A Government challenge to the taking of High Court proceedings by Judge Brian Curtin is scheduled to be heard by a three-judge High Court today.
The Government claims Judge Curtin's proceedings are intended to prevent the use, in a Dáil inquiry into the judge's conduct, of materials, including alleged images of child pornography, seized by gardaí during a raid at the judge's home. The Government says that because there is an Oireachtas inquiry under way, the court is not entitled to grant various declarations sought by Judge Curtin.
A divisional court of the High Court, consisting of the President of the High Court, Mr Justice Finnegan; Mr Justice Kelly and Mr Justice Quirke has been assembled to hear the Government motion.
The Government is challenging the court's entitlement to grant declarations that a computer and other materials taken from Judge Curtin's home in 2002 were unlawfully seized and may not be used in any other proceedings.
Last week, lawyers for Judge Curtin lost an attempt to prevent the Government motion proceeding today. Mr John Rogers SC, for Judge Curtin, had contended the Government motion was unnecessary and "a gross waste" of court time and public money but Mr Justice Kelly said it raised important legal issues and directed it should proceed.
However, there were some indications at last week's hearing that progress might be made between the sides which could yet render today's hearing unnecessary.
The legal proceedings arise from Judge Curtin's acquittal, by direction of Circuit Court Judge Carroll Moran last April 23rd, of a charge of possessing child pornography after it was learned that a warrant used to search Judge Curtin's home in May 2002 was out of date. During that search a computer, said to contain images of child pornography, and other materials were seized.
On June 2nd, the Minister for Justice moved a motion for the removal of Judge Curtin from office "for stated misbehaviour". The motion has been adjourned in both the Dáil and Seanad pending receipt of a report from an Oireachtas committee to inquire into the conduct of Judge Curtin.
Also on June 2nd, Judge Curtin initiated proceedings against the Government, the DPP and the Garda Commissioner seeking two declarations - that the computer and other materials removed by gardaí from his home on May 27th, 2002, were removed unlawfully and in breach of his constitutional rights and, secondly, that the computer and other materials, having been declared inadmissible as unconstitutionally and unlawfully obtained evidence, may not be used as evidence in any other proceedings, process or inquiry. The proceedings also seek an injunction restraining the defendants from making any use whatsoever of the computer and other materials.
On June 23rd, the Government got leave from the High Court to bring an application arguing that the court cannot, given that the matter is now being dealt with by an Oireachtas committee, grant the declarations and injunction sought.
Last week, Judge Curtin's side contended that, as the judge was prepared to argue before the Oireachtas committees issues regarding the admissibility of the computer and other materials, today's hearing was unnecessary.