Dáil Éireann díospóireacht -
Thursday, 3 Jun 2004

Vol. 587 No. 1

Appointment of Select Committee: Motion.

Minister of State at the Department of the Taoiseach (Ms Hanafin)

I move:

That Dáil Éireann, pursuant to Standing Order 63A:

1. Noting the information provided to the House by 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, County 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,

2. Noting the contents of all of the correspondence between the Secretary General to the Government, Judge Curtin and his solicitors, commencing with the letter from the former dated 27 April 2004, and in particular the statement by Judge Curtin's solicitors in their letter of 13 May 2004 that, should the Oireachtas see good to make requirements of Judge Curtin, in due course, Judge Curtin will respond to that body appropriately,

3. Noting in particular the letter of 21 May 2004 from Judge Curtin's solicitors to An Taoiseach, the response to that letter of 25 May 2004, the letter of 31 May 2004 from Judge Curtin's solicitors to the Secretary General to the Government, and a letter of the same date containing submissions on behalf of Judge Curtin,

4. Considering the exceptional circumstances thus arising, having regard to the need for the public to have complete confidence in the Judiciary and in the integrity of the administration of justice, conscious of the fact that the said matters do not relate to any exercise of a judicial function by Judge Curtin, and mindful of the status and importance of the principle of judicial independence,

5. Noting the proposal by the Minister for Justice, Equality and Law Reform that this House, 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, but that this motion has been adjourned pending the conclusion of the investigative process herein described,

6. Conscious of the responsibility and duty of the Houses, prior to the Members of the Oireachtas forming a judgment as to whether they wish to vote in favour of or against such a motion, to cause an investigation to take place into the said matters so as to gather and ascertain the facts of and evidence relating to same, and to provide the opportunity to Judge Curtin to state and present his case to the said Houses,

7. Mindful of Judge Curtin's entitlement to due process and fair procedures and noting that this House shall accord fair procedures and due process to Judge Curtin and in particular an opportunity to advance evidence to the select committee herein established and make such submissions as he considers appropriate to that select committee and thereafter to this House and moreover shall provide for the exercise of all rights conferred on him by law to defend and protect his right to his position, his good name and any other right or entitlement enjoyed by him at law,

8. Resolves that:

(I) It is expedient that a select committee of Dáil Éireann be appointed, pursuant to Standing Order 63A(2) of the Standing Orders Relative to Public Business, to be joined with a select committee to be appointed by Seanad Éireann, on a matter pursuant to Article 35.4 of the Constitution and section 39 of the Courts of Justice Act 1924 (to be referred to as the ‘Committee on Article 35.4.1° of the Constitution and section 39 of the Courts of Justice Act 1924');

(II) The committee shall take evidence on:

(a) the circumstances and matters referred to in paragraph 1 (a) to (f) above;

(b) any other matters which may arise in the course of the work of the committee which are related to the matters referred to in sub-paragraph (a) above, and which may relate to Judge Curtin’s suitability to hold judicial office;

(c) any other matters related to the matters referred to in sub-paragraph (a) above which may be referred to it by resolution of Dáil Éireann and which may relate to Judge Curtin’s suitability to hold judicial office;

(III) The select committee shall consist of four members provided that, if one member shall become unable to participate because of death or illness, the committee may continue its proceedings with a membership of no less than three members. Provided further that any such member who becomes unable to participate due to illness shall forthwith cease to be a member of the committee;

(IV) Without prejudice to the generality of paragraph (5) of Standing Order 63A:

(i) the committee shall in particular afford the judge in question (and, where appropriate, his legal representatives) an opportunity to state his case; to cross-examine any witnesses called by the committee and to lead such evidence as he may think appropriate; and

(ii) the report of the committee to be circulated by the Clerk of the Dáil pursuant to paragraph (8) of that Standing Order shall include a report of the committee's proceedings together with appropriate transcripts in written or electronic form and associated audio-visual material also furnished by the committee pursuant to that Standing Order.

(V) The committee shall have the following powers:

(i) Power to accept written submissions to the extent that such written submissions are necessary for the conveyance of evidence or information essential to the core purpose of the committee;

(ii) Power to engage the services of persons with specialist or technical knowledge to assist it in discharging its function;

(iii) Power to retain the services, should it think fit, of one or more legal advisers whose task it shall be to advise and assist the committee;

(iv) Power to undertake travel necessary to the discharge of its functions;

(v) Power to send for persons, papers and records.

As the House is aware, the Minister for Justice, Equality and Law Reform yesterday proposed a motion calling 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.

In the course of proposing that motion, the Minister made the House aware of certain information. This motion sets out information arising from the Minister's speech.

Subsequent to Judge Curtin's acquittal, the Government wrote to Judge Curtin on 27 April 2004, seeking an explanation from him of the circumstances surrounding his case. This was an entirely appropriate thing to do. The judge was, thereby, given an opportunity to provide an explanation of these circumstances.

Unfortunately, Judge Curtin chose not to avail of this opportunity. This is clear from correspondence that has occurred between the judge's legal representative and the Taoiseach, the Secretary General to the Government and the Ceann Comhairle, which correspondence has been brought to the attention of the House.

Of particular significance is a letter of 13 May 2004, in which Judge Curtin's solicitors informed the Secretary General to the Government that Judge Curtin had instructed them to inform the Government that:

It would not be constitutionally appropriate for him to answer questions asked by or on behalf of the Government or to render any explanation to the Government in circumstances where the Government is clearly contemplating a process designed to remove him from office. Should the Oireachtas, the organ of State mandated by the Constitution with the oversight of judicial conduct, see good to make requirements of our client in due course, Judge Curtin will respond to that body appropriately.

Given the situation as it has developed the Oireachtas must now deal with this matter. It is a matter in which we have a duty and responsibility to become involved, particularly in light of the need for the public to have complete confidence in the Judiciary and in the integrity of the administration of justice. These are exceptional circumstances, involving matters of substantial public concern which cannot be ignored.

Before deciding on whether to vote in favour of or against the motion which has been proposed by the Minister, this House has a duty to gather all the relevant evidence in a manner which accords fair procedures to Judge Curtin. Today, we propose to establish a committee for that purpose.

In order to facilitate this process and to provide for other matters which arise in connection with Article 35.4 of the Constitution, the House yesterday adopted a new Standing Order 63A. This Standing Order, at subsection (2), empowers the Dáil to appoint a select committee:

to take evidence in respect of the aforesaid Article 35.4.1° motion provided that the Select Committee shall make no findings of fact nor make any representations in respect of same or express any opinions in respect of same.

The Standing Order goes on to lay out a series of procedures which ensure that persons on the subject of a motion pursuant to Article 35.4.1° will be treated in accordance with fair procedures, both at the select committee and before the House.

I propose the appointment of such a select committee because I believe the resolution proposed in respect of Judge Curtin is a matter in which a motion under subsection (2) of the new Standing Order is appropriate. This follows from the fact that the House is aware of certain information regarding Judge Curtin but is not in possession of all relevant information. A select committee, as here proposed, can gather in the evidence in a manner which will allow the whole House to make the appropriate decisions on the full facts of this matter and the course which is then to be followed.

I ask the House to adopt this proposal in the knowledge that Judge Curtin, by way of a solicitor's letter of 21 May 2004, has strongly asserted that he "has not been involved in impropriety of the type alleged against him". In view of this assertion, the House ought to proceed within the context of the safeguards and protections afforded to a subject of an Article 35.4.1° motion by Standing Order 63A. At 1 p.m. today, I intend to move a motion establishing the committee, subject to confirmation by Seanad Éireann of its concurrence with the establishment of a similar select committee in that House. At the same time I shall move a motion appointing Members of Dáil Éireann to the committee.

I commend this motion to the House.

Mr. J. O’Keeffe

I am prepared to agree to this motion. Despite the fact that Article 35 of the Constitution does not spell it out in express terms, it is clearly implicit in the Article that we are entitled to regulate our procedures leading to the possible decision on an Article 35 resolution. The question is how this is best to be done. Unfortunately, five years after the Sheedy affair we do not have a structure in place. As a result, Members of the Oireachtas must take the Government at face value and accept in good faith the processes and procedures proposed by Government. The expediency motion before the House is part of the process proposed by the Government for dealing with the current controversy involving Judge Curtin.

The twin pillars of Fine Gael's approach to this matter are that we must ensure there is confidence in the Judiciary and fair process for Judge Curtin. There are three major aspects to this issue about which there will continue to be major debate. First, whether or not legislation should have been enacted to cover the entire evidence gathering process prescribed under Article 35. The Government decided to follow a different route and the matter is now being dealt with under Standing Orders. This is yet another issue on which we have to take at face value the advices from Government that this is the correct approach in the circumstances. Another route could have been followed. We could have introduced comprehensive legislation to deal with this issue, which legislation, if doubts arose about its constitutionality could have been referred to the Supreme Court by the President.

The second issue which will continue to exercise minds and cause considerable debate is the admissibility of the evidence obtained under the out-of-date warrant. The Minister for Justice, Equality and Law Reform, Deputy McDowell, when speaking to the House yesterday was clear in his views on that matter. However, the fact that it is the Minister's view expressed in his normal trenchant terms does not ensure that view will be upheld if challenged, as I expect it will be.

The third issue is the correctness of the compellability approach prescribed by the amending emergency legislation brought before the Houses by Government last week in terms of whether the process prescribed therein will stand up to scrutiny in the Supreme Court or, possibly, the Court of Human Rights in Strasbourg. To a large extent we, as Members of the Oireachtas, must accept in good faith that the rushed process put in place by Government will stand up to judicial scrutiny. We are now aware proceedings have been issued on behalf of Judge Curtin against the Government and the State agencies including, the Garda Commissioner, the DPP and the Attorney General. In that regard, the issues I mentioned earlier may shortly become clearer.

As these issues arise as a result of acts or omissions on the part of Government or the State agencies mentioned, it is right that the Government, rather than the Oireachtas, should be the party which defends the process and procedures before the courts and ensures they are adjudicated upon in another place. That then gives rise to the question of what role the proposed committee will have in the weeks and months ahead. It is proposed that the committee will hold its first meeting on Tuesday, 15 June. I expect the position will become clearer in the meantime.

One other issue also arises. I raise it in the context of our discussions on the Bills before the House last week. There is a great deal of legal advice available. It would be helpful to the Oireachtas if such advice was made available to it, the Attorney General, the Ceann Comhairle and Members of the Oireachtas generally, in particular those who may be chosen to serve on the proposed committee. I raised that issue in the course of our debate last week but it was not dealt with by the Government side. The matter was raised again this morning but the Minister dealt with it by quoting the advice of the Attorney General. I am speaking of the written advices available to the Attorney General given the issues which no doubt will have been teased out therein which would be of great assistance to Members of the Oireachtas and, in particular, those who will called upon to serve on the committee to be established today by the Oireachtas.

Members of the Fine Gael party, and I am sure all other Members of the Oireachtas, have been and continue to be available to discharge their obligations and responsibilities under Article 35 of the Constitution. We will try to do so in a just and fair manner as has always been our approach.

Mr. Costello

The Labour Party will also support the motion. In that regard, my remarks are by way of clarification in terms of ensuring we conform to all the procedures of due process and fair hearing and to ensure the motion and practice outlined are in accordance with that.

The Minister said yesterday the situation in which we find ourselves is unique and unprecedented. For some time now comments such as "we are moving into uncharted waters" have been used. This is a difficult situation with which to deal. Last week, the Oireachtas enacted various Bills including, the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) (Amendment) Bill 2004 which provides for compellability of a judge before a committee of the House andthe Child Trafficking and Pornography (Amendment) Bill 2004 which makes provision for members of that committee to view and have possession of material it would otherwise be illegal for them to view. Yesterday, we adopted a new Standing Order No. 63A and discussed a motion tabled from the Minister for Justice, Equality and Law Reform, Deputy McDowell, which called for the removal from office of Judge Brian Curtin. Today, we are dealing with a motion establishing membership of the proposed committee. The motion now before us is the nub of the issue for many Members.

We all wish there had been co-operation on all sides, that Judge Curtin had co-operated, that compellability powers had not been necessary and that this procedure had not been necessary given it is a novel procedure. The Oireachtas had to make up the procedures as it went along and have those procedures passed by both Houses. Deputy Jim O'Keeffe mentioned the Sheedy affair which he said should have been a warning to all of us that necessary procedures and structures to deal with matters which might arise should have been in place on a statutory basis. It was inevitable that some day an issue of alleged misbehaviour or misconduct might arise with regard to a member of the Judiciary.

It is extremely important that the procedures now being put in place are operated in a fair and impartial manner and that every opportunity is given to Judge Curtin to put his case and to get a proper hearing. We must be painstaking in that regard. I would like the position regarding the application of due process and fair procedures, in terms of statements made on this motion, to be spelled out to a greater degree. Such statements were made on the Abbeylara motion and, obviously, it was found wanting in terms of the challenge put to it. We know there are constitutional and statutory requirements regarding due process and fair procedures. We need greater clarification and elaboration to ensure all members of the committee are intimately acquainted with every nut and bolt in that respect.

The last letter received from Judge Curtin contested the entitlement of the Houses to establish a committee to conduct their business under the statute and the Constitution. I disagree with him on that point. It is the practice, tradition and right of this House to delegate to a committee the task of addressing any matter it considers appropriate, on a fact-finding basis. One should remember that there will be no adjudication made. It is quite right and proper that we go about our business in this fashion.

No citizen, not even a judge, can expect preferential treatment. Everybody is entitled to fair procedures and due process and the common mechanism that has been employed by the House in the past is the one we propose today. It is procedurally correct that it operate on a strictly fact-finding basis, and I fundamentally disagree with the contention to the contrary in Judge Curtin's last letter.

I note that the proceedings that have been issued are against the Government, the Director of Public Prosecutions, the Attorney General and the Garda Commissioner and that there are no proceedings against either of the Houses or the Houses of the Oireachtas Commission. Therefore, we are entitled to conduct our business in the manner presented to us today. I certainly believe we are going about it in a reasonable, procedurally correct fashion.

The question of inadmissibility of evidence, which is part and parcel of the challenge being made, does not have to be dealt with immediately. It is a matter for the committee and it may or may not be that it will request certain materials that have been alleged to have been collected unlawfully in the plenary summons by Judge Curtin. It will be up to the committee, on foot its legal advice in respect of paragraph 1(d) of the motion, to decide whether it should make such a request. The proceedings being taken do not present an impediment to our conducting our business in the format outlined.

Paragraph 1(f) of the motion states 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. It may very well be that the Director of Public Prosecutions and the Attorney General will be requested to come before the committee. I do not know if the Minister of State has any information on whether these agents are prepared to do so on a voluntary basis. We do not have compellability powers at present and therefore I hope they will attend voluntarily if required to do so. Will the Minister of State address this in her concluding remarks?

As long as we adhere to the key principle of painstakingly ensuring at all times that Judge Curtin is granted full facilities and a full opportunity to present his case to the committee and that he is given an absolutely fair hearing, I will be satisfied to go along with the procedures outlined.

Mr. Cuffe

As the previous speaker stated, we are in uncharted waters. As a member of the Opposition, I note that my party is not on the bridge but travelling in steerage where this issue is concerned. Later today, we will be brought up to the bridge to make a decision on it. We will be brought blinking from the hold and we will make as best and informed a decision as we can.

This issue represents a crisis in the balance between the Judiciary and the Legislature. We have often spoken about the need to depoliticise the appointment of the Judiciary and to have a strong system for the training, education, further education and reprimanding of the Judiciary. We hope this will be addressed by the Government as part of the wider process we have begun.

My party wishes the committee well in its deliberations although it has not been chosen to be part of it. We will consider very carefully any evidence the committee presents to the Oireachtas and we will make an informed decision on that basis.

Aengus Ó Snodaigh

Obviously, the problem we are facing today was foreseen when the Constitution was being formulated because it granted the Houses the powers they are now invoking. The problem is that the House has not legislated properly — it has not legislated at all.

I have no problem with the procedure as laid before us. I agree the House should have and has the powers under the Constitution to deal with matters such as this in a way that the Oireachtas sees fit, with due regard to due process and fair procedure. That balance has been achieved today.

I have one major problem with the motion before the House, although I will not oppose it. The select committee will consist of only four Members of this House. There are six parties in the House and a group of Independents, which group includes a number of Fianna Fáil exiles. The views and political stance of all Members of the House and all the people of this island will not be reflected fully on the committee. There is a tradition in the House to the effect that, when new committees are being formed, they should be established on an all-party basis in so far as this is possible.

I understand the Seanad will have three Members on the committee, although I cannot pre-empt the decision. Therefore, the committee will have seven members overall. This number would normally be sufficient to deal with most issues, but most joint committees have more than seven members and a jury has 12 members. There is no reason we could not have seven Members of the Dáil on the committee, reflecting the views of all the groupings in the House, and perhaps five Members of the Seanad. This would result in the magical number of 12.

An odd number of committee members is not required because the committee will not make decisions. We already have committees with 11 members and juries throughout the island have 12 members, and such a number would not be cumbersome in this case. Furthermore, the committee will not be subject to the Whips. We will not send people in with a party line. The members of the committee from this House will have to consider the material put in front of them, take legal advice, listen to what Judge Curtin has to say, if he turns up, and then report to the House, just as the members from the Seanad will have to present the exact same report to that House, in order that the Houses can make decisions. Decisions will not be made by the committee and therefore there is no reason it should have a Government majority or the smaller parties in the House have not been afforded the opportunity to have some representative on it who could, after the report is presented, help with the deliberations and explain issues that emerge in the report.

Three parties or groups here will be left with one representative between them and another party within this House will be dependent on a Senator to represent it after the report has been presented. Once the committee starts its proceedings I hope and presume there will be no reporting of its discussions until the proceedings are complete.

I wish the committee well and I hope that even at this late stage the Minister of State will accept what I have said and change the number to seven to allow for all strands of political opinion to be represented on the committee and allow it to do its work in the fullest possible way.

Minister of State at the Department of the Taoiseach (Ms Hanafin)

I thank all Deputies who have spoken for their co-operation in this matter. It is true that we have a constitutional responsibility and up to now we have not outlined the procedures to enable us to fulfil that constitutional duty. However, with the co-operation of all Members of the House both last week and this week, we have now put in place a very comprehensive set of procedures that will enable us to address this very serious matter in a measured and responsible way.

These procedures involved changing our Standing Orders yesterday to enable us to establish the procedures we are now adopting, the Minister for Justice, Equality and Law Reform yesterday placing on the Order Paper and moving a motion calling for the removal of Judge Brian Curtin from office for stated misbehaviour, and today the establishment of a select committee to take evidence on that motion. By that committee receiving, recording and reporting back to the House on that evidence, we will ensure that every Member of this House will be able to make a judgment and determine whether to proceed with a vote on the motion as moved yesterday by the Minister for Justice, Equality and Law Reform.

The committee as outlined in Standing Orders has been given very comprehensive terms of responsibility and orders. It must, of course, ensure that it follows due process and fair procedure. It is specifically outlined that: "the committee shall in particular afford the judge in question (and, where appropriate, his legal representatives) an opportunity to state his case; to cross-examine any witnesses called by the committee and to lead such evidence as he may think appropriate". The committee will also have its own legal advisers, which will ensure it is able to act on its own best legal advice on the issues that have been raised by the Deputies, particularly concerning admissibility and compellability.

I believe it is very fair to have four members of the committee. In deciding to have four members, the Government chose to depart from the usual method for allocating members to committees. Contrary to language that has just been used here, the committee will not be a jury and its function is not to undertake a trial. The committee will exist to receive information and evidence, to record it and to report back to this House. To ensure this is done in a non-partisan, non-political way we have proposed that the Government parties, despite having more than 50% of the representation of this House, would have just one member, that the Labour Party, Fine Gael and the Technical Group — which comprises practically all other Members of this House — would each also have one member, which is very fair.

It is obviously important that the committee be small to enable it to carry out its work efficiently. The terms as they apply to the membership of the committee and their attendance at the committee are very tight to ensure absolutely fair procedures and that everybody in question is afforded full justice in accordance with the Standing Orders and the terms of reference of the committee.

It is the intention as is known from the expediency motion, to join with the select committee from the Seanad. Even within the joint committee of seven the Government will not have a majority, which is very unusual for committees of these Houses. However, this is no longer a matter for the Government but for the Houses of the Oireachtas taking our role under Article 35.4.1° very seriously. In light of the motion moved yesterday by the Minister for Justice, Equality and Law Reform we will now undertake to inform ourselves of all the necessary information before we, as individual Members of the Dáil, make a decision on whether to proceed to call for the removal of Judge Brian Curtin from office.

I again thank the Opposition for its co-operation in this matter.

Question put and agreed to.