Curtin v Ireland

 
FREE EXCERPT

[2005] IEHC 163

THE HIGH COURT

DUBLIN

Record No. 1188JR/2004
CURTIN v DAIL EIREANN & ORS
JUDICAL REVIEW
BRIAN CURTIN
APPLICANT
-v-
DAIL EIREANN, SEANAD EIREANN, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
Abstract:

Constitutional law - Oireachtas committee of enquiry - Judicial review - Administration of justice - Allegations of misconduct by member of judiciary - Power of Oireachtas to pass resolutions removing Circuit Court judge from office - Motions of the Oireachtas - Judicial independence - Fair procedures - Constitution of Ireland, 1937 Article 35.4 - Courts of Justice Act, 1924 section 39 - Privileges and Immunities of Witnesses Act, 1997 section 3 (1)

2004/1188JR - Smyth - High - 3/5/2005 - 2005 14 2773 2005 IEHC 163

Facts: The applicant, a Circuit Court judge, was acquitted, by way of direction, of knowingly having in his possession child pornography material on his computer. The Government sought an explanation from the applicant regarding the matters arising from his acquittal to which was not given. Subsequently an Oireachtas Committee was established to enquire into the matter and the committee sought the appearance of the applicant before it to answer questions. The applicant issued a Plenary Summons against the Gardai Siochana, DPP, Government of Ireland and the Attorney General. Subsequently by consent the case was to proceed against the first named defendant only. The Dail and Seanad passed motions calling for the removal of a judge for stated misbehaviour. The Select Committee sat in December 2004 and the applicant sought an adjournment and sought Judicial Review on a question of procedure. The applicant’s grounds of relief were: that the procedure adopted by the Oireachtas failed to provide any mechanism by which facts could be found which might constitute misconduct; that no rules existed surrounding the admissibility of evidence or how it could be evaluated; that it was not up to the Oireachtas to remove the applicant from office under Article 35; declarations that standing orders of the Dail and Seanad in setting up the Select Committee to enquire into the conduct were unlawful; orders to quash the Select Committee’s decision ordering him to produce his computer.

Held by Smyth J in refusing all grounds of relief sought:

1. The motions of both Houses of Oireachtas were within the terms of Article 35 of the Constitution. The orders were not an attack on the independence of the judiciary.

2. The procedural machinery for the setting up of the committee was a permissible method whereby evidence may be gathered and received by the Houses of the Oireachtas. The procedure had strict obligations to adhere to constitutional justice and fair procedures.

3. The court found as a fact and as a matter of law that the committee had acted within its powers.

4. There was no question of any criminal trial following the investigation or enquiry of the committee.

5. It was up to counsel for the applicant to make their own arguments about the admissibility of evidence to the committee and if they were rejected to make their case to the Houses of the Oireachtas.

6. By virtue of the privilege of the applicant’s judicial appointment, there is different and more onerous duties on judges than on ordinary citizens. Judges had to recognise many limitations in their public and private lives

Reporter: BDD

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MR. JUSTICE T.C. SMYTH DELIVERED ON TUESDAY, 3RD MAY 2005

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I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.

APPEARANCES

For the APPLICANT:

MR. P. MacENTEE SC

MR. J. O'REILLY SC

MR. J. ROGERS SC

MR. P. BURNS BL

MR. C. FERRITER BL

Instructed by:

MR. R. PIERSE

PIERSE & FITZGIBBON

MARKET STREET

LISTOWEL

CO. KERRY

For the 1ST - 2nd Respondents:

MR. S. MURPHY SC

MS. U. NI RAIFEARTAIGH BL

Instructed by:

MATHESON ORMSBY PRENTICE

30 HERBERT STREET

DUBLIN 2

FOR THE 3rd & 4th Respondents:

MR. D. O'DONNELL SC

MR. B. MURRAY SC

MR. P.A. MCDERMOTT BL

MR. D. CLARKE BL

Instructed by:

MR. O. WILSON

CHIEF STATE SOLICITORS OFFICE

OSMOND HOUSE

LITTLE SHIP STREET

DUBLIN 8

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COPYRIGHT : Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

INDEX

PAGES

1.

Introduction

1

2.

Facts

1

3.

The Application for Judicial Review 1

32

A.

The Applicant's grounds and reliefs sought

32

B.

1st and 2nd Respondents' Grounds of Opposition

44

C.

The 3rd and 4th Respondents' Grounds of Opposition

58

4.

Law and Legal Submissions

76

A.

The historical and constitutional basis of the claim

76

B.

The Applicants' constitutional rights

122

5.

The Constitution and Standing Orders

141

A.

The constitutionality of the Orders

141

B.

Art 15.10 of the Constitution

147

C.

The implementation of o.63(A) & o.60(A)

154

6.

Compellability

167

A.

S.3 of the Act of 1997, as amended

7.

Certiorari

185

A.

The Exclusionary Rule

186

B.

Is the computer in the power of the Applicant

205

C.

Privilege of Things and Statements

209

8.

Consenting to jurisdiction

215

9.

Separation of powers

217

10.

Conclusion

219

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED 3RD DAY OF MAY 2005
1. Introduction:
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This is serious case, worthy of profound respect by all concerned.

2. The Facts:
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The Applicant in these proceedings is a Judge of the Circuit Court. He was appointed a Judge in November 2001. A member of the judiciary, the Applicant had his property searched pursuant to a warrant of the President of the District Court (granted on 20th May 2002), in circumstances where that Judge was required to make a judicial determination that there was a sufficient basis for the making of such an order. Thereafter, the Applicant was charged by the Director of Public Prosecutions with a serious offence under the Child Trafficking & Pornography Act, 1998 (the Act of 1998).

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On 23rd April 2004, the Applicant was acquitted on a charge of knowingly having in his possession child pornography contrary to Section 6 of the Act of 1998 (the acquittal). The acquittal occurred by direction of the Trial...

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