Court Report: Mary Kelly Appeals Her Conviction in the Four Courts

national | anti-war / imperialism | news report Tuesday July 29, 2008 20:11 by Seán Ryan

Today, Mary Kelly appealed her conviction of a suspended sentence of 2 years (2 years and 1 year running concurrently) for her decommissioning of a war plane in Shannon Airport.

Mary Kelly was in the Hugh Kennedy Court at the Four Courts this afternoon. The close to four years fight to clear her name, culminated in a hearing that lasted less than an hour and a half.

Three judges heard the matter, Justices Hardiman, Peart and DeValera. The hearing kicked off at approximately 3.00pm after a number of other appeals had been decided (in the negative).

After a brief period of unsuccessfully trying to find a mic that worked, Mary told the Court that she was prepared to raise her voice.

Hardiman J. asked Mary how long the case would take and was informed by her that it would take somewhere between an hour and an hour and a half.

After seeking the permission from the Court to use her McKenzie Friend, Mark, which was granted (after being told that her friend could not address the Court), Mary got stuck in.

Mary said to the Court that she wished to address a response from the DPP that was only submitted yesterday. She was informed by Hardiman J. that she was only to summarise information and that she would not be allowed to read out her written submissions to the Court as the Court already possessed them. In what seemed to be an afterthought, Hardiman J. advised Mary that it would be proper to present her case first and only deal with responding to the State after it had made its case. This was to set the tone for the way Hardiman J. was to deal with Mary for most of her presentation. I’d describe it as ‘hurrying her.’ It’s not a criticism of the judge as such, as he was overall, very fair and observant; it’s a mere observation of the tone and pace of the proceedings and seeks to illustrate the pressure that was on Mary.

Mary informed the Court that she was appealing the findings of Criminal Damage and Trespass. She was given two years for the Criminal Damage charge and one year for trespass, which were suspended for four years. This sentence was imposed by Justice Caroll Moran at the end of 2004.

Mary divided her presentation into two key areas. The first was that she believes that Judge Moran was wrong in law to disallow her to argue a defence under Section 6 of the Criminal Damage Act: “Justifiable use of force.” The second area composed of Mary arguing that Justice Moran’s act of preventing her from raising this defence was tantamount to the Judge instructing the Jury to find her guilty.

She referred to page 61 of day 6 in the transcript, where the Judge, whilst instructing the jury, had said that Mary couldn’t go around damaging property. This was of course close to the end of the trial and Mary went on to illustrate how Judge Moran had prevented her from even attempting to argue this defence by disallowing her witnesses to give testimony related to lawful excuse. She referred to specific parts of the transcript here. There was much tooing and froing between Mary and Hardiman J. on this argument as he pressured her to provide the line numbers from the transcript - especially, when the transcripts that the Judges had been given were missing relevant pages to do with the disallowed witnesses. This is one of the reasons why the case has taken so long to appeal. A significant portion of the transcript had been missing for a number of years and only came to light after a hard fight and an investigation by Mary (but that’s another story). Interestingly enough, the section that was missing, was the section covering where Mary’s witnesses had been disallowed and her defence effectively shot in the head. Anyway, after much confusion today, the relevant material was produced and the Judges now have possession of it.

Unfortunately, the impediments placed before Mary, to limit her ability to fight her corner, have no place in being discussed in an appeal hearing and in fairness it is not the intent to go into them in any great detail in this article. There were many such impediments and the missing portion of the transcript was only one of them and is only brought up here as it’s relevant to the telling of today’s tale.

Next, Mary moved onto describing how the Judge’s actions with regard to disallowing her defence and his instructions to the jury had been akin to him instructing the jury to find her guilty. Again, Mary cited many line numbers from specific pages of the transcript for Judges Hardiman, Peart and DeValera. Hardiman J. at the end of this phase of her presentation asked her would it be fair to summarise her argument as being that the judge’s rulings had effectively rendered her defenceless and that his further instructions to the jury, suggesting that she’d no right to the defence of lawful excuse, was wrong in law.

After this, and before Senior Counsel for the DPP got his go, Mary handed up lots of case law, most of it English. This prompted a discussion, whereby the three judges told Mary that whilst they most certainly would view such rulings with respect, they would not be authoritative with regard to Irish law and statutes. Mary, at this point handed up many court reports, written by various parties, of the Ploughshares trial from two years ago, where all five defendants were unanimously acquitted by a jury, when they were allowed to use the defence of lawful excuse. The Ploughshares of course disabled the very same plane that Mary had worked on a couple of weeks after her efforts in Shannon. Justice Hardiman thanked her for these reports and told her that they would most certainly figure in their considerations. Mary suggested to the Court that Justice Reynolds (the presiding judge in the Ploughshares trial) had upheld a finding made by the Advocate General in a Scottish court, as cited in some of the British case law that Mary had handed in. Finally, Mary handed up relevant sections of Irish law dealing with the Geneva Conventions and the International Criminal Justice Convention Against Torture Act.

Mr. Coughlan S.C. for the DPP was on his feet next. And it wasn’t long until he probably wished that he hadn’t bothered. Justice Peart savaged him and was soon joined by Justice Hardiman in a tag-team effort in kicking his arse (metaphorically).

Mr. Coughlan used many of the same portions of the transcript that Mary had referred to. However, he suggested that they meant the exact opposite. It wasn’t long before Justice Peart was asking him why he insisted upon arguing that the word “immediacy,” had some bearing, when the word and the sentence it was used in had been removed from Irish law years ago, before Mary’s action and before her subsequent trials. Mr. Coughlan had no reasonable answer to this, other than to suggest that Moran J. was correct in what he did, and he was thus subjected to an intense grilling from both Hardiman J. and Peart J. This grilling culminated by poor Mr. Coughlan referring to what he considered to be an authoritative book. When he finished this reference, Justice Peart rounded on him by pointing out to him that even though the book was published after the millennium, and after the law had been changed, that the author had not bothered to update his writing with regard to the removal of the reference to “immediacy” from the law. The best that Mr. Coughlan could do at this stage was to suggest to the Judges that he was going to point this out to them. Of course, had he done so, it would have defeated his argument to begin with. The barrister quickly moved on to his final argument. Unfortunately for him this final argument would bring him no solace either as it referred to a portion of the transcript already referred to by Mary in her submissions. It had to do with Justice Moran’s very last words to the Jury. Mr. Coughlan argued that the use of the words “time” and “space” showed that Justice Moran had not referred to the disposed of “immediacy” argument and that it showed that the presiding judge was cognisant of the fact that it had been removed. Many eyes on the bench were raised towards heaven at this point and both Hardiman J. and Peart J. both went at it once more with the poor barrister. Hardiman J. described this argument as the “nub” of the issue at this point and opened the floor for Mary to rebut.

Mary argued that the reference to “time” and “space” was obviously connected to thinking that the “immediacy” issue was still relevant and that because this was the very last time that judge Moran had spoken to the jury, that it was profoundly important to the matter of her appeal.

The hearing came to a finish with the judges questioning Mary with regard to her interpretation of lawful excuse. Mary had no authoritative Irish case law to refer to in this and asked the judges to consider British findings beside the Ploughshares finding. She told the Court that there was a test for lawful excuse that was both subjective and objective. Firstly, there must be an honestly held belief and secondly, that this honestly held belief must be considered to be reasonable, in a legal sense of reasonableness.

The judges reserved judgement and thanked both parties for their presentations. We left the Four Courts to be photographed and to take some photographs of our own.

Best of luck Mary, a great fight; let’s hope that it results in peace for yourself and some good case law for all of us.

Related articles:

Article about the sentencing in her second trial: http://www.indymedia.ie/article/67681

Article where some very interesting questions are put to Judge Caroll Moran about Mery’s first trial: http://www.indymedia.ie/article/69592