Judge Curtin wished.
While it was therefore "premature" to deal with the matter, the court believed it should offer "constructive guidance" to the Houses on the matter.
As a matter "of basic fairness", Judge Curtin should be entitled to a distinct hearing and decision on the issues of fact before he must confront "the ultimate and draconian decision to remove him from office", the court said.
It also said it "might well have been more satisfactory" for the Houses to have opted for a committee empowered to hear evidence, rule on admissibility, resolve conflicts of evidence and report its findings to the Houses. It was open to the Houses to have appointed that type of committee, but they were was entitled to appoint the type of committee decided upon.
The Oireachtas might have considered, given the Supreme Court's decision arising from the successful challenge by gardaí to a committee to investigate the shooting dead of John Carty at Abbeylara, that it could not appoint a fact-finding committee.
However, that case related to whether the Oireachtas had inherent implied power to appoint committees to investigate the behaviour of individuals. It did not apply in a case such as this, where the Oireachtas was exercising a power expressly conferred on it by the Constitution (the power to remove judges).
In a reserved judgment rejecting Judge Curtin's appeal against the High Court's dismissal of his challenge, the court ruled unanimously that the procedures put in place are permitted under the Constitution and it upheld the High Court's ruling to that effect.
It found the joint committee set up in 2004 to inquire into and report on the judge's alleged misbehaviour does have power under the Constitution to require Judge Curtin to appear before it and to produce a computer unlawfully seized from his home by gardaí which allegedly contains images of child pornography.
It rejected as "unfounded" the judge's claim that he cannot now be tried by the Oireachtas for an offence of possession of child pornography, given that he had been acquitted of that at a criminal trial. The Houses of the Oireachtas were "considering an entirely different matter wholly distinguishable from a trial on criminal charges before a court", the court ruled.
The proceedings arose after Judge Curtin was acquitted in March 2004 on a charge of knowingly having child pornography. The acquittal was by direction of a Circuit Criminal Court judge after he found the warrant which grounded a search of Judge Curtin's home, during which a computer and other materials were seized by gardaí, was out of date.
A motion for the removal of Judge Curtin was set down before the Oireachtas in May 2004 and was adjourned while a joint committee was established to inquire into and compile a report on the judge's alleged misbehaviour. The committee's proceedings were put on hold pending the outcome of the legal challenge initiated by the judge.
The Supreme Court appeal centred on construction of Article 35.4 of the Constitution which provides that a judge shall not be removed from office "except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and Seanad Éireann calling for his removal".
Delivering the court's judgment, the Chief Justice said it was within the powers of the Houses of the Oireachtas to give the joint committee the power to report on Judge Curtin's alleged misbehaviour without making findings of fact, making recommendations or expressing opinions.
Following the report of the committee, both the committee and the Houses of the Oireachtas can "and must" give the judge his full rights to constitutional justice and fair procedures.
The power of the committee to call a judge as witness or to require him to produce articles of evidence did not involve any improper invasion of judicial power or judicial independence. That power was enshrined in the Constitution "for the purpose of ensuring the fitness and the integrity of the judiciary".
The court said Article 35.4.1 must be read with other relevant provisions of the Constitution. The principle of the separation of powers and the constitutional provision, in Article 15, that each House of the Oireachtas shall make its own rules and standing orders, were necessarily relevant.
The Constitution was clear, a judge could only be removed by a resolution of both Houses and no other means.
In this case, the Houses had rightly and necessarily undertaken to accord fair procedures and natural and constitutional justice. Only if the court considered the executive would disregard those obligations when considering whether to remove a judge from office, could it make an order requiring it to meet those obligations.
The proposal of a resolution for the removal of a judge confers the power to establish a committee to inquire into the "stated misbehaviour" of the judge.
Given the potentially complex nature of any allegation of misbehaviour, it was obvious the Houses would need to use a committee to gather evidence.
Neither Article 35.4.1 nor Article 15 prohibited the Houses from appointing a committee to gather evidence only and not to make any findings of fact.
A necessary corollary of judicial independence was that judges themselves behave in conformity with the highest standards of behaviour, both personally and professionally, the court said.
The special constitutional protection against removal from office was not intended to benefit individuals holding judicial office, but to give them the freedom to authoritatively decide disputes between the three organs of government.
