Shell to Sea Campaigner Gets High Court Injunction against Sgt. Conor O’Reilly & An Garda Síochána.

mayo | environment | news report Thursday November 09, 2006 01:23 by Niall Harnett - Shell to Sea. clare at shelltosea dot com 086 8444966

“The rule of law must be obeyed at Bellanaboy and Bully Boy Tactics must not succeed.” Administer of Injustice - Michael Mc Dowell, RTE TV, 9 News, Fri 20th Oct ‘06, speaking in Moyross, Limerick.

Over recent weeks there have been a number of confrontations between Niall Harnett and Sgt. Conor O’Reilly & Gardai, at the proposed Shell Corrib Gas Refinery Site, Bellanaboy, culminating last week in the breaking of Niall's driver’s window in order to forcibly remove him from his van, and the theft under ‘colour of law’ of that van by O’Reilly on Tue 31st Oct. In the High Court on Tue 7th Oct, Mr Justice Michael Peart granted to Niall an injunction against O’Reilly from further damaging or disposing of his van, which O’Reilly had threatened, and leave to seek an order for it's release without condition. Other ‘reliefs’ applied for are a ‘declaration’ by the High Court that the van was held unlawfully and that O’Reilly and An Garda Síochána have acted ‘Ultra Vires’ - the legal term for 'exceeding their powers granted by law’, which in this case would mean simply that they broke the law.

Niall Harnett V Sgt. Conor O'Reilly & An Garda Síochána.

Niall was granted leave to seek costs and damages arising out of these illegal Garda acts and a Judicial Review of their behaviour, returning to the High Court on Dec 1st.

Shell E&P Ireland (SEPIL) resumed work on-site on Tuesday Oct 3rd ‘06, when over 200 police, who have become known as ‘Shell’s Cops’ forcibly removed local residents from the gates of the refinery site. Every day since then, hundreds of protestors have gathered in the early mornings to block Shell from their illegitimate activities on that site, only to be assaulted, pinched, punched, kicked and stamped on by Shell’s Cops, An Garda Síochána, who have constantly refused to enforce or uphold the laws of this country, refusing even to answer questions from protestors, citizens, who inquire as to the legal grounds for their behaviour.

Shell’s Cops, An Garda Síochána, who say they are there to ‘do their job’, have challenged all peaceful attempts by protestors resisting Shell, with violence. Garda SL 286, who refused to identify himself after driving Niall‘s van at high revs emitting smoke, says this - “Our job is to make sure that this refinery gets built”. And so, it is clear from the logical extension of Michael Mc Dowell’s argument above, that this community struggle has every legitimacy in working on, through non-violent direct action, to ensure that Shell bullies, Police bullies and Government bullies such as himself, Bertie Ahern and Noel Dempsey, do not succeed in their illegitimate attempts to build this gas refinery against the wishes of the local community, against the wishes of concerned and informed Irish citizens, and against Irish and European law, breaches of which are being exposed in the High Court by other parties.

Niall represented himself in the High Court after having received invaluable voluntary help from The Legal Support Group (LSG) in putting together the 3 essential ‘application documents’ required by a judge in these circumstances:

1. ‘An Affidavit’ - sworn statement of the facts.

2. ‘A Statement of Grounds’ - grounds on which you argue for what you want, with reference to principles of law, constitutional rights etc.

3. ‘An Application for Reliefs’ - asking for what you want e.g. application for judicial review, the seeking of injunction, order for release, declaration of unlawful behaviour, costs & damages etc.

Once you have prepared these documents in the format outlined below, it is necessary to have them stamped in the ‘stamp duty’ office which costs €15 for the Affidavit and €110 for the Statement of Grounds application. Once you have them stamped, you should get a few (3 or more) photocopies (from the law library office facility) and then file the original copies in the ‘Central Office’ and once filed, you may ask for the ‘official receipt’ stamp on all your copies which you will need to give to the judge and any parties you are taking action against.

Having filed and stamped your documents you are then free to enter the appropriate court (normally Court No. 6 with Mr Justice Michael Peart who hears Judicial Review applications on Monday’s only) and ask the judge to hear your application. You may speak to the court clerk or hand him a note asking to be heard. It is not necessary to hire a solicitor or a barrister, it is your right to represent yourself in court. This does require a certain level of confidence in your own ability to speak clearly and concisely about what you want, and confidence also in the facts outlined in your affidavit. Any fair judge will give you space and latitude to make your case, given your lack of such experience. Niall found Judge Peart to be a very accommodating gentleman, and was greatly encouraged to follow this course of legal action, given that this was the first time he represented himself in such circumstances in the High Court, Dublin. It was not necessary for Niall to argue for himself in court, his affidavit was enough to present his case and the judge was happy with the presentation of facts, wishes and grounds set out within it, resulting in a successful application, thankfully. Niall is corresponding with a helpful High Court Registrar David Neenan, who prepares the judge’s ‘court order’ for presentation to all parties concerned and can offer advice on some of the technicalities of preparing for the next date in court.

Niall’s affidavit and statement of grounds below, outlines a model which can be reproduced, with help from himself or others, by those who would wish to take a similar course of action against any person(s), company or institution whose unlawful/illegal/illegitimate actions affect or has affected them.

THE HIGH COURT
JUDICIAL REVIEW

Record number: Between/

NIALL HARNETT
Applicant
- and -

CONOR O’REILLY
Respondent
- and -

COMMISSIONER OF AN GARDA SIOCHANA, THE ATTORNEY GENERAL AND IRELAND
Notice Parties

STATEMENT TO GROUND APPLICATION FOR JUDICIAL REVIEW

Applicants name: Niall Harnett
Applicant's address: Doonagore, Liscannor, Co Clare
Applicant's Description: A Gentleman

Reliefs sought:

An order of interlocutory injunction at the stage of granting leave herein, should such leave be granted on this application for judicial review, to restrain the Respondent and/or Notice Parties from disposing of or causing further damage to the property of Applicant, to wit a blue Opel Combo vehicle with registration 95-D-3788, which is currently in their custody.

A declaration that the abovementioned vehicle is unlawfully in the custody of the Respondent and/or Notice Parties and/or that he/they have acted ultra vires.

An order of mandamus directing the Respondent and/or Notice Parties to release on demand the abovementioned vehicle to Applicant herein without further let or hindrance.

An order for damages made out against Respondent in person and/or against the Notice Parties.

Any further orders as may be urged by the Applicant during the hearing of these proceedings.

An order for costs.

Grounds upon which relief is sought:

The Applicant is entitled under the Constitution to the enjoyment of his property and may not be deprived of such rights save in accordance with law.

The Applicant is currently deprived of his property unlawfully, a tort amounting to theft under colour of law by Respondent and other persons sworn to uphold same.

The conversion of goods threatened by Respondent constitutes a further tortious and substantial interference with Applicants property rights.

The behaviour of Respondent and/or Notice Parties in this matter has been unreasonable and contrary to the principle of proportionality provided for by Irish and European Union law.

Applicant’s address for service:

Doonagore, Liscannor, Co Clare
Dated this 6th day of November 2006
Niall Harnett
THE HIGH COURT
JUDICIAL REVIEW
Record number:
Between/
NIALL HARNETT
Applicant
And

NIALL HARNETT
Applicant
- and -

CONOR O’REILLY
Respondent
- and -

COMMISSIONER OF AN GARDA SIOCHANA, THE ATTORNEY GENERAL AND IRELAND
Notice Parties

STATEMENT OF GROUNDS

NIALL HARNETT
APPLICANT IN PERSON
Doonagore, Liscannor, Co ClareTHE HIGH COURT
JUDICIAL REVIEW

Record number: Between/

NIALL HARNETT
Applicant
- and -

CONOR O’REILLY
Respondent
- and -

COMMISSIONER OF AN GARDA SIOCHANA, THE ATTORNEY GENERAL AND IRELAND
Notice Parties

AFFIDAVIT OF NIALL HARNETT

I, Niall Harnett of Doonagore, Liscannor, Co Clare., a Gentleman aged 18 years and upwards make oath and say as follows:
I am the applicant in the above entitled proceedings and I make this affidavit from facts within my own knowledge save where otherwise appears. Such statements as relate to my own acts and deeds are true and accurate and those which relate to the acts and deeds of others I believe to be true.
This affidavit is sworn for the purposes of verifying the Statement of Grounds filed herein, and I say that –
On the morning of Friday 20th October 2006, at about 11am, I drove my car, a blue Opel Combo registration plate 95-D-3788, up to the gates of the Shell Corrib Gas Refinery Site at Bellanaboy, Co Mayo.
With me in the car was passenger and journalist, Eibhlín Ní Chonghaile from Radio Na Gaeltachta, who was there to record an interview with me about land issues surrounding the Corrib gas project.
I informed the site security of my wish to enter the site, having received permission to enter from the registered land-owner, Landowner named removed by request -Ed Co Mayo (see attached land registry document – marked “Exhibit C”). I gave this information to about 5 Gardaí who approached me to enquire as to my business as I sat in the car, and also to a security guard who I know as ‘Ricky’, who works for Brendan Gilmore Security, contracted by Shell E&P Ireland Ltd. I asked Ricky to phone Terry Nolan, Deputy Managing Director of Shell Ireland and to tell him that I wished to enter the site. Ricky informed me shortly after that he had made the call. We sat in the car and awaited a response.
About 30 mins later another 20 Gardaí arrived in several vehicles, including more senior officers. They consulted with the men posted there for a few minutes and then a sizeable group, including 2 sergeants, approached my vehicle on the passenger side and asked Eibhlín Ní Chonghaile to let down the window to speak to her. She dropped the window about 6 inches. They asked her name and her business, which she told them. Then, without stating any reason, they asked her to leave the car. I said to her, “I’d appreciate it if you could put the window back up and stay here with me.” However, she appeared nervous and intimidated by the tense atmosphere and complied almost immediately with their request, exited the car and returned to the public road.
As she exited the car the Gardaí held the passenger door open. I asked them to close it but they refused to do so. I leant over to close it myself but it was held open forcibly by two members of An Garda Síochána, until, within a few minutes, Sgt. Conor O’Reilly arrived with Supt. Joe Gannon and an Inspector Robinson, all operating out of Belmullet Garda Station, Co Mayo.
Sgt Conor O’Reilly approached me from the passenger side, leaned into the car and said, “How are you Niall?”. I asked him to sit into the car with me so as I could tell him why I was there. He laughed and said “No!” in refusal of that invitation and instead he grabbed my arm and hand and started twisting it. He said “I’m going to forcibly remove you from the car because you’re causing an obstruction.” At this stage I said I would willingly leave the car, which I did, with Sgt. O’Reilly still holding on to me as I climbed over and got out the passenger side door. When I was out of the car I was physically and forcibly removed from the area by Sgt. O’Reilly, Inspector Robinson and Supt. Joe Gannon, while being insulted by Supt. Joe Gannon calling me “a fucking idiot” and being pinched in the arm by Inspector Robinson, leaving bruising. Another Garda (SL286) then drove my car back out onto the road in 1st gear at high revs, causing me concern for the integrity of my engine and when I approached him for the key after he had parked it, he just threw the key on the ground towards the ditch on the side of the road. I subsequently asked for his name but he refused to tell me.
At approximately noon on Tuesday 31st October 2006, I drove back to the gates of the Corrib Gas Refinery Site at Bellanaboy. At the entry gate to the site no-one from Shell security came to the car but again around 5 Gardaí approached my car and I told them I had permission from the registered land-owner to be there and I wanted to enter the site. The Gardaí did not engage in any discussion with me about my reasons for being there, instead they tried to pull open all the doors of my car (which were locked), and knocked on the windows gesturing aggressively for me to move. I could hear more than one of them saying “Get out!” This went on for a few minutes before they desisted and appeared to start phoning for assistance.
About 30 minutes later Sgt. Conor O’Reilly approached my car unaccompanied. By way of greeting he asked for my driving licence. I informed him that I was on private property. He then walked to the rear of my car and talked to the Gardai who were there about 15m away. At this stage I opened my window about 6 inches down to talk to someone out on the road about 25 metres away. A Garda about 5m away from my door suddenly sprang forward and siezed on my window and tried to reach in and take the keys from the ignition. A number of Gardaí, approximately 4, assisted him in forcing the window down and breaking it in half. It fell down inside the door housing of the car leaving the window completely open so as they could get in and take the key and forcibly open the door. During this incident, as I would later discover, my passenger removed the ignition key before the Gardaí could do so. They then unlocked the driver side door and opened it.
Sgt Conor O’Reilly came over again at that point and greeted me. I told him that the Gardaí had broken the window and that I wanted my keys back so as I could drive away. He said “It’s too late for that” and instructed the Garda who had grabbed and broken the window to remove me from the car. Although I did not resist him and had said that I would leave voluntarily, that Garda grabbed me forcibly, tearing my jacket, dragging me from the car and physically removed me out to the road with the assistance of another Garda. This brief ’discussion’ with Sgt Conor O’Reilly and my subsequent removal was filmed by Sgt. Greg Burke (MY 165).
When I was removed to the road Sgt. O’Reilly asked me whether or not I had an NCT or MOT certificate for my car. I informed him that the car/van is a commercial vehicle that is taxed privately and neither the DOE centres nor the NCT centres will process a vehicle in those circumstances, and so it is not possible to have either certificate for such a vehicle. I attempted to assure Sgt. O’Reilly that my car was regularly serviced to NCT standard by my local mechanic and offered to show him a recent service history, which he declined.
In spite of that, Sgt O’Reilly told me that “Judging from the way you have been driving that vehicle, I have doubts about its roadworthiness, therefore I am seizing it and bringing it to Belmullet Garda Station where I will arrange for a Garda PSV inspector to come to the station to inspect it.” I asked, “What will happen to my car in the worst case scenario?” Sgt O’Reilly replied, “If it fails the test you’ll have to get it towed to a garage to be fixed before you can drive it again.”
Another Garda then drove my car to Belmullet Garda Station and I followed shortly after as a passenger in another car. I was not offered the opportunity to come as a passenger in my own car despite my protestations to the Garda (CN14) who was driving my vehicle and who would not stop to talk to me as he drove away.
I then went to Belmullet Garda Station accompanied by a friend where I asked to take some of my property out of the car. My car was parked in a garage at this stage and I went to it accompanied by eight Gardaí (MY28, MY210, Supt. Joe Gannon, an Inspector named Tom and Sgt. Conor O’Reilly) and was filmed by two Gardaí (MY165, CN14) while I did this. At this time I also drew Sgt. Conor O’Reilly’s attention to the fact that my window had been broken by Gardaí and said that I would like it to be fixed by An Garda Síochána. He said, “I am aware that you are making those allegations Niall, but all I know is that when this car came into the station, the window was broken.” We then left. Later that afternoon, when I rang back to find out about the inspection of my car, Sgt. O’Reilly told me that the inspector would not be able to come till 11am on Wednesday 1st November 2006.
On Wednesday 1st November 2006 I arrived back at Belmullet Garda Station at about 12.30pm. I met Sgt. O’Reilly who told me that the inspector had found a number of faults with my car, mainly ‘tracking and suspension’ faults. These faults were described in a handwritten note on a sheet of paper, with no signature or reference to a PSV inspection. I asked Sgt. O’Reilly for that list of faults which he refused to give me. He told me that he was refusing me permission to drive my car away but that I must have it “towed to a garage” to get it fixed. We then went to my car because I wanted to collect some personal property from it and I also wanted to see whether the window, which had been broken by Gardaí, had been fixed or not. It hadn’t. I told Sgt. O’Reilly that I wanted my window fixed, or an assurance that it would be fixed, before I would make any arrangements to have it removed. Sgt. O’Reilly said - “Don’t even go there Niall, I have no intention of fixing your window. Out of courtesy I will tape some black plastic to the window in case we need to remove the vehicle from the garage to the yard outside, but if you don’t claim the car within the next few days I will have it sectioned and sold and the proceeds will go to the state”. I had a friend with me, Sadie Burke, who had given me a lift. I called Sadie over to witness this conversation at which point I was told by Sgt. O’Reilly to “Go, go, go, I’m not talking to you any more here in the yard here Niall, the place for talking is in the office and through the hatch”. I asked him could we continue this talk in the office and he said “No, I have no intention of talking to you any more about this”. Sgt. O’Reilly then forcibly walked me to the gate of the yard and closed the gate behind me. I then left the station with my witness, Sadie Burke.
Later that day I returned to Belmullet Garda Station with a letter of request to the member in charge and Sgt Conor O’Reilly (see attached – marked “Exhibt A”). The purpose of the letter was to ‘put on record’ my request that my window be repaired. I also requested, in the letter, the name of the PSV inspector and a copy of his report. I also wanted to return to my vehicle to inspect the alleged ‘faults’ myself and take some photos of them. These requests were rudely denied to me by Inspector Robinson who came into the office to read my letter. I asked him to sign a receipt for the letter which he refused to do before closing the office hatch while I was still trying to communicate with him.
I then called the member in charge, Garda Thomas Barron (MY170) and asked him for a receipt/acknowledgement of my letter. He told me he couldn’t give me one because Inspector Robinson had instructed him not to give me a receipt. Inspector Robinson arrived back into the office and after much debate between myself and himself he finally relented and asked Garda Barron to acknowledge receipt of my letter, which he did. I then left the station and returned to Co Clare that night after much bother in securing the loan of another vehicle and securing insurance for that vehicle from 1st Nov 2006 onwards.
The following day, Thursday 2nd November 2006, I spoke to my local Garda Superintendent Eamonn Dolan, Ennistymon Garda Station, Co Clare and gave him a letter (see attached – marked “Exhibt B”) outlining my concern my personal safety, the safety of the residents of Erris and the safety of my/our personal property following the ongoing lawless behaviour and assaults on myself and Erris residents since Oct 3rd 2006 at and around Bellanaboy, Co Mayo, by members of An Garda Síochána.
On Friday 3rd November 2006 I rang Belmullet Garda Station and was informed by a Garda Mick Farrell that my car had been placed outside in the yard. On Monday 6th November 2006 I was further informed by a Garda McNulty at Belmullet that the smashed window had been covered in plastic. I am unsure when this was done and if it is such as to prevent exposure to the elements and further damage to my vehicle.
Throughout all these interactions on several dates with the Gardai there has been no mention at all by Garda members of any legal basis to cover their actions described above.
I therefore request this High Court to grant leave and the reliefs sought herein by way of Judicial Review.

Sworn by the said Niall Harnett this 6th day
of November 2006 at in the City of Dublin before me a Commissioner for Oaths/Practising Solicitor and I know the deponent by reason of the production of an official identification document.

Commissioner for Oaths/Practising Solicitor
This affidavit is filed by the applicant in person this 6th day of November 2006.
THE HIGH COURT
JUDICIAL REVIEW
Record number:
Between/
NIALL HARNETT
Applicant
And

NIALL HARNETT
Applicant
- and -

CONOR O’REILLY
Respondent
- and -

COMMISSIONER OF AN GARDA SIOCHANA, THE ATTORNEY GENERAL AND IRELAND
Notice Parties

AFFIDAVIT OF NIALL HARNETT

NIALL HARNETT
APPLICANT IN PERSON
Doonagore, Liscannor, Co Clare

Niall gets 'pinched', literally, by O'Reilly & Inspector Robinson.