Enda Kenny and the racist media campaign against Travellers

Padraig Nally deliberately killed an already seriously injured man who was limping away from Nally's property. The Fine Gael leader has aligned himself with those who believe Nally was unjustly convicted and sentenced to six years' imprisonment. By Vincent Browne

Enda Kenny, the Fine Gael leader, joined on Wednesday (16 November) the "Justice for Padraig" campaign of the Irish Daily Mirror. In an article splashed on pages 6 and 7, under the heading, "Back the victims, NOT the criminals", Kenny claimed that the law on the permissible use of force for the protection of life or property was "unbalanced". He said he had asked his Justice spokesperson, Jim O'Keeffe, to draft a Private Member's Bill "to be brought forward in the Dáil shortly". He repeated these contentions in an interview on RTÉ's News at One on Wednesday (16 November).

In every instance where he cited the law was "unbalanced", he was factually wrong (see below).

The same issue of the Irish Daily Mirror had a front page headline, "Get Me Out". In its edition of Monday (14 November) its headline was "We'll kill Nally in jail". It reported: "Tragic farmer Padraig Nally is under 24-hour watch in jail after threats to kill him in revenge for shooting dead John 'Frog' Ward". Nowhere in the report nor in the "full story" inside was there any substantiation for the claim that threats were made against Nally.

On the same day (Monday, 14 November) the Irish Sun led with "We'll kill you Padraig: Travellers swear revenge". Its story claimed "Traveller prisoners have vowed to assassinate jailed farmer, Padraig Nally". Its sole substantiation for this claim was an anonymous "prison source" who was quoted as saying: "He was a marked man and there were already serious threats made against him by Traveller (jail) inmates". The Irish Sun also is running a campaign in support of Padraig Nally: "Free Padraig Nally now".

The Irish Daily Star also reported on Monday (14 November) that there were "mounting fears" for Padraig Nally's safety in jail, which led to his transfer from Mountjoy jail to the Midlands prison the previous day. It too quoted anonymous "prison sources" in support of its claim. But it also quoted a prison service spokesperson as saying, "he was moved because we were under pressure for space in Mountjoy". It went on to claim that a "prison source" had said Nally would have been moved to Castlerea prison, were it not for the presence there of a Traveller convicted of serious assault.

A rally in support of demands for the release of Padraig Nally is to take place in Athlone on Sunday, 20 November, organised by the Padraig Nally Support Group, which already has acquired an acronym, PNSG. Prominent members of the IFA and GAA in Mayo are taking part, although neither organisation is officially supporting the campaign.

The facts of the Padraig Nally case are as follows:

•Padraig Nally had no previous history of violence

•His rural home near Cong, Co Mayo, had been burgled on a number of occasions and various implements had been taken from his farm outhouses

•He had developed an anxiety about being attacked in his home and had been unable to sleep properly for some time

•A Garda said during the trial of Padraig Nally the level of crime in the area was similar to the crime levels elsewhere in the county and were not exceptional

•Some time prior to the killing of John Ward on 14 October 2004, Padraig Nally thought he had seen Ward and his son, Tom, drive past his house on a number of occasions and this gave rise to apprehensions that his house would be burgled or that he would be attacked

•On 14 October 2004, at around 2pm, he heard a car drive up to his home. He went outside to find the car parked inside his gate, facing out, with the engine running

•Nally spoke to the driver, Tom Ward, who told him that his father, John Ward, had "gone for a look around the back (of the house)"

•Nally said to Tom Ward: "He (John Ward) won't be coming out again"

•Nally got his shotgun and when he saw Ward at his kitchen door he fired a shot, which hit Ward in the buttock. The State pathologist, Marie Cassidy, said the injury would have been very painful and would have affected Ward's mobility. He then beat Ward with a two-foot long, two-inch wide stick, inflicting several deep wounds to Ward's head. Nally told gardaÌ: "It was like hitting a stone or a badger. You could hit him but you could not kill him"

•Ward left the premises and was limping down the road. Nally reloaded his shotgun, pursued Ward and shot him in the head. Marie Cassidy said Ward was in a crouched position when he was shot fatally in the head. She said: "The trajectory (of the shot) suggested that the gunman was above him... and that (Ward) may have been bent over or was crouching down"

•Ward had a troubled psychiatric history and had 12 convictions on various charges, mainly to do with burglary. He was awaiting trial, at the time of his death, arising from the threatened use of a slash hook against a Garda. He previously had engaged in bare knuckle boxing and had inflicted serious injuries on opponents

•Marie Cassidy said Ward had traces of cannabis, ecstasy and tranquillisers in his system when killed

•Nally was charged with the murder of John Ward and tried in front of a jury of Mayo people at Castlebar courthouse in July of this year. Traveller support groups have been critical of the decision to try Nally in front of a local jury, who might be expected to reflect what they claimed was a general bias in Mayo against Travellers

•The jury found him guilty not of murder but of manslaughter. In not finding him guilty of murder, the jury clearly accepted Nally had acted under provocation.

•Nally was sentenced to six years' imprisonment by the trial judge on Friday, 11 November.

Enda Kenny's alignment with the most partisan and anti-Traveller of the newspapers reporting on the issue is a change from a tradition where, at least, major political figures remained aloof from Traveller issues.

In his article in Irish Daily Mirror on Wednesday (16 November) Enda Kenny claimed the Non-Fatal Offences Against the Person Act 1997 required a homeowner to "retreat" in the face of an intruder; that before using force a person would have to threaten an intruder with force and only when the threat failed to deter the intruder was force permissible; and that in using force against an intruder a person would have to prove the force was reasonable in the circumstances. He said he was instructing the Fine Gael justice spokesperson, Jim O'Keeffe to draft amending legislation which would be put forward n the Dáil "shortly".

The reality is that Section 18 of the relevant Act (see panel) makes it quite clear that a person may use force lawfully to protect his or her property, subject to the force being "reasonable", but reasonable in the circumstances that the person in question believes the circumstances to be.

There is no requirement to back off in the face of an intruder, there is no requirement give a warning and there is no requirement to prove that the scale of force is reasonable, unless of course it appears objectively unreasonable in which case the home owner may claim he/she honestly believed the circumstances required the use of force. In other words the law amply protects the home owner in such circumstances.

Padraig Nally was entitled in law to use force to dislodge John Ward from his property, especially as there were good grounds for believing John Ward was there to no good purpose. The initial discharge of a weapon at Ward was questionable but most people a(and, by inference, most juries) in the circumstances might regard that as reasonable. The subsequent beating of Ward with a thick stick was also questionable – why was it necessary to beat an already wounded man? But what happened subsequently was different.

Ward was already beaten and injured and was departing the scene, limping down the road, away from Nally's property. Nally took time to reload his gun, going back to an outhouse to get ammunition, which would have taken a few minutes, and he then pursued Ward and shot him in the head, while Ward was in a crouched position in front of him. Nally acknowledged it was his intention to kill Ward.

However reasonable one might think the initial shooting and brutal beating of Ward was, the shooting dead of an already injured man, who was departing from the scene was, in the eyes of many, murder. The surprise therefore may be not that Nally was sentenced to six years in jail for manslaughter but that he was not given a life sentence for murder.

Nally was convicted of manslaughter rather than murder because the jury believed he was "provoked" into the use of this egregiously excessive violence by the presence on his premises of a Traveller whom he had previously seen in the vicinity and had come to believe was intent on robbing him or attacking him. It would seem that the mere presence of a Traveller was provocation enough.