Call off this sad witchhunt

By Mark Brennock (for the Irish Times)

You could be forgiven for thinking the State itself was under threat. A matter has arisen that is so grave that the Cabinet has now discussed it at least three times in recent weeks. Legislation has been rushed through the Oireachtas. The Taoiseach and Minister for Justice speak with growing solemnity about the situation.

Opposition leaders respond in the restrained manner normally reserved for when a country is at war and the nation’s political forces must unite against a common enemy.

And the enemy? A judge who currently resides in St John of God’s Hospital in Stillorgan, Co Dublin, suffering from what we are told is a serious illness. He is a pariah and his career is in ruins.

It is entirely inappropriate that he should work again as a judge. He has been found not guilty of the charge of possessing child pornography. But the manner of his acquittal, in circumstances where neither the prosecution nor defence cases could be tested, leaves a widespread public suspicion that he did indeed do that of which he was acquitted. This widespread suspicion - indeed belief - will hang over him all his life.

Paying for child pornography funds a most vile industry which exploits and permanently damages children. The most basic thing we expect of our judges is that they have judgment, and the suspicion is that Judge Curtin has shown a major deficiency in this regard.

However, we should be clear on what the State’s determined and legally convoluted pursuit of Judge Curtin is about. Nobody is suggesting that he is about to return to the State’s courtrooms to sit in judgment. He has not been assigned any cases since the Garda investigation into him started two years ago, and it is believed that this will remain the situation. The only matter at issue is whether he stays on the State payroll without working, departs from office with a reasonable pension, or leaves, probably unemployable and still in his early fifties, to eke out an existence until a pension of about O10,000 per annum kicks in at age 65.

The Government demanded that he resign and take the latter option. This act of self-impoverishment would also have involved an effective declaration that he was guilty of the charge of which he was acquitted.

There was no attempt to see if he could be retired on medical grounds or on grounds of incapacity, which would allow for the early payment of the modest pension. Nor was there any attempt to negotiate with him to see if he would agree to go quietly in exchange for some financial settlement.

No, the judge was invited to resign from office with no financial compensation, and when he declined was characterised as a man who had chosen to take on the State.

This has all come about because two years ago gardai breached Judge Curtin’s constitutional rights by raiding his home with an out-of-date warrant and illegally seizing his computer. Despite this illegality, the prosecution went ahead. The case predictably collapsed, but only after the detailed allegations against the judge were set out in open court.

The general public shorthand for this is that the judge “got off on a technicality”, with an implicit suggestion that clever-dick lawyers somehow cheated the system to ensure a guilty man walked free.

Our constitutional rights are not a technicality. They are there to ensure that mighty organs of the State do not trample on the rights of individuals to be safe and secure in their homes and in their lives.

They only thwart the forces of law and order if those forces don’t pay heed to these constitutional rights. You would imagine if you were going to raid a judge’s house, you would ensure your search warrant was in order first. The fact that it wasn’t was an extraordinary failing of the gardai, not a cunning ruse by the judge.

The Oireachtas now proposes to ignore accepted legal principles to try to impose severe punishment on the judge anyway, regardless of the not-guilty finding.

They appear poised to use the unconstitutionally obtained evidence to eject him from office. Even further, they have changed the law to force him to give evidence to assist in his removal from office - a practice that vanished from civilised legal systems several centuries ago.

This unprecedented carry-on may yet end up in the courts. It may go on for months and months. Not one of the 226 members of the Oireachtas, except Senator Joe O’Toole, has said it is a bad idea. One wonders has this anything to do with the imminent elections.

In a situation where the State failed in its job of mounting a sound prosecution, it would be reasonable for the Government to behave as if it accepted the verdict of the court, give the judge some money, see him off the bench and perhaps tell the public the steps it will take to avoid such cock-ups in the future.

It would also be compassionate to end this pitiless pursuit of a broken man.

Urgent Appeal