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Dáil Éireann debate -
Wednesday, 2 Jun 2004

Vol. 586 No. 6

Removal of Judge from Office: Motion.

Regarding Item No. 14(b), motion re Article 35.4 of the Constitution, I advise the House that I have exercised my discretion under Standing Order No. 29 to permit this motion to be taken on shorter notice.

I move:

That Dáil Éireann, pursuant to Standing Order 63A,

1. Noting the following information from the Minister for Justice, Equality and Law Reform:

(a) that the Garda Síochána in August 2001, on receipt of information from Interpol obtained by the United States Postal Inspection Service during a search of premises in Fort Worth, Texas, concerning details of alleged customers of a company offering access to child pornography websites, commenced an operation in relation to persons allegedly so identified from this jurisdiction,

(b) that these details included the names, passwords and credit card and charge card details of certain persons,

(c) that one of the persons from this jurisdiction so named was a Brian Curtin, 35 Ashe Street, Tralee, County Kerry, and that subsequent inquiries indicated that this person was Brian Curtin, Judge of the Circuit Court, with a home address of 24 Ard na Lí, Tralee, Co Kerry,

(d) that a warrant to search Judge Curtin's home under section 7 of the Child Trafficking and Pornography Act 1998 issued from the District Court on foot of an application by a member of the Garda Síochána on 20 May 2002,

(e) that Judge Curtin's home was subsequently searched on foot of the said warrant and that gardaí took possession of a personal computer and other material during the search,

(f) that an investigation file was submitted to the Director of Public Prosecutions by the Garda authorities in October 2002 and that the Director of Public Prosecutions instructed that Judge Curtin be prosecuted for knowingly having in his possession child pornography contrary to section 6 of the Child Trafficking and Pornography Act 1998,

(g) that the trial of the said charge commenced on 20 April 2004 at Tralee Circuit Court and that on 23 April 2004 Judge Curtin was found not guilty of that charge without evidence being given in relation to the subject matter of the charge, the Circuit Criminal Court having determined that the aforesaid warrant was spent when executed at the home of Judge Curtin, and:

2. Calls for the removal, pursuant to Article 35.4 of the Constitution and section 39 of the Courts of Justice Act 1924, of His Honour Judge Brian Curtin, Judge of the Circuit Court, from office for stated misbehaviour, being his conduct in and in relation to subscribing to, accessing and use of websites containing child pornographic images and thereby rendering himself unsuitable to exercise the office of a Judge of the Circuit Court.

The motion in my name is unprecedented in the history of Dáil Éireann and this is the first time a resolution calling for the removal of a member of the Judiciary has been moved under Article 35.4 of the Constitution or pursuant to statute.

The House will appreciate that in moving this motion, without precedent in this jurisdiction, I am deeply conscious of the underlying obligation which binds all of the organs of State established by the people under the Constitution to act fairly and in accordance with the terms of that Constitution. For this reason, I am heavily constrained, in the interests of fairness, as to what factual material I can appropriately lay before the House today.

The House has adopted a Standing Order (SO 63A) this day to provide for a framework in which resolutions under Article 35.4 can be dealt with. That Standing Order envisages that a motion under Article 35.4 and pursuant to section 39 of the Courts of Justice Act, 1924 or section 20 of the Courts of Justice (District Court) Act, 1946 can be moved and can be either rejected or that the debate on it can be adjourned in order to enable a select committee to be established to examine the matter further. It is my present intention accordingly, having proposed the motion, to move the adjournment of further discussion on that motion so that the procedures envisaged by Standing Order 63A can be followed.

I should say at the outset that the Constitution vests in both Houses of the Oireachtas a power to entertain and pass resolutions calling for the removal of a judge for stated misbehaviour or for stated incapacity. That power does not amount to the administration of criminal or civil justice and it is also to be distinguished from the process of impeachment set out in Article 12.10 of the Constitution which relates to the President. The presidential impeachment process under Article 12.10 consists of an elaborate procedure requiring 30 Members of one House of the Oireachtas to propose impeachment and such proposal requires the support of not fewer than two thirds of the total membership of the House in which the proposal is originally made. The impeachment charge is required to be investigated by the other House of the Oireachtas and requires that the other House may remove the President from office if at least two thirds of its total membership support a resolution declaring that the charge against the President has been sustained. In Article 35.4, by contrast, the term "impeachment" is not used and each House must come to a separate conclusion on a resolution before calling for the removal of the judge, which can be passed by a bare majority of the Members of that House who attend and vote.

Each House of the Oireachtas is vested with a separate power of making its own rules and Standing Orders under Article 15 of the Constitution. The power vested in each House to consider and pass removal motions in the case of the Judiciary is, as I mentioned earlier, not an instance of the administration of civil or criminal justice but, on the contrary, a distinct constitutional function vested in the Houses of the Oireachtas, which is sui generis. It is to the Houses of the Oireachtas that the people have entrusted the function of removing any judge who engages in stated misbehaviour or who is found to be subject to stated incapacity where, in the opinion of the Members of those Houses, such misbehaviour or incapacity warrants the removal of the judge from office.

Every judge appointed under our Constitution is required to make a declaration under Article 34.5 to uphold the Constitution and the laws. Every judge is likewise required to be independent in the exercise of the judicial function and to be subject only to the Constitution and the law. In a constitutional democracy such as ours which is, broadly speaking, in the common law tradition, the members of the Judiciary occupy a unique central position as independent arbiters and administrators of justice and are accorded great respect and dignity by the other institutions of the State because of their unique constitutional powers and functions.

Central to the relationship between the Judiciary and the people is a duty cast on every member of the Judiciary not to bring his or her status as a member of the Judiciary into disrepute or in any way to breach the constitutional expectation of the people that the judge's ability to uphold the law and to administer justice fairly and impartially would not be compromised. There is, accordingly, a correlative obligation on the Members of the Houses of the Oireachtas to be vigilant to ensure that the standard of behaviour and capacity necessary for the proper discharge of the judicial function is maintained and is not compromised or damaged, and, where it appears to the Members of either House of the Oireachtas that there are serious grounds to believe that there has been a departure from those standards, to inquire into the matter in the context of exercising the Houses' powers under Article 35.4 of the Constitution. Accordingly, it is not merely the entitlement of the Members of the Houses of the Oireachtas to fairly and dispassionately discharge their functions under Article 35.4 in appropriate cases, it is their manifest constitutional duty to do so. Failure to do so in certain circumstances could be deeply damaging to the whole constitutional order.

Obviously it is part of the mutual respect owed between the three arms of Government — legislative, executive and judicial — that the constitutional power and function of the Members of the Oireachtas under Article 35.4 should only be considered for exercise in cases where the facts appear to exceed a threshold of gravity which makes removal an appropriate option. There is no halfway house between a judge holding office and a judge ceasing to hold office under our law. It is not possible for the Houses of the Oireachtas, Government or the president of any court to permanently "retire" a judge while in office. As long as a person holds judicial office in accordance with the law, that person may not be side-lined or suspended from his or her judicial functions with indefinite effect.

In August 2001, members of the Garda Síochána were informed by Interpol that information had been obtained by the United States postal inspection service in the course of a search of premises in Fort Worth in Texas concerning details of alleged customers of a company which apparently offered access to websites on the Internet featuring child pornography. Since downloading and possession of child pornography is an offence under section 6 of the Child Trafficking and Pornography Act 1998, the Garda Síochána commenced an operation investigating whether persons from Ireland whose names appeared as having used the services of the Texas company were in knowing possession of child pornography in breach of the terms of the Act.

The offence in question is a serious offence carrying a maximum punishment of five years imprisonment on conviction on indictment. The information supplied to the Garda Síochána through Interpol by the United States postal inspection service included the names, individual passwords used for accessing the pornography website and credit card and charge card details of persons appearing to have a residence in Ireland.

One of the persons so named was a Brian Curtin with an address at 35 Ashe Street, Tralee, County Kerry. Subsequent inquiries made by the Garda Síochána indicated that the person in question appeared to be Brian Curtin, a judge of the Circuit Court, residing at 24 Ard na Lí, Tralee, County Kerry. Members of the Garda Síochána applied to the District Court under section 7 of the Child Trafficking and Pornography Act 1998 for a warrant to search Judge Curtin's home at 24 Ard na Lí, Tralee, County Kerry. This application was made on 20 May 2002 and Judge Curtin's home was subsequently searched in purported reliance on the warrant. Gardaí took possession of a personal computer and other written and documentary material which they found in the course of the search. An investigation file was submitted to the Director of Public Prosecutions in October 2002 and the Director of Public Prosecutions instructed that Judge Curtin be prosecuted for knowingly having in his possession child pornography on 27 May 2002, contrary to section 6 of the Child Tracking and Pornography Act 1998.

At a sitting of the District Court on 4 April 2003, that court declined summary jurisdiction on the finding by the court that the facts alleged constituted a most serious charge. Accordingly, the matter was dealt with on indictment in the Circuit Court at Tralee, County Kerry, in a trial which commenced on 20 April 2004 and which ended on 23 April 2004 on the basis that the warrant on which the gardaí searched Judge Curtin's house was spent on the day it was executed, namely, 27 May 2002. Due to the manner in which the trial proceeded, the decision of the Circuit Court on the validity of the warrant was dispositive of the case and the merits of the prosecution case and the defence were not entered into. Judge Curtin was acquitted of the criminal charge against him.

Because of the gravity of the charge against Judge Curtin and in the context of his acquittal on a legal ruling on the validity of a warrant on foot of which his home was searched, and in view of the fundamental importance of maintaining public trust and confidence in the integrity of those exercising the judicial power of the State, the Government considered it appropriate that it should, through its Secretary General, request Judge Curtin to provide it with a full and complete explanation of the circumstances giving rise to the search of his home and subsequent prosecution. The Government indicated to Judge Curtin that this explanation was being sought in the context of possible action being taken under Article 35.4 of the Constitution and pursuant to section 39 of the Courts of Justice Act 1924. For the sake of completeness, arrangements have been made for all the correspondence which was transacted between the solicitors acting for Judge Curtin and the Taoiseach, the Secretary to the Government and you, a Cheann Comhairle, to be placed in the Library for the information of Members of both Houses.

I think it appropriate that I should, however, put on the record of this House the first letter in that exchange of correspondence which reads as follows:

27 April 2004.

His Honour Judge Brian Curtin

Tralee

Co. Kerry.

Dear Judge Curtin,

I have been directed by the Government to write to you in the following terms.

As you are aware, on the afternoon of 20th May 2002, His Honour Judge Peter Smithwick, President of the District Court, issued a search warrant to search your residence. A search on foot of that warrant was carried out on the afternoon of 27th May 2002. That search has given rise to a judgement of His Honour Carroll Moran in the Circuit Criminal Court last Friday in which, as you are also aware, the Court determined that the warrant was spent when executed. In consequence, it was held that material seized pursuant to that warrant was inadmissible in criminal proceedings initiated against you alleging that on May 27 2002, you had in your possession child pornography contrary to the Child Trafficking and Pornography Act 1998. This resulted in your being found not guilty of that charge without evidence being given on behalf of the prosecution and, accordingly, without evidence being given by or on your behalf in relation to the matters, the subject matter of this charge.

The Government is deeply concerned by the circumstances giving rise to and surrounding these proceedings. The President of the District Court was on May 20 2002 evidently furnished by an Garda Síochána with information which enabled him to conclude that it was, in all the circumstances, appropriate that a warrant of the nature in question issue for the search of your home. The Director of Public Prosecutions subsequently initiated a prosecution against you alleging possession by you of child pornography. Counsel for the Director of Public Prosecutions has alleged in open Court that images found on your computer were those of children engaged in explicit sexual activity or depicting the genital or anal region of a child.

Apart from the position adopted by you at the trial regarding the validity of the search warrant, your detailed response to these matters and the allegations which gave rise to them, has never been recorded.

We have been fortunate that since its foundation, the State has enjoyed the service as Judges of men and women of stature and integrity, who have generated an overwhelming public confidence in the judiciary. That public confidence is critical to the effective operation of our Courts and thus of our constitutional system. Clearly, any circumstances which threaten to undermine that public confidence are of the greatest concern to the Government, and must be addressed immediately.

The situation which has now arisen generates, in the view of the Government, circumstances and concerns of a highly unusual and exceptional nature. You, as a sitting Judge, have been charged with a criminal offence. The most Senior Judge of the District Court determined that there was sufficient evidence tendered to him on May 20 2002, to justify granting a warrant to members of an Garda Síochána to search your home. That offence as charged and allegations underlying are extremely serious. Very serious allegations have been made against you in a Court of law by counsel for the Director of Public Prosecutions. You have been acquitted of that charge, but that acquittal occurred in a context where your defence to the underlying factual allegations has been neither recorded by you, nor tested or adjudicated upon.

The Government, I should observe, is acutely conscious of the importance of the principle of the independence of the Judiciary in the exercise of their judicial functions. Necessary corollaries of that principle are the importance, indeed necessity, of maintaining public confidence in the judiciary and, therefore, having an effective system for the removal of judges when necessitated. Because of the exceptional circumstances to which I have referred (which I should observe, do not relate in any way to the discharge by you of your Judicial Office), having regard to the critical importance of public confidence in the Judiciary and in the light of the legitimate concerns generated by the facts as I have outlined them above, the Government, having considered this matter this morning, has directed me to write to you seeking factual information and comments from you and thus your co-operation in furnishing such information and comments to the Government.

Specifically, I have been instructed to request that you record, in the first instance in writing, your precise response to the allegations made against you in and surrounding the criminal proceedings to which I have referred. You should feel free in that response to address any matters which you feel to be relevant to your position in relation to these matters.

Given the importance of the mutual respect due between the institutions of the State, and having regard to the critical importance of public confidence in the judiciary, the Government believes that it is entitled to expect a full and frank disclosure from you of the information and comments which are sought from you and to be apprised of the full circumstances surrounding the matters referred to.

Accordingly, it is expected that full and detailed factual responses will be given by you to this letter bearing in mind the considerations I have outlined above.

In respect of this request I would be grateful if you could respond, in writing, furnishing the explanations sought in this letter not later than 9.30 a.m. on Tuesday, 4th May 2004. These can be faxed to my office at fax number (01) 6766830 or forwarded by e-mail to me at dermot.mccarthy@taoiseach.gov.ie.

For the avoidance of any doubt, I should make clear the precise context in which this information is sought. The Courts of Justice Act 1924 and the provisions of Article 35(4) of the Constitution, enable the Houses of the Oireachtas to pass a resolution removing a Circuit Judge from Office for stated misbehaviour or incapacity. In the light of the matters referred to above, the members of the Government — who can propose a resolution to this effect — require to be apprised by you of the information and comments referred to here so that they can fairly consider a decision to initiate such a resolution on grounds of misbehaviour. I should also observe the belief of the Government that subscription to websites containing explicit sexual images of children, possession of images of the nature alleged here, and/or a failure to co-operate with the Government in its efforts to ascertain all circumstances relevant to these charges would furnish grounds for the proposal of such a resolution. The importance of a prompt and comprehensive response is, I hope, apparent.

Given the urgency of this matter I am arranging for this letter to be sent to you, by hand, and in addition a copy of it is being sent to the solicitor who acted for you in the course of the recent criminal proceedings.

I await your response to this request from the Government and I look forward to your co-operation with the Government in this regard.

Yours faithfully,

Dermot McCarthy, Secretary General to the Government.

Members of the House will also note that among the correspondence in the Oireachtas Library is a letter from the legal advisers to Judge Curtin to the Ceann Comhairle, which they asked to be made available to each Member of Dáil Éireann, in which they contended as follows:

Firstly, it appears to us that there is a absolutely no constitutional basis for the committee structure proposed by the Government.

Having considered this matter and taken advice in respect thereof, we submit that the proper constitutionally mandated process for the impeachment of our client must consist of full hearings before the Houses of the Oireachtas.

Further in our opinion Judge Curtin is entitled to a trial before both Houses of the Oireachtas as this constitutional function of both Houses of the Oireachtas cannot be delegated to any committee or any other body.

While I am reluctant at this point to appear to become involved in legal debate by proxy on the floor of this House, I believe that two points ought to be made about those contentions.

First, I believe and I am advised that the proposed process under the Standing Order is constitutional and does not amount, in any sense, to a "trial" by a committee or to a delegation of such a process to a committee. I would emphasise that the process envisaged by the Standing Order adopted today enables the joint committee to avail of the compellability powers regarding production of documents, records and evidence and will, accordingly, create a separate legitimate basis for the consideration of such material in no way circumscribed by the decision and outcome of the criminal proceedings against Judge Curtin. The decision on the exercise of compellability powers is one, of course, for the committee. Second, admissibility or relevance issues will be dealt with fairly and properly in due course.

The House should be aware that it was out of respect for the judicial arm of the State that the Government sought an explanation and afforded an opportunity to Judge Curtin and his legal advisers to furnish such an explanation in advance of the tabling of any resolution under Article 35.4 related to Judge Curtin. The House should also be aware from the correspondence that no such substantive explanation was given and that the legal advisers to Judge Curtin take and took the view that the only bodies to which such an explanation might appropriate be tendered was the Houses of the Oireachtas themselves. I wish the House to know, accordingly, that the Government took every step to avoid a resolution under Article 35.4 being tabled without affording as a matter of basic fairness an opportunity to Judge Curtin to give reasons such a step would be inappropriate or unwarranted.

As Minister for Justice, Equality and Law Reform, on the basis of material and information furnished to me, and in the absence of any substantive explanation indicating a basis for concluding at this stage at any rate that there was no stated misbehaviour, I regard it as my duty to place this matter before the Houses for the ultimate judgment of their Members.

In so doing, I am, as I mentioned earlier, conscious of the overriding need that the manner in which the matter should now be considered by each House of the Oireachtas should demonstrably conform with ordinary fairness and constitutional norms.

I stress that in moving this resolution I, like every other Member of the Houses of the Oireachtas, am obliged to keep an open mind as to whether the facts and information as known to me, and as will become known to the Members of the Houses by means of the processes for which provision has been made in Standing Orders, are established to our satisfaction, or are capable of explanation consistent with the absence of stated misbehaviour or are of such gravity as to justify in the last analysis the passing of this resolution by this House.

We should all be careful in what we say and do and, while not flinching from our constitutional function and duty in this matter, to say or do nothing which might be seen to incapacitate or compromise ourselves in any way in the discharge of that duty.

I want to make it clear that the tabling and proposing of this resolution is something which no holder of my office could ever have envisaged as a likely or probable part of the discharge of that office. If there were some approach open to me or to the Government other than the invocation of Article 35.4 of the Constitution which could reserve public confidence in the integrity of the judicial function, the House may rest assured that I and the Government would have given it every consideration. However, the House will see on careful examination of the correspondence furnished to it that no other course is reasonably open in the particular circumstances of this case and in the light of what has transpired.

I appeal to all Members of this House to approach this matter in a fair-minded, open-minded and non-partisan way. This issue is one without party-political or governmental-Opposition implication. The seriousness of the issue and the gravity of approach which it deserves should exclude from our proceedings on this motion any temptation to score points at each other's expense to the detriment of the objectivity of any ultimate decision we make on the motion.

The eyes of the people whom the Constitution serves are rightly focused on these Houses, and their expectation will be that we will deal with these issues in a manner which is effective, fair, devoid of self interest — political or personal — and which demonstrates that the Members of these Houses stand capable and willing to discharge the functions imposed on them by that Constitution.

In light of what I have said earlier and the procedure laid down by the House, I intend, unless Members offer, to propose that the debate be adjourned.

Is the Minister's proposal that the debate be adjourned agreed? Agreed.

Debate adjourned.
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