Here we are again, in that old, familiar place in which gross State ineptitude means that justice cannot be seen to be done. The failure to bring a proper prosecution against Judge Brian Curtin is a true scandal, but one we are all used to, writes Kevin Myers.
Relatively minor flaws in the prosecution's case have been revealed by the defence, with the same result as always: the accused walking free, and the prosecuting gardaí departing the court with red faces and, invariably, no damage to their careers.
We are indeed used to such dismal farces. Did not processions of grinning terrorists and their whooping groupies regularly erupt from extradition courts over the years because of police failures, either here or in Britain, to get the details right on warrants? What are we to say about a legal and administrative culture which insists on a warrant containing the time of day on which it is signed, when the time has no legal status whatsoever? It seems quite clear that the law demands that the warrant for a search is activated on the day that it is signed. A warrant activated at a minute past midnight has no greater longevity than one signed a minute before the following midnight. Is this too difficult a lesson to teach gardaí?
However, two things are certain: one is that the Director of Public Prosecutions was entirely right to press what he must have known was a flawed case all the way through to its doomed conclusion. Firstly, the DPP is not a judge, and who can say what a judge might have found? And secondly, imagine the outcry if his office had dropped the charges against a judge without the circumstances ever being disclosed in court.
In such a notorious case, an explanation for a nolle prosequi had to be provided. But the DPP, as a matter of policy, does not disclose reasons why he chooses to prosecute or not. He could not have made an exception in the case against Judge Curtin without setting a precedent that could be endlessly invoked by others.
It is a little surprising that Judge Carroll Moran seems not to have appreciated the excruciating difficulty in which the DPP, and the gallant prosecuting counsel, Mary Ellen Ring, had been placed. "In such circumstances," he complained, "I think it unfair and unreasonable to impose on me the task of presiding at the trial of a colleague when the prosecution knew, or ought to have known, that I would have had to arrive at this result."
Whether the prosecution knew that or not, it had to give every appearance that a trial was possible, in order for the public - who after all are paying for this farce - to learn why it would not occur. It was a good job, well done; and though the evidence acquired by An Garda Síochána might not stand the rigours of a forensic examination in a criminal court, it exists, nonetheless, and is surely available to members of the Oireachtas in any impeachment proceedings against Judge Curtin.
Is that not a violation of his Constitutional rights? Possibly. Alas, the Oireachtas baulked at real opportunity to exercise any authority over the courts when its two houses declined to pass the 22nd amendment in 2001. This specifically related to the removal of a judge from office and provided for a body to be established by law to investigate - or cause to be investigated - conduct constituting misbehaviour by a judge.
So, yet again, the legal profession was allowed to remain, as ever, self-policing, self-justifying, and - most of all - self-satisfied. Sooner or later, the bench and the bar must be made more amenable to the will of the people, not as a matter of populist whim, but as a long overdue corrective in the balance of power. The time has come to bring the lawyers down to earth from the luxuriant heavens to which they have raised themselves. And so we might not have much to thank Judge Curtin for, but we at least have that.
For, clearly, it is wholly inappropriate for him to remain on the bench; and equally, wholly inappropriate also for him to be given a pension package to enable him to take early retirement. Impeachment proceedings are the only proper action available to the State. To allow him to continue as a judge, or to reward him by allowing him to live off the State for the rest of his days, would bring the courts and the rule of law into grotesque ill-repute.
But the courts and the rule of law have been in that for a very long time indeed. Lawyers - and barristers especially - will probably attest that there is nothing very wrong with the profession of law that lawyers themselves cannot make better. The tax-paying population will not agree: they are frothing with rage at the scandalous amounts of money being paid to barristers to ask not very intelligent questions, very, very slowly indeed, and then repeat them in another form, with little or any complaint from the judges - who after all, often enough belong to the same diseased culture which effortlessly confuses duty with cupidity.
Finally, the rule of lawyers, which has given us our plague of tribunals and proved to be a Yukon for even the most mediocre of talents, is in a corner - provided, that is, there is a will in that hitherto will-free zone called Dáil Éireann to ensure a corner has two walls and a floor, and with no escape. Otherwise, yet again, with a bound, the lawyers are free.