Judge convicted of sexual offence should not be allowed serve on bench, says ex-minister for justice

A former minister for justice has said a judge who has been convicted of sexual offences should never serve again on the bench.

Fine Gael TD Charles Flanagan said such a conviction was serious enough to merit exclusion from judicial activity for life.

“There can be no question of a judge continuing to serve in any capacity having been convicted of a sexual offence,” said Mr Flanagan.

The Laois TD, who is also chairman of the Oireachtas Committee on Justice, was commenting in the wake of the conviction of Circuit Court judge Gerard O’Brien in December for sexually abusing six young men between 1991 and 1997, at a time he worked as a schoolteacher in Dublin.

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The sentencing hearing will take place on March 4th.

Mr Flanagan was one of two former ministers for justice who commented on the implications of the case on Thursday.

Minister for Higher Education Simon Harris, who was in that role during 2022 and early 2023, said the outcome of the case showed that in Ireland “no matter who you are, the law of the land will be applied without fear or favour. I think that’s what we certainly saw happen in relation to heinous crimes that were committed. I am conscious that there’s a sentencing part and a piece to go in relation to that so I don’t want to overly comment. But I do think we have seen the law of the land apply without fear or favour and I think that’s really important for people to know. It’s really important indeed for victims of sexual assault and sexual violence, to know as well.”

The Oireachtas has specific powers under the Constitution to impeach a judge of the superior courts “for stated misbehaviour or incapacity.” The impeachment procedure can also be applied to judges of the Circuit Court, and of the District Court.

However, no impeachment has occurred since the Constitution came into force in 1937. Former judge Brian Curtin was tried for possession of images of child pornography but was acquitted. An Oireachtas committee was subsequently established to begin an impeachment process but it was discontinued after the former judge voluntarily retired.

In another case, a District Court judge found guilty of deception in 2012, resigned her judicial position before sentencing.

There is an expectation that Judge O’Brien, who lives in Co Tipperary, may resign his position ahead of the sentencing hearing in early March.

The Judicial Council, which deals with the conduct of judges, has no role in the matter. The offences predate its establishment by 30 years. In addition, while the council can refer a matter to the Minister for Justice about the possible removal of a judge, it is a reserved function of the Oireachtas to consider a motion that a judge be removed from office, under Article 35.4. 1 of the Constitution, following an investigation into judicial misconduct.

In her initial response to the conviction in late December, Minister for Justice Helen McEntee said she would consult with the Attorney General on the matter.

“My thoughts are with the victims. These are appalling cases of sexual assault, I thank them for coming forward. I would also like to thank the gardaí,” she said.

“I have been clear that we have a lot of work to do to achieve my aim of zero tolerance in our society for all forms of domestic, sexual and gender-based violence.

“Part of that is clearly demonstrating that nobody, no matter what position they hold in our society, is above the law or immune from prosecution for such crimes. Today is clear proof of that.

“I will now be considering the options open to the government and the Oireachtas. I have asked the Attorney General to advise.”

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