Court reserves judgment on challenge by Curtin

The Supreme Court has reserved judgment on the challenge by Circuit Court judge Brian Curtin to the procedures put in place by the Oireachtas, which could lead to his removal from office.

The hearing of the four-day appeal against the High Court's rejection last May of Judge Curtin's challenge concluded yesterday.

The Chief Justice, Mr Justice John Murray, who presided over the seven judge court, said judgment was being reserved (to be given at a later date).

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which grounded a search of Judge Curtin's home, during which a computer and other materials were seized by gardaí, was out of date.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 Select Committee was established to inquire into and compile a report on the judge's alleged misbehaviour. The committee's proceedings are on hold pending the outcome of the judge's legal challenge.

The appeal centres on the 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".

In submissions yesterday for the Oireachtas and the committee, Shane Murphy SC said the Houses of the Oireachtas have sole power to consider a motion for the removal of a judge.

There was no requirement under the Constitution to appoint a "fact-finding" committee. Rules or procedures could be amended if the interests of constitutional justice so required.

Mr Murphy argued it would be premature for the Supreme Court to conclude there was or may be a breach of fair procedures in relation to the procedure set in place regarding Judge Curtin.

Asked by Mr Justice Hugh Geoghegan whether there would be any discussion by the committee of the standard of proof required, counsel said it was not relevant to consider that matter at this stage. There was nothing to indicate the Houses were obliged to accept a particular standard of proof.

Pending an examination of the judge's computer (which remains in the possession of gardaí), he could not say what the standard of proof would be.

He agreed there was nothing in the existing process which defined a standard of proof.

The Oireachtas would need to be satisfied that the matters which constitute alleged misbehaviour by the judge had been made out.

Mr Murphy also argued for the constitutionality of provisions under which an order was issued by the committee directing the judge to produce the computer seized from his home.

In his closing reply for Judge Curtin, John Rogers SC said it was extraordinary, given the nature of the process the committee was engaged in, that it had proceeded as far as it had without knowing what standard of proof applied.

The procedure was being "stitched together slowly".

Counsel said the "big point" in the case turned on the interpretation of Article 35. It was his case that this involved a two-stage process while the State argued it was a unitary process.

He contended there must first be a finding of misbehaviour before a resolution for removal of a judge could be set down.