Co Judge accused of accessing child porn holds out

national | crime and justice | news report Friday September 16, 2005 14:10 by Melissa no at no dot com

He is not the only judge in the world facing allegations of accessing child pornography, but it is now looking like Judge Brian Curtin in Ireland is at the centre of one of the highest profile child pornography cases in the world.

The brief background story is that he was a 2003 victim of the spin-off from the FBI Landslide case, called Operation Amethyst in Ireland and Operation Ore in the UK, when, given evidence of his credit card transactions, the Irish police raided his home and seized his computer and files. They were triumphant at what they found and information about the contents was swiftly leaked to the media.

Legal delays began immediately and the Irish government, already faced with a multitude of scandals, became jittery. As his case finally came to court, his top legal team delivered a bombshell. The search warrant used to enter his home and seize his computer and files was a day late. The presiding judge threw out the case, clearing Curtin in a situation where he could now not be retried for that alleged offence. The government appeared astonished, while some wondered if it had all been staged. The police were seriously embarrassed.

Here now was the extraordinary situation. A judge against whom were made allegations of paying for and possessing child pornography had been cleared because of a legal technicality, which in turn was caused by the police and prosecution service. A government already under intense pressure for not being willing or able to deal with white collar crime had made public statements to the effect that Judge Curtin would not be staying in office. But he was innocent unless proven guilty under the law, and, no matter what evidence the police had found regarding his credit card transactions and the images on his computer, he could not be retried for any offence relating to them. The government began to talk impeachment. They dearly hoped that he would resign. There was speculation in the media about his shame, physical attacks on him, his drinking, and even that he was in a mental institution and that his legal team were no longer able to take instructions from him. Appearing to support all this, he was stopped by the police and charged with drunk driving in his home town. People began to assume that he would quietly slip into the shadows, a broken man.

On June 1 2004, Judge Curtin struck back by lodging a plenary summons in the High Court seeking a declaration that evidence collected unlawfully cannot be used in any proceedings, naming the police, the director of public prosecutions, the government and the attorney general. Some readers may remember that shortly after we and others pointed out that the UK police were breaking the law by viewing seized child pornography last year, a special amendment was created to the UK legislation allowing named persons to view child pornography.

Perhaps the Emperor has no clothes

Special legislation was created authorizing the setting up of a select committee of members of the Irish Parliament to view and consider whatever child pornography images had been discovered in Judge Curtin’s possession, but it was not immediately clear whether or not in so doing they also would be breaking the law.

Curtin is seeking a declaration from the High Court that no further use can be made of the evidence collected by the police, and that it cannot be given to third parties, such as the politicians cleared to look at the images. It has also emerged that Curtin has begun proceedings against the country’s prime minister ‘the Taoiseach’. Amongst his possible proceedings is one for trespass.

On June 30 2004, the committee wrote to Judge Curtin asking for his cooperation and for any documents or disks in his possession. Apart from the police, only another judge, the one that first decided that Curtin should go for trial, has inspected the images, and he did so privately.

Even if Judge Curtin decides to cooperate with the committee, it is difficult to see how he could, as he does not have possession of the documents or disks in question, which are still in the hands of the police. Counsel for the police has advised them that it would be a criminal offence for them to pass the evidence to third parties as it contains ‘child pornography’. Muddying the waters further is that fact that because of the flawed search warrant, the police obtained the images illegally. This alone could contaminate the evidence. For this reason the committee wants to obtain the material directly from the judge, and not from the police.

This then is the conundrum. The judge will point out that he cannot pass over the material because the police have it. The police have already stated that they cannot give the material to anyone because it contains child pornography, not even back to Judge Curtin. In the end, the committee may have to order the police to hand it to them directly. If they already have doubts about the legality of this, they may have to add to them the question of the morality of their attempting to decide the criminality of the images, which if, like other images of that nature, are likely to contain depictions of child nudity and child eroticism. This exposes them to the risk of corruption, both through their own and society’s perceived affects of images of child nudity and eroticism, and through their having to make moral decisions about what is and is not pornographic and what others should and should not see. Should this be like previous historical cases, where unusual forms of sexuality were judged to be immoral, and in particular if any of the images, or their genre, should in the future be deemed by society to have become acceptable, this could lead to the committee members being viewed as prejudiced or dishonourable.

No-one has yet suggested that underlying the conundrum are flawed child pornography laws.