Inquisition 21
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Child pornography
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1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11
Child porn is at the heart of our new sexual absolutism. Its laws have criminalized both artistic representation and objective intellectual examination and speculation.
Irish judge in child porn allegations
Background
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.
No-one has yet suggested that underlying the conundrum are flawed child pornography laws.
Advice to the Judge Curtin select committee
An Irish parliamentary committee of MPs (known as TDs) has been set up to examine the child pornography found by the police on the PC and files of the Irish judge Brian Curtin. We have set up a small panel of writers and other ‘experts’ to advise the members of the committee as they embark upon what is certainly an unusual, if not unique, task.
First we hear from our UK correspondent Arthur Blair.
Arthur Blair comments
I would point to the importance of the having a legal system free from political intervention. I am sure that there are many Irish judges who could write a far better defence of this principle than can I, but I would point to the German experience of the Nazi regime and its changes to the criminal justice system aimed at stopping the system being soft on criminals - and their change from the more or less universally
applied Roman principle of nullum crimen sine lege (no crime without law) to the (Nazi created) principle of nullum crimen sine poena (no crime without
punishment).
Furthermore I would point to Article 7 of the European Convention on Human Rights, whose short title is ‘No punishment without law’.
Having to present evidence to a parliamentary committee which would then impeach him on the basis of that evidence is to be forced to incriminate himself (itself a violation of article 6), when the legal system has pursued the matter as far as it can (which is to try the man twice), is to punish where the law does not authorise such punishment. Changing the law post fact in order to ‘nail’ a particular individual
for political purposes is setting a dangerous precedent.
Who will be next? Will the government pass a law to enable people who have committed serious crimes to be tried even though a warrant was executed unlawfully?
Why not scrap the laws controlling the execution of warrants altogether? Why not make every home subject to police searches whenever required?
Nugget (pseudonym) responds
(Explanation. MBS refers to the madbadorsad.org web site. The Lolitasex site and David appear in the Operation Ore/Amethyst story, also in this section.)
I would be slightly cautious about drawing too many conclusions in Judge
Curtin's case.
For those who subscribed to Lolitasex, there are several possibilities:
1. Like David, they are entirely innocent and no evidence of child pornography will
ever be found.
2. Like some other MBS members, they are virtually innocent and only a few accidentally acquired child pornography images are found but they are prosecuted or
cautioned regardless.
3. Like myself, and others, child pornography images are indeed found. (Editor – since this was written the case against Nugget was dropped.)
All that can be said for certain is that being on the Landslide list does not mean, as the UK police insist, that one has subscribed to a child porn site. This may also invalidate the background to obtaining a search warrant - although Arthur Blair would be better to advise on this. And of course Irish law will differ.
In Curtin’s case, it is therefore possible that he did not sign up for a child pornography site, but nevertheless did have CP images on his PC.
In any case after this length of time, except for those who are meticulous collectors, I suspect very few of the images found in Ore cases, have anything to do with Landslide sites, legal or otherwise.
I have some more info on the manner in which the UK Landslide list was compiled if you are interested. Do you have information on the provenance of the Amethyst list? e.g. Was it compiled separately by the Gardai (Irish police) or was it essentially a subset of Ore?
(Editor. Other Landslide evidence has since unravelled. See Operation Ore/Amethyst story in this section.)
Editorial comments so far
Two major considerations for the committee. First, as Arthur Blair points out, that their very existence will threaten and undermine the system of justice. Second, Nugget and the evidence gathered in Jack’s, Henry’s and the Operation Ore/Amethyst stories (all under Child pornography here) reveal that many of the web sites used in the Ore/Amethyst warrants and to also convict people are in fact legal, being mostly from naturist sites, but neither defence lawyers nor courts have been fully aware of this and the convictions go ahead anyway. The Irish committee cannot do its job without having access to this potentially critical information.
Summary of other advice
You are truly in an unenviable situation. You will be seen by your nation and the world to be studying images of what is known as ‘child pornography’, which being assumed to be images of acts of real sexual crimes against children are regarded as the most heinous of images/crimes. But even now and as you study them, evidence is emerging widely that the sources that Judge Curtin allegedly had access to also contained many images, which, although criminalized, are those of child nudity and child eroticism. You will be joining a long list of Irish and other censors who found themselves making moral judgements about what their fellow citizens could and could not see or read about.
In case this aspect of so-called ‘child pornography’ is new to you, we can advise you that you can do no better than consult fellow Irish person, Professor Max Taylor, of Cork University, who has made a comprehensive study of images of child pornography and classified them into such categories as simple nudity, explicit nudity, erotic posing and so on, clearly explaining the breadth of the genre. Like you, Professor Taylor also appears to have special exemption allowing him and his department to collect and study a huge number of images which would be illegal for the rest of us to possess.
From people such as Professor Taylor and the police who have to manage the child porn phenomenon, we learn about ‘burnout’, which is apparently the condition resulting from studying many child porn images, so it seems wise for you to take some measures to protect yourself against, and reduce, this. The police should have lots of information for you on this. Professor Taylor however points to a more insidious danger for you, that of becoming addicted to some of the images. We would think that the greatest danger here is from those that he identified as beautiful little girls, smiling happily in nude and erotic poses. Any positive response on your part, however human and honest, could confuse your judgement – after all, these images are already criminalized under the law, and your job is not to study the law, but to study these images. You may even have to ask if you are now exposed to the risk of corruption.
The biggest test for you however may come through your 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 even dishonourable.
Perhaps you might be able to ask if underlying the conundrum this case has raised are flawed child pornography laws.
Some points for you that might be helpful
The need to distinguish between images of child nudity, erotica and illegal sexual activity.
That, although now criminalized, some images would have been seen to be beautiful by past generations, so that beauty and truth themselves may now be coming under your scrutiny for judgement.
That an image of a crime may be worth having to help track down the criminal and that the image should not be criminalized.
That some of the activities viewed may be posing, acting, burlesque.
That some may be images of incest.
That you are being asked to make judgements about the morality of what Judge Brian Curtin and other adults should and should not look at.
That while some of you may be shocked by what you see, you may find some attractive, which could make your moral position perilous.
That history could judge you on how you use this opportunity – in the interests of populism or to courageously ask if underlying the conundrum this case has raised are flawed child pornography laws.
March 2005 update
On 1 March 2005 the High Court in Ireland began to review the government’s decision to set up the Irish parliamentary committee of MPs (known as TDs) to examine the child pornography found by the police on the PC and files of the Irish judge Brian Curtin. Their review if allowed to proceed could lead to his impeachment. The review is the result of a challenge to the setting up and processes of the committee by Curtin’s lawyers. They will argue that the process is unconstitutional and that such powers as it requires cannot be delegated to a committee, and they will also challenge the right of the police to hand over the computer and files to the committee.
But one aspect of the challenge is central and critical to the whole question of the morality of images of children. The lawyers also argue that no process or procedure exists for the committee to ‘weed out’ material that may be improper or prejudicial before it is handed over to the government.
Some of Ireland’s top lawyers are now working for Judge Curtin. This case has the potential to expose the child pornography legislation as deeply flawed and unworkable.
There could not be a more important case
“There could not be a more important case in defining what I would call that very nuance, area of law, the relationship between the judiciary and the Houses of the Oireachtais.” So said John Rodgers SC, for Curtin.
He went on to say that the select committee would offer no decision on how to deal with Judge Curtin, that in effect 166 Deputies sitting in Parliament would have free rein to flick through the transcripts of evidence, that the enormity of what was being suggested was utterly repugnant, that the committee report and a Dáil vote on the judge’s future would be based on unfounded testimony, that Judge Curtin could be called to appear before the committee implicating himself, a tradition which had been abandoned by the judicial system three centuries ago, that if the government attempted to remove the judge for stated misbehaviour under Article 34 Section 5 it would be doing so without constitutional fairness, that anything could be contained in the report including grossly prejudicial evidence, grossly inadmissible information and completely irrelevant material, and that it would leave TDs (MPs) at liberty to decide what they thought.
“We say my Lord that from the word go it was a go wrong,” he said. “It’s a big statement to make, my Lord, but it is the case to make because, in effect, we say my Lord that the whole process failed to deliver a decision-making mechanism. - - - The committee itself doesn’t have available to it a process for determining what evidence should be admitted.”
Child pornography
Background reading
Mitsubishi abandons employee
Henry goes to prison
Dangers from your hard drive
Operations Ore and Amethyst are discredited
The Athlone story - State of malice
Irish judge in child porn allegations
Who did it? When child porn appears.
Operation Ore on the verge of collapse
Alabama man’s four year wait in Limbo
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