Sinn Féin has asked the State’s judicial oversight body if it has any role in disciplining or impeaching a Circuit Court judge convicted of sexual assault last month.
The party’s justice spokesman, Kerry TD Pa Daly, has written to the Judicial Council relating to the conviction of Circuit Court judge Gerard O’Brien of sexually assaulting five young men and a 17-year-old boy during the 1990s.
In a letter sent on Wednesday, Mr Daly asked the council if it has “taken any decision as to whether it has any role, or will be taking any role, in any disciplinary investigation process concerning Judge O’Brien”.
The move marks a ramping-up of political pressure over the next steps arising from the conviction, which could invite unprecedented measures by the Oireachtas, which is the only body that can remove a judge from their position.
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Mr Daly said that in the absence of the judge’s resignation, “the relevant machinery to remove him should be commenced”.
O’Brien could ultimately face votes in the Oireachtas to remove him from office if he does not resign. Senior political sources said that the expectation in Government is that the judge, who has yet to be sentenced after his conviction at the Central Criminal Court, will resign but that if he does not, the process for removing a judge from office is likely to be triggered.
The Constitution states that any Supreme Court, High Court or Court of Appeal Judge shall not be removed from office except for stated misbehaviour or incapacity, and then only following resolutions passed by Dáil Éireann and Seanad Éireann calling for their removal.
While the article in question refers only to these judges, the Association of Judges of Ireland (AJI) website states that the same procedure would have to be followed in order to remove a judge from the Circuit Court or District Court as they are declared to hold office by the same tenure as judges of the Supreme and High Courts.
No judge has ever been removed and the language in the Constitution on misbehaviour or incapacity has never had to be judicially interpreted, according to the AJI.
The Judicial Council Act 2019, which established the Judicial Council, defines judicial misconduct as conduct that constitutes “a departure from acknowledged standards of judicial conduct” and “brings the administration of justice into disrepute”.
The judicial conduct regime allows for misconduct to be investigated and sanctions applied if necessary. However, the procedure for the “nuclear option” of removing a judge from office is still the one set out in the Constitution, according to Laura Cahillane, associate professor in the School of Law, University of Limerick.
Following the conviction, Minister for Justice Helen McEntee said she is considering the options open to the Government and the Oireachtas, and had asked the Attorney General to give advice on the matter.
Mr Daly said: “Clearly, his presence on the bench is damaging to confidence in the Judiciary. At a time when trust in public institutions has been under pressure, fair, but decisive, action needs to be taken.”
He said that if the Judicial Council decides it has no role, then “it’s up the Oireachtas to consider the impeachment process. If the Government is not going to move, then we will.”
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