In the absence of a full hearing of the substantive issues,there is a sense of shock and deep dissatisfaction that Judge Brian Curtin was acquitted yesterday, by direction of the trial judge, of the serious charge of possession of child pornography. Judge Carroll Moran acknowledged that reality when, in ordering the acquittal, he said that many people would view the outcome as a highly unsatisfactory result.
Judge Moran had clearly anguished over his decision. He heard legal arguments on Wednesday about the validity of the warrant which empowered gardaí to search Judge Curtin's home. He told counsel for both sides that he would make his decision the next day, but because the matter was so important, he offered them the opportunity to make additional submissions if they wished. They did not do so. Judge Moran considered his judgment throughout Thursday. Yesterday morning he told counsel he was still contemplating it, and he finally delivered it at about 3 p.m. He "had no alternative", he said, but to find that the warrant had expired and, therefore, that the evidence seized was inadmissible.
"Many people will think that is a highly unsatisfactory result. I can't do anything about it. The gardaí were out of time. There is no other evidence", Judge Moran told the jury. His ruling was based correctly on the constitutional right to the inviolability of a person's residence. Article 40, dealing with personal rights, is very explicit. "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law."
This principle is well-known to the Garda, who will have to explain how officers came to use an out-of-date warrant in this case. Judge Moran was also highly critical of the DPP in proceeding with the prosecution on such a basis, pointing out that any judge in the State would have had to throw it out.
The debacle raises serious questions about the conduct of this whole investigation. It also brings to the fore, once again, the issue of judicial conduct and ethics, and the absence of any formal mechanism for dealing with perceived lapses on the part of judges. The Chief Justice made proposals to address this issue in the wake of the Philip Sheedy affair but the Government could not secure all-party agreement on the way forward.
The public will naturally question the conduct of the DPP and the gardaí in a case against a member of the Circuit Court. The Minister for Justice, Mr McDowell, is considering its implications. But the authority of the judiciary and the administration of justice have been damaged. Judge Curtin's problems are not over.