Committee Reports > List of Committees > Joint > 2006 > Oireachtas Committee on Article 35.4.1 > Report - Article 35.4.1

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

14^TH November 2006

CONTENTS

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 13^th 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 13^th 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 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

14^th November 2006.

Members of the Joint Committee

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.

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.

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

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:

“(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.

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’Sullivan⁹; 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 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 Sub-Committee 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.

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.

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 special circumstances which are envisaged by Article 35.4.1 of the Constitution.

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.

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 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

¹ 586 Dail Debates Cols. 1502 - 03

2 176 Seanad Debates Col. 1450

3 586 Dail Debates Cols. 13-17

4 176 Seanad Debates Cols. 1604-06

5 The leading decision is that of the Supreme Court: The People (Director of Public Prosecutions) v Kenny [1990] 2 Irish Reports 110.

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:

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 Deputy O’Sullivan replaced Deputy Joe Costello who had been originally appointed to the Committee.

10 Reported at [2006] 2 Irish Law Reports Monthly 99.