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The Do’s and Don’ts of Prosecuting the Gardaí.
Tuesday June 19, 2007 23:06 by NIall Harnett - Shell to Sea. clare at shelltosea dot com Doonagore, Liscannor, Co Clare. 086 8444966
"Experience is simply the name we give to our mistakes." - Oscar Wilde.
On Thur 3rd May 2007 at Westport District Court, I successfully applied for summonses and initiated prosecutions against 3 members of An Garda Síochána, Belmullet, Co Mayo, who were then summonsed to appear to answer charges of assault, criminal damage and theft at Belmullet District Court on 13th June.
On Wed 13th June 2007 at Belmullet District Court, I failed to bring the case to a full hearing, because of a number of avoidable mistakes that I made, one of which proved to my undoing, whereby the judge put a stop to me proceeding any further with these summonses.
This article is an account of my days in court, including the procedures I went through to initiate the prosecutions and the mistakes I made in failing, at this stage, to bring the proceedings to the proper conclusion of a trial. I hope others can learn from my experience, avoid the pitfalls, and be encouraged to bring their own prosecutions against criminal Gardaí, in order to stop their violence and the cowardly abuse of their power.
Click to enlarge for a view of relevant forms.
On Friday November 10th 2006 I was attacked by three Gardaí at a Shell to Sea protest in Erris, Co Mayo. This protest was part of an International Day of Action against Shell on ‘Ken Saro-Wiwa Day’, the 11th anniversary of his death by hanging, executed by Shell along with eight other leaders of MOSOP - the Movement for the Survival of the Ogoni People in Nigeria. Shell to Sea protests were happening that morning at the proposed Shell Corrib Gas refinery site at Bellanaboy and at two quarry sites near Bangor, Lennon’s and Barrett’s quarries, who are contracted by Shell to supply stone and concrete to the Bellanaboy site.
I was filming a protest where a group of about 20-30 people were staging a sit down protest on a bridge on one of the roads out of Lennon‘s Quarry. Three senior Gardaí attacked me, threw me to the ground, kicked me across the road, tore my camera from my grip, smashed it on the ground, stole and hid it, then threw me over a barbed wire fence into a field. The others suffered a similar fate to me and one man was hospitalised for a beating he got at the hands of Sergeant Conor O'Reilly and other Gardaí.
Allegations of Offences.
I say that Garda Superintendent Joe Gannon, Inspector Patrick Robinson and Sergeant Dermot Butler MY28 did assault me, criminally damage my Fuji Finepix digital camera and steal that camera, intentionally and without lawful excuse, contrary to Section 2 of The Non-Fatal Offences Against the Person Act 1997, contrary to Section 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and contrary to Section 2 of the Criminal Damage Act 1991 (as amended by Section 21 of the Non Fatal Offences against the person Act 1997).
Getting the case into court.
NB: It is the right of the public to have free access to the courts, as a lay litigant or otherwise, to initiate and conduct prosecutions as a ‘common informer’ and seek justice with regard to offences committed against you or others, and where ‘justice shall be administered in public’. - Article 34.1 Irish Constitution.
On Thursday May 3rd 2007, after having written and briefly outlined my case to the district court clerk in order to get my name on the court ‘list’ at Westport District Court, I made an application for the ‘Issue of Summonses Alleging these Offences‘, based on oral testimony and written ‘Information’ that I submitted as evidence to the court, all in accordance with ‘Order 15 of the District Court Rules (Criminal Proceedings)’ which are available here: http://www.courts.ie/rules.nsf/DistrictRules . Because the signature of a judge is required for the summons of a member of An Garda Síochána, the appropriate ‘Summons Form 15.1 Schedule B’ and ‘Information Form 15.3 Schedule B’ Forms 15.1 are both available here in the Schedule B.pdf at the bottom of this page here: http://www.courts.ie/rules.nsf/542e6646d991f51a80256db7...db59/ . Both forms were pre-prepared by me and when my application was accepted by Judge Mary Devins, she signed her name to the summonses and issued them to me.
I subsequently served the summonses by hand and in person on two of the Gardaí, and by pre-paid registered post on the other, in accordance with ‘Order 10 of the District Court Rules (Preliminary & General)’ which are available here: http://www.courts.ie/rules.nsf/DistrictRules .
[Time for Service]
Order 10.20. Save where otherwise provided by statute or by Rules of Court, a document which is required to be served shall be served at least seven days or, in the case of service by registered prepaid post, at least twenty-one days, before the date fixed for the hearing.
What I subsequently failed to do was to lodge the summonses back with the district court four days before the next date in court. This proved problematic for me later on when my own mistake put me in the position of having to appeal to the discretion of the court to allow for the ‘late entry’ of these summonses.
[Time for Lodgement]
Order 10.21. A document intended for entry for hearing shall, together with a statutory declaration as to service thereof, be lodged with the Clerk at least four days before the date fixed for the hearing.
Order 10.22. No document shall be received or entered by the Clerk after the time specified by these Rules without the order of the Judge, and any late entry shall be made in accordance with such direction as the Judge may give.
I had not fully read the ‘Rules of the District Court’ that were relevant to the issuing and lodgement of summonses. This was an avoidable mistake which put me in unnecessary difficulty. If I’d studied and stuck to the rules I’d have been on firmer ground and confident with it. My advice is to protect yourself by sticking to the rules of the game, which are easily accessible online nowadays.
Next date in court.
Although I had had the summonses issued in Westport District Court in early May, the judge directed that the case was to be heard in the court area of where the offences occurred and the accused reside, namely Belmullet District Court on Wednesday 13th June.
Because I became aware of my ‘late summons entry’ mistake on the previous evening I had doubts as to whether or not my name was even on the list for Wednesday. I spoke to the court clerk before court and she confirmed that I was not on the court ‘list’. I informed her of my mistake, gave her the late summonses and she said she would bring them to the attention of the judge. After the morning’s list of cases were dealt with, the clerk quietly presented my summonses to the judge and I stood up to apologise for the mistake I had made and to seek ‘the tolerance of the court and latitude normally accorded to lay litigants’ such as myself. I asked the judge to accept the late entry of the summonses, given the discretion of the court and the fact that the accused had appeared in court. I gave oral evidence under oath that I had served summonses on two of the Gardaí personally and submitted a statutory declaration of service by registered post on the other Garda, accompanied by proof of posting in accordance with the ‘Service of Documents’ Rules, Orders 10.16 & 10.17A. Forms available here if you click on the ScehduleB.pdf at the bottom of this page here: http://www.courts.ie/rules.nsf/542e6646d991f51a80256db7...db59/ .
At this point, Mr Liam Guidera of Frank Ward & Co Solicitors, Dublin, introduced himself as solicitor for the Gardaí. Mr Guidera began to make representations to the court as to why the judge should not allow the late summonses to be entered into the court record.
Mr Guidera brought my Indymedia articles to the attention of the judge, and represented my accusations on the newswire against Gardaí and others as ‘inflammatory, defamatory and contemptible’. This was an effort to give ‘an insight into my motivation as prosecutor’ as he put it, and to prejudice the judge against me, in my opinion. Although this did present me with the opportunity to defend my Indymedia articles and reject his suggestions, I should have just objected to this line of argument as these are matters that were not before the court and this was not being offered as sworn evidence either. It was just a dishonest effort to smear me, which the judge regrettably entertained by asking questions about my legal and journalistic ‘qualifications’ which were not relevant to the court and which I will know better the next time not to respond to.
Mr Guidera also brought up a letter which I had written to the Gardaí on 23rd May offering to drop the charges if they returned my stolen camera to me. This letter was the second mistake I made which proved to be my undoing by compounding my first mistake, in that the judge regarded this letter as a “definite interference in the prosecution and a taint of the process“. Because of this letter, she refused, in her discretion, to entertain the late entering of the summonses into the record of the court, with the result that my case was no longer ‘before the court’, and that was the end of the matter.
Judge Mary Devins’ ruling.
"In my view that letter is most definitely an interference in the prosecution, a taint of the process, using the court as a tool, and perhaps a weapon, that the prosecutor Mr Harnett in this case can take up and drop as he sees fit. If a Guard had issued proceedings in a criminal case and in the course of evidence I heard that that Guard had gone to the accused and had said that 'if you do such and such a thing, I will not enter this summons, or if you apologise I will not continue this prosecution', and that person refused to reply and the Guard then entered the summons, and I was given that evidence in court then I would most definitely consider that the prosecution was thereby fundamentally tainted and flawed. I would consider it an abuse of the process, an abuse of the administration of justice and an abuse of the district court. I would like to remind you Mr Harnett that the district court is not a circus manned by puppets. It’s a statutory court manned by lawyers, it’s not a theatre and it’s not a political forum”. Because of that letter I cannot entertain the summonses, and so they are not before the court, and I make no further comment." - Judge Mary Devins.
With the benefit of hindsight I can see why the judge would make such a ruling with regard to the letter and I accept that.
However, I cannot agree with the judge’s suggestion that this is my view of the district court, and I disagree with the notion that the sanctity or integrity of any court is the sole preserve of members of the legal profession when members of the public and … ‘all are held equal before the law ‘- Article 40.1 Irish Constitution.
I also think it’s important for me to reject any questions, notions or doubts about the nature of my motivation for prosecuting Gardaí, as suggested by the defence and entertained by the judge. My motivation is true and I encourage others to do likewise. Our fundamental rights to freedom of movement, assembly and protest, personal privacy and bodily integrity are being ‘disabused’ by violent Gardaí who are out of control. Our motivation is to stop their criminal behaviour, otherwise we give them a license to continue. And who else is gonna prosecute them?
Summary & Indictable Offences.
Be aware that there are two types of criminal offence in law - Summary Offences and Indictable Offences. A ‘summary offence’ describes one that can be tried in the district court before a judge alone. An ‘indictable offence’ describes one that can be heard in the circuit court before a judge and jury. Indictable offences are more serious and carry higher penalties than summary offences. Summary offences can be prosecuted to their full conclusion by a ‘lay litigant’ and ‘common informer’ in the district court. The distinction is also important in terms of the jurisdiction of the lay litigant to prosecute. The prosecution of indictable offences can be initiated in the district court by the lay litigant, but if the accused ‘elects’ to be heard before a jury in the circuit court, then the DPP (Director of Public Prosecutions) will take over your case.
Bottom LIne: You must be able to prove your case.
This is the most crucial factor in bringing any prosecution to the full conclusion of a conviction. Establish any witnesses to any criminal incident as soon as possible and be sure that they will give evidence in court and testify on your behalf. Secure any video or photographic evidence, including any Garda footage, which you are entitled to. If you're happy with your evidence and/or witnesses ... prosecute.
Representing yourself in court.
With regard to the pros and cons of representing yourself in court, I favour doing it ourselves. We will make mistakes but we can learn, the hard way if necessary, to master the subtleties of legal argument and the processes of law. And there is help available if you've never done it before. We can empower ourselves and others to develop the talents of the lay-litigant to take the veils off the ‘mysterious and elite inner sanctums’ of the law and bring justice right into the public realm, where it belongs.