Circuit Court Judge Brian Curtin has secured leave from the High Court to seek a declaration that the mechanism used by the Dáil and the Senate to investigate alleged misbehaviour by the judge is unlawful and unconstitutional.
At the end of a day-long hearing of the application for leave to seek judicial review of actions taken on behalf of the Houses of the Oireachtas, Mr Justice Smyth said he was satisfied a proper case had been made out on behalf of the judge to grant leave.
Judge Curtin was acquitted, by direction of the trial judge, in Tralee Circuit Criminal Court in April this year of possessing child pornography. However, a select committee of Dáil and Senate members had recently ordered him to hand over his computer and other materials currently held by gardaí to the committee.
Yesterday, Mr John Rogers SC, for Judge Curtin, said his client was effectively being ordered to produce material he did not have. The effect was to compel him to provide an answer against himself and to effectively "hang himself". The law provided that no one should have to answer a question through compulsion so as to incriminate themselves.
Giving his decision, Mr Justice Smyth said a judge had certain rights, duties and responsibilities under the Constitution and the law.
Because of the doctrine of separation of powers, and in the light of constitutional provisions entrenching the independence of the judiciary, it was imperative that independence was strictly observed and jealously protected.
This was not for the personal benefit of the judge but so that the public would have the benefit of knowing and have confidence in the independence of judges.
As a citizen, however, a judge was entitled to no more and no less protection of the Constitution and the law than any other citizen.
Earlier, seeking leave, Mr Rogers said that in the wake of Judge Curtin's acquittal, certain concerns arose in the Oireachtas and new standing orders were introduced in each House (63A in the case of the Dáil and 60A in the case of the Seanad), which were the core issues in this entire matter.
When these new standing orders had been promulgated, the Minister for Justice laid a motion before the Dáil for the removal of Judge Curtin from office and Senator Mary O'Rourke moved a similar motion in the Seanad.
Both Houses resolved to establish a select committee and the motion of Judge Curtin's removal stood adjourned.
On June 30th, the select committee indicated it was concerned to make orders under Section 3 of the Committees of the Houses of the Oireachtas (Compellability and Immunity of Witnesses) Act 1977, which was a "free-standing" piece of legislation intended to facilitate the bringing of persons before the Houses of the Oireachtas.
There was a response from Judge Curtin's solicitor, Mr Robert Pierse, and in a sentence Judge Curtin replied: "I did not seek this material alleged to have been found on my computer. It came there, was unwanted and I tried to get rid of it."
Mr Rogers said there would be independent evidence in that regard. For instance, he said, gardaí found there were viruses on the computer of Judge Curtin.
On December 1st, the committee made an order directing Judge Curtin to procure for the committee the computer and materials taken by gardaí from his home. Judge Curtin was advised it was appropriate to bring proceedings in the High Court.
Mr Rogers said Article 35 of the Constitution stated that a Judge of the Supreme or High Courts shall not be removed from office except for stated misbehaviour or incapacity and then only on resolutions passed by the Dáil and Seanad.
This provision did not contain a mechanism for the removal of judges of these courts and did not apply to a Circuit Court judge.