The Government is proceeding cautiously to impeach Judge Curtin, writes Carol Coulter
Next week the Government will propose the setting up of a joint committee of the Oireachtas, the Taoiseach told the Dáil yesterday.
It will hear evidence surrounding the circumstances leading to Judge Brian Curtin being charged with possession of child pornography. That committee will, in due course, make a report to the two Houses of the Oireachtas. It will not make any finding of fact or recommendation itself.
Mr Ahern said in reply to the Labour leader, Mr Pat Rabbitte, that the committee will hear the evidence in camera. Judge Curtin will not be compellable, he also said. He stressed that fair procedures would apply. This will include the right to legal representation and to confront his accusers. All this will offer the committee some protection against legal challenge.
Under the Committees of the Houses of the Oireachtas (Compellability, privileges and immunities of witnesses) Act of 1997, judges of all the courts are not compellable before an Oireachtas committee.
They can volunteer to appear, as Mr Justice O'Flaherty initially did when threatened with impeachment. He later withdrew this offer.
If an attempt was made to compel Judge Curtin to appear, he could challenge that in the courts. It is clear that the decision is up to him. If he chooses not to appear, and the Oireachtas comes to a conclusion about his alleged behaviour, he will not be able to challenge it on the basis of being denied his right to defend himself.
The Taoiseach also told the Dáil that Judge Curtin said he would respond "appropriately" to an Oireachtas requirement of him.
This could mean that he will appear before it, or any committee it sets up.
If he chooses not to give evidence, he can still be legally represented, and his representatives will be able to question other witnesses. The right to silence and the right against self-incrimination apply, while he has the right to question his accusers.
The Taoiseach also said that the hearing will be in camera. This means that the allegations against Judge Curtin will not be aired in public. Only the final report will be made public, when brought before the Houses of the Oireachtas.
This protects Judge Curtin's good name until such time as the process is finalised by resolution of the Houses of Oireachtas, if this is the eventual outcome. The committee is therefore not challengeable on the basis that it will undermine his good name before the constitutional right of the Houses of the Oireachtas comes into play. The Taoiseach did not outline what kind of evidence the committee could hear. This is likely to be clarified in the motion setting it up.
However, it is unlikely that it will be able to hear evidence that was ruled inadmissible by the Circuit Court, the contents of Judge Curtin's computer. This was ruled inadmissible because the warrant under which it was seized was out of date, meaning his house was illegally entered and searched.
The inviolability of a person's home is constitutionally protected. This relates to civil as well as criminal matters. Evidence illegally seized is no more admissible in a hearing by the Oireachtas than it would be in a criminal court.
However, there may well be evidence in relation to the case that was not obtained during the search of the judge's home, and therefore not excluded. That could be brought before the committee.
The Taoiseach also pointed out yesterday that witnesses other than the judge are compellable. Therefore members of the Garda Síochána and the Director of Public Prosecutions are likely to be called.
Witnesses from outside the jurisdiction cannot be compelled to give evidence to an Oireachtas committee. But they can be invited to do so, and it appears that at least one police officer from the US has said he is prepared to appear before any forum examining this case.
The Government has stressed that fair procedures will apply throughout this process. That will be fundamental in seeking to avoid legal challenges. The full details of the procedures will be revealed next week. But it remains to be seen whether they will be sufficient to ensure that the process of seeking to remove Judge Curtin from the bench, which may or may not be the outcome of the committee hearing, can proceed without the courts becoming involved.