The High Court will today start hearing the judicial review of the Oireachtas decision setting up a committee to inquire into the conduct of Judge Brian Curtin, charged last April with the possession of child pornography.
The Oireachtas took its decision following the decision of Tralee Circuit Court to direct the jury to acquit the judge of the charges, when it emerged that the warrant under which his computer was seized was out of date.
This made the entry into his house and the seizure of a computer unconstitutional, so the evidence on it could not be produced in court. Although acquitted of the offence, which carries a five-hear jail term, the Government took the view that in the light of the circumstances leading to his being charged, Judge Curtin was no longer suitable to sit on the bench and started impeachment proceedings.
A judge can only be impeached by a vote of both houses of the Oireachtas, a procedure which has never been invoked until now. The Oireachtas voted to set up an all-party committee to collect the evidence concerning the circumstances leading to the judge being charged. It was intended that this evidence would be presented to the Oireachtas, which would consider and debate it.
This process is being challenged by lawyers for Judge Curtin. They will argue that the process set in train by the Oireachtas is unconstitutional, in that the Oireachtas has delegated its powers to a committee with no constitutional standing.
They will argue that the judge is entitled to a trial before the houses of the Oireachtas.
As well as challenging the decision of the Oireachtas, Judge Curtin's lawyers will also challenge aspects of the way in which the committee is working. They will argue that no process or procedure exists for the committee to weed out material that may be improper or prejudicial before it is handed over to the Oireachtas.
They will also challenge the committee's decision to ask him to hand over the computer, arguing that it is an attempt to circumvent the fact that gardaí seized it in denial of his constitutional rights in the first place.
Both the committee and the Oireachtas will have separate legal teams, defending respectively the workings of the committee and the original decision by the Oireachtas to set it up.
The Oireachtas will be represented by Donal O'Donnell SC and Paul McDermott SC, while the committee is represented by Shane Murphy SC and Una ní Raiftearaigh BL. Judge Curtin is represented by John Rogers SC, Patrick MacEntee SC and Paul Burns BL, instructed by Richard Pierse, solicitor.
The hearing before Mr Justice Thomas C. Smyth is expected to take a week, though some observers predict it will extend well into next week.