Curtin v Dáil Éireann

 
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[2006] IESC 14

Supreme Court

[S.C. Nos. 198 and 203 of 2005]
Curtin v. Dáil Éireann
Brian Curtin
Applicant
and
Dáil Éireann éireann,Seanad Éireann éireann, Denis O'Donovan, Jerry Cowley, James O'Keefe, Jan O'Sullivan, John Dardis, Geraldine Feeney, Michael Finucane, Ireland and the Attorney General
Respondents

Cases mentioned in this report:-

Boland v. An TaoiseachIRDLTR [1974] I.R. 338; (1973) 109 I.L.T.R. 13.

Buckley and others (Sinn Féin) v. Attorney General and AnotherIR [1950] I.R. 67.

Bula Limited v. Tara Mines LimitedDLRM [1994] 1 I.L.R.M. 111.

T.D. v. Minister for EducationIR [2001] 4 I.R. 259.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney GeneralIRDLTR [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Goodman International v. Mr. Justice HamiltonIRDLRM [1992] 2 I.R. 542; [1992] I.L.R.M. 145.

In re HaugheyIR [1971] I.R. 217.

Hegarty v. Governor of Limerick PrisonIR [1998] 1 I.R. 412.

Kavanagh v. The Government of IrelandIRDLRM [1996] 1 I.R. 321; [1997] 1 I.L.R.M. 321.

Lynch v. Attorney GeneralIRDLRM [2003] 3 I.R. 416; [2004] 1 I.L.R.M. 129.

McDonald v. Bord na gConIR [1965] I.R. 217.

Maguire v. ArdaghIR [2002] 1 I.R. 385.

Melling v. Ó Mathghamhna ó mathghamhna and the Attorney GeneralIRDLTR [1962] I.R. 1; (1963) 97 I.L.T.R. 89.

Mooney v. An PostIR [1998] 4 I.R. 288.

Nixon v. United States UNK(1993) 506 U.S. 224.

O'Byrne v. Minister for Finance and Attorney GeneralIRDLTR [1959] I.R. 1; (1958) 94 I.L.T.R. 11.

O'Malley v. An Ceann CómhairleIR [1997] 1 I.R. 427.

The People v. O'SheaIR [1982] I.R. 384.

The People (Attorney General) v. O'BrienIR [1965] I.R. 142.

The People (Director of Public Prosecutions) v. BuckIRDLRM [2002] 2 I.R. 268; [2002] 2 I.L.R.M. 454.

The People (Director of Public Prosecutions) v. M.S.IR [2003] 1 I.R. 606.

The People (Director of Public Prosecutions) v. CooneyIRDLRM [1997] 3 I.R. 205; [1998] I.L.R.M. 321.

The People (Director of Public Prosecutions) v. KennyIRDLRM [1990] 2 I.R. 110; [1990] I.L.R.M. 569.

The People (Director of Public Prosecutions) v. ShawIR [1982] I.R. 1.

Pigs Marketing Board v. Donnelly (Dublin) Ltd.IR [1939] I.R. 413.

Riordan v. An TánaisteIR [1997] 3 I.R. 502.

Saunders v. United KingdomHRC [1997] 23 E.H.R.R. 313.

Schmerber v. CaliforniaUNK (1966) 384 U.S. 757.

Sinnott v. Minister for EducationIR [2001] 2 I.R. 545.

The State (Healy) v. DonoghueIRDLTR [1976] I.R. 325; (1976) 112 I.L.T.R. 37.

The State (Trimbole) v. The Governor of Mountjoy PrisonIRDLRM [1985] I.R. 550; [1985] I.L.R.M. 465.

In re TherrienUNK [2001] 2 S.C.R. 3.

Tormey v. IrelandIR [1985] I.R. 289.

United States v. BallinUNK (1892) 144 U.S. 1.

Constitution - Judiciary - Removal from office - Resolution of Oireachtas - Judicial independence - Separation of powers - Deference by courts to another organ of State - Standard which court measured failure by organ of State to comply with constitutional obligations - Judge as witness to Oireachtas committee - Statutory power to call judge as witness to Oireachtas committee - Constitutional interpretation - Presumption of constitutionality - Parliamentary procedures - Whether statute unconstitutional - Whether parliamentary procedures presumed to be constitutional - Whether power to call judge as witness constitutional - Whether resort may be had to principles derived from other parts of the Constitution for constitutional interpretation - Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 (No. 17), s. 3A - Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) (Amendment) Act 2004 (No. 16) - Constitution of Ireland 1937, Articles 15.10 and 35.4.1.

Constitution - Oireachtas committee - Resolution for removal of judge - Fair procedures - Form of report of committee - Direction from committee - Privilege against self incrimination - Whether Oireachtas could adopt standing orders to establish sub-committee to receive evidence - Whether committee could direct production of prima facie unlawful material - Whether direction constitutional - Whether direction violated privilege against self incrimination - Child Trafficking and Pornography Act 1998 (No. 22) - Constitution of Ireland 1937, Articles 15.10 and 35.4.1.

Cur. adv. vult.

Pursuant to the provisions of Article 34.4.5, the judgment of the court was delivered by a single member.

Murray C.J

9th March, 2006

1 In this appeal, the court is asked to interpret the provisions of Article 35.4.1 of the Constitution regarding the parliamentary procedure for the removal of judges from office. It is one of the few occasions in the annals of legal history that such a proposal has been considered by a court and the first time since the foundation of the State.

Facts: prosecution and acquittal

2 The applicant was appointed as a judge of the Circuit Court in November, 2001.

On the 20th May, 2002, the President of the District Court issued a warrant for the search of the applicant's dwelling house. The warrant recited the information on oath of a sergeant of An Garda Síochána that there were reasonable grounds for suspecting that evidence, relating to an offence under s. 6 of the Child Trafficking and Pornography Act 1998, to wit "child pornography, computer, computer equipment, computer software, floppy discs and their associated parts" was to be found at that place.

3 Section 7(2) of the Act of 1998 requires any entry on a premises in pursuance of a warrant granted under the Act to take place "within 7 days from the date of the warrant". The warrant, reflecting that provision, authorised a search "within seven days of the date hereof".On the 27th May, 2002, members of An Garda Síochána searched the applicant's home. They found and took possession of materials said to be relevant to the allegation mentioned in the warrant.

4 Section 11 of the Interpretation Act 1937 provides, so far as relevant:-

"The following provisions shall apply and have effect in relation to the construction of every Act of the Oireachtas and of every instrument made wholly or partly under any such Act, that is to say:-

h) Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period, and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period;"

Since the seven day period specified for the search of the applicant's dwelling house was inclusive of the day of issue of the warrant, the search took place one day outside the time allowed. Thus the warrant, at the date of its execution, was spent.

5 On the 26th November 2002, the applicant was charged by summons with the offence of "possession of child pornography contrary to s. 6 of the Child Trafficking and Pornography Act 1998". The particulars of the offence were that the applicant "on the 27th May, 2002, at [his home] did knowingly have in [his] possession child pornography". He was sent forward for trial on indictment to the Circuit Criminal Court.

6 The applicant pleaded not guilty on arraignment at the Circuit Court in Tralee on the 20th April, 2004. Following legal submissions, the trial judge, His Honour Judge Carroll Moran, ruled that the materials seized from the applicant's home on foot of the search warrant were not admissible in evidence. He ruled as follows:-

"There is no doubt that on a proper interpretation of s. 7 of the Child Trafficking and Pornography Act 1998, having regard to s. 11(h) of the Interpretation Act 1937, in the present case, the day on which the search warrant was issued was to be included in the reckoning and since the warrant was issued on the 20th May, 2002, it expired on midnight of the day ending on the 26th May 2002. Accordingly, it was spent when An Garda Síochána purported to rely on it in their search of the accused's home on the 27th May 2002."

The judge, being bound by the decision of this court in The People (Director of Public Prosecutions) v. KennyIR [1990] 2 I.R. 110, held that "there was a violation of the accused's constitutional rights committed by acts of the Garda Síochána which were not unintentional or accidental". He ruled: "… evidence of the search and of what was found in the search is inadmissible and cannot go before the jury".

There being no other evidence against the applicant, the judge withdrew the case from the jury and the applicant was found not guilty by direction on the 23rd April, 2004.

Initiation of steps for removal: correspondence

7 Within days of his acquittal, the Government initiated correspondence with the applicant. It is necessary to outline the principal points.

The Secretary General to the Government, on the 27th April 2004, wrote to the applicant conveying the Government's deep concern at the circumstances surrounding the criminal proceedings described above. The letter referred to the fact that a search of the applicant's home and the initiation of a prosecution against him had been considered justified and that counsel for the Director of Public Prosecutions...

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