Justice Curtin

Our man in Havana

I was commenting over on politics on this subject:

Bond-007 wrote:

I think Gardai slipped up badly. When Curtain was aquitted why was his computer not returned to him forthwith? What grounds did the gardai have to hold it?

If they gave it back, could a garda run outside the station and arrest him against for being in possesion (carrying the comp) of child porn?

If Curtain was cute he should have demanded it back and immediatley destroyed it by burning it and then no one could do a thing?

I was told that I would get a better response here. Any views on this?

Karoma

If drugs are seized from a dealer and he's acquitted, are the drugs given back? (Or if they were being smuggled via suitcase - the suitcase?)

Our man in Havana

They would have no basis in law to hold on to it.

dermot_sheehan

Bond-007 wrote:

They would have no basis in law to hold on to it.

I think Police Property Act 1908 covers this area (I can't find a copy online). Can make application to District Court for return of property seised by the police.

hullaballoo

No thanks oulu. Boards.ie can do without defamation suits and all that jazz. You're sin-binned for a week. I cannot abide that kind of behaviour in this forum.

Eru

Hull,
Presume you deleted a post????

Bond,
Police property application or simple Curton has not requested his PC back or more likely the hard drive has been copied and stored.

As for re-arrest, its the same porn, cant be tried twice.

Now to the defence, the Gardai did not mess up. I posted in a previous thread concerning this. the warrant was valid for 7 days, upto this warrant it had never included the application date within the 7 days (the theory being if you applied at 23.59 you could not execute the warrant that day) however this case became case law in that the 1st day was the application date therefore the day of execution suddenly changed from day 7 to day 8 and presto, expired warrant.

It was, in hindsight, something that was always going to happen and should have been sorted out before being tested but like so many things, it takes a test and fail to show a flaw.

I would urge you to remember that the Gardai do not make law nor do we pass it or examine it. Theres a range of people including the minister for justice (a qualified defence barrister) that examines and proofs law prior to it being passed. therefore I think its unfair to blame the Gardai when a law is challenged and beaten.

A much more interesting question would be too consider his current position and if Judges should be made more accountable and to who.

TalkISCheap

It's a dangerous road to try to go down. Unless you start having elected judges, they can only be accountable to those that appoint them - the Oireachtas. I do know, however, that in Canada judges are appointed by a special Commission, and are answerable to it for misbehaviour etc.

Seems a fairly sensible way to run it, the Commission aren't subject to public opinion in that they are taken from a wide range of posts in the community, and are unelected. (For example, here we could have the Deans and Presidents of the country's Universities, a certain number of Senators and TDs, the Chief Justice, President of the High Court, etc...)

I'm personally against the idea of removing Curtin form office if the criminal trial failed, I would think that it should take a criminal standard of proof before someone can be removed from their job, and have a slur cast over them for the rest of their lives. In the eyes of the law, he's an innocent man (except for all those Road Traffic convictions... )

maidhc

TalkISCheap wrote:

I'm personally against the idea of removing Curtin form office if the criminal trial failed, I would think that it should take a criminal standard of proof before someone can be removed from their job, and have a slur cast over them for the rest of their lives. In the eyes of the law, he's an innocent man (except for all those Road Traffic convictions... )

A person can be removed from their job though on the same evidence even if criminal proceedings have failed for one reason or another.

He is a judge though, and I think it is fair to say a much-much-much higher level of behaviour is expected of such individuals. Indeed there is no real mechanism for disciplining judges because the convention is they resign before the first whiff of controversy emerges.

Eru

Talk,
I think your idea has merit but is there anywhere too read up on this in more detail? Im not in favour of colleges being involved too be honest, I still dont uinderstand why Trinity gets to elect a senator. Its elitism in my opinion.

I also agree with maidh to an extent, a person involved in justice cannot really have such a cloud over their heads can they? And thus the question, how do we have a justice system free from intimidation, nepotism, favourtism and politics but still keep accountability?

padser

Talkischeap wrote:

I'm personally against the idea of removing Curtin form office if the criminal trial failed, I would think that it should take a criminal standard of proof before someone can be removed from their job, and have a slur cast over them for the rest of their lives.

In general Im massively in favour of the whole innocent until proven guilty, I do however think that there are certain jobs and occupations where any doubt over your integrity etc must unfortunatly prohibit you from your job. TD, Judge, Guard, Teacher (If its an allegation of abuse or sexual abuse), Auditor (If its finanical impropriety) etc.

For this reason alone I think serious consideration needs to be given to removing Judge Curtin.

Karlitosway1978 wrote:

I also agree with maidh to an extent, a person involved in justice cannot really have such a cloud over their heads can they?

I assume that this logic doesnt extend to our old friend RoboCop

Thirdfox

But what would entail "any doubt" - (an example) a successful professor after 25 years of teaching is dismissed because an allegation has been made by one student of sexual abuse (which is not proven)?

Being falsely accused (especially of such dreadful crimes such as sexual abuse) would shatter a person's life, even if they were found to be innocent eventually. To have them lose their jobs over even a sniff of impropriety is quite unfair in my opinion.

On another point, RoboCop rules!

maidhc

padser wrote:

I assume that this logic doesnt extend to our old friend RoboCop

I dont think so really. The gardaí only have to implement the law, something which doesn't require any moral judgment.. normal disciplinary procedures are enough to weed out the maggots.

Judges on the other hand get to decide on whether people walk or go to jail, get 6mths or life in prison, etc, and so it is only fair they are held to higher standards.

happydaz

is it relevent at all that the material on his computer was evidence of crimes that had taken place (ie child porn) and even tho they couldn't convict him for it, surely they could kep the computer under our strict censorship laws?

maidhc

happydaz wrote:

is it relevent at all that the material on his computer was evidence of crimes that had taken place (ie child porn) and even tho they couldn't convict him for it, surely they could kep the computer under our strict censorship laws?

Curtain was acquitted because the Gardaí fooked up with the search warrant, not because of the the lack of any laws. We have plenty of laws relating to child porn, but thankfully none the censor what we do with our computers.

padser

Thirdfox wrote:

But what would entail "any doubt" - (an example) a successful professor after 25 years of teaching is dismissed because an allegation has been made by one student of sexual abuse (which is not proven)?

Well that is the big question obviously, where do you draw the line. However im sure most would agree that while a very high standard must be set to send someone to prison for 5 or 10 years, a somewhat lower standard needs to be set for someone dealing with for example children on a day to day basis, if they are accused of crime such as sexual abuse.

To illustrate I would say that if there is a 50% chance someone sexualy abused a child that this is not enough to imprison them etc, or even put them on the sex offenders list. But surely if there is a 50% chance they abused a child means they can not be left in a job which brings them into contact with children???

Maidh wrote:

I dont think so really. The gardaí only have to implement the law, something which doesn't require any moral judgment.. normal disciplinary procedures are enough to weed out the maggots.

Similarlry If someone is in a job which requires them to be forceful, and use batons to subdue people, and there is a substantial allegation that they have used this power excessively, I dont think its reasonable to leave them in the job.



Thirdfox makes a good point I think about not acting on a 'whiff' of impropriety, nonetheless the line has to be drawn somewhere, and for some people in certain professions (eg judges) I dont think it is possible in practice to draw it at 'beyond reasonable doubt'

maidhc

padser wrote:

Well that is the big question obviously, where do you draw the line. However im sure most would agree that while a very high standard must be set to send someone to prison for 5 or 10 years, a somewhat lower standard needs to be set for someone dealing with for example children on a day to day basis, if they are accused of crime such as sexual abuse.

I was just thinking:

Every student who comes out of teacher training college must get a certificate of clearance from the Garda Vetting Unit before they can go working with children.

I wonder on what conditions can one be denied a cert? Is a complaint enough? on going investigation? Eitherway i suspect it is less than a conviction proper.

TalkISCheap

Ah now, I would have thought that on the Legal Discussion Forum we wouldn't be talking of "50% chances." You are either found guilty or not guilty, in the entirety of the charge. How in the name of God can you determine to what percentage someone is likely to have commited a crime!?

If we're talking of percentages, a criminal standard of proof requires pretty close on 99% certainty. This is the standard I earlier said that I thought should apply to removing Judges from office - if you can't be given a suspended sentance without this standard of proof, why should you be removed from your job and disgraced with a "50% chance"?

Thirdfox

I share the same concerns expressed by Talk, it would be really subjective to talk of percentages to people.

What you consider to be 25% likely I may consider 51% likely etc. Who decides what percentages etc. An all or nothing approach is fairer for the accused.

That being said, we also have to protect people who may be vulnerable to abuses of power, I just do not think that this is the best solution (I have no alternatives to give however )

maidhc

TalkISCheap wrote:

You are either found guilty or not guilty, in the entirety of the charge. How in the name of God can you determine to what percentage someone is likely to have commited a crime!?

No, the percentages wont work, but neither is anyone discussing sending him to jail, only dismissing him. To do this does not require he be proven guilty beyond reasonable doubt, just like it isnt necessary for an employer to prove beyond reasonable doubt his employee was stealing to dismiss him/her.

IIRC Curtain can be removed for any "stated misbehaviour or incapacity" (the legislation challenged merely applied lesser judges the consititutional rules relating to judges of the superior courts).

Thirdfox

Is it a crime to falsely accuse someone of committing a crime? (I know defamation would come into action here but couldn't the accusor use qualified privilege e.g. s/he thought there was a duty to report?) Perjury is only committed if giving evidence on the stand right?

Maybe we should make introduce (harsher?) penalties for people who randomly accuse others of crimes.

MrPudding

maidhc wrote:

No, the percentages wont work, but neither is anyone discussing sending him to jail, only dismissing him. To do this does not require he be proven guilty beyond reasonable doubt, just like it isnt necessary for an employer to prove beyond reasonable doubt his employee was stealing to dismiss him/her.

IIRC Curtain can be removed for any "stated misbehaviour or incapacity" (the legislation challenged merely applied lesser judges the consititutional rules relating to judges of the superior courts).

There is a good reason why it is hard to remove judges from thier positions. I think that anything, like your suggestion, that reduces this protection would be a bad thing.

If judges could be removed from service simply on heresay it would be very easy for someone in government to sully their name, say in the dail, and potentially have them removed.

I am pretty sure there was a case recently of a minister saying something unproven about someone the result of which was the removal of funding from an organisation which had critisised the government over a number of issue and was going to do so again. Can't quite seem to remember the details though.:D

I appreciate that this was not a judge but in your world it could easily be.

MrP

maidhc

MrPudding wrote:

There is a good reason why it is hard to remove judges from thier positions. I think that anything, like your suggestion, that reduces this protection would be a bad thing.

That is very true, it certainly wound be a nasty thing if political agendas could cause judges to be removed. I think though at this stage curtain has probably been discredited to the degree that he will never be allowed sit on the bench again, be it though drink driving, sickness, or the other allegations. It is time for him to go.

MrPudding wrote:

I am pretty sure there was a case recently of a minister saying something unproven about someone the result of which was the removal of funding from an organisation which had critisised the government over a number of issue and was going to do so again. Can't quite seem to remember the details though.:D

Chuck's money, he can do as he wishes on a whim! I wouldnt go so far as to blame the government for that. I cant say I ever thought too much of the particular individuals in that particular organisation, so perhaps I am biased.

Eru

padser wrote:

In general Im massively in favour of the whole innocent until proven guilty, I do however think that there are certain jobs and occupations where any doubt over your integrity etc must unfortunatly prohibit you from your job. TD, Judge, Guard, Teacher (If its an allegation of abuse or sexual abuse), Auditor (If its finanical impropriety) etc.

So any old false allegation gets you sacked? Do you think we would have any teachers, judges or Gardai if your scheme was introduced? May I ask what your career is so I can make a fitting false accusation?

padser wrote:

In general Im massively in favour of the whole innocent until proven guilty

padser wrote:

I assume that this logic doesnt extend to our old friend RoboCop

padser wrote:

Similarlry If someone is in a job which requires them to be forceful, and use batons to subdue people, and there is a substantial allegation that they have used this power excessively, I dont think its reasonable to leave them in the job.

Hmmm, remind me, was he found guilty by 12 upstanding members of society? In the absense of a guilty verdict do you remain innocent? Allegations were made, cases brough and a verdict reached. Again, would we have any Gardai if allegations were enough? Ever hear the story about the complaint boards earliest cases surrounding a Dublin station?

Thirdfox wrote:

Is it a crime to falsely accuse someone of committing a crime? (I know defamation would come into action here but couldn't the accusor use qualified privilege e.g. s/he thought there was a duty to report?) Perjury is only committed if giving evidence on the stand right?

Maybe we should make introduce (harsher?) penalties for people who randomly accuse others of crimes.

The risk there Fox is that it could create an atmosphere where people were afraid to make a report in case they found themselves open to prosecution.

Thirdfox

It's all a question of balance isn't is? We want people to feel like they can report crimes but should not do so flippantly.

What is the current law on accusations?

Eru

Thirdfox wrote:

It's all a question of balance isn't is? We want people to feel like they can report crimes but should not do so flippantly.

What is the current law on accusations?

Wasting police time if its a hoax call (such as Ballymun baby or fake rape, etc) but rarely prosecuted for the reason above.

cannot make a false complaint against Gardai (complaints board) no matter how stupid or personal it is.

Our man in Havana

Is there a difference between a false and unproven accusation?

Eru

Bond-007 wrote:

Is there a difference between a false and unproven accusation?

Ah ha, way too think outside the box Bond. How does one define these two or more importantly, prove the difference?

Simple speaking, accusing the pope of raping your alsation is a false report but we would not have launched an investigation so no foul really. The Ballymun baby was a clear cut case of a false report which wasted time, she admitted it was a hoax under questioning but I think her mental state was such that she was not charged (I may be wrong on this or might be thinking of another case).

An allegation that COULD be true but cannot be proven too be true is more common, lack of evidence means your PROBABLE didnt commit the crime but it was possible.

padser

Karlitosway1978 wrote:

May I ask what your career is so I can make a fitting false accusation?

Yes, at the moment im a student, I will probably become either an accountant or a barrister.

My views are not contradictory in slightest as I think you are trying to imply. Firstly I am massively in favour of innocent until proven guilty with respect to whether or not someone is put in jail etc.

However there are certain professions where I feel a substantial allegation, that is one which is grounded in evidence, but which is not grounded in sufficient evidence to make a criminal conviction, necessitates your stepping down.



Thirdfox: I agree thats its pretty much a balancing act. You have got to allow for reported crimes, that were committed but there is not enough evidence to convict. This doesnt mean they were baseless allegations and discouraging people from reporting crimes could have serious consequences.

However false reporting can damage a persons reputation, and needs to be guarded against.

I guess the law kinda has got it correct in so far as a verdict of not guilty doesnt entitle people to bring cases of defamation etc against accusors.

Eru

padser wrote:

Yes, at the moment im a student, I will probably become either an accountant or a barrister.

My views are not contradictory in slightest as I think you are trying to imply. Firstly I am massively in favour of innocent until proven guilty with respect to whether or not someone is put in jail etc.

However there are certain professions where I feel a substantial allegation, that is one which is grounded in evidence, but which is not grounded in sufficient evidence to make a criminal conviction, necessitates your stepping down. .

So you do not accept the decision of the courts? You believe that a person found innocent of a crime is still guilty? You in fact, a possible barrister, do not believe in innocent until proven guilty.

May I suggest you go into accountancy.

TalkISCheap

padser wrote:

However there are certain professions where I feel a substantial allegation, that is one which is grounded in evidence, but which is not grounded in sufficient evidence to make a criminal conviction, necessitates your stepping down.

This is where we differ! As I said in my first post, I believe that there should be a very high standard of proof before someone can be removed from their job, pretty close to the criminal standard of proof.

If I am a guard, and someone accuses me of being over-generous with the baton, it should be investigated. If the investigation finds that it cannot support the allegation, then I should return to the job as if nothing had happened - it shouldn't affect my chances at promotion, my reputation as a member of the force, and certainly shouldn't get me dismissed!

In law, you're either guilty or not guilty and that's how this relates to Curtin. He was found not guilty, and yet will most likely be sucessfully impeached. We mightn't like it, but that's not our justice system.

maidhc

TalkISCheap wrote:

In law, you're either guilty or not guilty and that's how this relates to Curtin. He was found not guilty, and yet will most likely be sucessfully impeached. We mightn't like it, but that's not our justice system.

No, Curtain will be investigated, and impeached if it is found the allegations against him can be supported by evidence. You must remember that he wasn't given a verdict of not guilty by a jury, i.e. his innocence was never pronouced on.

padser

Talkischeap.

I accept your argument. You believe that the same standard needs to apply to putting someone out of their job and disgracing them as would apply to imprisoning them. I dont agree with it, but its a fair position to adopt and I see little point in argueing as its simply a difference of opinion, clearly there is no right and wrong in it.