The fallout for the judge: Judge Brian Curtin is innocent of the charge of possessing child pornography. His acquittal yesterday, by direction of Judge Carroll Moran, means that there is no accusation outstanding against him, and he should be able to resume his life.What now for Judge Brian Curtin, following his acquittal oncharges of possessing child pornography, asksCarol Coulter, Legal Affairs Correspondent
But is this a realistic prospect? The accusation made against him is of such a heinous nature, and arouses such revulsion in many people, that, despite the acquittal, he may be tainted by it in the eyes of many.
For many people, this would be a difficult, but essentially private, matter. For Brian Curtin, it is more than that. As a judge of the Circuit Court, sworn to uphold the law, handing down verdicts and sentences to those who violate it every day of his working life, he must be, like Caesar's wife, above suspicion. Otherwise, the credibility of the whole judiciary is in question.
However, there is no provision in law or in the terms of employment of judges for their removal on the grounds of suspicion. Indeed, this would fly in the face of natural justice.
Had he been convicted, he could have been impeached by both Houses of the Oireachtas for "stated misbehaviour", and removed in that way. But this did not happen.
It is difficult to see how the Oireachtas can proceed to impeachment in the absence of a criminal conviction. However, the seminal authority on the Irish Constitution, known colloquially as "Kelly on the Constitution", speculates that "stated misbehaviour" could include a situation where a judge was charged with a serious criminal offence but was acquitted on a technicality relating to proofs.
In the absence of impeachment, it will be up to the judiciary itself to deal with the thorny issue of how to protect its own credibility within the procedures available to it.
Those procedures are very limited, as proposals for a mechanism to deal with judicial ethics, made by the Chief Justice three years ago, have not yet found their way into legislation.
For routine matters, each member of the judiciary is subject, in his or her administrative day-to-day work (but not, of course, his or her judicial determinations), to the president of the court to which he or she is assigned. Therefore, District Justices work under the President of the District Court, Judge Peter Smithwick, and those of the Circuit Court under its President, Judge Esmond Smyth. The High Court is under the rule of Mr Justice Joe Finnegan and the Supreme Court - and ultimately all members of the judiciary - is presided over by the Chief Justice, Mr Justice Keane.
Usually, the presidents decide which judges hear what cases. In the District Courts, where there are more than 60, this cannot be done in a detailed way for practical reasons, as most of them are outside Dublin. To a lesser extent, this is also the case in the Circuit Court, although in Dublin the president is quite directly involved.
The presidents can, therefore, decide that there may be reasons why certain judges cannot hear certain cases. If a judge had displayed stress-related health problems, for example, it is likely that the president of that court would not assign him or her highly-stressful cases.
If he returned to the bench, it is possible that Judge Curtin might find himself with few cases sent to him to hear. If that happened, his position could soon become untenable.
Before the case went forward to trial, his solicitor told Tralee District Court that his client had suffered severely from the strain of the case and had even been hospitalised as a result. His health had been undermined, he said. It could well have been undermined to such an extent that he will be unable to return to the bench and take up the stressful duties of a Circuit Court judge.
Legal experts agreed on only one thing when contacted about this yesterday - there is no law or procedure out there to deal with a judge who has been charged with a serious criminal offence but has been acquitted.