Legal attempts to oust Brian Curtin are going nowhere fast, argues Carol Coulter, Legal Affairs Correspondent.
Last week, the joint Oireachtas committee set up to inquire into the conduct of Judge Brian Curtin ordered his doctors to produce his medical records. This followed lawyers for the judge telling the committee that he was not well enough to give them instructions.
They produced psychiatric evidence to this effect, and said he was unlikely to be in a position to give such instructions for at least three months.
It is easy to believe that the judge is indeed suffering from depression, and in a less than perfect mental state. Not only has he gone through a protracted legal process arising out of the charges of possessing child pornography first made three years ago, albeit ending in a technical acquittal, but he faces a future of possible unemployment and penury and has endured unprecedented demonisation at the hands of sections of the media.
The next step is for the committee to seek evidence from his doctors and examine his medical records, and decide if he is well enough to instruct his lawyers and appear before it with his computer and the disks at the centre of the allegations.
However, it is quite possible that the doctors will decline to hand over the medical records on the basis that they are covered by doctor-patient confidentiality, and that they do not have the patient's consent to disclose them. If Judge Curtin is not in a mental condition to instruct his lawyers, is he mentally competent to give consent to the disclosure of his medical records? It is very possible that his lawyers will argue he is not, though the committee has the legal powers to order the records, which it has already invoked.
The committee could then take legal action to have the courts decide that the records should be handed over. Any decision made by the High Court could be appealed to the Supreme Court. Even if all those proceedings resulted in an examination of the medical records, such an examination in itself could produce the conclusion that Judge Curtin was indeed unable to instruct his lawyers and give evidence to the committee.
It seems fairly obvious that if he is so mentally incapacitated that he is unable to instruct lawyers concerning evidence to an Oireachtas committee, he is hardly in a position to sit on the bench and hand down reasoned judgments.
This would open up the question of fresh impeachment proceedings, based on incapacity, rather than stated misbehaviour, contemplated as a possible outcome of the present investigation by the Joint Oireachtas Committee.
Such a course is provided for in the Constitution, which states in Article 35.4.1: "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."
There is no obligation on the Government to offer a financial settlement to any judge removed from office for incapacity, but in normal circumstances it would be seen as the humane thing to do.
There is considerable nervousness in Government circles about showing any leniency to Judge Curtin, especially in the run-up to an election. Following the debacle around the Hugh O'Flaherty affair - his resignation from the Supreme Court was followed by an offer of a plum job in Europe, which he eventually declined after a storm of protest.
No Minister wants it said that the Government looks after its judicial pals. But that is a poor excuse for not confronting the very real problems that surround the whole Curtin affair. The man was charged with a serious criminal offence. Because of the actions of agencies of the State, he was acquitted on a technicality rather than on a testing of the evidence against him. Nevertheless, the State failed to prove its case, and he remains a legally innocent man, albeit one tainted by grave scandal.
There is a lot of evidence that he suffers from ill health. Such evidence was given to Tralee District Court during one of the many adjournments of the case, and was also given to the Oireachtas committee.The fact that he was arrested on suspicion of drink-driving shortly after his acquittal casts further doubt on his judgment. There are questions to be answered by the Government about his appointment to the bench in the first place.
Now we are all being drawn into a vortex of legal and procedural wrangling in preparation for a possible impeachment process, with no end in sight. This throws up issues relating to the independence of the judiciary that could have the gravest consequences.
Despite some initial public posturing to the contrary, Judge Curtin's lawyers have made no secret of the fact that he does not really expect to return to the bench and wants a deal which will enable him to live out his life on some kind of pension. It is far from clear what public interest is being served by the enormously expensive, time-consuming and potentially dangerous process now in train. It may well ending up costing more in legal fees than a settlement would.
The time has come for the Government to muster up the political courage to call an end to it, pay the judge a modest pension and then turn to the real issue - legislating to provide a proper framework for dealing with judicial misconduct.