The Joint Oireachtas Committee inquiry into the conduct of Judge Brian Curtin may proceed with its work after Judge Curtin yesterday abandoned key elements of his High Court proceedings against the Government and State. The Government had claimed the proceedings cast "a shadow" over the Committee's work.
However, the concessions by Judge Curtin do not mean that he is prevented from mounting further legal challenges to any orders made by the Joint Committee, including any order requiring him to produce a computer and other materials, including alleged images of child pornography, seized by gardaí during a search of his home on May 27th, 2002. The Committee has asked the judge to voluntarily give it those materials and, should he refuse, is expected to consider making a production order.
A three-judge divisional High Court was told yesterday that Judge Curtin was abandoning his claim for a declaration that the computer and other materials not be used in any other proceedings. The judge is also not continuing with a claim for an order restraining the government and Garda Commissioner from making any use whatsoever of the computer and other materials.
The judge is proceeding with a claim for damages against the Garda Commissioner on the basis of his claim that the computer and other materials were unlawfully seized from his home. That action will be heard at a later date.
Yesterday's developments resulted in Mr Donal O'Donnell SC, for the Government, telling the High Court there was no need to proceed with a hearing of a Government motion arguing that the court was not entitled to grant the declarations sought against the State parties.
Last week, Mr John Rogers SC, for Judge Curtin, had argued the hearing of the Government motion was unnecessary because Judge Curtin was prepared to go before the Oireachtas Committee and argue there the issues regarding the admissibility of the computer and other materials.
Mr Rogers said his side was prepared to amend their case to a certain extent but Mr O'Donnell said the proposed amendments did not go far enough.
It was against that background that Mr Justice Kelly directed yesterday's hearing should proceed.
In court yesterday, Mr Rogers said matters had "moved on" and, in talks with Mr O'Donnell, it had been agreed to make amendments to the pleadings in the case which meant the judge was no longer proceeding with his application for declarations and orders regarding the use of the computer and other materials.
Given those amendments, the need for the government motion disappeared, Mr Rogers said. The amendments meant Judge Curtin would not be relying on the High Court proceedings to raise an issue as to whether the Oireachtas Committee could make a production order regarding the materials.
Judge Curtin would argue before the Committee that certain matters should not be the subject of a production order, Mr Rogers said. "Whatever may happen then is another matter."
Mr O'Donnell said he had seen the proposed amendments of the judge's action and did not take issue with those. However, he believed a clear amendment of Judge Curtin's pleadings - regarding the claim for a declaration that the computer and other materials were unlawfully seized - was still required to render the government motion unnecessary.
From the Government's point of view, it was important there be "absolute clarity" in the matter, counsel said. A reply to the Government motion from Judge Curtin's lawyers, received last Friday, did not deal with the substance of their concerns. His side had written to Judge Curtin's lawyers on Monday pointing out that only an amendment of the pleadings would remove the controversy.
On Monday afternoon, his side received a faxed letter indicating an intent to withdraw the applications for a declaration and order regarding the use of the computer and other materials. The letter also indicated an intent to withdraw claims in the pleadings relating to Judge Curtin's belief that the Government would use such materials to initiate a process aimed at removing Judge Curtin from office.
Mr O'Donnell said the clarification by Mr Rogers yesterday regarding the remaining elements of the claim removed the substance of the Government motion and he accepted that assurance. However, it was probably preferable that the matter be put beyond doubt by an actual amendment of the remaining claim.
The President of the High Court, Mr Justice Finnegan, sitting with Mr Justice Kelly and Mr Justice Quirke, said the court, while it had no difficulty accepting the assurances of Mr Rogers, would be happier if there were a precise amendment of the remaining claim.
Mr Rogers said he would further amend the pleadings to state that Judge Curtin's claim is for a declaration "against the Garda Commissioner" that the computer and other materials removed from the Judge's home on May 27th, 2002, were removed unlawfully and in breach of the judge's constitutional rights.
Mr Justice Finnegan made orders for the amendments of the pleadings as outlined and thanked the parties for their efforts to resolve the matter. He reserved costs to the ultimate hearing of Judge Curtin's action.
The High Court proceedings arose after Judge Curtin's acquittal, by direction of Circuit Court Judge Carroll Moran on April 23rd last, of a charge of possessing child pornography, after it was learned that a warrant used to search Judge Curtin's home in May 2002 was used too late.
On June 2nd last, the Minister for Justice moved a motion for the removal of Judge Curtin from office "for stated misbehaviour".
