Judge Curtin's acquittal highlights the need for the regulation of judicial conduct and ethics, writes Carol Coulter, Legal Affairs Correspondent
There is little the judiciary can do to help the Government out of its dilemma over Judge Brian Curtin, according to legal sources. However, there is widespread feeling in legal circles that the whole affair highlights the urgency of legislation to provide for the regulation of judicial conduct and ethics.
Over the past few years there have been two previous occasions where the conduct of judges came under scrutiny, leading to inquiries by members of the judiciary. But both of these concerned allegations relating to the administration of justice.
Judge Curtin was accused of criminal conduct, not of any misconduct in his work as a judge. He was acquitted, by direction of the trial judge, of the criminal charge of possessing child pornography.
The first case involving an inquiry into judicial conduct was the so-called Sheedy affair, where the role of Supreme Court judge Mr Justice Hugh O'Flaherty and High Court judge Mr Justice Cyril Kelly were the subject of an inquiry carried out by the then Chief Justice, Mr Justice Liam Hamilton.
Mr Justice Hamilton was critical of both judges, though harsher in his criticism of Mr Justice Kelly. Faced with the prospect of impeachment, both resigned. However, there remains some doubt in legal circles about the constitutional basis for the Hamilton inquiry.
The second concerned District justice, Judge Donal Ó Buachalla, who was accused of favouring Mrs Catherine Nevin, later convicted of the murder of her husband Tom, in relation to a licence application. Unlike other judges, District judges can be the subject of a judicial inquiry into their health or conduct, and an inquiry was set up under the chairmanship of Mr Justice Murphy, which fully exonerated Judge Ó Buachalla.
Had Judge Curtin been a judge of the District Court, the provision of the Courts of Justice (District Court) Act of 1946, which provides for a judicial inquiry into a judge's health or conduct, could have been proceeded with.
But he is not. As a judge of the Circuit Court he is subject only to its President, Judge Esmond Smyth, and then only in relation to the allocation of cases.
The kind of cases a Circuit Court judge would hear in the normal course of his or her work would include family law, criminal cases, personal injury and other litigation. It is likely that some people appearing before him in a family law case, for example, or in a criminal case involving any kind of sexual assault, might not wish to have him preside on the grounds of lack of confidence in his impartiality and integrity, despite his acquittal. If such a response was widespread it would bring the legal system into disrepute.
But very little could be done about it, according to sources close to the judiciary. There is great regret in judicial circles that the proposals for dealing with allegations of judicial misconduct, made by a working group chaired by the Chief Justice 3½ years ago, were never acted on.
This report proposed, among other things, the setting up of a Judicial Council and the drawing up of a code of conduct for judges. Under these proposals a panel of inquiry could inquire into complaints against a member of the judiciary, and propose a range of sanctions, from a private or a public reprimand, to recommending to the Attorney General that the judge be impeached.
There remains the question of peer pressure. There have been court judgments down the years that have referred to the nature of the relationship between judges and the community, and the special standards expected of members of the judiciary.
A 1959 case, O'Byrne v Minister for Finance, states: "One idea emerges [from the Constitution] - that the judicial power of the State should be vested in judges set apart in many important ways from the life of the community and denied important civil rights in order that they should be independent in the exercise of their function."