The Government has asked the High Court to decide whether it has any entitlement, given the separation of powers, to grant orders to Judge Brian Curtin of the Circuit Court which would prevent a computer, alleged to have contained child pornographic images, and other materials seized by gardaí from his home, being used as evidence in any other "proceedings, process or inquiry".
The Government motion was brought after Judge Curtin, on June 2nd last, the day when the Minister for Justice proposed a motion in the Dáil for the removal of the judge from office, initiated High Court proceedings seeking declarations that the material was seized unlawfully and restraining its use in any other proceedings or inquiry.
Yesterday Mr Donal O'Donnell SC, for the Government, said the case raised significant constitutional issues relating to the separation of powers.
He believed the purpose of Judge Curtin's action was to seek determinations from the court as to the admissibility of evidence to be heard by an Oireachtas committee inquiring into the judge's conduct.
It was no coincidence that the judge's proceedings were taken on June 2nd, when the motion for his removal was placed before the Oireachtas.
There was an "absolute urgency" in having the issues determined, counsel said. The Government would argue that the court could not and should not grant the declarations sought by Judge Curtin because the matter was before the Oireachtas which had full jurisdiction to deal with issues regarding admissibility of evidence.
Mr John Rogers SC, for Judge Curtin, said the judge was in hospital and receiving treatment. Counsel said he did not see that the Government motion was urgent and he would like time to take instructions and consider the matter.
In seeking time, he was not seeking to impede the Oireachtas committee in any way. Judge Curtin's case was independent of any matter before the Oireachtas, and he did not see that it would delay the proceedings before the Oireachtas.
The President of the High Court, Mr Justice Finnegan, said he regarded the motion as urgent, and it was his view that it raised discrete legal issues.
He said he would fix the hearing for July 13th, and the parties could mention the case on July 2nd.
On April 23rd last Judge Curtin was acquitted on a charge of possessing child pornography by direction of the trial judge, Judge Carroll Moran, after it was learned that a warrant used to search his home in May 2002 had been used too late.
During that search a computer said to contain images of child pornography and other materials were seized.
On June 2nd Judge Curtin brought proceedings against the Garda Commissioner, the Attorney General, the Government and the Director of Public Prosecutions.
On the same day, the Minister for Justice proposed a motion in the Dáil calling for the removal of Judge Curtin from office "for stated misbehaviour".
The motion has been adjourned in both the Dáil and Seanad pending receipt of a report from an Oireachtas committee to inquire into the conduct of Judge Curtin.
On June 4th the Oireachtas passed a motion establishing that Oireachtas committee of four TDs and three senators. Yesterday the Government moved its motion asking the court to direct a trial of issues arising from Judge Curtin's proceedings.
The issues are whether the judge is entitled to declarations that the computer and other materials removed from his home on May 27th, 2002, were removed unlawfully and in breach of his constitutional rights and whether the computer and materials, having been declared inadmissible as unconstitutionally and unlawfully obtained evidence, may not be used in evidence in any other proceedings, process and inquiry.
The Government also wants the court to rule on whether it is entitled to make an order restraining the defendants from making any use whatsoever of the computer and materials or from delivering them to third parties.
In an affidavit grounding the Government's motion, Mr Peter Ryan, Assistant Secretary General of the Department of the Taoiseach, said the Oireachtas had set in train a process for the removal of Judge Curtin from office.
He believed some of the reliefs sought by Judge Curtin appeared to be intended to prevent the Oireachtas from having access to information and materials which might be of relevance to the discharge by the Houses of their functions.
