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Shell to Sea Campaigners Vindicated in Belmullet District Court, Mon 28th Sept 2009.
Wednesday September 30, 2009 01:12 by Niall Harnett - Shell to Sea / Rossport Solidarity Camp rossportsolidaritycamp at gmail dot com 0851141170
A bitter sweet day in court, with many acquittals, a great fight by the lawyers and the exposure of Judge David Anderson.
On Monday 28th September 2009, 18 Shell to Sea campaigners with strong links to the Rossport Solidarity Camp appeared at a special sitting of Belmullet District Court to answer charges relating to protests staged on land and at sea in May and June of this year at the Shell site, Glengad.
Six of the cases were adjourned to November 11th because of High Court proceedings initiated by those six, to have charges withdrawn. One other case was withdrawn by the state. One individual was convicted and fined, another plead guilty and had the charge struck out. Seven others had the charges against them dismissed.
However, to the surprise of the lawyers and the court in general, Judge David Anderson found two of the defendants guilty of obstructing Gardai in the execution of their duty, where clear flaws were identified in the evidence of the Gardai, as against what can only be described as evidence of the utmost credibility from defendants Mr Darragh Deighan-Gregory and Mr Paul Lynch, whose integrity shone a bright light into the mind of Judge David Anderson, who has revealed himself to be a 'compromised host' to the extent that he is unable to resist the infection of the state.
The day's court session started by hearing that Judicial Review proceedings have begun in the High Court in relation to Breach of the Peace charges brought against six defendants. The High Court is being asked to determine whether the state can lawfully say that these charges create offences under Common Law, where Irish Statute Law provides legislation to deal with a breach of the peace under the Criminal Justice (Public Order) Act, 1994. An interim stay has been put on proceeding with these cases in the District Court, pending a judgement from the High Court which will come a later date. The cases are adjourned for mention at Belmullet on November 11th, in the hope that the High Court will have made a final decision by then.
A few minutes later a charge of breach of the peace, contrary to common law, against another defendant was withdrawn by the State.
The first case to be heard was in relation to a charge of entering a building with intent to commit an offence, contrary to Section 11 of the Criminal Justice (Public Order) Act, 1994. Evidence was given in court that during a protest at the Shell Landfall site at Glengad a certain person, who could not be identified by state witnesses to the court, had climbed the perimeter fence of the site, only to 'fall into the arms' of the Gardai on duty there, who subsequently arrested her. After hearing the state's evidence, the barrister acting for this person, on instruction from solicitor Mr Alan Gannon, Junior Counsel Mr Tony McGillicuddy B.C.L made an application to the judge for a direction that the accused had no case to answer, on certain grounds. Judge David Anderson dismissed the case because there was no evidence that there were any buildings on the site, no evidence that the person 'whoever she was' had no authority to be there and no evidence of any intent to commit an offence.
The second case was in relation to charges against four accused that they had, without lawful authority or reasonable excuse, failed to comply with the directions of the Gardai, where the Gardai suspected them of acting against the interests of their own safety, contrary to Section 8 of the Criminal Justice (Public Order) Act, 1994. Members of the Garda water unit, Sgt Tony Cosgrove, Garda Jason Hannon and Garda Jerry McGroarty told the court that at about 4.30am on the 11th June a number of people in kayaks had entered the water from the shore at the Rossport Solidarity Camp, Glengad and approached 2 Shell dredging barges at work at sea in Broadhaven Bay digging a trench for the offshore Corrib gas pipeline. Gardai gave evidence of a safety exclusion zone marked by buoys around the barges, into which the kayakers paddled. Under cross-examination from Junior Counsel Mr Leo Mulrooney BBLS the Gardai could offer no lawful authority for the exclusion zone which they 'assumed' had been set up by Shell. Gardai had arrested the kayakers for failing to leave the area of the so called 'exclusion zone' when directed.
Mr Eoin O'Leidhin, who represented himself in court, questioned Garda Hannon on his arrest which involved him being pulled from his canoe. Garda Hannon conceded that he had taken his canoe, and punctured 2 of the inflatable kayaks with a knife, for safety reasons.
After hearing the state's case, and without going into defence evidence, an application was made by the barristers for a direction that the kayakers had no case to answer. The judge acceded to the application and dismissed the charges on the basis that the state had failed to show that any of the kayakers had acted unlawfully or without reasonable excuse.
The next case heard an individual charged with possession of a thing intending to damage property contrary to Section 4 of the Criminal Damage Act, 1991. Gardai told the court that the defendant was one of a handful of people who used a wire rope to pull down a section of the perimeter fence of the Shell site at Glengad. The defendant gave evidence that he did not do any such thing but was trying to retrieve a flag from under the feet of Gardai who were policing the area at the time and there was a large number of people and Gardai 'milling' about at the time. The court heard arguments that there was insufficient evidence to correctly identify the accused man, but the judge ruled against him on the balance of the credibility of the witnesses. Because the defendant had initially given a false name to Gardai, which he then corrected upon his lawful arrest, the judge found against him in terms of the 'credibility of the witness' and out of two Garda witnesses he ruled in favour of one Garda witness who identified the defendant. The individual was convicted and fined 750 euro.
The last case of the day related to more Section 8 charges of failure to comply with directions of the Gardai against 2 protesters who, the court heard, on the evening of June 2nd had boarded a Shell dredging vessel, the Razenda Bol, climbing on to the arm of a digger on board at approximately 6.30pm and occupying their position at a height of about 20 feet until 4am the following morning, when they had come down to be arrested. Garda Sgt Donie Duignan of the Garda Water Unit told the court that, out of concern for their safety, he had directed the protesters to leave the vessel, pursuant to Section 8 of the Public Order Act. Mr Mulrooney and Mr McGillicuddy, barristers acting for the defendants made a similar application to the ones made earlier, on a number of grounds. Case law was brought to the attention of the judge to the effect that a High Court determination by Justice Laffoy in the case of DPP v Galligan, 1995, rules that in order to convict a person on a Section 8 charge, there must be evidence that 1. the accused was warned that their behaviour could lead to a breach of the peace, 2. The accused was given an opportunity to desist, and 3. The accused was informed that if he/she failed to desist, would face possible criminal charges and penalties. Judge Anderson who ruled, on the basis that he was bound by the high court ruling, that there was no evidence that the accused were informed that they may have faced criminal sanction for their actions, dismissed the charges.
The penultimate case, which I've left till last, was the most interesting and the most telling of the day.
Mr Darragh Deighan-Gregory and Mr Paul Lynch were accused of obstructing Gardai in the execution of their duty contrary to Section 19(3) of the Criminal Justice (Public Order) Act, 1994. Garda Sgt Liam Grimes, Garda Chris Hayes and Garda Gary Butler, all of the Garda Water Unit, gave evidence that the defendants had impeded them from effecting the arrest of another man who was 'making his escape' from the water after having occupied a Shell barge for a number of hours.
The court heard the story of the 'unknown protester' who had climbed aboard one of the Shell dredging barges on the morning of the 5th June. He had occupied a position high on one of the digger arms for a number of hours before Gardai and IRMS security personnel had surrounded him. The 'man' then jumped from the arm of the digger onto the roof of a barge structure and dived headfirst into the water, in what Garda Butler described as a 'considerable acrobatic feat', before swimming to shore and climbing up a cliff to 'make his escape'. A large number of boats went in pursuit of the swimmer, including IRMS boats and a Garda RIB (rigid inflatable boat). The Gardai said that as they tried to approach the swimmer to arrest him, they were obstructed from reaching him by Mr Gregory and Mr Lynch who they say were circling the 'unknown protester' as he swam to shore.
Mr Deighan-Gregory and Mr Lynch gave evidence that they had taken to the water in their kayaks, as part of a rolling safety team, to observe the protest being staged and monitor the position of the man occupying the Shell barge. Mr Deighan-Gregory gave evidence that he took a position away from but in sight of the barge, in agreement with the skipper of one of the Shell safety boats. When the man had left the barge and swam to shore, both witnesses had paddled to meet him to check on his well-being. He was 'cold and fatigued'. Before any interaction with the Gardai, and out of concern for the swimmer, Mr Lynch invited the man to take his kayak, which he accepted. The Garda boat had not reached them at this stage, since it had taken up to two minutes, according to the Garda evidence, to get back to their boat from the barge. The man paddled to shore as Mr Lynch swam to exit the water. Mr Lynch explained that it was impossible for him to obstruct the Gardai in his kayak, since he had left his kayak before they arrived and the swimmer had already paddled away. Mr Deighan-Gregory gave evidence that he complied with Garda directions at all times. Prosecuting, Inspector Joe Doherty asked Mr Gregory were the Gardai telling lies. His response was to say that “we are telling the truth and they are saying something different to us”.
To say that the testimony of the defendants was compelling evidence would be an understatement. You had to be there. I think it's absolutely fair to say that in the history of Shell to Sea cases, no witnesses have made a greater impression on the court than Darragh Deighan-Gregory and Paul Lynch, who both oozed integrity and truth.
The judge took issue to say that Mr Lynch's case, which was simply that he had swam off before the Gardai arrived, had not been put to the Gardai in cross-examination. Mr McGillicuddy insisted that it had been and an argument ensued. Both Mr McGillicuddy and Mr Mulrooney raised many doubts about the evidence of the three Garda witnesses. The Gardai had said that they had made their witness statements independently of each other with no co-consultation. Mr McGillicuddy pointed to portions of their statements that were identical in words and sentences. Mr Mulrooney pointed to conflicting Garda oral testimony to the extent that their was a real doubt about the credibility of their oral evidence. In light of that and the judge's earlier ruling with respect to credibility, Mr Mulrooney's submission was that 'witness credibility' favoured his own client. And to the extent that doubts existed in relation to the Garda evidence, Mr Gregory's innocence had to be presumed and had not been rebutted.
To the complete surprise of the court, Judge Anderson found in favour of the Garda evidence and convicted both defendants.
In mitigation, the barristers defended the integrity of their clients to the extent that the judge decided to offer them the option to enter into a twelve month bond of good behaviour and not to commit any offence, instead of having a conviction marked against them in the criminal record.
After a short recess, and after consulting with their lawyers, Mr Lynch and Mr Deighan-Gregory agreed to enter the bond. Recognizances were fixed in the event of an appeal.
One witness summed up Judge Anderson's decisions this way. “From a clinical point of view it was wrong, given that the barristers did so well to expose the Garda contradictions in evidence and cooperation in preparing their statements. But for a district judge to side with the defence in a 'swearing match' would be a step too far a district court judge for fear he would create a swing towards a change in the culture of the courts favouring the Gardai. But he created the option of the bond to keep this can of worms closed, in the hope that the defendants won't appeal”.
It's for this reason that I say that, in spite of the disappointment of Judge Anderson's decision, it is a good thing that the integrity of men like Paul Lynch and Darragh Deighan-Gregory has exposed the bias of Judge David Anderson.
On a final note, it's appropriate that a sincere word of appreciation goes to the lawyers - solicitor Alan Gannon and barristers Leo Mulrooney and Tony McGillicuddy, who worked hard and tried hard all day and late into the evening, to defend their clients to the best of their ability, which is considerable.
Two Shell to Sea Protesters in 10 hour Occupation of Shell’s Dredger at Sea: http://www.indymedia.ie/article/92590
The Pirates of Broadhaven Defeat Shell’s Armada: http://www.indymedia.ie/article/92596
And there's a robbery taking place that the state are ignoring.