Minister for Justice Helen McEntee has said she is considering the options open to the Government and the Oireachtas following the conviction of Circuit Court judge Gerard O’Brien for sexual assault.
O’Brien was found guilty of six counts of the sexually assault of young men in the 1990s at a time when he was a teacher in a secondary school in Dublin.
The complainants were aged between 17 and 24 and O’Brien was in his 30s at the time of the offences. Four of the victims were students or former students at the time of the assaults.
After a jury at the Central Criminal Court found O’Brien guilty, Mr Justice Alexander Owens adjourned the case for sentencing to March 4th next, with O’Brien being granted continuing bail.
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Ms McEntee, in a statement, said she noted that a criminal conviction had been secured in the case and her thoughts were with the victims.
The case showed that “nobody, no matter what position they hold in our society, is above the law or immune from prosecution for such crimes,” she said.
“I will now be considering the options open to the Government and the Oireachtas,” she said. “I have asked the Attorney General to advise.”
The Constitution sets out the procedure for removing a judge from office, stating that a “judge of the Supreme Court, Court of Appeal 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 provision also pertains to judges of the Circuit Court and District Court, according to the website of the Association of Judges of Ireland.
“To date no judge has ever been removed and the phrase in Article 35.4.1 referring to ‘stated misbehaviour or incapacity’ has never had to be judicially interpreted,” according to the website.
If resolutions are passed by both Houses of the Oireachtas for the removal of a judge, the fact is confirmed to the President by the Taoiseach, and the President then “forthwith” issues an order removing the judge from his or her position, according to the Constitution.
O’Brien, with an address at Old School House, Slievenamon Road, Thurles, Co Tipperary, had pleaded not guilty to one count of attempted anal rape and eight counts of sexual assault in relation to the six complainants on dates between March 1991 and November 1997 at locations in Co Dublin.
On Friday, a jury of six men and four women convicted him on all counts.
Mr Justice Owens said he would read victim-impact reports in advance of sentencing and also would obtain a report from the probation and welfare services.
Ann-Marie Lawlor SC, prosecuting, said there had been total and full compliance with bail conditions to date.
Mr Justice Owens said that given the special circumstances of O’Brien he would not remand him in custody at this stage. Normally, a person in such circumstances would go straight to jail but there are special circumstances here, he said.
The Judicial Council Act 2019, which established the Judicial Council, defines judicial misconduct as conduct that constitutes “a departure from acknowledged standards of judicial conduct” and “brings the administration of justice into disrepute”.
However the procedure for the “nuclear option” of removing a judge from office is still the one set out in the Constitution, according to Laura Cahillane, associate professor in the School of Law, University of Limerick.
In relation to a judge convicted of sexual assault, “you would expect that they would resign before it comes to [a joint resolution of the Houses of the Oireachtas],” she said. “You would imagine they would want to resign and save themselves and everyone else the hassle.”
A motion for the impeachment of Circuit Court judge Brian Curtin was launched in the Dáil in 2004 by the then minister for justice, Michael McDowell. When Curtin resigned in 2006 on grounds of ill health, the motion lapsed.
A Garda search had allegedly found pornographic images of children on a laptop owned by Mr Curtin when it searched his home, leading to charges being brought against him in January 2003. However it was successfully argued in the subsequent trial that the search had been illegal, as the warrant used had been one day outside its seven-day time limit.
Because he had served more than five years as a judge by the time of his resignation on health grounds, Mr Curtin was entitled to his judge’s pension. He had been suspended from hearing cases after he was charged in early 2003, but remained on the payroll.
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