Circuit Court judge Brian Curtin yesterday lost his High Court challenge to the mechanism set up by the Houses of the Oireachtas to investigate and gather evidence into his alleged misbehaviour.
The decision was given in a reserved judgment delivered by Mr Justice Thomas Smyth, who took more than 4½ hours to read. In his 216-page judgment, Mr Justice Smyth said Judge Curtin was the first sitting judge in the history of the State to be charged and tried on indictment.
At no stage in the process up to and including April 23rd, 2004, had he personally recorded his response to the substantive matters giving rise to that charge.
It was against that background that - as the correspondence made clear - the Government considered that the circumstances which had presented themselves gave rise to grounds for disquiet, were of importance to the processes within the State for the administration of justice and public confidence therein, and were such as to justify and require the seeking of an explanation from Judge Curtin in respect of those matters.
The High Court decision may be appealed, but lawyers for the Co Kerry-based Circuit Court judge would not say immediately after the judgment whether they would do so. The case has been put back until next week to allow time for lawyers to consider the decision and raise any issues that may arise.
It had been submitted on behalf of Judge Curtin that the procedures adopted by the Houses of the Oireachtas failed completely to provide any mechanism by which facts could be found which might constitute stated misbeahviour.
The case was the first of its kind where the High Court was asked to decide the meaning of Article 35 of the Constitution, which deals with the appointment and removal of judges from office.
Judge Curtin was not present in Court No 11 as judgment was given on his challenge to the legality of the measures passed in the Dáil and Seanad for the purpose of inquiring into his conduct.
In the judicial review proceedings before the High Court, Judge Curtin had claimed that it was not open to the Oireachtas to seek to remove him from office under Article 35 and he applied for a declaration that the standing orders of the Dáil and the Seanad in setting up a select committee in June 2004 to inquire into his conduct were unlawful, unconstitutional and of no legal effect.
He also sought to quash the select committee's decision ordering him to produce his personal computer and its hard drive, which was seized by gardaí.
Mr Justice Smyth refused the various reliefs sought.
He said he was satisfied and found as a fact and as a matter of law that the Article 35.4 motion and the amendment of standing orders in both Houses and the amending legislation passed and put in place to deal with the situation which, in the Houses' considered view was necessary for the protection of public confidence in the judiciary and the justice system in the State, were within the terms of the Constitution and the powers of the Houses.
They were neither designed to be, nor were they, an attack on the independence of the judiciary.
The procedural machinery, ie the setting up of the committee with strict obligations to adhere to constitutional justice and fair procedures and to refrain from finding facts, expressing opinions and making recommendations, was a permissible method whereby evidence may be gathered and received for the decision-making body, the Houses of the Oireachtas.
Mr Justice Smyth said he was also satisfied and found as a fact and as a matter of law that the committee had acted within its power or remit.
He added: "The natural tensions between the legal and political powers in the State, in the context of the propriety of leaving the determination of the removal of a judge for stated misbehaviour to the elected representatives of the people, were articulated with great force on behalf of Judge Curtin." He said the answer to the entitlement was in the wording of Article 35.4 of the Constitution itself.
Amenability to the provisions of the Constitution and the law was no less applicable to judges than to ordinary citizens, said Mr Justice Smyth.
In April 2004 Judge Curtin was acquitted, by direction of a judge at Tralee Circuit Court, of a charge of possessing child pornography. The acquittal came when it emerged that a warrant under which Judge Curtin's computer was seized was out of date.
The select committee of members and the Dáil and Seanad later ordered the judge to hand over his computer and other materials held by gardaí to the committee.
In the judicial review proceedings, it was submitted on behalf of Judge Curtin that effectively he was being ordered to produce material he did not have, to answer against himself and to effectively "hang himself". It was also argued that the enormity of what was being suggested by the State defendants was repugnant - that a judge might simply be removed by a resolution and by undetermined testimony.
Some time after the court proceedings the Government - which opposed the High Court application - proposed procedures for dealing with the matter and indicated it would introduce two Bills in May 2004.