The following is the text of the letter, read into the Dáil record by the Minister for Justice, from the Secretary General to the Government, Mr Dermot McCarthy, to Judge Brian Curtin last April.
27 April 2004.
His Honour Judge Brian Curtin Tralee Co Kerry.
Dear Judge Curtin, I have been directed by the Government to write to you in the following terms.
As you are aware, on the afternoon of May 20th, 2002, His Honour Judge Peter Smithwick, president of the District Court, issued a search warrant to search your residence. A search on foot of that warrant was carried out on the afternoon of May 27th, 2002.
That search has given rise to a judgment of His Honour Carroll Moran in the Circuit Criminal Court last Friday in which, as you are also aware, the court determined that the warrant was spent when executed. In consequence, it was held that material seized pursuant to that warrant was inadmissible in criminal proceedings initiated against you alleging that on May 27th, 2002, you had in your possession child pornography contrary to the Child Trafficking and Pornography Act, 1998. This resulted in your being found not guilty of that charge without evidence being given on behalf of the prosecution and, accordingly, without evidence being given by or on your behalf in relation to the matters, the subject matter of this charge.
The Government is deeply concerned by the circumstances giving rise to and surrounding these proceedings. The president of the District Court was on May 20th, 2002, evidently furnished by An Garda Síochána with information which enabled him to conclude that it was, in all the circumstances, appropriate that a warrant of the nature in question issue for the search of your home.
The Director of Public Prosecutions subsequently initiated a prosecution against you alleging possession by you of child pornography. Counsel for the Director of Public Prosecutions has alleged in open court that images found on your computer were those of children engaged in explicit sexual activity or depicting the genital or anal region of a child.
Apart from the position adopted by you at the trial regarding the validity of the search warrant, your detailed response to these matters and the allegations which gave rise to them has never been recorded.
We have been fortunate that since its foundation, the State has enjoyed the service as judges of men and women of stature and integrity, who have generated an overwhelming public confidence in the judiciary. That public confidence is critical to the effective operation of our courts and thus of our constitutional system. Clearly, any circumstances which threaten to undermine that public confidence are of the greatest concern to the Government, and must be addressed immediately.
The situation which has now arisen generates, in the view of the Government, circumstances and concerns of a highly unusual and exceptional nature. You, as a sitting judge, have been charged with a criminal offence.
The most senior judge of the District Court determined that there was sufficient evidence tendered to him on May 20th, 2002, to justify granting a warrant to members of An Garda Síochána to search your home. That offence as charged and allegations underlying are extremely serious. Very serious allegations have been made against you in a court of law by counsel for the Director of Public Prosecutions. You have been acquitted of that charge, but that acquittal occurred in a context where your defence to the underlying factual allegations has been neither recorded by you, nor tested or adjudicated upon.
The Government, I should observe, is acutely conscious of the importance of the principle of the independence of the judiciary in the exercise of their judicial functions. Necessary corollaries of that principle are the importance, indeed necessity, of maintaining public confidence in the judiciary and, therefore, having an effective system for the removal of judges when necessitated. Because of the exceptional circumstances to which I have referred (which, I should observe, do not relate in any way to the discharge by you of your judicial office), having regard to the critical importance of public confidence in the judiciary and in the light of the legitimate concerns generated by the facts as I have outlined them above, the Government, having considered this matter this morning, has directed me to write to you seeking factual information and comments from you and thus your co-operation in furnishing such information and comments to the Government.
Specifically, I have been instructed to request that you record, in the first instance in writing, your precise response to the allegations made against you in and surrounding the criminal proceedings to which I have referred. You should feel free in that response to address any matters which you feel to be relevant to your position in relation to these matters.
Given the importance of the mutual respect due between the institutions of the State, and having regard to the critical importance of public confidence in the judiciary, the Government believes that it is entitled to expect a full and frank disclosure from you of the information and comments which are sought from you and to be apprised of the full circumstances surrounding the matters referred to.
Accordingly, it is expected that full and detailed factual responses will be given by you to this letter bearing in mind the considerations I have outlined above.
In respect of this request I would be grateful if you could respond, in writing, furnishing the explanations sought in this letter not later than 9.30 a.m. on Tuesday, May 4th, 2004. These can be faxed to my office at fax number (01) 6766830 or forwarded by e-mail to me at dermot.mccarthy_at_taoiseach.gov.ie.
For the avoidance of any doubt, I should make clear the precise context in which this information is sought.
The Courts of Justice Act, 1924, and the provisions of Article 35(4) of the Constitution, enable the Houses of the Oireachtas to pass a resolution removing a circuit judge from office for stated misbehaviour or incapacity. In the light of the matters referred to above, the members of the Government - who can propose a resolution to this effect - require to be apprised by you of the information and comments referred to here so that they can fairly consider a decision to initiate such a resolution on grounds of misbehaviour.
I should also observe the belief of the Government that subscription to websites containing explicit sexual images of children, possession of images of the nature alleged here, and/or a failure to co-operate with the Government in its efforts to ascertain all circumstances relevant to these charges would furnish grounds for the proposal of such a resolution.
The importance of a prompt and comprehensive response is, I hope, apparent.
Given the urgency of this matter I am arranging for this letter to be sent to you, by hand, and in addition a copy of it is being sent to the solicitor who acted for you in the course of the recent criminal proceedings.
I await your response to this request from the Government and I look forward to your co-operation with the Government in this regard.
Yours faithfully,
Dermot McCarthy,
Secretary General to the Government.