Case Dismissed: Peace Activists Have No Charges to Answer

On Tuesday May 27th, two members of Shannonwatch appeared in Ennis District Court to answer a charge under the Public Order Act, Section 8. This related to an incident that took place on October 13th 2013.

On that date, Dr. Edward Horgan and Tim Hourigan were at Shannon Airport prior to the start of Shannonwatch's monthly vigil, and had gone up to the airport for their regular routine of taking photographs of any suspicious aircraft and meeting others in the hotel for tea, before joining the vigil.

They had photographed two suspicious aircraft, and were heading back to the hotel, when they were met by two Gardai who accused them of having trespassed in a restricted area. The planespotters had in fact been on the public footpath next to Long Term Car Park 4, so they told the Gardai that they denied any accusation of trespass. The Gardai then invoked the Public Order Act and directed the peace activists to 'leave the area'.

Tim and Edward denied that there was any public order issue, but also asked for clarity as to which area they were being asked to leave. After seven such questions, they were left in the Catch 22 situation of being told to 'go for tea' at the Park Inn Hotel which is opposite the Terminal building and within the airport, and at the same time to leave the entire airport. After querying this contradiction, and again denying any public order issue existed, both men were arrested and brought to Shannon Garda Station before being released without charge.

5 months later, summonses were hand delivered to the peace activists, accusing them of "having being found in said public place by a member of the Garda Siochana, namely Thomas A Downey Garda  who suspected with reasonable cause, that [they] - without lawful authority or reasonable excuse, were loitering in a public place in circumstances, which gave rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of the public peace". The charge went on to say that "having been directed by the said member of the Garda Siochana to leave immediately the vicinity of the place concerned in a peaceable and orderly manner" that Tim and Edward "did without lawful authority or reasonable excuse fail to comply with the direction given by the said member of the Garda Siochana". They were charged under Section 8 of the Criminal Justice (Public Order) Act, 1994.

There were several pre-trial appearances in court, during which the Prosecution informed the court that the CCTV in the car park hadn't recorded anything, and that no statements were sought from any of the other witnesses on the scene (including two Gardai and one Airport Police Officer who were there before the arresting Garda).

Eventually the trial took place on May 27th before Judge Mary Larkin.

After less than two hours listening to Garda Downey and his colleague Garda Noel Pearse giving evidence, Judge Larkin dismissed the case. It was becoming increasingly clear at that stage that Tim and Edward were neither loitering nor endangering the safety of anybody or anything on 13th October, and that the Gardai themselves were quite unclear about what it was they were trying to direct them to do when they "found" them.

The judge and prosecution were made aware that despite the absence of CCTV from state sources, that the defendants would be introducing their own video evidence (if the case proceeded past the prosecution section of evidence).

Garda Downey was first up to give evidence. Under questioning from Edward's legal team (Barrister Brian McInerney and Solicitor Pat Daly) and Tim Hourigan, he admitted that there were two other Gardai and an Airport Police Officer nearby when he and Garda Pearse were telling Edward and Tim to leave, although he claimed that these other officers arrived after he and Garda Pearse did. He was less sure however about how the interaction between himself and the two accused began. Tim put it to him that they met as Edward and Tim were leaving an empty car park (Car Park 4), that there was an exchange of greetings, and that they (Edward and Tim) turned and came back in response to an implication by the Garda that they were doing something improper. Garda Downey didn't provide much clarity on this point.

Garda Downey also claimed that he had asked the defendants to leave Rineanna South, which is an area that covers less than half the airport. During his evidence there was discussion about Edward and Tim going for tea in the nearby Park Inn Hotel. Garda Downey was also questioned about conflicting instructions given by him to the two defendants in relation to the area he wanted them to leave.

Tim put it to Garda Downey that he (Tim) had asked several times (seven to be precise) for the Garda to clarify his instruction to leave 'the area'. As a result the instruction escalated from 'the area' to 'Rineanna South' to the 'entire airport'. Garda Downey claimed in evidence that his instruction was never less nor more than Rineanna South, although he admitted to having no idea of where that area was. He also couldn't answer Tim's question of how he'd know when he (Tim) had left the area in question.  

After lunch, Garda Pearse was called to give evidence. One of the key points from his contribution was that Garda Downey had asked Tim and Edward to leave Rineanna, and the entire airport, including the Park Inn Hotel where he (Garda Downey) had agreed that the defendants could go for tea!

During questioning from Edward Horgan's barrister, Garda Pearse's lack of understanding of what area they were being asked to leave became very obvious. In fact at one point the judge interjected to say that it seemed he did not know where the boundary of Rineanna was, and that the defendants probably had a much better idea of where it was than Garda Pearse.

As cross examination of Garda Pearse progressed, the phrase "I do not recall" became a recurring feature of his evidence to the court.  Things like what was said, how far away the other Gardai were, how long these other Gardai had been at the scene - these things were all a blur in the memory of Garda Pearse it would seem.

Tim Hourigan, who was representing himself with the assistance of his McKenzie friend Sean Ryan, also drew the court's attention to the fact that Garda Pearse made no notes at the scene of the alleged offence, that he prepared his statement on 31st October 2013 which was 18 days after the incident had occurred, and that he had included a number of sentences in the statement that were identical to Garda Downey's statement (which was made on 14th October). Tim also noted that many significant details had been omitted from Garda Pearse's statement, as was also the case in Garda Downey's statement. These details included the fact that there were two other Gardai and an Airport Police Officer on the scene, and that none of them saw a need to get out of their vehicles.

Most surprising of all, Gardai Downey and Pearse both made the exact same error in their statements in relation to one of the defendant's date of birth.

Although the Gardai claimed to have initially received a complaint of trespassing in Car Park 4, their testimony was that when they got to the car park they allowed the only visible persons in the area (Tim and Edward) to walk by without asking them any questions. And then, according to the Gardai, the defendants walked back for no clear reason and started to argue about whether the car park was a restricted area or not. This was made to look extremely implausible during cross examination, and the Garda witnesses has no response when asked why it was that they claimed to have received a complaint of trespass but then didn't make any effort to investigate it. 

In summary, the charges against Tim and Edward were that they were:

  • Loitering - to which they responded that they only stopped to vindicate their good name against accusation of trespass.
  • Somehow being a threat to public order, and people and property. However no specific threat was presented by the prosecution, nor could any of the defendants' behaviour be cited when Inspector Tom Kennedy (prosecuting) asked Garda Downey to elaborate on the matter. The Garda just said they were being 'aggressive' and 'argumentative'.
  • Failing to comply with a clear order to leave. But if clarification has to be sought seven times then the order is not clear, especially when the last version of the order is contradicted by saying it is ok to go for tea within the area they were being told to leave. 

The defence argued that under such instructions, they could not leave without asking for clarity.

After the cross examination of Garda Pearse had concluded, Edward Horgan's barrister applied for dismissal of the case on two grounds.

The first related to the fact that the Gardai claimed to have been responding initially to an allegation of trespassing in a private restricted area (Tim and Edward regularly go along the open footpath into Car Park 4 to check for US military aircraft at the airport and to take photographs). Section 8 of the Public Order Act includes the offence of loitering. However as was pointed out by the barrister, the offence must be committed in a public place. But the Gardaí contended that the defendants were in a restricted non-public area. The Gardaí therefore believed they were arresting members of the public in a restricted private area, and thus had no cause to conclude that there was an act contrary to Public Order. This was sufficient grounds to dismiss the case without the need to consider anything further.

The barrister went on to note that this problem with the application of the law (which meant that the offence couldn't be proven) had been brought to the attention of the DPP prior to the trial. Nonetheless the DPP had ordered that the prosecution proceed anyway. Hence the barrister made an almost unheard of application in a criminal prosecution for costs against the State. The judge agreed to hear the application at a later date.

The second basis for the application for dismissal was related to the fact that the Gardai had provided unclear and conflicting orders in relation to the area Tim and Edward were being asked to leave. Indeed all the two Shannonwatch members were doing prior to arrest was denying that there was a public order issue and was trying to get clarification from the Gardai as to where they were being asked to leave - so they could have their tea without being in peril of arrest. The Gardai described this as 'confrontational' but omitted any detail of it from their statements or opening testimony.

Even if the judge considered the area a public area, there was nothing in their behaviour that amounted to the offence of being a danger to persons, property or the public order.

Judge Larkin agreed with the application for dismissal and did just that.

As a result it was not necessary for the defence to present any further evidence. In particular, a video record of the incident made by Tim was not shown. If it had it would have significantly undermined some of the evidence given by the two Gardai under oath.

While Tuesday's court's ruling is to be welcomed, it is worrying that such spurious charges are being brought by the State against peace activists at Shannon and that the Gardai are complicit in this. Each member of the Gardai makes a declaration on appointment to faithfully discharge his or her duties "with fairness, integrity, regard for human rights, diligence and impartiality" (see the Garda Síochána Act 2005). Cases like the one heard in Ennis on 27th May demonstrate breaches of this undertaking on several levels. By far the most serious breach of their oath by the Gardai at Shannon is their failure to protect human rights and human life. For many years they have had all the information they need to investigate aircraft suspected of involvement in war crimes and torture, but they've done nothing. Yet on 13th October 2013 two members of the force attempted to deny the civil liberties of two people who were peacefully gathering information that will one day demonstrate the scale of injustice linked to Shannon Airport, and to the Gardai who did nothing about it.

Numerous unjustified prosecutions and other incidents of inappropriate Garda behaviour towards peace activists have occurred at Shannon since 2001. This is the fourth time they have prosecuted Edward Horgan, arising from his attendance at protests or his attempts to collect information at Shannon Airport in relation to serious breaches of Irish and international laws resulting from its use by the US military. These four prosecutions, all of which were unjustified, have involved well over a dozen court appearances, and in all these cases Edward has been found not guilty. On the face of it, it appears that such prosecutions are not just a case of occasional harassment, but seem designed to dissuade peace activists from highlighting the failures by Gardai at Shannon to do their duties with regard to preventing complicity with war crimes at Shannon.

We know that systematic abuse of Garda authority has occurred in Donegal (see Morris Tribunal of Inquiry report), Rossport in Co Mayo (Shell to Sea campaign), and more recently in the treatment of the Garda whistle-blowers Sergeant Maurice McCabe and Garda John Wilson. Cases like the one described here show that the same thing has been occurring - and continues to occur - in Shannon.

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