The Oireachtas committee investigating the conduct of Judge Brian Curtin has rejected his claim that he is not fit to give evidence to it, and has decided to continue with its hearings.
It reached this decision yesterday, after hearing medical evidence and submissions from the judge's legal team, who had argued for a three-month adjournment on the basis that Judge Curtin was not fit to give them instructions or engage with the committee.
The committee will continue its hearings next month, unless it is interrupted by a legal challenge to yesterday's decision.
The decision to continue can be challenged by way of judicial review in the High Court, but this is unlikely as the bar for overturning a decision like this is high. The courts are unlikely to relish interfering with a committee established by the Oireachtas unless there is a flagrant abuse of fair procedures. The court will only overturn a decision of such a body if no reasonable body in possession of the evidence before it could have come to a similar decision.
There are other hurdles for the Oireachtas committee to cross, however. As it seeks an explanation from Judge Curtin of the circumstances leading to him being charged with possession of child pornography, the issue of the seizure of his computer will arise.
The Circuit Court in Tralee has already ruled that this seizure by gardaí breached his constitutional rights, and that evidence on it cannot be used. This led to his acquittal, by direction of the trial judge, of the charge of possessing child pornography.
His lawyers are certain to argue that if the computer evidence cannot be used in a criminal trial, it cannot be used in any other forum either. Any attempt by the committee to examine the computer is likely to be challenged in the courts.
Such a challenge would be complicated by the argument already made that he is not well enough to instruct his lawyers in relation to the committee, raising the question as to how he could instruct them in taking a judicial review. However, this could be overcome if his lawyers had a general instruction to do all they thought necessary to protect his interests.
The standards required of evidence before criminal trials are not necessarily the same as those required of evidence before other forums, of which this committee is one.
The admissibility of the evidence contained on the computer into this investigation is still an open question.
However, the committee may decide to avoid a lengthy legal challenge on this issue, and instead proceed by examining other evidence, not challenged in or thrown out by a criminal court, linking the judge to the allegation of accessing child pornography.
The use of such other evidence could also be challenged in court.