The entire process set up by the Oireachtas to investigate the alleged misbehaviour of Judge Brian Curtin had been contaminated by the fact that reliance was placed on knowledge unconstitutionally obtained, the judge's senior counsel told the High Court yesterday.
Paul Burns said the defence, protection and vindication of Judge Curtin's rights required that no use be made of materials taken from his computer which had been seized unconstitutionally from his home by gardaí on May 27th, 2002.
Mr Burns was making submissions to Mr Justice Thomas Smyth on the fourth day of the hearing of a judicial review challenge by Judge Curtin to the setting up by the Dáil and Seanad of a select committee to investigate his alleged misbehaviour. He claims this procedure is unlawful and unconstitutional.
Judge Curtin was acquitted last year by direction of a judge in Tralee Circuit Court of possessing child pornography. The acquittal came after the Circuit Court held that an out-of-date search warrant was used by the gardaí to seize the judge's computer and other materials.
The Government subsequently informed Judge Curtin that it intended to propose to the Oireachtas a motion for his removal from office for stated misbehaviour, pursuant to the provisions of Article 34 (5) of the Constitution, which concerns the appointment and removal of a judge, and Section 39 of the Courts of Justice Act 1924.
A motion calling for his removal was adjourned pending receipt of reports from the select committee, which was directed not to make any findings of fact or recommendations or express any opinion to the Oireachtas.
Yesterday Mr Burns said the select committee had on November 30th, 2004, purported to order Judge Curtin to produce the computer (which is currently held by the Garda).
He argued the committee had made an error of law in ruling that production of the computer was within the power of the judge and was directing production of "the fruits of unconstitutional actions".
Mr Burns said the select committee acted beyond its powers in seeking to circumvent the constitutional rights of Judge Curtin and in failing to vindicate those rights by directing him to produce the computer. The committee had also failed to protect the judge's right against self-incrimination, he said.
One thing was clear, Mr Burns said, the search of Judge Curtin's home was both unlawful and unconstitutional. It was a clear and deliberate breach of the constitutional protection of the inviolability of his home. As a result, the materials seized were excluded from admissibility in any trial.
The Oireachtas had devised a system whereby a select committee with the benefit of knowledge about a computer which was unconstitutionally seized had called on the judge to produce that computer.
The Minister for Justice had told the Dáil that counsel for the DPP had alleged in open court that images found on the judge's computer were those of children engaged in explicit sexual activity or depicting the genital or anal region of a child.
The Minister was relying on what the DPP said was on the computer, he said. Knowledge gained on foot of an unconstitutional search was being used as a premise for moving a motion which proposed the judge's removal from office and the establishment of the select committee.