Fifth time lucky for 'lawful excuse' defence

After three trials over the course of more than three years, the Pitstop Ploughshares have been acquitted under their 'lawful excuse' defence. By Harry Browne and William Hederman. Photographs by William Hederman

A Dublin Circuit Court jury has unanimously acquitted the five Pitstop Ploughshares of "criminal damage without lawful excuse".

The acquittal is partly the result of a small stroke of luck for the five (Deirdre Clancy, Nuin Dunlop, Karen Fallon, Damien Moran and Ciaron O'Reilly), who waited nearly three-and-a-half years for their case to go to a jury. On this, their third trial, a Dublin Circuit Court judge finally allowed defence barristers to present their statutory defence of lawful excuse.

Including Mary Kelly's two trials for "disarming" the same US navy C40 transport plane, there have been three previous trials in which judges ruled against the use of this defence. In addition, in the first Pitstop Ploughshares trial in March 2005, the judge indicated he did not intend to allow it but never got around to making a final ruling before the trial collapsed.

However, before the case ever went to trial, Judge Joseph Matthews made pre-trial rulings in 2003/04 based on permitting the defence of lawful excuse.

The two previous trials of the five members of the Catholic Worker movement collapsed for reasons unconnected to this legal argument. In the first trial, as revealed by Village last year, Judge Frank O'Donnell admitted his comments could give rise to a perception of bias against the accused. In the second, Judge Donagh McDonagh withdrew at a late stage when it was revealed he had some history of social contacts with George Bush.

For defence lawyers, the climax of the most recent case came not with the dramatic verdict, but with the historic and unprecedented ruling by Judge Miriam Reynolds six days earlier on 19 July. After lengthy legal argument in the jury's absence, she said she could not withhold the defence of lawful excuse from the jury's consideration.

The defence allows for damage to property when the persons doing the damage honestly believe they are trying to protect lives or property (a "subjective test") and when that belief is reasonable in the circumstances as the accused believed them to be (a more "objective test"). Miriam Reynolds said only the reasonableness of the belief was at issue in this case and that issue was so tied up with the facts of the case that she could not deprive the jury of its duty to adjudicate on it.

Thus the defence barristers could use "lawful excuse" in their closing arguments. The jury needed just three hours and six minutes of deliberation – and apparently only took that long because one juror was doubtful the law could give such scope. On the morning of 25 July, the judge responded to a request from the deliberating jury to see the relevant statute by repeating her explanation of the law, and the burden of proof, as it applied to the case. They returned with their verdict about half an hour later.

Previous judges had ruled that the lives allegedly being protected were so remote and/or the actions at Shannon so insignificant that the defence could not apply.

Lay people who attended all three trials were struck by other variations in rulings from different judges. For example, Miriam Reynolds allowed evidence from international-law expert Jean Allain but ruled that former US marine Jimmy Massey's testimony would be irrelevant. McDonagh had made the opposite rulings last November.

Despite making what might be regarded as an "appalling vista" ruling in their favour on the relevant law, Reynolds gave no indication of sympathy for the defendants over the 12-day trial and often posed awkward questions to defence witnesses.

She worried defendants at one point when she said they had been "armed" with "weapons" for their act. The court had previously heard Ciaron O'Reilly say the pickaxe and hammers were "not weapons, but tools to disarm weapons".

Although the Reynolds' legal view may have been crucial, Mary Kelly got a hung jury in Ennis in 2003 despite Judge Carroll Moran ruling against "lawful excuse". (She is still appealing her eventual conviction.) And the Ploughshares defendants say jurors who spoke to them after the second trial collapsed last year said a majority favoured acquittal though they never heard the full defence. A juror who spoke with defendants after their final trial said, "Sometimes you just have to do the right thing." p


Lies at lunchtime: How garda and government spun against the Shannon Five

The Catholic Worker activists should have been presumed innocent, but you wouldn't have known it from the lunchtime news programmes on RTÉ TV and radio on the day of their action and arrest, 3 February 2003.

It has emerged uncontested in all three trials that the Pitstop Ploughshares did nothing to interfere with the garda on duty in the Shannon hangar and comforted him when he appeared distressed by their presence. It also emerged that they completed their "disarmament" to their own satisfaction before handing over their tools voluntarily.

These, however, were the reports and comments on the day:

RTÉ midwest correspondent Cathy Halloran, on television news: "At around four o'clock this morning five people managed to gain access to the old SRS hangar at Shannon Airport. They overpowered a garda... and did further damage to a US navy plane... They'll probably face charges of criminal damage, but could face much more serious charges arising out of overpowering the garda on duty."

Garda spokesman Supt John Farrelly, on radio news: "Five people went into the hangar. They temporarily overpowered the guard. He managed then – had called for assistance – they did slight damage to the aircraft and they were arrested... The guard, though not physically injured, who was in there managed to stop any great damage being done to the aircraft... [After the previous incident days earlier] this one was prevented in developing... A [garda] had been overpowered, but only temporarily, and managed to stop more serious damage being done."

Transport minister Seamus Brennan, on radio news: "The blame here has to be quite squarely laid with the section of peace protesters who went and challenged a garda – the garda ended up in hospital, doing his duty... The people who have questions to answer are the small minority of 'peaceful protesters' who attack the police force, the gardaí, of our own state, and that's not acceptable to the government."

Taoiseach Bertie Ahern, on TV and radio: "I think now we see that maybe we've been a bit over-tolerant with peaceful protesters when they're not one bit peaceful – carrying axes and hammers and lump-hammers... As I said before, refuelling is 40 per cent of the business at Shannon... and there's a real danger we'd lose that, which would be devastating for Shannon, all because a group of people want to participate in malicious attacks."

Harry Browne