Judge Brian Curtin has been granted leave to seek a judicial review challenging the powers of an Oireachtas committee investigation into the discovery of child pornography on his home computer.
The Circuit Court judge was acquitted last April on charges of possessing child pornography after the Garda warrant used to search his house was found to be out of date.
At the High Court today, Mr John Rodgers SC, representing Mr Curtin, said the investigative procedures of the Oireachtas committee, which were set up after the acquittal, were fundamentally flawed.
He said there were no legal powers to judge the validity of evidence or to make recommendation. "This committee is precluded from making a finding of fact," he said.
Mr Rodgers said that if the House of the Oireachtas attempted to remove Judge Curtin for stated misbehaviour under Article 34.5 of the Constitution, it would be doing so without any proven facts.
"The House of the Oireachtas are making a decision on what may well be disputed evidence, or evidence which is capable of a number of different interpretations," he said.
The Oireachtas Committee was set up last summer after the government passed a motion to remove Judge Curtin for stated misbehaviour.
Mr Rodgers said the only way to provide a fair hearing was for the charges against Judge Curtin to be put forward in one of the Houses of the Oireachtas and then to vote for a removal in the other.
Mr Justice Smyth said he was satisfied that Judge Curtin 's lawyers had made a proper case. He granted them leave to apply for a judicial review and placed a stay on the work of the committee.
He said it was imperative that the separation of powers in the Irish constitution which ensured the independence of the judiciary is jealously guarded. He added that this was not for the protection of judges but so the public could have confidence in the actions of judges. "A judge personally is entitled no more and no less to the protection of the constitution than any other citizen," he said.
He ordered both parties to prepare their grounds for the judicial review before January 7th and to appear again in the High Court on January 11th.