Dec 2, 2010
The Shannon Ploughshares Action and Trials: 2003-2006
We are delighted to welcome Joe Noonan (partner in Noonan, Linehan, Carroll and Coffey, www.nlcc.ie), Solicitor for the Ploughshare activists to write about the civil disobedience in Shannon and the subsequent acquittal of the activists.
Director of Public Prosecutions v Deirdre Clancy, Nuin Dunlop, Karen Fallon, Damien Moran, & Ciaron O’Reilly,
On July 25th 2006, a Jury in Dublin Circuit Criminal Court voted unanimously to acquit five people charged with criminal damage to a US military transport plane at Shannon Airport. The alleged offence had taken place on February 3rd 2003, shortly before the invasion of Iraq by US, British and other forces. The Defendants had pleaded that they had acted to defend life and/or property at a time when they feared the outbreak of hostilities which would have no basis in International Law. They had, they claimed, a lawful excuse.
Criminal damage is defined in the Criminal Damage Act 1991 (as amended by the Non-Fatal Offences Against the Person Act 1997). The relevant provisions state:
1 -(1) In this Act—
“to damage” includes.
( a ) in relation to property other than data (but including a storage medium in which data are kept), to destroy, deface, dismantle or, whether temporarily or otherwise, render inoperable or unfit for use or prevent or impair the operation of, […]
“property” means—
( a ) property of a tangible nature, whether real or personal, including money and animals that are capable of being stolen, [….]
2. —(1) A person who without lawful excuse damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be damaged shall be guilty of an offence. […]
6. —(1) This section applies to—
( a ) any offence under Section 2(1) or 5, [….]
(2) A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—
[….]
(c) if he damaged or threatened to damage the property in question or, [….] in order to protect himself or another or property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another and the act or acts alleged to constitute the offence were reasonable in the circumstances as he believed them to be.
(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.
By virtue of the ‘lawful excuse’ provided for in Section 6(2)(c) an accused will have a defence to a charge of criminal damage if he/she can establish that the act was carried out for the purpose of protecting another or the property of another and that the action was “reasonable” in the “circumstances” as he/she “believed them to be”. Under Section 6(3) it is immaterial whether that belief was justified as long as it is honestly held.
The Court, after lengthy legal argument, allowed the Jury to hear evidence from Dr. Jean Allain, Senior Lecturer in International Law at QUB as to the circumstances in which the use of force by states may be considered lawful. Dr. Allain was also permitted to give evidence of the prevailing opinion among International Law experts at the time of the action as to the legality of the invasion. The Court also admitted evidence in relation to Irish statutes giving effect to provisions of the UN Convention Against Torture and the Geneva Conventions, making offences under these Conventions domestic offences triable in an Irish Court no matter where committed. In cross-examination, Garda witnesses acknowledged that they were not trained or instructed with regard to enforcement of that Irish legislation, even though they had received complaints at Shannon Garda Station alleging offences under that legislation. At this time Shannon Airport was a transit point for US Military personnel en route to the Middle East as part of the build up of forces prior to invasion. 90,000 Military personnel travelled through Shannon Airport in the three months period immediately prior to the action of the five accused.
The criminal process in the end has a black and white character. At the conclusion of the trial the accused will either be found guilty or not guilty. Once the process is initiated it must reach one or other of those conclusions. The certainty of an outcome and the formality of the process both stand in contrast to the characteristics of International Law questions as described by Biehler:
“International Law is a primitive discipline. Its unambiguous determination by Courts and its enforcement are not always guaranteed, and it is too dangerously linked to the exercise of political power on the international plane to be left only to the sober consideration of lawyers employed by those in power” (Biehler, 2005)
The Prosecutor asked the Judge to rule on the availability of the ‘lawful excuse’ defence. Judge Miriam Reynolds rejected that request, ruling that this was a matter of mixed fact and law, and that as the Jury was the sole arbiter of fact, they must be the arbiter on what constituted ‘lawful excuse’. The Jury was thus given the opportunity to hear argument about the lawfulness of the war on Iraq; about the enforceability in Irish courts of the sanctions under the Geneva Conventions against war criminals; about the universal jurisdiction principle which would entitle another Irish jury, if given the opportunity, to participate in the legal system’s efforts to eliminate torture. The attempt by the prosecution to confine the issue to the narrow question as to whether the accused had damaged someone else’s property failed on this occasion. The Court, and in turn the Jury, took a broader perspective.
International law was not the only factor, and perhaps not even the decisive factor, in the Jury’s decision to acquit. No one is privy to the discussion in the Jury room. International law is a systematic effort to bend States to a code of behaviour which is considered to be in some sense ‘right’. This necessary effort finds an echo in the remark of one juror speaking immediately after the trial: ‘There are days when you just have to do the right thing. This was one of those days’.
If an Irish court and an Irish jury can ever hold its head high, this is one such an occasion. I speak as a layman (i.e. not a lawyer). I remember travelling at the time and explaining to European and American friends and acquaintances what I thought this acquittal meant. It was an astonishing event, a serious reversal for a state hell-bent on proving to the USA that it was closer to Boston than Berlin no matter what the people thought. Characteristically, Joe underplays his own part. I think it also shows that a jury can still make a good political judgement even when all the powers of the state are arrayed against them. Thanks for posting this article.
Agreed William. Similarly the ruling earlier this year by the District Court that the arrest and detention of 9 Shell to Sea activists was ruled to be unconstitutional and the charges thrown out of court was very encouraging.
The Wikileak Cables which Illan has posted also make for very interesting reading.
This acquittal set a dangerous precedent for Ireland, and was no doubt an inspiration for the “Raytheon 9″ whose ‘sincerly held beliefs’ led them to a similarly destructive series of events in 2008.
@Tim, While Im sure it may be associated with the Raytheon 9′s attempt to obstruct the production of technology utilised in Israel’s occupation of the West Bank and Gaza, Im not entirely sure why this makes it a ‘dangerous precedent’?