Insufficient damage

Had the 'Pitstop Ploughshares' done more damage to US military aircraft at Shannon they might have been found 'not guilty' by now

The judges responsible for both the collapsed trials of the "Pitstop Ploughshares" in the Dublin Circuit Court contended that the damage inflicted by the defendants on a US navy plane at Shannon Airport was not sufficient to save lives in Iraq.

The implication is that, had the peace activists who damaged the plane damaged many more US military planes at Shannon and done so more comprehensively, their legal defence could have been put to the jury and might have been successful.

The defence relied on a section of the Criminal Damage Act 1991 which states that it will be a defence ("lawful excuse") to a charge of criminal damage to property if the person charged believed he/she was protecting the lives and property of another person and that the means of so doing was reasonable in the circumstances. The Act goes on to make it clear "it is immaterial whether a belief is justified or not, if it is honestly held".

The two judges in the two aborted trials both acknowledged that the action of the five members of the Catholic Worker movement in attacking the plane was done in an honest belief that thereby lives in Iraq would be saved. But in legal rulings made in the absence of the juries, the judges said their action was not reasonable in the circumstances because the damage they inflicted on the aircraft was merely symbolic.

One judge drew attention to the fact that the five broke off from hammering the plane to engage in prayer – he said they had "sat down on the job". (The defendants have since made the point the judge disregarded the efficacy of prayer – but one might argue that had they believed more strongly in the efficacy of prayer they would not have needed to inflict damage on the aircraft in the first instance.)

In the second trial, an expert military witness testified as to the knock-on effect of disruption to military supply lines and the potential "inspirational" effect of small and apparently futile missions, but the judge deemed this to be insufficient evidence of the life-saving effect of such an action.

It is now more than 33 months since, in the early morning of 3 February 2003, Deirdre Clancy, Nuin Dunlop, Karen Fallon, Damien Moran and Ciaron O'Reilly attacked a US navy C40 transport plane at Shannon Airport.

On Monday (7 November) Judge Donagh McDonagh felt obliged to abandon the second trial by discharging the jury after defence counsel argued he should have recused himself because of a prior relationship with the President of the United States, George W Bush, whose war in Iraq was, from a defence perspective, a central issue in the case. The defence alleged Judge McDonagh had attended an event with George Bush, then governor of Texas, in 1995, and had been a guest at President Bush's inauguration in 2001. The defence further alleged the judge had been invited again to the second Presidential inauguration of George Bush earlier this year.

The previous trial of the five had collapsed in March of this year because of another incident of "potential perception of bias" on the part of the trial judge, Judge Frank O'Donnell. Unlike Judge McDonagh in the recent trial, Judge O'Donnell barred the media from reporting the reason for the mistrial, restrictions which, we understand, have now lapsed.

Judge O'Donnell discharged the jury in March because it was alleged, again by defence counsel, he had shown bias against the defendants – not because of his personal history, but because of comments in the course of the trial. When this was submitted to him, he conceded a reasonable person might have considered him biased and he discharged the jury.

Judge O'Donnell had repeatedly interrupted the testimony of one of the defendants, Ciaron O'Reilly, and accused both O'Reilly and the large defence team of running an "agenda". He made repeated reference to the dangers of the trial "turning into a political trial". Then, when ruling against hearing evidence from an expert witness for the defence, he appeared to make a wider ruling on a point of law before hearing submissions on the issue.

That trial had lasted for several days through complex legal argument in the jury's absence. Only O'Reilly, of the five defendants, had testified. But in the recent trial, Judge McDonagh had permitted some of the evidence Judge O'Donnell had barred and the trial was virtually completed, except for the recall of one witness and final submissions by lawyers for both sides, when the judge discharged the jury.

The five Catholic Worker defendants are charged with criminal damage without lawful excuse for doing an alleged €2.5 million worth of damage to the plane.

During the first trial in 2003 of another defendant, Mary Kelly, also accused of criminal damage to a US military aircraft at Shannon, another judge, Judge Carroll Moran, disallowed the testimony of some defence witnesses, and told the jury that no "lawful excuse" defence could arise, given the facts of the case, on a similar basis as in the two Catholic Worker trials. That jury failed to agree a verdict. In her second trial, with Kelly representing herself, the judge simply barred most defence witnesses and this time the jury came in, ten to two, to convict.

Kelly was tried, twice, in Clare. The Pitstop Ploughshares applied successfully in 2003 to have their trial venue changed to Dublin on the basis of adverse local publicity in the Shannon region. Their pre-trial process dragged on in disputes over what they could demand in "discovery" from the State, with the judge at that stage appearing to give them wide scope to seek information about Shannon's role in the Iraq war.

If the defendants fail get a quick re-trial, it will have been more than three years since their action by the time they are back in court. For much of that time they have been subject to very strict bail conditions, requiring them to sign on at a Garda station every day and stay out of Co Clare. (These terms are now relaxed.)

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