JOINT OIREACHTAS COMMITTEE
ON ARTICLE 35.4.1 OF THE
CONSTITUTION AND SECTION 39 OF THE
COURTS OF JUSTICE ACT 1924
AN COMHCHOISTE AR
AIRTEAGAL 35.4.1 DEN
BHUNREACHT AGUS AR ALT 39 DEN
ACHT CUIRTEANNA BREITHIUNAIS 1924
REPORT
14TH November 2006
CONTENTS
Introduction…………………………………………………………………. 3
Members of the Committee……………………………………………… 5
Report of the Committee…………………………………………………. 6
Appendix 1. Terms of Reference of the Joint Committee……….. 17
Appendix 2. Standing Orders of Dail Eireann
and Seanad Eireann…………………………………………………………18
2
Introduction
The Joint Committee on Article 35.4.1 of the Constitution and Section 39 of the
Courts of Justice Act, 1924 met on the 13th November 2006 to commence
substantive hearings in relation to the inquiry it was established to conduct. The
Joint Committee was comprised of Jerry Cowley TD, Jim O’Keeffe TD, Jan O’Sullivan
TD, Senator John Dardis, Senator Geraldine Feeney and Senator Michael Finucane
under the chairmanship of Denis O’Donovan TD.
Hearings had been scheduled to begin on November 13th and were expected to last
two weeks. As the hearing of evidence was about to commence, certain legal issues
arose. The Committee made a formal ruling on those issues which concluded just
before 1p.m. Shortly after 2 p.m. the legal team for Judge Curtin formally advised
the Committee that the Judge intended to tender his resignation. The Committee
briefly adjourned proceedings to permit this to take place.
At 3.30 pm Judge Curtin tendered his resignation to the Secretary to the
Government and advised the Committee at 4.00 pm that it had been received. In
light of this, the Committee ruled (having been so advised by its legal adviser) that it
now has no function in proceeding under its Terms of Reference with the Article
35.4.1 inquiry. The Committee was unequivocally advised by its legal adviser that
the Article 35.4.1 process automatically comes to an end once the subject matter of
the inquiry is no longer a judge.
Since its establishment in June 2004, the Committee met on 35 occasions in order to
carry out the task delegated to it and there was a full attendance of all members of
the Committee at each meeting. A sixteen month delay resulted from applications
by the Judge’s legal team to the High and Supreme Courts. A chronology of the
work of the Committee is attached. All proceedings of the Committee were heard in
private session as provided for in the Standing Orders.
The function assigned to the Committee is unparalleled in Irish constitutional history
and the Chairman observed that the Committee has worked tirelessly to ensure that
all aspects of its work have been undertaken and functions discharged in accordance
with the requirements of constitutional justice and fair procedures. The subject
matter of the inquiry was difficult, dealing as it did with the end of a judicial career.
It has made a succession of very detailed, lengthy and complex written rulings
since the Supreme Court decision in March of this year, none of which have
been subsequently challenged. This has been a complex and arduous task given
the novelty and sensitivity of the issues which have presented themselves to the
Committee. The inquiry has been without precedent. The Committee was dealing
with a new, historic issue which provided a huge challenge to the Committee. Never
since the commencement of the State has an inquiry of this kind been undertaken
and the Committee is particularly thankful to its legal adviser, Dr. Gerard Hogan and
to the officials who have been so assiduous in their service to the Committee. The
3
Committee conducted its work in a purposeful way and in accordance with the
mandate of the Oireachtas.
The Committee would also like to express it gratitude to the staff of the Committee
Secretariat, the Editor of Debates Office, Broadcasting Unit, ICT Unit, the
Superintendent’s section. We also wish to record our appreciation to Garda
Commissioner, Noel Conroy and all members of An Garda Siochana who co-operated
with this Committee; Mr. Diarmuid McGuinness SC, Mr. Kevin Feeney SC, Ms. Una Ni
Raiferataigh BL, Matheson Ormsby Prentice Solicitors; Mr. John Rogers SC, Mr. Paul
Burns SC., Mr. Cian Ferriter BL and Pierse & Fitzgibbon Solicitors; Ms. Lia O’Hegarty
and Ms. Anne-Marie Dempsey, for their professionalism and courtesy at all times.
_________________________
Denis O’Donovan T.D.,
Chairman
14th November 2006.
4
Members of the Joint Committee
Denis O’Donovan
Jerry Cowley TD
TD (FF)
(Ind)
Chairman
Senator John
Dardis (PD)
Senator Geraldine
Feeney (FF)
Jim O’Keeffe
(FG)
Jan O’Sullivan
(Lab)
Senator Michael
Finucane (FG)
5
Preliminary
1. His Honour Judge Brian Curtin was appointed a judge of the Circuit
Court in November 2001. On June 2, 2004 two motions were laid before
Dail Eireann1 and Seanad Eireann2 respectively calling for the removal of
Judge Curtin, a judge of the Circuit Court on grounds of stated
misbehaviour pursuant to Article 35.4.1 of the Constitution, as applied to a
judge of the Circuit Court by section 39 of the Courts of Justice Act 1924.
These motions were virtually without precedence in the history of the State.
The motion in Dáil Éireann was moved by the Minister for Justice, Equality and
Law Reform (Michael McDowell TD) and the motion in Seanad Éireann was
moved by the Leader of the House (Senator Mary O’Rourke). On June 3,
2004 Dail Eireann approved, pursuant to Standing Order 63A, the
appointment of a Select Committee.3 A similar motion was approved by
Seanad Eireann on the same day pursuant to Standing Order 60A.4
The Background to the Article 35.4.1 Motions
2. The circumstances leading up to the presentation of these motions in the
Houses of the Oireachtas can, briefly, be stated as follows. Following receipt
of certain information from members of the US Postal Inspection Service, on
May 20, 2002, the President of the District Court issued a warrant for the search of
the Judge Curtin’s house. The warrant recited the information on oath of a Garda
Sergeant to the effect that there were reasonable grounds for suspecting that
evidence, relating to an offence under section 6 of the Child Trafficking and
Pornography Act 1998 (“the 1998 Act”), namely, “child pornography, computer,
computer equipment, computer software, floppy discs and their associated parts,”
was to be found at Judge Curtin’s house.
3. Section 7(2) of the 1998 Act 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” and a similar stipulation was contained in the warrant. On 27th May
2002, members of An Garda Síochána searched Judge Curtin’s home. They took
possession of materials said to be relevant to the allegation mentioned in the
warrant.
4. On November 26, 2002 Judge Curtin was charged before the District Court
with the single offence of “possession of child pornography contrary to section 6 of
the Child Trafficking and Pornography Act 1998.” The particulars of the offence were
that the Appellant “on 27th May 2002 at [his home] did knowingly have in [his]
possession child pornography.” The District Court directed that Judge Curtin be
sent forward for trial on indictment to the Circuit Court.
1
2
3
4
586
176
586
176
Dail Debates Cols. 1502 - 03
Seanad Debates Col. 1450
Dail Debates Cols. 13-17
Seanad Debates Cols. 1604-06
6
5. Judge Curtin pleaded not guilty on arraignment at the Circuit Court in Tralee on
April 20, 2004. Following legal submissions, the trial judge, His Honour Judge
Carroll Moran, ruled that the materials seized from the Appellant’s home on foot of
the search warrant were not admissible in evidence. Judge Moran concluded that
the day on which the search warrant was issued must be included in
computing the seven day period permitted by section 7 of the 1998 Act. On
that basis, therefore, the original warrant was spent on May 27, 2002, the
date on which the premises was searched by the Gardai. It followed that
the search of Judge Curtin’s house was unlawful and constituted a breach of
the provisions of Article 40.5 of the Constitution. Judge Moran, applying
standard principles concerning the necessity to exclude evidence obtained in
breach of constitutional rights5, ruled that the material seized by the Gardai
must be therefore excluded.
There being no other evidence against Judge
Curtin, His Honour Judge Moran withdrew the case from the jury and Judge
Curtin was found not guilty of this offence by direction of the trial judge on
April 23, 2004.
The Aftermath of the Acquittal
6. In the immediate aftermath of this acquittal, the Secretary General to the
Government
wrote to Judge Curtin expressing deep unease with this
sequence of events. The letter noted the nature of the allegations which
had been made against him in open court and expressed concern that
Judge Curtin had not yet responded to the merits of these allegations.
7. This correspondence culminated in a letter dated May 25, 2005 from the
Secretary General to Pierse and Fitzgibbon, Judge Curtin’s solicitors which
described in some detail the steps which were now going to be put in
train.
8. These steps were to be as follows:
9. First, two motions would be proposed in each House of the Oireachtas. The first
of these motions would be a motion calling for the removal of the Appellant from
office pursuant to Article 35.4.1 of the Constitution (as applied by section 39 of the
Courts of Justice Act 1924) on grounds of stated misbehaviour. The second motion
would propose the establishment of a Joint Committee of the Houses of the
Oireachtas for the purposes of investigating and receiving evidence in relation to
matters of public concern as they pertained to Judge Curtin. While the resolution
would define the powers of the Joint Committee, including the power to compel
witnesses, the committee would not make any findings of fact or recommendations
or express any opinions.
5
The
leading
decision
is
that
of
the
Supreme
Prosecutions) v Kenny [1990] 2 Irish Reports 110.
Court:
The
People (Director of Public
7
10. Second, it was envisaged that the first motion would be adjourned pending
the receipt of a report from the Joint Committee.
Legislative Changes and Changes to Standing Orders
11. Certain legislative amendments and changes to the standing orders of
both Houses were, however, necessary before the Houses could deal with
the motions that had been thus contemplated. The Oireachtas first enacted
two items of amending legislation, both of which came into force on June 2,
2004.
12. First, the Committees of the Houses of the Oireachtas (Compellability, Privileges
and Immunities of Witnesses) Act 1997 (“the 1997 Act”) was amended by the
Committees of the Houses of the Oireachtas (Compellability, Privileges and
Immunities of Witnesses) (Amendment) Act 2004 (“the 2004 Act”). The 1997 Act
establishes the facility whereby, subject to certain statutory conditions, a duly
authorised Oireachtas Committee can direct and compel the attendance of
witnesses. The difficulty, however, was that section 3(4) of
the 1997 Act
originally expressly excluded judges from the ambit of persons who might be
so compelled, even in the case where, as here the Committee was taking
evidence for the purposes of an Article 35.4.1 motion.
13. This particular issue was addressed by the insertion, by section 1 of the
2004 Act, of a new section 3A into the 1997 Act. Section 3A(a) now
provides:
“Section 3, in so far as it relates to a committee established for the purposes
of, or in connection with, a matter arising under section 4 of Article 35 of the
Constitution or pursuant to section 39 of the Courts of Justice Act 1924 or
section 20 of the Courts of Justice (District Court) Act 1946, shall,
notwithstanding subsection (4) of section 3, apply to a judge of a court that is
specified in that subsection and to which judge the matter relates.”6
14. Second, the 1998 Act was itself amended by the Child Trafficking and
Pornography (Amendment) Act 2004 (“the 2004 Amendment Act”). The 2004
Amendment Act ensures that the Oireachtas and Oireachtas Committees can
investigate allegations of this nature secure in the knowledge that they will
not thereby be committing any criminal offence.7
6
It may be noted that this amendment applies to a case concerning “the behaviour or capacity
of a judge whether occurring or first arising before or after” the passing of the Act: see section
3A(b) of the 1997 Act, as inserted by section 1 of the 2004 Act.
7
Section 13 of the 1998 Act (as inserted by section 1 of the 2004 Amendment Act) thus
provides:
‘‘13.—Nothing in this Act prevents—
(a)
the
giving
of
or
compliance
with
a
direction
under
section
3
of
the
8
15. Third, following a recommendation in that behalf by the Committee on
Procedure and Privileges, Dail Eireann adopted a new Standing Order 63A.
This sets out the special procedures which are to govern any motion for the
removal of a judge, whether pursuant to Article 35.4.1 of the Constitution or
pursuant (as in the present case) to those statutory provisions which apply
these constitutional provisions by reference to judges of the Circuit Court
and, for that matter, the District Court.
16. Standing Order 63A(1) provides that any such motion must:
“state the matters upon which it is contended by the proposer of the said
motion that the Judge who is the subject matter of the motion should be
removed for stated misbehaviour or that he or she is incapacitated.”
17. Standing Order 63A(2) provides that where such an order is placed on
the order paper:
“the Dáil may either reject the said motion, or on a motion made to adjourn
appoint a Select Committee to take evidence in respect of the aforesaid
Article 35.4.1 motion, provided that the Select Committee shall make no
findings of fact nor make any recommendations in respect of same or express
any opinions in respect of same.”8
18. Standing Order 63A(4) provides that the motion appointing the Select
Committee shall state the terms of reference, define the powers devolved
upon it and fix the number of members to serve on it.
19. The remainder of Standing Orders largely determines the procedures to
be followed by the Select Committee and thereafter following the completion
of its Report. Order 63A(5) to (9) provides as follows:
Committees
of
the
Houses
of
the
and Immunities of Witnesses) Act 1997, or
Oireachtas
(Compellability,
Privileges
(b) the possession, distribution, printing, publication or showing by either
House of the Oireachtas, a committee (within the meaning of that Act) or
any person of child pornography for the purposes of, or in connection
with, the performance of any function conferred by the Constitution or
by law on those Houses or conferred by a resolution of either of those
Houses or resolutions of both of them on such a committee.’’
8
In the event that the Dail does not appoint a Select Committee in the manner envisaged
by Standing Order 63A(2) within five sitting days, the said motion shall lapse: see Standing
Order 63A(3).
9
"(5) The Select Committee shall at all times have due regard to the
constitutional principles of basic fairness of procedures and the requirements
of natural and constitutional justice.
(6) The Select Committee shall take all steps to ensure that an appropriate
record is taken of its proceedings.
(7) The proceedings of the Select Committee shall be held in private, save
insofar as otherwise directed by the Committee following a request in that
behalf by a judge who is the subject of an Article 35.4.1 motion.
(8) Following the completion of its proceedings, the Select Committee shall
furnish a report of those proceedings to the Dáil, together with appropriate
transcripts and associated audio-visual material. Provided that the Committee
shall first send its report to the Clerk of the Dáil, who shall arrange in the first
instance for the report to be circulated to the members of the Dáil and to the
Judge who is the subject matter of an Article 34.4.1 motion. Provided further
that the Dáil may subsequently order that the report be published and laid
before the Dáil.
(9) Following receipt of the said report, the Dáil may by order make provision
for the debate on the said Article 35.4.1 motion which shall include:
- due notice of the taking of the debate to be resumed on such part of the
Article 35.4.1 motion calling for the removal of the Judge in question;
- due observance by each Member of the constitutional principle of fair
procedures;
- the right of the Judge and his or her legal representatives to be heard prior
to
any
vote
of
the
said
Article
35.4.1
motion;
- such special rules of procedure as may be deemed appropriate.”
20. Standing Order 63A(10) provides that the subject matter of an Article
35.4.1 motion shall not be raised in the Dail save as is provided in this
Standing Order. Standing Order 63A(11) complements Standing Order 63A(7)
by excluding the application of certain publicity and other requirements
contained elsewhere in Standing Orders, save where the Committee decides
otherwise following a request from the judge who is the subject matter of
the motion.
21. Standing Order 63A(12) envisages the joinder of any Dail Select
Committee so appointed by the Dáil with any similar Select Committee of the
Seanad “appointed to perform its functions in respect of a corresponding Article
35.4.1 motion moved in that House in respect of the same Judge.” Standing Order
63A(12) requires nonetheless that the Chairman of the Joint Select Committee
must be a member of Dáil Éireann.
22. The Standing Orders of Seanad Eireann were also amended at this time
and the new Order 60A is couched in broadly similar terms.
10
The Establishment of the Article 35.4.1 Committee and its Terms of
Reference
23. Following the laying of these two motions, this Joint Select Committee
(“the Article 35 Committee”) was established
in accordance with the
Standing Orders of the Houses and was given stated terms of reference.
The Article 35 Committee consisted of Deputy Denis O’Donovan (Chairman);
Deputy Jerry Cowley; Deputy Jim O’Keeffe; Deputy Jan O’Sullivan 9; Senator
John Dardis; Senator Geraldine Feeney and Senator Michael Finucane.
24. The terms of reference of the Article 35 Committee involve the taking
of evidence in respect of the following matters:
"(a) that the Garda Síochána in August 2001, on receipt of information from
Interpol obtained by the United States Postal Inspection Service during a
search of premises in Fort Worth, Texas, concerning details of alleged
customers of a company offering access to child pornography websites,
commenced an operation in relation to persons allegedly so identified from
this jurisdiction.
(b) that these details included the names, passwords and credit card and
charge card details of certain persons,
(c) that one of the persons from this jurisdiction so named was a Brian Curtin,
35 Ashe Street, Tralee, Co. Kerry, and that subsequent enquiries indicated
that this person was Brian Curtin, Judge of the Circuit Court, with a home
address of 24 Ard na Li, Tralee, Co Kerry,
(d) that a warrant to search Judge Curtin’s home under section 7 of the Child
Trafficking and Pornography Act 1998 issued from the District Court on foot
of an application by a member of the Garda Síochána on 20 May 2002,
(e) that Judge Curtin's home was subsequently searched on foot of the said
warrant and that Gardaí took possession of a personal computer and other
material during the search,
(f) that an investigation file was submitted to the Director of Public
Prosecutions by the Garda authorities in October 2002 and that the Director
of Public Prosecutions instructed that Judge Curtin be prosecuted for
knowingly having in his possession child pornography contrary to section 6 of
the Child Trafficking and Pornography Act, 1998,
(g) that the trial of the said charge commenced on 20 April 2004 at Tralee
Deputy O’Sullivan replaced Deputy Joe Costello who had been originally appointed to the
Committee.
9
11
Circuit Court and that on 23 April 2004 Judge Curtin was found not guilty of
that charge without evidence being given in relation to the subject matter of
the charge, the Circuit Criminal Court having determined that the aforesaid
warrant was spent when executed at the home of the Judge Curtin."
Compellability Powers
25. Following a request in that behalf on June 29, 2004, the Joint SubCommittee on Compellability on Procedures and Privileges of Dail and Seanad
Eireann, pursuant to the provisions of the 1997 Act (as amended), gave its
consent to the Article 35.4.1 Committee to make:
“any or all directions within the meaning of section 3(1) of the 1997
Act in respect of persons or matters generally for the purpose or
purposes of carrying out any or all of the functions of the Joint
Committee as set out in the attached orders of Dail Eireann and
Seanad Eireann on June 3, 2004.”
26. Having been thus invested with compellability powers for the purposes of
the 1997 Act, the Article 35.4.1 Committee immediately commenced work in
accordance with these terms of reference.
The Working Methods of the Committee
27. Following its establishment, the Committee first retained Gerard Hogan
SC as its legal adviser. The legal adviser sat with the members of the
Committee at all stages to advise them on all matters of law and
procedure. The legal adviser was from time to time asked orally to deliver the
rulings of the Committee in respect of applications brought before it and on
other occasions the legal adviser has assisted the Committee in the drafting
of its written rulings. In September 2006 Siobhan Phelan Barrister-at-Law was
retained to act as an assistant to the legal adviser.
28. The Committee also arranged for the appointment of its own legal team,
namely, Messrs. Matheson Ormsby Prentice solicitors and Kevin Feeney SC
and Una Ni Raifeartaigh, Barrister-at-Law. Following Mr. Feeney’s appointment
as a judge of the High Court in March 2006, he was replaced by Diarmaid
McGuinness SC. The Committee’s legal team were charged with the task of
assembling the relevant evidence, examining witnesses and presenting such
evidence before the Committee.
29. While the Committee has had frequent private meetings with its own
legal team, it is important to stress that, unlike the Committee’s legal adviser,
the Committee’s legal team did not remain in attendance with the Committee
members, nor participate in any way in the Committee’s deliberations.
12
30. The Committee’s legal team was charged with the task of interviewing
witnesses, gathering evidence, defending any legal proceedings and presenting
all relevant evidence before the Committee. To this end the Committee’s
legal team applied (successfully) to the Committee on five separate occasions
pursuant to the provisions of section 3 of the 1997 Act for directions
requiring the production of a variety of documents and things, including
Judge Curtin’s computer and financial records. All these applications for
section 3 directions were brought by on foot of a formal motion paper and
grounded on affidavit. Typically each section 3 application required the
consideration by the Committee of a series of affidavits and often lengthy
legal argument.
31. The Committee’s legal team assembled a hearing book which included
material obtained on foot of such section 3 directions, together with the
report of a computer expert. While the Committee never saw the hearing
book, it is nonetheless understood that this hearing book was very lengthy
and extends to some five volumes. This hearing book (along with other
material gathered by the Committee’s legal team) was supplied to Judge
Curtin’s legal team in early October 2006. With a view to ensuring that
there could be no question of pre-judgment on their part in advance of the
hearing, this material was not supplied in advance to the members of the
Committee. The members of the Committee accordingly never got to see
this material and it would only have been disclosed to them during the
course of the evidence to be given at the substantive hearing which was
scheduled to commence on November 13, 2006.
32. Messrs. Pierse and Fitzgibbon acted as solicitors for His Honour Judge
Curtin. His counsel were John Rogers SC, Paul Burns SC and Cian Ferriter,
Barrister-at-Law. Judge Curtin’s legal team applied for section 3 directions on
two separate occasions.
Judge Curtin’s Costs
33. On April 26, 2006 the Committee ruled following an application in that
behalf by Judge Curtin’s legal team that Judge Curtin was entitled to the
reasonable costs associated with the Article 35.4.1 process. The Committee
was unequivocally advised that as it was obliged to abide by constitutional
principles of fair procedures, this entailed making provision for those costs
having regard to the special nature of the entire Article 35.4.1 process. In
arriving at the conclusion the Committee had regard to the fact that it
would have been inconsistent with the nature of the judicial office for any
judge to appear personally as an advocate in his or own defence and to
the particular features of judicial independence as safeguarded by Article 35 of
the Constitution. Any other conclusion would open the way to the possible
financial ruination of a serving judge even in the face of an unmeritorious
impeachment motion which was designed in some way to harass or punish
such a judge.
13
34. The Committee ruled that these constitutional considerations meant that
Judge Curtin was entitled to his reasonable costs which it provisionally
measured as extending to retaining the services of a solicitor, a junior
counsel, a senior counsel and a computer expert. Following a separate
application the Committee ruled on October 31, 2006 that it had no further
jurisdiction in the matter, but that, in recognition of the special and heavy
demands placed on Judge Curtin’s legal team, it would be prepared to
recommend to the Houses of the Oireachtas Commission that the
Commission should pay the costs of a second senior counsel.
The Meetings of the Committee
35. The Committee sat in total on 34 occasions from June 2004 to November 8,
2006
prior to the commencement of the substantive hearings which were
due to commence on November 13, 2006. It has issued nine separate
written rulings. These rulings were typically detailed, lengthy and complex. A
number of other rulings were delivered orally by the Committee. With the
exception of the challenge brought by Judge Curtin to the constitutionality of
the entire process and the order made directing the production of documents
and things which had been seized by the Gardai from his house in May
2002, none of other rulings were subjected to a judicial challenge.
36. So far as the unsuccessful challenge which was brought to both the High
Court and the Supreme Court is concerned, it must be noted that, for legal
reasons, the Committee was effectively precluded from sitting from December
21, 2004 until the Supreme Court appeal was disposed of on March 9,
2006.10 The Committee did, however, meet its legal advisers and legal team
on a number of occasions during this period to discuss the judicial review
proceedings which had been brought by Judge Curtin. No other substantive
work was possible during this period. The Committee resumed work in the
immediate aftermath of the Supreme Court decision and once it was clear that the
stay which had previously been granted had been lifted. Indeed, the committee met
on the afternoon of the Supreme Court decision and resolved to recommence work
that had been frozen for some 16 months.
37. The decision of the Supreme Court has, however, given enormous
guidance to the Oireachtas regarding the entire Article 35.4.1 procedure. In
what we trust will be the unlikely event that this issue will ever trouble the
Oireachtas at any stage in the foreseeable future, it is now clear from the
Court’s decision both to uphold the validity of the procedures adopted and
in respect of the valuable guidance it has given as to the procedures to be
followed should the matter ever reach the floor of the Houses of the
Oireachtas following the report of the Article 35.4.1 Committee that a
template has now been provided for the removal of judges in the very
10
Reported at [2006] 2 Irish Law Reports Monthly 99.
14
special circumstances
Constitution.
which
are
envisaged
by
Article
35.4.1
of
the
38. In accordance with the provisions of Standing Orders of Dáil Éireann and
Seanad Éireann and the Committee’s own terms of reference, the Committee’s
meetings were required to be in private unless Judge Curtin otherwise
requested. As Judge Curtin did not so request, all the hearings were held in
private.
The Meeting of November 13, 2006 and the Resignation of Judge
Curtin
39. The substantive hearings commenced on November 13, 2006. These hearings
were expected to last for two weeks and involving some sixteen separate
witnesses. As the hearing of the evidence was about to commence, certain
legal and other issues arose. The Committee then heard submissions on this
point and subsequently made a formal ruling on those issues. The ruling was
delivered shortly before 1 pm. Shortly after 2 pm the legal team for Judge
Curtin formally advised the Committee that the Judge intended to tender his
resignation. The Committee briefly adjourned proceedings to permit this to
take place.
40. It is understood that at approximately 3.30 pm Judge Curtin tendered
his resignation to the Secretary to the Government. At 4.00 pm Committee
was informed that the resignation had been received. The Committee was
advised by its legal adviser that it no longer had any function with regard
to the Article 35.4.1 inquiry as that process automatically came to an end
once the subject matter of the inquiry is no longer a judge. Following the
transmission of the resignation, the Committee formally ruled to this effect.
41. One practical effect of the resignation, however, is to spare the
Committee from what almost certainly would have been arduous hearings
lasting some ten days or so. In those circumstances the Report for the
Hearing before the Houses of the Oireachtas would have been a very
lengthy document and the associated transcripts and hearing books would
have run to multiple volumes. The hearing before both Houses would have
presented its own issues of procedure. These issues would or might have
included matters
as to the nature of the debate, whether additional
evidence could be called, the manner in which Judge Curtin exercised his
right of appearance before both Houses, whether members of the Article
35.4.1 Committee should (or ought) to vote on the removal resolutions and
the timing and sequence of the debates and votes in both Houses.
15
The Status of the Documents generated during the Article 35.4.1
process
42. The Committee was also required to deal as a consequence with the
status of the documents generated during the course of the Article 35.4.1
process. The Committee ruled that each member of the Committee and its
legal adviser would return their own documents (which extended principally
to the Committee’s own rulings, the section 3 motion papers and private
notes) to the Committee secretariat.
43. So far as the papers and materials generated by the Committee’s own
legal team is concerned (which extended additionally to the material in the
hearing book, including Judge Curtin’s computer and the report of the
computer expert, Martin Gibbs and other material did not included in the
hearing book but which was also disclosed to Messrs. Pierse and Fitzgibbon),
the Committee noted that, having regard to both the express and implied
terms of both Article 15 and Article 35.4.1 of the Constitution - that these
papers and materials - which, for the most part, were obtained on foot of
section 3 directions - should remain within the custody of the Houses of the
Oireachtas.
44. While, therefore, this was not a matter which was, strictly speaking,
within the provenance of the Committee, the Committed ruled as an interim
measure that Messrs. Matheson Ormsby Prentice should take steps as soon
as convenient to return this material to the joint custody of the Clerk of
the Dáil and the Clerk of the Seanad pending such further resolution (if
any) as might hereafter be made by both Houses of the Oireachtas.
45. In this regard the Committee would also observe that the express immunity
conferred on the Houses of the Oireachtas and the Article 35.4.1 Committee by the
2004 Amendment Act in respect of materials constituting child pornography is
arguably at an end once the Article 35.4.1 process itself has concluded. The Houses
of the Oireachtas may well consider that there is a necessity for a further
amendment to the 2004 Amendment Act to deal with the special situation created by
the resignation of Judge Curtin and the abrupt ending of the work of the Article
35.4.1 Committee. Certainly the Committee considers that it would be in the public
interest that these materials and things should be safely and securely retained by
the Clerks of both Houses for the foreseeable future.
Conclusion
46. Under the terms of Standing Order 63A(8) of the Standing Orders of Dáil Éireann
and Standing Orders 60A(8) of the Standing Orders of Seanad Éireann the
committee was required to furnish a report “along with appropriate transcripts and
associated audio-visual material”. Given the events that have occurred, the Article
35.4.1 Committee has been advised by its legal adviser that it is no longer possible,
strictly speaking, to comply with this latter obligation. The transcripts and the rulings
16
relate (in part) to evidence which is not in the public domain and which, even more
importantly, has not been the subject of examination and cross-examination before
the committee in the ordinary way. In any event, this particular obligation so relates
to the committee’s duty once the substantive hearings had concluded. For these
legal reasons therefore, the committees rulings and transcripts of the meetings to
date are not attached.
47. The Committee reports accordingly to the Clerk of Dail Eireann in
accordance with Standing Order 63A(8) and Clerk of Seanad Eireann in
accordance of Standing Order 60A(8) and, by extension, to the Houses of
the Oireachtas themselves.
Denis O’Donovan TD, Chairman
Jerry Cowley TD
Jim O’Keeffe TD
Jan O’Sullivan TD
Senator John Dardis
Senator Geraldine Feeney
Senator Michael Finucane
November 14, 2006
17
Appendix 1:
Terms of Reference of the Joint Committee
Dáil Éireann has made the following Order:(1) That a Select Committee of Dáil Éireann be appointed, pursuant to Standing Order
63A(2) of the Standing Orders Relative to Public Business, to be joined with a Select
Committee to be appointed by Seanad Éireann, on a Matter Pursuant to Article 35.4 of the
Constitution and section 39 of the Courts of Justice Act 1924 (to be referred to as the
“Committee on Article 35.4.1 of the Constitution and section 39 of the Courts of Justice Act
1924”);
(2) The Committee shall take evidence on:
(i) the circumstances and matters referred to in paragraph 1 (a) to (f) of the Expediency
Motion as agreed by Dáil Éireann on 3rd June, 2004, namely:
(a) that the Garda Síochána in August 2001, on receipt of information from Interpol obtained
by the United States Postal Inspection Service during a search of premises in Fort Worth,
Texas, concerning details of alleged customers of a company offering access to child
pornography websites, commenced an operation in relation to persons allegedly so identified
from this jurisdiction,
(b) that these details included the names, passwords and credit card and charge card details of
certain persons,
(c) that one of the persons from this jurisdiction so named was a Brian Curtin, 35 Ashe Street,
Tralee, Co. Kerry, and that subsequent enquiries indicated that this person was Brian Curtin,
Judge of the Circuit Court, with a home address of 24 Ard na Lí, Tralee, Co Kerry,
(d) that a warrant to search Judge Curtin's home under section 7 of the Child Trafficking and
Pornography Act 1998 issued from the District Court on foot of an application by a member
of the Garda Síochána on 20 May 2002,
(e) that Judge Curtin's home was subsequently searched on foot of the said warrant and that
Gardaí took possession of a personal computer and other material during the search,
(f) that an investigation file was submitted to the Director of Public Prosecutions by the
Garda authorities in October 2002 and that the Director of Public Prosecutions instructed that
Judge Curtin be prosecuted for knowingly having in his possession child pornography
contrary to section 6 of the Child Trafficking and Pornography Act 1998,
(ii) any other matters which may arise in the course of the work of the Committee which are
related to the matters referred to in sub-paragraph (i) above, and which may relate to Judge
Curtin’s suitability to hold judicial office;
(iii) any other matters related to the matters referred to in sub-paragraph (i) above which may
be referred to it by Resolution of Dáil Éireann and which may relate to Judge Curtin’s
suitability to hold judicial office;
18
(3) The Select Committee shall consist of 4 members provided that, if one member shall
become unable to participate because of death or illness, the Committee may continue its
proceedings with a membership of no less than 3 members. Provided further that any such
member who becomes unable to participate due to illness shall forthwith cease to be a
member of the Committee;
(4) Without prejudice to the generality of paragraph (5) of Standing Order 63A:
(i) the Committee shall in particular afford the judge in question (and, where appropriate, his
legal representatives) an opportunity to state his case; to cross-examine any witnesses called
by the Committee and to lead such evidence as he may think appropriate; and
(ii) the report of the Committee to be circulated by the Clerk of the Dáil pursuant to
paragraph (8) of that Standing Order shall include a report of the Committee's proceedings
together with appropriate transcripts in written or electronic form and associated audio-visual
material also furnished by the Committee pursuant to that Standing Order;
(5) The Committee shall have the following powers:
(i) Power to accept written submissions to the extent that such written submissions are
necessary for the conveyance of evidence or information essential to the core purpose of the
Committee;
(ii) Power to engage the services of persons with specialist or technical knowledge to assist it
in discharging its function;
(iii) Power to retain the services, should it think fit, of one or more legal advisors whose task
it shall be to advise and assist the Committee;
(iv) Power to undertake travel necessary to the discharge of its functions;
(v) Power to send for persons, papers and records.
19
Seanad Éireann has made the following Order:
(1) That a Select Committee of Seanad Éireann be appointed, pursuant to Standing Order
60A(2) of the Standing Orders Relative to Public Business, to be joined with a Select
Committee appointed by Dáil Éireann, on a Matter Pursuant to Article 35.4 of the
Constitution and section 39 of the Courts of Justice Act 1924 (to be referred to as the
‘Committee on Article 35.4.1 of the Constitution and section 39 of the Courts of Justice Act
1924’);
(2) The Committee shall take evidence on:
(i) the circumstances and matters referred to in paragraph 1(a) to (f) of the Motion of
Concurrence as agreed by Seanad Éireann on 3rd June, 2004, namely:
(a) that the Garda Síochána in August 2001, on receipt of information from Interpol obtained
by the United States Postal Inspection Service during a search of premises in Fort Worth,
Texas, concerning details of alleged customers of a company offering access to child
pornography websites, commenced an operation in relation to persons allegedly so identified
from this jurisdiction,
(b) that these details included the names, passwords and credit card and charge card details of
certain persons,
(c) that one of the persons from this jurisdiction so named was a Brian Curtin, 35 Ashe Street,
Tralee, Co. Kerry, and that subsequent enquiries indicated that this person was Brian Curtin,
Judge of the Circuit Court, with a home address of 24 Ard na Lí, Tralee, Co. Kerry,
(d) that a warrant to search Judge Curtin’s home under section 7 of the Child Trafficking and
Pornography Act 1998 issued from the District Court on foot of an application by a member
of the Garda Síochána on 20 May 2002,
(e) that Judge Curtin’s home was subsequently searched on foot of the said warrant and that
Gardaí took possession of a personal computer and other material during the search,
(f) that an investigation file was submitted to the Director of Public Prosecutions by the
Garda authorities in October 2002 and that the Director of Public Prosecutions instructed that
Judge Curtin be prosecuted for knowingly having in his possession child pornography
contrary to section 6 of the Child Trafficking and Pornography Act 1998,
(ii) any other matters which may arise in the course of the work of the Committee which are
related to the matters referred to in sub-paragraph (i) above, and which may relate to Judge
Curtin’s suitability to hold judicial office;
(iii) any other matters related to the matters referred to in sub-paragraph (i) above which may
be referred to it by Resolution of Seanad Éireann and which may relate to Judge Curtin’s
suitability to hold judicial office;
20
(3) The Select Committee shall consist of 3 members provided that, if one member shall
become unable to participate because of death or illness, the Committee may continue its
proceedings with a membership of no less than 2 members. Provided further that any such
member who becomes unable to participate due to illness shall forthwith cease to be a
member of the Committee;
(4) Without prejudice to the generality of paragraph (5) of Standing Order 60A:
(i) the Committee shall in particular afford the judge in question (and, where appropriate, his
legal representatives) an opportunity to state his case; to cross-examine any witnesses called
by the Committee and to lead such evidence as he may think appropriate; and
(ii) the report of the Committee to be to circulated by the Clerk of the Seanad pursuant to
paragraph (8) of that Standing Order shall include a report of the Committee’s proceedings
together with appropriate transcripts in written or electronic form and associated audio visual
material also furnished by the Committee pursuant to that Standing Order;
5) The Committee shall have the following powers:
(i) Power to accept written submissions to the extent that such written submissions are
necessary for the conveyance of evidence or information essential to the core purpose of the
Committee;
(ii) Power to engage the services of persons with specialist or technical knowledge to assist it
in discharging its function;
(iii) Power to retain the services, should it think fit, of one or more legal advisors whose task
it shall be to advise and assist the Committee;
(iv) Power to undertake travel necessary to the discharge of its functions;
(v) Power to send for persons, papers and records.”
21
Appendix 2:
Standing Orders
Standing Order 63A of Dáil Éireann
“Go ndéanfar, de réir mar atá molta ag an
gCoiste um Nós Imeachta agus Pribhléidí, an
méid seo a leanas a ghlacadh mar Bhuan-Ordú
breise i dtaobh Gnó Phoiblí:
That, as recommended by the Committee
on Procedure and Privileges, the following be
adopted as an additional Standing Order
relative to Public Business:
‘63A (1) Aon tairiscint (a dtabharfar
“tairiscint Airteagal 35.4.1” mar thuairisc
uirthi anseo ina dhiaidh seo) a chuirfear ar Riar
na hOibre aon lá á éileamh Breitheamh a chur
as oifig de dheasca mí-iompair nó míthreorach
a luafar, de réir bhrí Airteagal 35.4.1 den
Bhunreacht (nó, de réir mar a bheidh, de bhun
alt 39 den Acht Cúirteanna Breithiúnais 1924
nó alt 20 den Acht Cúirteanna Breithiúnais (An
Chúirt Dúiche) 1946), luafar inti na nithe ar dá
réir a mhaíonn tairgtheoir na tairisceana sin gur
ceart an Breitheamh arb é nó í is ábhar don
tairiscint a chur as oifig de dheasca mí-iompair
a luafar nó go bhfuil sé nó sí faoi mhíthreoir.
‘63A (1) Any motion (hereafter described
as “an Article 35.4.1 motion”) put on the Order
Paper for any day calling for the removal of a
Judge for stated misbehaviour or incapacity
within the meaning of Article 35.4.1 of the
Constitution (or, as the case may be, pursuant
to section 39 of the Courts of Justice Act 1924
or section 20 of the Courts of Justice (District
Court) Act 1946), shall state the matters upon
which it is contended by the proposer of the
said motion that the Judge who is subject
matter of the motion should be removed for
stated misbehaviour or that he or she is
incapacitated.
(2) I gcás ina ndéanfar tairiscint Airteagal
35.4.1 den sórt sin a chur ar Riar na hOibre
aon lá, féadfaidh an Dáil an tairiscint sin a
dhiúltú, nó ar thairiscint a dhéanfar chun an
díospóireacht a chur ar athló féadfaidh an Dáil,
trí thairiscint, Roghchoiste a cheapadh chun
fianaise a ghlacadh i leith na tairisceana
Airteagal 35.4.1 a dúradh, ar choinníoll nach
ndéanfaidh an Roghchoiste aon chinntí fíorais
ná nach ndéanfaidh sé aon mholtaí i leith an
chéanna ná nach léireoidh sé aon tuairimí i
leith an chéanna.
(2) Where such an Article 35.4.1 motion is
put on the Order Paper for any day, the Dáil
may either reject the said motion, or on a
motion made to adjourn the debate may by
motion appoint a Select Committee to take
evidence in respect of the aforesaid Article
35.4.1 motion, provided that the Select
Committee shall make no findings of fact nor
make any recommendations in respect of same
or express any opinions in respect of same.
(3)
I gcás nach ndéanfaidh an Dáil
Roghchoiste a cheapadh sa tslí dá bhforáiltear i
mír (2) den Bhuan-Ordú seo laistigh de chúig
lá suí ón tráth a chuirfear aon tairiscint
Airteagal 35.4.1 ar Riar na hOibre, titfidh an
tairiscint Airteagal 35.4.1 sin ar lár.
(3) Where the Dáil does not appoint a
Select Committee in the manner provided for
in paragraph (2) of this Standing Order within
five sitting days of any Article 35.4.1 motion
being placed on the Order Paper, the said
Article 35.4.1 motion shall lapse.
(4) Maidir leis an tairiscint lena gceapfar
an Roghchoiste, déanfar téarmaí tagartha an
Choiste a lua inti, míneofar inti na cumhachtaí
a chineachtar chuige agus socrófar léi an líon
comhaltaí a fhónfaidh air.
(4) The motion appointing the Select
Committee shall state the terms of reference of
the Committee, define the powers devolved
upon it and fix the number of members to
serve on it.
(5) Déanfaidh an Roghchoiste, gach tráth,
aird chuí a thabhairt ar na prionsabail
(5) The Select Committee shall at all times
have due regard to the constitutional principles
22
bhunreachta a bhaineann le cothroime
bhunúsach nósanna imeachta agus ar
riachtanais an cheartais aiceanta agus
bunreachta.
of basic fairness of procedures and the
requirements of natural and constitutional
justice.
(6) Déanfaidh an Roghchoiste gach beart
lena chinntiú go ndéantar taifead cuí dá chuid
imeachtaí.
(6) The Select Committee shall take all
steps to ensure that an appropriate record is
taken of its proceedings.
(7) Déanfar imeachtaí an Roghchoiste a
éisteacht go príobháideach ach amháin a mhéid
a ordóidh an Coiste a mhalairt tar éis iarraidh a
fháil chuige sin ó Bhreitheamh arb é nó í is
ábhar do thairiscint Airteagal 35.4.1.
(7) The proceedings of the Select
Committee shall be heard in private save
insofar as otherwise directed by the Committee
following a request in that behalf by a Judge
who is the subject of an Article 35.4.1 motion.
(8) Tar éis a chuid imeachtaí a chríochnú,
déanfaidh an Roghchoiste tuarascáil ar na
himeachtaí sin, mar aon le scríbhinní agus
ábhar clos-amhairc cuí, a thabhairt don Dáil.
Ar choinníoll go ndéanfaidh an Coiste a
thuarascáil a chur chuig Cléireach na Dála ar
dtús agus déanfaidh Cléireach na Dála socrú sa
chéad ásc chun an tuarascáil a scaipeadh ar
chomhaltaí na Dála agus a chur chuig an
mBreitheamh arb é nó í is ábhar do thairiscint
Airteagal 35.4.1. Ar choinníoll thairis sin go
bhféadfaidh an Dáil, dá éis sin, a ordú go
ndéanfar an tuarascáil a fhoilsiú agus a leagan
faoi bhráid na Dála.
(8) Following the completion of its
proceedings, the Select Committee shall
furnish a report of those proceedings to the
Dáil, together with appropriate transcripts and
associated audio-visual material. Provided that
the Committee shall first send its report to the
Clerk of the Dáil, who shall arrange in the first
instance for the report to be circulated to the
members of the Dáil and to the Judge who is
the subject matter of an Article 35.4.1 motion.
Provided further that the Dáil may
subsequently order that the report be published
and laid before the Dáil.
(9) Tar éis don Dáil an tuarascáil sin a
fháil, féadfaidh sí, le hordú, socrú a dhéanamh
le haghaidh na díospóireachta ar an tairiscint
Airteagal 35.4.1 sin agus beidh na nithe seo a
leanas san áireamh ann:
(9) Following receipt of the said report, the
Dáil may by order make provision for the
debate on the said Article 35.4.1 motion which
shall include:
— fógra cuí faoi thógáil na díospóireachta atá
le hatógáil ar cibé cuid den tairiscint
Airteagal 35.4.1 á éileamh an Breitheamh
lena mbaineann a chur as oifig;
— due notice of the taking of the debate to be
resumed on such part of the Article 35.4.1
motion calling for the removal of the Judge
in question;
— gach Comhalta do thabhairt urraim chuí do
na prionsabail bhunreachta a bhaineann le
nósanna imeachta cothroma;
— due observance by each Member of the
constitutional principles of fair procedures;
— ceart a bheith ag an mBreitheamh agus ag
a ionadaithe dlíthiúla nó a hionadaithe
dlíthiúla chun éisteacht a fháil roimh aon
vóta ar an tairiscint Airteagal 35.4.1 sin;
— the right of the Judge and his or her legal
representatives to be heard prior to any
vote on the said Article 35.4.1 motion;
— cibé rialacha speisialta nós imeachta a
mheasfar is cuí.
— such special rules of procedure as may be
deemed appropriate.
(10) Ní bheidh feidhm ag Buan-Ordú 58 i
leith tairisceana Airteagal 35.4.1 agus ní
ardófar ábhar tairisceana Airteagal 35.4.1 sa
(10) Standing Order 58 shall not apply in
respect of an Article 35.4.1 motion and the
subject matter of an Article 35.4.1 motion shall
23
Dáil ach amháin mar a fhoráiltear a mhalairt
leis an mBuan-Ordú seo.
not be raised in the Dáil save as otherwise
provided by this Standing Order.
(11) Ach amháin mar a fhoráiltear a
mhalairt sa Bhuan-Ordú seo, ní bheidh feidhm
ag Buan-Orduithe 80, 81, 82, 83, 84, 86, 88,
90, 91, 93, 102 ná 169(1) maidir le
Roghchoiste arna cheapadh faoin mBuan-Ordú
seo. Ar choinníoll, áfach, go mbeidh feidhm ag
Buan-Ordú 102 más rud é go ndéanfaidh an
Coiste, tar éis iarraidh a fháil chuige sin ón
mBreitheamh arb é nó í is ábhar do thairiscint
Airteagal 35.4.1, a chinneadh a chuid
imeachtaí a sheoladh go poiblí de réir mhír (7)
den Bhuan-Ordú seo.
(11) Save as otherwise provided for in this
Standing Order, Standing Orders 80, 81, 82,
83, 84, 86, 88, 90, 91, 93, 102 and 169(1) shall
not apply to a Select Committee appointed
under this Standing Order. Provided, however,
that if the Committee decides following a
request in that behalf by the Judge, who is the
subject matter of an Article 35.4.1 motion, to
have its proceedings in public in accordance
with paragraph (7) of this Standing Order,
Standing Order 102 shall apply.
(12) Maidir le Roghchoiste arna cheapadh
faoin mBuan-Ordú seo, déanfar, le comhthoiliú
Sheanad Éireann, é a chomhcheangal, le hordú
ón Dáil, lena shamhail de Roghchoiste de
chuid an tSeanaid arna cheapadh chun a
fheidhmeanna a chomhlíonadh i leith
tairisceana comhfhreagraí Airteagal 35.4.1 a
thairgfear sa Teach sin i leith an Bhreithimh
chéanna. Ar choinníoll gur comhalta de Dháil
Éireann Cathaoirleach na Roghchoistí arna
gcomhcheangal amhlaidh.’
(12) A Select Committee appointed under
this Standing Order shall, with the concurrence
of Seanad Éireann, be joined by order of the
Dáil with a similar Select Committee of that
House appointed to perform its functions in
respect of a corresponding Article 35.4.1
motion moved in that House in respect of the
same Judge. Provided that the Chairman of the
Select Committees so joined shall be a member
of Dáil Éireann.’.”
24
Standing Order 60A of Seanad Éireann
An nós
imeachta i
gcás
tairisceana
á éileamh
Breitheamh
a chur as
oifig de
dheasca míiompair nó
míthreorach
a luafar.
60A. (1) Aon tairiscint (a dtabharfar
“tairiscint Airteagal 35.4.1o” mar
thuairisc uirthi anseo ina dhiaidh
seo) a chuirfear ar Riar na hOibre
aon lá á éileamh breitheamh a chur
as oifig de dheasca mí-iompair nó
míthreorach a luafar, de réir bhrí
Airteagal 35.4.1o den Bhunreacht
(nó, de réir mar a bheidh, de bhun
alt 39 den Acht Cúirteanna
Breithiúnais 1924 nó alt 20 den
Acht Cúirteanna Breithiúnais (An
Chúirt Dúiche) 1946), luafar inti na
nithe ar dá réir a mhaíonn
tairgtheoir na tairisceana sin gur
ceart an Breitheamh arb é nó í is
ábhar don tairiscint a chur as oifig
de dheasca mí-iompair a luafar nó
go bhfuil sé nó sí faoi mhíthreoir.
60A. (1) Any motion (hereinafter
described as “an Article 35.4.1o
motion”) put on the Order Paper
for any day calling for the
removal of a judge for stated
misbehaviour or incapacity within
the meaning of Article 35.4.1o
of the Constitution (or, as the
case may be, pursuant to section
39 of the Courts of Justice Act
1924 or section 20 of the Courts
of Justice (District Court) Act
1946), shall state the matters
upon which it is contended by
the proposer of the said motion that
the Judge who is the subject
matter of the motion should be
removed for stated misbehaviour
or that he or she is incapacitated.
(2) I gcás ina ndéanfar tairiscint
Airteagal 35.4.1o den sórt sin a chur
ar Riar na hOibre aon lá, féadfaidh
an Seanad an tairiscint sin a dhiúltú,
nó ar thairiscint a dhéanfar chun an
díospóireacht a chur ar athló
féadfaidh an Seanad, le tairiscint,
Roghchoiste a cheapadh chun
fianaise a ghlacadh i leith na
tairisceana Airteagal 35.4.1o a
dúradh,
ar
choinníoll
nach
ndéanfaidh an Roghchoiste aon
chinntí fíorais ná nach ndéanfaidh
sé aon mholtaí i leith an chéanna ná
nach léireoidh sé aon tuairimí i leith
an chéanna.
(2) Where such an Article 35.4.1o
motion is put on the Order Paper
for any day, the Seanad may
either reject the said motion or, on
motion made to adjourn the debate,
may by motion appoint a Select
Committee to take evidence in
respect of the aforesaid Article
35.4.1o motion, provided that the
Select Committee shall make no
findings of fact nor make any
recommendations in respect of
same or express any opinions in
respect of same.
(3) I gcás nach ndéanfaidh an
Seanad Roghchoiste a cheapadh sa
tslí dá bhforáiltear i mír (2) den
Bhuan-Ordú seo laistigh de chúig lá
suí ón tráth a chuirfear aon tairiscint
Airteagal 35.4.1o ar Riar na hOibre,
titfidh an tairiscint Airteagal 35.4.1o
sin ar lár.
(3) Where the Seanad does not
appoint a Select Committee in
the manner provided for in
paragraph (2) of this Standing
Order within five sitting days of
any Article 35.4.1o motion being
placed on the Order Paper, the
said Article 35.4.1o motion shall
lapse.
Procedure
in the case
of a motion
calling for
the removal
of a Judge
for stated
misbehavio
ur or
incapacity.
25
(4) Maidir leis an tairiscint lena
gceapfar an Roghchoiste, déanfar
téarmaí tagartha an Choiste a lua
inti, míneofar inti na cumhachtaí a
chineachtar chuige agus socrófar léi
an líon comhaltaí a fhónfaidh air.
(4) The motion appointing the
Select Committee shall state the
terms of reference of the
Committee, define the powers
devolved upon it and fix the
number of members to serve on
it.
(5) Déanfaidh an Roghchoiste, gach
tráth, aird chuí a thabhairt ar na
prionsabail bhunreachta a bhaineann
le cothroime bhunúsach nósanna
imeachta agus ar riachtanais an
cheartais aiceanta agus bunreachta.
(5) The Select Committee shall at
all times have due regard to the
constitutional principles of basic
fairness of procedures and the
requirements of natural and
constitutional justice.
(6) Déanfaidh an Roghchoiste gach (6) The Select Committee shall
beart lena chinntiú go ndéantar take all steps to ensure that an
appropriate record is taken of its
taifead cuí dá chuid imeachtaí.
proceedings.
(7)
Déanfar imeachtaí an
Roghchoiste
a
éisteacht
go
príobháideach ach amháin a mhéid a
ordóidh an Coiste a mhalairt tar éis
iarraidh a fháil chuige sin ón
mBreitheamh arb é nó í is ábhar do
thairiscint Airteagal 35.4.1o.
(7) The proceedings of the Select
Committee shall be heard in private
save insofar as otherwise directed
by the Committee following a
request in that behalf by the Judge
who is the subject of an Article
35.4.1o motion.
(8) Tar éis a chuid imeachtaí a
chríochnú,
déanfaidh
an
Roghchoiste tuarascáil ar na
himeachtaí sin, mar aon le
scríbhinní agus ábhar clos-amhairc
cuí, a thabhairt don Seanad. Ar
choinníoll go ndéanfaidh an Coiste
a thuarascáil a chur chuig Cléireach
an tSeanaid ar dtús agus déanfaidh
Cléireach an tSeanaid socrú sa
chéad ásc chun an tuarascáil a
scaipeadh ar chomhaltaí an tSeanaid
agus a chur chuig an mBreitheamh
arb é nó í is ábhar do thairiscint
Airteagal 35.4.1o. Ar choinníoll
thairis sin go bhféadfaidh an
Seanad, dá éis sin, a ordú go
ndéanfar an tuarascáil a fhoilsiú
agus a leagan faoi bhráid an
tSeanaid.
(8) Following the completion of its
proceedings, the Select Committee
shall furnish a report of those
proceedings to
the
Seanad,
together with appropriate transcripts
and
associated
audio-visual
material.
Provided that the
Committee shall first send its report
to the Clerk of the Seanad, who
shall arrange in the first instance for
the report to be circulated to the
members of the Seanad and to the
Judge who is the subject matter of
an Article 35.4.1o motion. Provided
further that the Seanad may
subsequently order that the report be
published and laid before the
Seanad.
26
(9) Tar éis don Seanad an tuarascáil
sin a fháil, féadfaidh sé, le hordú,
socrú a dhéanamh le haghaidh na
díospóireachta ar an tairiscint
Airteagal 35.4.1o sin agus beidh na
nithe seo a leanas san áireamh ann:
(9) Following receipt of the said
report, the Seanad may by order
make provision for the debate on
the said Article 35.4.1o motion
which shall include:
fóg
ra
cuí
faoi
thó
gáil
na
dío
spó
irea
cht
a
atá
le
hat
ógá
il
ar
cib
é
cui
d
den
tair
isci
nt
Air
tea
gal
35.
4.1
o
á
éile
am
h
an
Bre
ithe
am
h
len
a
mb
27
ain
ean
n a
chu
r as
oifi
g;
- due notice of the taking of the debate to be resumed on such part of the Article
35.4.1o motion calling for the removal of the Judge in question;
- gach Comhalta do thabhairt urraim - due observance
by
each
chuí do na prionsabail bhunreachta Member of the constitutional
a bhaineann le nósanna imeachta principles of fair procedures;
cothroma;
- ceart a bheith ag an mBreitheamh
agus ag a ionadaithe dlíthiúla nó a
hionadaithe dlíthiúla chun éisteacht
a fháil roimh aon vóta ar an
tairiscint Airteagal 35.4.1o sin; agus
- the right of the Judge and his
or her legal representatives to be
heard prior to any vote on the
said Article 35.4.1o motion; and
- cibé rialacha speisialta nós
imeachta a mheasfar is cuí.
- such special rules of procedure
as may be deemed appropriate.
(10) Ní ardófar ábhar tairisceana
Airteagal 35.4.1o sa Seanad ach
amháin mar a fhoráiltear a mhalairt
leis an mBuan-Ordú seo.
(10) The subject matter of an
Article 35.4.1o motion shall not be
raised in the Seanad save as
otherwise provided by this Standing
Order
(11) Ach amháin mar a fhoráiltear a
mhalairt sa Bhuan-Ordú seo, ní
bheidh feidhm ag Buan-Orduithe
64, 65, 66, 68, 69, 70, 73, 74, 77,
81, 96 ná 142(1) maidir le
Roghchoiste arna cheapadh faoin
mBuan-Ordú seo. Ar choinníoll,
áfach, go mbeidh feidhm ag BuanOrdú 96 más rud é go ndéanfaidh an
Coiste, tar éis iarraidh a fháil chuige
sin ón mBreitheamh arb é nó í is
ábhar do thairiscint Airteagal
35.4.1o, a chinneadh a chuid
imeachtaí a sheoladh go poiblí de
(11) Save as otherwise provided for
in this Standing Order, Standing
Orders 64, 65, 66, 68, 69, 70, 73,
74, 77, 81, 96 and 142(1) shall not
apply to a Select Committee
appointed under this
Standing
Order. Provided, however, that if
the Committee decides following a
request in that behalf by the Judge,
who is the subject matter of an
Article 35.4.1o motion, to have its
proceedings in public in accordance
with paragraph (7) of this Standing
Order, Standing Order 96 shall
28
réir mhír (7) den Bhuan-Ordú seo.
apply.
(12) Maidir le Roghchoiste arna
cheapadh faoin mBuan-Ordú seo,
déanfar, le comhthoiliú Dháil
Éireann, é a chomhcheangal, le
hordú ón Seanad, lena shamhail de
Roghchoiste de chuid an Tí sin arna
cheapadh chun a fheidhmeanna a
chomhlíonadh i leith tairisceana
comhfhreagraí Airteagal 35.4.1o a
thairgfear sa Teach sin i leith an
Bhreithimh chéanna. Ar choinníoll
gur comhalta de Dháil Éireann
Cathaoirleach na Roghchoistí arna
gcomhcheangal amhlaidh.
(12) A Select Committee appointed
under this Standing Order shall,
with the concurrence of Dáil
Éireann, be joined by order of the
Seanad with a similar Select
Committee of that House appointed
to perform its functions in respect of
a corresponding Article 35.4.1o
motion moved in that House in
respect of the same Judge. Provided
that the Chairman of the Select
Committees so joined shall be a
member of Dáil Éireann.
29
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