The Government will be studying this Supreme Court judgment carefully, writes Carol Coulter, Legal Affairs Correspondent
Although the Constitution provides for the removal of a judge from office by both Houses of the Oireachtas, this power has never been exercised in the history of the State. The issues raised in the Curtin affair are, literally, unprecedented, and the conclusions of the Supreme Court lay down a template for future legislation and practice in this area.
While lawyers for Judge Curtin took judicial review proceedings against several aspects of the Government's proposed mechanism for seeking his removal on a number of grounds, the main one concerned a challenge to its interpretation of Article 35.4.1 of the Constitution.
This states: "A judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal." The same level of protection was extended to judges of the Circuit Court in 1961.
Judge Curtin argued, through his counsel John Rogers SC and Paul Burns SC, that the Oireachtas committee set up to collect evidence relating to the allegations against him, which would make no finding of fact and draw no conclusions about this evidence, contravened his right to fair procedure.
The judge also argued that he should not be compelled to give evidence to this committee, on the grounds that this interfered with his judicial independence, that documents such as financial records should not have to be produced and that he should not be asked for his computer. The Supreme Court rejected all these arguments.
Most attention, however, was devoted to teasing out whether the Constitution allowed the Oireachtas to set up a committee to examine the conduct of a judge, and whether the specific committee established here was constitutional.
The court found that there was nothing in Article 35.4.1 to prevent the Oireachtas from setting up such a committee. On the contrary, such a committee was necessary. "Having regard to the potentially complex nature of any allegation of misbehaviour, it is obvious that any House of any parliament charged with the performance of this constitutional function will need to use a committee to gather evidence," it said.
This provides a clear marker for any future instance where the Oireachtas may be asked to remove a judge for "stated misbehaviour or incapacity".
Judge Curtin's lawyers also strongly criticised the limited powers of the committee. It would not be able to decide on conflicts of evidence, if any. It would not come to any conclusion concerning "stated misbehaviour". The members of the Oireachtas would therefore be faced with bundles of "undigested" evidence and then asked to vote on the judge's removal, without him being able to call evidence to rebut the allegations contained in the evidence.
The essence of this argument was the judge would be deprived of an opportunity to defend himself against allegations before the tribunal that would decide on his fate, that is, the Oireachtas.
The court disagreed with this interpretation of the proposed proceedings. "There is nothing in the Standing Orders to prevent the Houses hearing evidence, however unprecedented that course of action might be," it said.
The court did concede that it might have been preferable for the committee to have more power. It stated that a committee that had the power to hear evidence, rule on admissibility, resolve conflicts of evidence and report its findings to the Houses would have had obvious advantages.
"In the opinion of the court it would have been open to the Houses to have chosen such a committee, but they have not done so," it said. It pointed out that this committee was different from the Abbeylara committee (on the killing of John Carthy by gardaí), later ruled unconstitutional, because the Constitution granted the Oireachtas special powers in relation to judges.
Despite this caveat, the court found that the Oireachtas had every right to set up the kind of committee it chose, and that its powers need not be as restricted as Judge Curtin's team had argued.
It outlined a procedure that the committee might follow: organise the evidence into a manageable form; prepare indices and summaries; divide the material into chapters; point out issues or conflicts of evidence.
Judge Curtin had argued strongly that there should first be a finding of "stated misbehaviour" before any resolution was put seeking his removal from office. The procedure envisaged did not allow for such a separate finding, he said.
The court took this issue seriously. While acknowledging that it was open to the Oireachtas to adopt any method of voting it liked, it added: "This is quite an exceptional case in very many respects," and went on to offer its guidance to the Oireachtas.
"It is the opinion of the court that, as a matter of basic fairness, the Appellant should be entitled to a distinct hearing and decision on the issues of fact before he must confront the ultimate and drastic decision to remove him from office," it stated.
It went on to say that it was not spelling out how this might be done. There would be no need to break down the allegations into several different components, and they could all be presented in a single proposition. However, some finding relating to "stated misbehaviour" would have to be made before a resolution seeking Judge Curtin's removal can be put, it said.
The Government will be studying this judgment carefully, along with Mr Justice Thomas Smyth's High Court judgment, before finalising its long-awaited Bill on a Judicial Council.
This Bill is based on a number of reports, including a five-year-old report from the former chief justice, Mr Justice Ronan Keane, and includes provisions for the judiciary to establish its own ethics committee with lay participation, which will be able to refer a serious allegation against a judge to the Oireachtas. The Supreme Court has made it clear that the Oireachtas can then set up a committee to investigate allegations of serious misbehaviour.