The Minister for Communications, Mr Ahern, has said that the judiciary will have a "very significant role" in deciding the future of Judge Brian Curtin, whose trial for the possession of child pornography collapsed on Friday.
As the Cabinet prepares to take decisive action at its meeting tomorrow to resolve the issue, senior gardaí are set to initiate an immediate examination into why the search warrant used in the investigation of Judge Curtin's house was out of date.
Labour's justice spokesman, Mr Joe Costello, said yesterday that there was an obligation on the Director of Public Prosecutions, Mr James Hamilton, to make a statement "spelling out how such a fundamental error was allowed to happen".
While Mr Ahern's remarks imply that the Government might ask the Chief Justice to investigate the case, a spokesman for the Minister of Justice, Mr McDowell, declined last night to say whether this was likely.
However, Mr Ahern made it clear on RTÉ last night that the judiciary would have to take stock of the position of one of its own members.
The Minister also implied that there were difficulties with the option of impeachment, another means of ensuring that the judge does not return to the bench. The possibility of impeachment was "not as clear" as calling a vote of members of the Dáil and Seanad because people were entitled to their presumption of innocence under the law, he said.
With the Government under Opposition pressure to ensure that the judge does not return to the bench, Mr Ahern said the question required careful scrutiny. "I think that is something that both the Government and the Dáil and Seanad, and indeed the judiciary, would have to take stock of and look at very carefully as to whether that can be allowed to happen," he said.
Mr Ahern added: "Obviously we have to take the Attorney General's advice and also listen to what the Minister for Justice has to say. But it is very worrying, and I think the judiciary themselves have a very significant role to play in it."
Mr Ahern said his personal view was that there was a "grave difficulty" in the judge's position, but he reserved his stance in his capacity as a Minister.
While noting on The Week in Politics programme that there were legal constraints on the Government, he said the country was convulsed by the case.
Mr McDowell discussed the case over the weekend with the Attorney General, Mr Rory Brady SC. While a spokesman said Mr McDowell would inform the Cabinet tomorrow about the advice he had received, he declined to offer any details about the likely course of action.
He described as "speculation" reports in Sunday newspapers which said that the judge might be given a €4 million financial package to resign or that the Chief Justice would be asked to initiate an inquiry.
Labour and Fine Gael declined to say yesterday whether they would support a vote in the Oireachtas to impeach the judge.
Mr Costello said yesterday that any decision to allow Judge Curtin to return to the bench would cause public outrage and would do "untold damage" to the judicial system.
"Clearly Mr Curtin has the same right as any other member of the judiciary to retire at any point and for any reason, and would be entitled to same pension rights as any other judge retiring at that point in their career. However, there must be no question of the State offering Mr Curtin any financial inducement to 'go quietly'."
