Curtin v Ireland

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 03 May 2005
• Neutral Citation: [2005] IEHC 163
• Court: High Court
• Date: 03 May 2005

[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)

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

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

2 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

3 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:

4 This is serious case, worthy of profound respect by all concerned.

2. The Facts:

5 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).

6 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 Judge at the Circuit Criminal Court. That direction, in turn, arose from the determination of the Trial Judge that a warrant - on foot of the purported execution of which, certain evidence intended to be used in connection with the prosecution was seized, had expired at the date of that execution.

7 The Applicant is the first sitting Judge in the history of the State to be charged and tried on indictment. At no stage in the process up to and including 23rd April 2004 had he personally recorded his response to the substantive matters giving rise to that charge.

8 It is against this background that - as the correspondence makes clear, the Government considered that the circumstances which had presented themselves gave rise to grounds for disquiet, were of importance to the processes within the State for the administration of justice and public confidence therein, and were such as to justify and require the seeking of an explanation from the Applicant in respect of these matters.

9 Mr. Rogers for the Applicant, took exception to the tone of a letter of inquiry dated 27th April 2004 - while not going so far as to characterise it as mesquin, considered it an inappropriate mode of address to his client: the letter from the Secretary General to the Government requested the Applicant to record his response to the allegations made against him in and concerning the criminal proceedings. The Applicant was invited to feel free in making his reply to address any matters which he considered relevant to his possession. The letter (inter alia) stated:-

"Given the importance of mutual respect due between the institutions of the State and having regard to the critical importance of public confidence in the judiciary, the Government believes that it is entitled to expect a full and frank disclosure from you of the information and comments sought from you, and to be apprised of the full circumstances surrounding the matters referred to. Accordingly it is expected a full and detailed factual response will be given by you to this letter bearing in mind the considerations I have outlined above."

10 For the avoidance of any doubt, I should make clear the precise context in which this information is sought. The Courts of Justice Act, 1924 and the provisions of Article 35.4 of the constitution, enable the Houses of the Oireachtas to pass a resolution removing the Circuit Court judge from office for stated misbehaviour or incapacity. In the light of the matters referred to above, the members of the Government - who can propose a resolution to this effect - require to be apprised by you of the information and comments referred to here so that they can fairly consider a decision to initiate such a resolution on grounds of misbehaviour. I should also observe the belief of the Government, that subscription to websites containing explicit sexual images of children, possession of images of the nature alleged here, and/or a failure to cooperate with the Government in its efforts to ascertain all circumstances relevant to these charges would furnish grounds for the proposal of such a resolution. The importance of a prompt and comprehensive response is, I hope, apparent."

11 Subsequent to an exchange of letters to permit of a considered response, the Applicant's solicitors by letter dated 13th May 2004 wrote as follows:-

", Judge Curtin...