The Oireachtas committee investigating Judge Brian Curtin has issued orders to his doctors to appear before it with his medical reports at its next meeting on September 14th. The meeting, for which three days have been set aside, will take place in private.
If the committee members conclude from the medical reports that Judge Curtin is fit to instruct his lawyers, they will then order him to appear, and to produce his computer and disks, which are at the centre of allegations that he downloaded child pornography.
The committee met for 12 hours over the past two days, and on Tuesday it heard from Judge Curtin's counsel, Mr John Rogers SC, and a psychiatrist that he was unfit to appear before it and was likely to remain so for at least three months.
However, the committee declined to defer its work for such a period, and instead decided to press ahead, first by establishing, through the examination of medical reports, the extent of Judge Curtin's illness.
He checked into St John of God psychiatric hospital in Stillorgan shortly after being arrested on suspicion of drink-driving last May. This came days after he was acquitted of the charge of possessing child pornography in the Circuit Court.
Judge Carroll Moran ordered the acquittal on the basis that Judge Curtin's computer had been seized unconstitutionally by gardaí because the search warrant was out of date.
It is understood that the judge recently left St John of God's and is at present on holiday abroad.
The committee decided yesterday to invoke its compellability powers under Section 3 of the Compellability, Privileges and Immunities of Witnesses Act, obtained last June from the Committee on Procedure and Privilege, to order the judge's medical reports from St John of God's, and to order the doctors treating him to appear before it. This is the first time it has used these powers.
If it decides, following its examination of the doctors and the reports, that the judge is fit to give evidence, it will use the same powers to summon him and his computer.
It is up to the committee to decide on his fitness, but the judge's lawyers could challenge its decision in court.
The computer is in the possession of the gardaí, but the committee has not asked them to supply it.
It is understood that, because he was acquitted, the computer remains legally his property and permission has to be obtained from him to access it. If the committee obtained it directly from the gardaí, the unconstitutionality surrounding its seizure could taint it as evidence.
However, Judge Curtin's lawyers are likely to challenge any order to produce the computer, arguing that any evidence obtained unconstitutionally should not be used in any forum. The law is unclear on whether evidence unconstitutionally obtained is ruled out only in a criminal trial, or if it cannot be used for any purpose.
If, however, the Oireachtas committee accepts that the judge is too unwell to appear before it, it is open to the committee to defer its hearings for the moment and issue an interim report to the Dáil and Seanad.
The committee's members are Mr Denis O'Donovan TD (chairman), Dr Jerry Crowley TD, Mr Jim O'Keeffe TD, Ms Jan O'Sullivan TD, and senators Mr John Dardis, Ms Geraldine Feeney and Mr Michael Finucane.