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 Do You Know Your Rights - Who Does?

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PostSubject: Do You Know Your Rights - Who Does?   Fri May 09, 2008 7:38 pm

This video is interesting from a number or perspectives. At first, it may seem petty and pointless on the part of the film maker. When one gets past the supposed pettiness of the man with the video camera, a number of interesting things emerge. As a little side note for folks who might wish to try this in Ireland, the law is slightly different here and similar behaviour in similar circumstances would get one a date with the nice officer in front of a judge. I used this American video specifically because I wanted to point out that authorities are chancing their arms with a lot of their actions, as opposed to pointing out specific rights.

I must also point out that most of what went on in this specific video was down to the officer not being fully aware of her specific duties. Had the officer been more aware, our intrepid cameraman would probably have ended up in the back of a police cruiser. Then again, possibly not, he might have had the right answers too had the officer been more aware of her powers.

Anyway here's the video:



People are becoming more aware of their rights, always a good thing.

Authorities are being put out onto the streets with an absolute minimum knowledge of their rights and duties. Insufficient representation, or a lack thereof is what secures convictions in most of these cases. Allow me to illustrate this with an example.

A very short while back, some would be nazi types were brought to court and convicted for public order offences after they had been out in some wooded area displaying nazi flags and paraphernalia. Other than the Gardaí, nobody saw or confronted these idiots. The Gardaí only had Garda witnesses in court.

In order to provoke a breach of the peace, there must be members of the public present to be provoked or inspired to a breach of the peace. The nazi idiots were in the middle of nowhere and could neither provoke a breach of the peace, nor did the Gardaí provide evidence/witnesses to prove a breach of the peace was possible. I'm particularly aware of this position having recently acted as a McKenzie Friend for a gentleman who beat a similar (but not a nazi inspired one) Garda case when it was pointed out to the Court that no evidence had been produced to sustain the charge. The judge had to point out to the grumbling Gardaí, that 'they'd be shot if they rioted.' (It has been established in our courts that the Gardaí cannot be provoked to committing a breach of the peace - in other words, if the Gardaí are the only folks present, other than the accused, there cannot be a breach of the peace).

It's interesting that there are debates about increasing Garda powers, arming them even. What about getting them up to speed, before we have any such debate?

I'm not having a go at the Gardaí here. I've a lot of respect for many individuals within the force. I've a real love/hate relationship with the Gardaí, that's true, but my argument is not a product of hatred.

Surely, rather than having to be always on the ball with regard to understanding our rights, it would be better if the authorities understood their duties and knew enough to respect our rights?
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PostSubject: Re: Do You Know Your Rights - Who Does?   Sat May 10, 2008 1:09 am

Quote :
A very short while back, some would be nazi types were brought to court and convicted for public order offences after they had been out in some wooded area displaying nazi flags and paraphernalia. Other than the Gardaí, nobody saw or confronted these idiots. The Gardaí only had Garda witnesses in court.

Under what sections of the Act were they prosecuted, Hermes?
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PostSubject: Re: Do You Know Your Rights - Who Does?   Sat May 10, 2008 2:10 am

Interesting video alright, but there are so many agencies in the US now its not hard to see why confusion arises.

Here, as you've noted, the Gardai have greater powers.

I've never had any problems with the Gardai; the younger ones seemed to be pretty clued in these days. The older one are thankfully kept out of harms way.
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PostSubject: Section 7 of the Public Order Act   Sat May 10, 2008 2:19 am

Kate P wrote:
Under what sections of the Act were they prosecuted, Hermes?

Section 7 of the Public Order Act: Distribution or display in public place of material which is threatening, abusive, insulting or obscene. (The case I was involved in recently was a section six, which is behaviour related rather than display related.)

Here's an article on the subject
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PostSubject: Re: Do You Know Your Rights - Who Does?   Sat May 10, 2008 2:32 am

seinfeld wrote:
I've never had any problems with the Gardai; the younger ones seemed to
be pretty clued in these days. The older one are thankfully kept out of
harms way.

Maybe we hang around in different circles Very Happy

I've met very few Gardaí with any knowledge of the constitution, despite them having sworn an oath to uphold it. I've literally asked hundreds of Gardaí questions about our constitution: I've never yet had a reply that inspired any confidence.

The Gardaí might seem very competent as long as you do exactly what they instruct you to do. Should one be fully aware of one's rights and be in a position to refuse to comply, it's quite amazing how lacking in knowledge of the very basics, most officers are. Don't get me wrong, if my house is being broken into, if I'm being attacked or witness an attack, I'm calling the Gardaí. I see them as a necessity in Irish society. I'm just suggesting that they should be trained to act in more ways than as mere muscle. Despite the rumours, the average Garda is not a thick neanderthal and is more than capable of being trained.
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PostSubject: Re: Do You Know Your Rights - Who Does?   Sat May 10, 2008 2:37 am

Hermes wrote:

I've met very few Gardaí with any knowledge of the constitution, despite them having sworn an oath to uphold it.

Which bits of the Constitution do you think they should be conversant in?
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PostSubject: Re: Do You Know Your Rights - Who Does?   Sat May 10, 2008 2:45 am

seinfeld wrote:
Hermes wrote:

I've met very few Gardaí with any knowledge of the constitution, despite them having sworn an oath to uphold it.

Which bits of the Constitution do you think they should be conversant in?

I'd be more than satisfied if they knew about and understood Article 40. After that, an idea about Articles 34, 38, 41 and 43 would be nice too.
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PostSubject: Re: Do You Know Your Rights - Who Does?   Sat May 10, 2008 12:28 pm

Link to Constitution -

http://www.taoiseach.gov.ie/attached_files/Pdf%20files/Constitution%20of%20Ireland.pdf
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PostSubject: Re: Do You Know Your Rights - Who Does?   Sat May 10, 2008 8:29 pm

Hermes wrote:
Kate P wrote:
Under what sections of the Act were they prosecuted, Hermes?

Section 7 of the Public Order Act: Distribution or display in public place of material which is threatening, abusive, insulting or obscene. (The case I was involved in recently was a section six, which is behaviour related rather than display related.)

Here's an article on the subject

They both had their convictions upheld - there's no mention that either was a bad order.

I think you're being a bit skimpy in your reference to Section 7 which reads

'
7.—(1) It shall be an offence for any person in a public place to distribute or display any writing, sign or visible representation which is threatening, abusive, insulting or obscene with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned.

A public place by definition for the purposes of the Public Order Act includes

public place" includes—

( a ) any highway,

( b ) any outdoor area to which at the material time members of the public have or are permitted to have access, whether as of right or as a trespasser or otherwise, and which is used for public recreational purposes,

( c ) any cemetery or churchyard,

( d ) any premises or other place to which at the material time members of the public have or are permitted to have access, whether as of right or by express or implied permission, or whether on payment or otherwise, and

( e ) any train, vessel or vehicle used for the carriage of persons for reward.





What's the exact nature of your difficulty with the prosecution and the conviction?
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PostSubject: Re: Do You Know Your Rights - Who Does?   Sat May 10, 2008 11:35 pm

Kate P wrote:
What's the exact nature of your difficulty with the prosecution and the conviction?

You highlighted a section of the law when you quoted it:

Kate P wrote:
with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned.

The bit you highlighted is the bit I have a problem with.

Many sections of the public order act are about provoking a breach of the peace. That is to say, that those found guilty are not disturbing the peace themselves, rioting, or whatever, but are acting in a fashion that might provoke or incite others to do so.

If you were alone on the planet, you could not violate section 7 of the public order act. If only you and the Gardaí were on the planet, you could not violate section 7. For a section 7 offence to occur, there must be members of the public present that can be incited or provoked. These muppets were in the middle of nowhere, and there were no members of the public presents, as I've said already. Also, there were only Garda witnesses. Members of the public who could have been incited to a breach of the peace, were not provided as witnesses/evidence. If it is possible to incite a breach of the peace, it must also be possible to disturb the peace. I suggest that it is easy to see why the peace cannot have been disturbed: it follows that there can be no incitement to a breach of the peace. There were only two outcomes that should have been possible in this case.

i. There were no members of the public that could have been incited to a breach of the peace - case thrown out for lack of evidence.

ii. Gardaí didn't provide members of the public as witnesses/evidence as is their duty under: Braddish v DPP & anor and the case of Dunne v DPP : case thrown out also.

In Braddish we have the following established:
Quote :
It is the duty of the Gardaí, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence. This is so whether the prosecution proposes to rely on the evidence or not, and regardless of whether it assists the case the prosecution is advancing or not.
In Dunne we are told exactly how much effort the Gardaí must lawfully expend in seeking out evidence before their duty is considered to have been done. This is described by McGuinness J. where it is pointed out that if a trial were to be prohibited on that basis that the Gardaí failed to seek out evidence :
Quote :
it would have to be shown that any such evidence would be clearly relevant, that there was at least a strong probability that the evidence was available, and that it would in reality have a bearing on the guilt or innocence of the accused person...

In your post you highlighted the following:

Kate P wrote:
( b ) any outdoor area to which at the material time members of the public have or are permitted to have access, whether as of right or as a trespasser or otherwise, and which is used for public recreational purposes,

I have no problem with this. The wooded area was most certainly a public place. However in the first quote from above, we have these muppets either trying to provoke a breach of the peace (not possible) or being reckless as whether one 'may' have happened. If there are no public present, a breach of the peace 'may' not be provoked or incited.
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PostSubject: Re: Do You Know Your Rights - Who Does?   Sun May 11, 2008 12:02 am

Surely the point, Hermes is that they were reckless as to whether a breach of the peace happened. Their behaviour in any context was clearly inappropriate.

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he was called to a wooded area close to the Wicklow way.
Garda O'Sullivan drove almost a kilometre into the wood to where the camp was, there he found four people including McNeill and Kavanagh around a camp fire with a structure that had three flags hanging from it.

The Garda was called to the area - they didn't go there on spec. Someone raised a concern and the men were in a public place behaving in a manner that would have clearly been a breach of the peace had members of the public (other than, presumably the person who called in the offence) happened by.

Simply because the Gardaí didn't call a witness doesn't mean they didn't have one, though they may not. In any case, someone called it in. Someone was offended or intimidated by that behaviour.

If the Gardaí pre-empted a more serious actual breach of the peace, are they not to be commended? Isn't this a bit like the 'if a tree falls and no one hears it, does it make a sound?' argument?

Their behaviour contravened the law to the extent that it was called in to the station and they were in a public place - where members of the public were likely to appear.
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PostSubject: Re: Do You Know Your Rights - Who Does?   Sun May 11, 2008 12:15 am

I outlined two cases above with regard to a Garda's duty in seeking and preserving evidence.

If the Gardaí had received a complaint, the person who complained should have provided his/her evidence in court. Of course if the complaint was the basis for the charge, the charge probably would have been 'disturbing the peace.'

I have no sympathy whatsoever for these guys. I'd not have cared a jot had the appeal against a harsh sentence been lost. Had they not been dispicable beings however (in my opinion), I'd be outraged.

If you act in a fashion that might provoke a breach of the peace in the middle of a crowded pub, you are being reckless. However, the further you distance yourself from the general public, the less reckless you are. If you believe and have good reason to believe that there are no members of the public around, you are not being reckless.

I'm the wrong person to ask questions of regarding the possibility that the Gardaí might have pre-empted a more serious crime. As an anarchist I have a very serious dislike for fascists and nazis - I'd not have had any concerns if the Gardaí had buried these beings where they found them. Doesn't that illustrate my point all the more though?
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PostSubject: Re: Do You Know Your Rights - Who Does?   Sun May 11, 2008 12:43 am

The person who complained is not obliged to give evidence in court. He or she may have prepared a written statement which could have been read over in court but is not obliged to.

Regarding their recklessness, it doesn't matter to me where they were or how far they buried themselves in the wood. Their behaviour was intended to be provocative - they knew it was provocative and had no business behaving as they did in any public place.

The Gardaí do not present all evidence in court - otherwise they'd be more jammed than they already are. But that's not to say they don't have more evidence gathered that could have been presented had it been asked for. Judges do this all the time, but in neither the District nor the Circuit Courts was any demand made.

Your point is that the Gardaí basically manufactured a case out of nothing. I disagree.

Quote :
i. There were no members of the public that could have been incited to a breach of the peace - case thrown out for lack of evidence.
Not the point and not in the spirit of the law which suggests that if there's a liklihood that a person could legitimately happen along, then their behaviour was reckless in facilitating the possibility of a breach of peace.

Where is the reference that says that members of the public have to be present for the reckless offence to occur?

Quote :
Gardaí didn't provide members of the public as witnesses/evidence as is their duty under: Braddish v DPP & anor and the case of Dunne v DPP : case thrown out also.

Both of these cases refer to burglaries and both refer to the management of CCTV footage and the preservation or seeking of evidence. There seems to be no question in the report above that there was a lack of evidence.
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PostSubject: Re: Do You Know Your Rights - Who Does?   Sun May 11, 2008 1:38 am

Kate P wrote:
The person who complained is not obliged to give evidence in court. He
or she may have prepared a written statement which could have been read
over in court but is not obliged to.

All witnesses are required to give evidence unless excused by the Judge. Neither the Gardaí nor the witnesses themselves are entitled to make this decision. If the alleged witness had prepared a written statement, it should have been tendered as evidence and the defence allowed to cross examine. Again, if a complaint was at the root of the court case, the charge would not have been a section 7. This alleged complaint is a red herring. If a complaint is the basis of a charge, the person who makes the complaint must appear in court to give evidence and be opened to cross examination. It is at the foundation of justice that a defendent be allowed to confront his accuser. The complaint in this case is but a reason as to why the Gardaí showed up, it has nothing to do with proving the case. I'd speculate that if there was a complaint, that it involved someone reporting that the nazis were making noise. The Gardaí arrive on the scene and see nazi gear and instead of proceeding with a disturbing of the peace charge, they figure that the fact that these guys are nazis can be figured into a charge instead and thus go for the section 7 (again, speculation on my part).

Kate P wrote:
The Gardaí do not present all evidence in court - otherwise they'd be
more jammed than they already are. But that's not to say they don't
have more evidence gathered that could have been presented had it been
asked for. Judges do this all the time, but in neither the District nor
the Circuit Courts was any demand made.

If a Garda knowingly witheld evidence, it would be a mistrial at the very least. Gardaí do not get to choose what evidence they present and what evidence they withold. It is their duty to gather, preserve and present evidence, they have no business judging it's quality or merit.

Kate P wrote:
Your point is that the Gardaí basically manufactured a case out of nothing. I disagree.

This is very far from what I'm saying. I'm saying that the Gardaí didn't present any evidence to prove their case. What group of people or person, could have been provoked to a breach of the peace?

Kate P wrote:
Not the point and not in the spirit of the law which suggests that if
there's a liklihood that a person could legitimately happen along, then
their behaviour was reckless in facilitating the possibility of a
breach of peace.

Where is the reference that says that members of the public have to be present for the reckless offence to occur?

You cannot be prosecuted for a violation of the spirit of the law. You must be prosecuted to the letter of the law. The key word to examine here is the word "may." The evidence suggests that they went out of their way to avoid the public. Recklessness imo is out the window. However, if there are no members of the public, there "may" not be any provocation. You may eat an apple but you cannot eat an apple you do not have. A person might just happen along and wander into a fire you start: by this logic you are guilty of attempted murder any time you light a fire whether any such person wanders along or not. The important thing here is what is reasonable. Is it reasonable to believe, that if you hike a few miles into the middle of nowhere, that you do not intend to interact with the public? I suggest that if this is a reasonable expectation, then one cannot be reasonably described as being reckless with regard to provoking a breach of the peace. The reference that says that members of the public have to be present is contained in: "with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned."

It takes members of the public to be present to be provoked to a breach of the peace. Say for example, these guys had dug a pit to catch a bear: it would be unreasonable to suggest that they were endangering the bears at Dublin zoo.

Kate P wrote:
Both of these cases refer to burglaries and both refer to the
management of CCTV footage and the preservation or seeking of evidence.
There seems to be no question in the report above that there was a lack
of evidence.

Both these cases are considered definitive with regard to the duty of the Gardaí to collect and preserve evidence. I suggest that firstly, there was no evidence, as there was no violation of section 7. However, if the Gardaí were to prove such a violation the following would be essential.

i. That the nazis were in a public place. (They were.)

ii. That they had offensive materials that could provoke a breach of the peace. (They had.)

iii. There was someone or some group that could potentially have been provoked to committing a breach of the peace. (This is what's missing - either there was no such person or group, or the Gardaí failed in their duty to gather and preserve evidence. Had the Gardaí provided a single person who'd witnessed the nazis and their set up, the case would have been proven, whether or not that person was incensed enough to commit a breach the peace.)
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PostSubject: Re: Do You Know Your Rights - Who Does?   Mon May 12, 2008 12:35 pm

Quote :
All witnesses are required to give evidence unless excused by the Judge. Neither the Gardaí nor the witnesses themselves are entitled to make this decision. If the alleged witness had prepared a written statement, it should have been tendered as evidence and the defence allowed to cross examine. Again, if a complaint was at the root of the court case, the charge would not have been a section 7. This alleged complaint is a red herring. If a complaint is the basis of a charge, the person who makes the complaint must appear in court to give evidence and be opened to cross examination. It is at the foundation of justice that a defendent be allowed to confront his accuser. The complaint in this case is but a reason as to why the Gardaí showed up, it has nothing to do with proving the case. I'd speculate that if there was a complaint, that it involved someone reporting that the nazis were making noise. The Gardaí arrive on the scene and see nazi gear and instead of proceeding with a disturbing of the peace charge, they figure that the fact that these guys are nazis can be figured into a charge instead and thus go for the section 7 (again, speculation on my part).

If these men pleaded guilty in the district court, does the judge have to hear all of the evidence before he sentences them? I know some judges don't.

Your speculations are interesting but the point remains that they were behaving in a provocative and inflammatory way which would have caused a breach of the peace, had they been happened upon. Where, again, does the legislation state that someone has to be present for a Section 7 prosecution to be valid? Surely if the case wasn't sound it would have been dismissed either at the District Court or later at the Circuit Court. It didn't happen.

Quote :
The important thing here is what is reasonable. Is it reasonable to believe, that if you hike a few miles into the middle of nowhere, that you do not intend to interact with the public? I suggest that if this is a reasonable expectation, then one cannot be reasonably described as being reckless with regard to provoking a breach of the peace. The reference that says that members of the public have to be present is contained in: "with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned."

That's an interesting interpretation.
Firstly the Gardaí, according to the newsreport in the Wicklow People travelled a kilometer into the woods - that's less than ten minutes walk to where they found the men - it wasn't a couple of miles.

Furthermore they were in a location that constitutes a public place under the legislation. I don't think that under the circumstances it is reasonable to assume they were not reckless about breaching the peace.

It is in fact, more reasonable to assume that people - any people- could have come across these men because they had positioned themselves in a location which increased the liklihood of being encountered.
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PostSubject: Re: Do You Know Your Rights - Who Does?   Mon May 12, 2008 5:01 pm

Kate P wrote:
If these men pleaded guilty in the district court, does the judge have to hear all of the evidence before he sentences them? I know some judges don't.

If they had pleaded guilty, there'd be no need for anything other than Garda testimony. However, in the article I linked to we have one of the nazi's appealing his conviction. This seems to indicate that he at
least did not plead guilty. Therefore all evidence was required. Here's a link to the article covering the initial case: Link

Kate P wrote:
Your speculations are interesting but the point remains that they were behaving in a provocative and inflammatory way which would have caused a breach of the peace, had they been happened upon. Where, again, does the legislation state that someone has to be present for a Section 7
prosecution to be valid? Surely if the case wasn't sound it would have been dismissed either at the District Court or later at the Circuit Court. It didn't happen.

I think our discussion is becoming a bit circular, I'll have one more go at clarifying my position and will just have to agree to disagree with you after that. It's fair enough that both the district court and the
circuit court have found guilt in this case, it's my contention that they're mistaken and indeed I realise the burden of proof is on my shoulders, hence the amount of stuff I been posting. It is fair to suggest though, that our courts are prone to making mistakes and indeed when an issue is as coloured as this one is, that the liklihood of such errors is increased. Again I'm not defending the nazis here, I'd not
care of the Gardaí had shot them, I'm looking at how the law was used.

Section 7 of the POA does not say specifically that members of the public must be present; neither does it say that they may not be present. It can be taken though that they must be present. This is true for a number of reasons. This is going to be quite complex and thus long, please forgive me for being so nitpicky about this; I consider it to be quite important.

i. The Gardaí cannot be incited to a breach of the peace. This is contained in case law. I'm not sure of the exact case at the moment but will look it up if you wish. This is an important finding. Under what circumstances could a suggestion be made that it was the Gardaí who were insulted by threatening and abusive behaviour or by a display of threatening and insulting material? The answer is of course, where the Gardaí are the ones being insulted or where they witness material that is insulting and threatening. For example, if you whilst in a public place tell a Garda that his mother is his father's sister, you are not committing a section 6 offence unless a member of the public witnesses it. Similarly you are not committing a section 7 offence if you display a sign that says "Garda X's mother is his father's sister," unless a member of the public witnesses it. Members of the Gardaí, when performing their duty do not constitute members of the public. Essentially, it boils down to who must witness or be the
recipient of behaviours or displays, that allows for a section 4,5,6,7 or 9 of the POA to be violated. In these sections, the public are considered to be the victim. The fact that the Gardaí cannot be
considered the victim means that firstly there must be an actual victim and indeed that the victim's presence is required, otherwise the ruling that the Gardaí cannot be incited to a breach of the peace is
meaningless.

ii. The word "may." This is a very important word and one should give it great consideration anytime one encounters it in law. It suggests firstly that something is conditional and secondly it suggests both a positive and a negative with regard to some act or whatever it refers to. In section 7 we have: "It shall be an offence for any person in a public place to distribute or display any writing, sign or visible representation which is threatening, abusive, insulting or obscene with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned." The word "may" in this section suggests that the offence is applicable if a breach of the peace can be occasioned. There are three conditions necessary for this: public place, offensive material and persons who
can be insulted or threatened.

iii. Section 4 of the POA is much clearer as it says: "It shall be an offence for any person to be present in any public place while intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself or any other person in his vicinity." Here we have the act spelling it out by stating that someone in the vicinity must be present (in reference to others as opposed to the danger he represents to himself). Why is this? The answer is simple, that without this explanation, the section would be ambiguous and would allow for someone who was in a public place but not in a position to endanger another person to be charged. Similarly in section 6, we have: "It shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned." In this section we have no mention of the requirement of a: "person in his vicinity." It is obvious why. When you are alone you cannot offer insult or threat to somebody else. There's no need to point out that members of the public need to be present. Just like libel is the written form of defamation whilst slander is the spoken form of defamation, we have section 6 of the POA being the spoken or acted form of the same offence as section 7 which is the written or displayed form. The wording of section 7 indicates an interaction taking place: "It shall be an offence for any person in a public place to distribute or display..." The keywords here are distribute or display. The word "distribute" means to give to someone whereas display means to show to someone, for instance: distribute leaflets or display a placard. I realise that the word "display," is a bit vague in regard to this, I'd suggest that in the context it's used, I've correctly defined its legal meaning. Because sections 6 and 7 are the two sides of the one coin we know that an interaction is required. In this scenario if a tree falls in the woods and there are no witnesses, there is no sound.

Kate P wrote:
That's an interesting interpretation. Firstly the Gardaí, according to the newsreport in the Wicklow People travelled a kilometer into the woods - that's less than ten minutes walk to where they found the men - it wasn't a couple of miles.

Furthermore they were in a location that constitutes a public place under the legislation. I don't think that under the circumstances it is reasonable to assume they were not reckless about breaching the peace.

It is in fact, more reasonable to assume that people - any people- could have come across these men because they had positioned themselves in a location which increased the liklihood of being encountered.

I didn't say they hiked a couple of miles in the woods. I said they hiked into the middle of nowhere, that's where the woods are. Here's a satellite image of the location, the woods are on the left and I think you'll agree that the place is quite remote:



View Larger Map


I think our disagreement lies in the fact that your understanding of the act allows for the possibility of interaction without the necessity of the public whereas, mine requires that at least one member of the public be in the near vicinity and witnessing the happenings. If the above doesn't sway you I can but apologise for the lack of persuasiveness in my argument, I'm quite sure of my position, having had this particular argument presented on a number of occasions under a number of differing circumstances (this is hardly proper debate I know, but it's the truth nonetheless).

Regards.
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PostSubject: Re: Do You Know Your Rights - Who Does?   Mon May 12, 2008 5:38 pm

The google map I've embedded above is being a major pain. I've edited a number of times but cannot fix the problem. Sometimes it displays and some times it doesn't. Just click the zoom out button ( - ) and the problem resolves.

Arghhhhhh!! Mad
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PostSubject: Re: Do You Know Your Rights - Who Does?   Mon May 12, 2008 8:02 pm

[apologies Hermes for the random nature of these paragraphs. I've had about six interruptions since I started to reply so you'll have to make do with the hotch-potch of points.]

Please don't feel you have to convince or persuade me - I'm interested in the argument and the points of law, not the winning or losing and thank you for the lengths you've gone to in your response. I appreciate you being nitpicky.

You are of course right about the presentation of evidence at a hearing and at the appeal. The report doesn't show that the evidence you suggest was requested by the judge or by the defence and the case could probably have been thrown out if it had been requested and wasn't available. Which, on the other hand would lead me to assume that there was sufficient evidence for the conviction without it. I'm not saying that's right or wrong...


Quote :
I think our disagreement lies in the fact that your understanding of the act allows for the possibility of interaction without the necessity of the public whereas, mine requires that at least one member of the public be in the near vicinity and witnessing the happenings.

That is, I think, the nub of it.

I'm glad you linked to the earlier article - it seems that neither man entered a plea in the DC, even though the article isn't specific. It does say that it was a special sitting but special sittings are not necessarily or usually reserved for hearings, afaik.

The problem with court reports is that they just can't give all the detail - and it would be interesting to know on what basis the men protested their innocence or fought their appeal. It's not clear in either article. Did they defend themselves? One seems to have told the court he wouldn't have walked down Bray main street with the paraphernalia because it would have been provocative. However, that's not to say that he fought the Gardaí's interpretation of the Act.

Secondly both the judges went along with that intepretation of Section 7. Your interpretation - with the greatest of respect to yourself, can hardly be new considering the nature of your objection to it and the fact that the Act has been around for a long time - all of which strikes me as strange.

Our courts do make mistakes - rather more than most people might like to think. However a series of legal people - and the two convicted men don't seem to have made an issue out of the issue that you raise. That's what interests me.

I'm also curious as to where this fits in with other crimes that deal with recklessness or intent (which I know are two separate concepts). Is there no scope within Section 7 to allow the Gardaí to take pre-emptive action in a situation where someone is likely to come across the men? The map you show is helpful in clarifying where they were - that they were so isolated is not clear in the report on the appeal.

I'm still curious about how the incident was called in. There was clearly a third party involved there.

Something struck me as I was reading through your post about the Gardaí not being members of the public. Can't someone be prosecuted under Section 6 for threatening or abusive behaviour in a Garda station where there are only Gardaí present? I know it's an aside, but an interesting one I think in the context.
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PostSubject: Re: Do You Know Your Rights - Who Does?   Mon May 12, 2008 9:53 pm

Don't worry about the randomness of paragraphs, everything is random until we make sense of it Wink Besides, I'm a fan of chaos theory and recognise that the re-ordering of details can present a new picture and insights.

I agree with you 100% that the court reports don't provide enough information to weigh all the pros and cons of these two cases. Unfortunately, it's seldom otherwise. It's rare indeed to see a stenographer in a district court (the only times I've seen it happen is when I and those I've worked with have hired one - or indeed the court's service sometimes hires one when they know we're coming [although they've given up on that practice as of late] Very Happy ) So, as unfortunate as the court report is, it's probably the most substantial report in existence. Kinda brings us back to what we were saying in the "Disconnected from our courts" thread. There may have been a stenographer at the circuit court, though I doubt it. Even if there was such a transcript, the public would have no entitlement to it (incredible huh?).

Kate P wrote:
I'm also curious as to where this fits in with other crimes that deal
with recklessness or intent (which I know are two separate concepts).
Is there no scope within Section 7 to allow the Gardaí to take
pre-emptive action in a situation where someone is likely to come
across the men? The map you show is helpful in clarifying where they
were - that they were so isolated is not clear in the report on the
appeal.

I'm still curious about how the incident was called in. There was clearly a third party involved there.

Something
struck me as I was reading through your post about the Gardaí not being
members of the public. Can't someone be prosecuted under Section 6 for
threatening or abusive behaviour in a Garda station where there are
only Gardaí present? I know it's an aside, but an interesting one I
think in the context.

There's lots of scope with regard to taking pre-emptive measures. Context is the key though. Once a Garda has formed a reasonable suspicion, s/he may take action. Say for instance our nazi friends were on the outskirts of a town and heading towards it with their flags etc. on display. A Garda could easilly form a suspicion at this and take action. However, if the Garda followed them and waited until they came into contact (or it was undisputable that they were going to come into contact) with people and then took action, his or her case would be more provable, and indeed the sentencing would possibly be more severe. If these people were very far from the town when the Garda formed his suspicion, it would be less of a reasonable suspicion as it could be argued that the nazis intended going elswhere, like someone's house for example (produce a witness to say he was expecting them at his house and the Garda's reasonable suspicion is shot in the back of the head somewhat).

There was at least a singular third party. The garda first met the nazis in the car park (hence the reason as to why some were not prosecuted), this might suggest that the third party did not witness anything that caused him or her offence or rage. As I said it was probably the noise level, or possibly that this person found the appearence of these strange people to be suspicious (it was in September and it was sometime close to or after 9.00pm). The two articles give the impression that there was no civillian witness for the prosecution at either hearing. If I had had anything to do with the defence in this case, I would have demanded the production of this witness.

With regard to your question about a section 6 being possible in a Garda station: I won't go into too many details here as the case is still fresh and there will be a civil case mounted on the strength of it.

Last month I was a McKenzie Friend for a gentleman who'd been accused of a section 6 right outside his front gate in the cul de sac where he lives. Three Gardaí maintained that this gentleman had come outside his gate, photographed them and called them "bastards," amongst other insults. They said that a young couple had crossed the road in order to avoid this particular confrontation.

Under oath a Garda (and after a bit of leading him up the old garden path) admitted that this gentleman had not been cautioned, before he ran back into his house. He also admitted that neither he nor the two other gardaí had attempted to stop and secure the young couple as witnesses. When asked was there any other witness that he'd failed to procure, he told the court, that there had been no other witnesses.

The case got tossed for lack of evidence, specifically because there were no civilian witnesses. The truth of this matter is that this event never happened at all. We didn't need to prove that, and indeed it would have been difficult. We had only to prove that the Gardaí had failed to secure evidence, which we did.

To answer your question, it's not possible to commit a section 6 POA offence in a Garda station, unless there are members of the public within earshot or seeing distance. However, don't go into a Garda station threatening 'de fuzz.' The POA is only a catch-all that can be used with little or no effort. There are many laws (indictable ones) available should you really go out of your way to piss off the force. A slap on the wrist from the district court would be the least of your worries after you were discharged from the hospital. Very Happy
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PostSubject: Re: Do You Know Your Rights - Who Does?   Tue May 13, 2008 12:41 am

Can you tell me about being a McKenzie Friend? I know someone who used one in a family court and I'd be interested to hear your perspective. I'm guessing that's what your legal background is, so to speak.
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PostSubject: Re: Do You Know Your Rights - Who Does?   Tue May 13, 2008 2:21 am

Being a McKenzie Friend is a terrifying experience, at least when you first do it.

I first got my first experience about two and a half years ago. I've never acted as a McKenzie in Family Court and hopefully I never will. Family law interests me but I'd not like to be in such a difficult and heart-rending position. Criminal Law and Civil Law are where I've hung out so far.

When I first got started, I had a slightly better than basic understanding of law. I'd no understanding or appreciation of the red tape one encounters in court. I still have no appreciation for it Wink

As a McKenzie I have but two purposes:

i. To sit and quietly take and make notes.
ii. To quietly offer advice before and during a hearing.

I still find it terrifying to a degree. Afterall, in many cases, someone's freedom may be at stake. And of course there's usually the dreaded chance that your side might get costs awarded against them (usually in civil matters mind you).

I've no standing in the court, which means I've no right to address the court. Though sometimes I do get questioned by Judges - particularly when they're not familar with McKenzies. One of the more memorable times was last year in the High Court, when Mac Menamin J. asked me what my qualifications were to be a McKenzie. I thought he might hold me in contempt when I replied that I was the gentleman's friend and that I wasn't a solicitor. There was a tense few moments whilst he puzzled out whether I was taking the piss or not. Cool

I've nothing per se against solicitors and barristers. I believe that nobody will ever understand their case as well as the person who's freedom is at stake, or who's suing somebody. I think a certain group of folks who are able to explain themselves under difficult positions fare better with McKenzies than representation. I don't think, that overall, the law is structured to facilitate all individuals becoming lay litigants. But I will say this, the amount of lay litigants one encounters is increasing dramatically, particularly over the last 12 months or so.

To me, one of the big advantages of DIY litigation is in civil litigation. Whereas a case can take anywhere from six to eight years and beyond to reach a courtroom or resolution, a DIY litigant can do it in as little as 18 months whilst putting the opposition under maximum pressure. This particular avenue does require the litigant to have proverbial balls of steel though.

There's a particular gentleman who's been through the mill for the last eight years. We are currently discussing the possibility of publicising his story. I'll be seeing him this Wednesday and the topic is coming up for discussion. If I get his permission, I'll publish some of our exploits (and disasters) here on a new thread. That'll really open the topic up for discussion as it will become very clear why the legal profession would have failed in areas where this chap has triumphed.
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PostSubject: Re: Do You Know Your Rights - Who Does?   Tue May 13, 2008 11:58 am

A few points:

- You are entitled to require the prosecution to state its case and run through the basic of the proofs before you plead in the District Court. Whereas a witness may have alerted their Gardai to their presence it would seem that such witness evidence was not required to prove the case. The fact that such evidence is not required is the nub of the matter and wondering what happened to that witness is a red herring.

- The statute's reference to a place where the public have access together with the reference to intent (only) to cause a breach of the peace makes it clear that it is not necesary that the public be there. It you are in a deserted alleyway around the corner form the synagogue then you can be arrested before anyone sees you. Similarly, why the heck would people get together all their paraphanelia and head to a public place unless they were ready to be seen and it was their intention to put themselves in a place where they might be seen? That is not recklessness, that is intention. Do it in your garden if you don't want to be seen.

- The whole tenor and purpose of the Public Order Act is to stop trouble before it starts. This may make you feel misgivings about the act, and it is indeed a sledgehammer, but that is what it is about.

- I am not sure but I believe the Public Order Act was referred to the Supreme to have its constitutionality adjudicated on. I believe it was found to be constitutional and so none of its sections can now be found unconstitutional. I cannot find reference to this on the web but I recall being disappointed that it was adjudged to be constitutional.

The constitutional review group deal with freedon of assembly and the public order act in this document - http://www.constitution.ie/reports/crg.pdf - if you want some further reading.
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PostSubject: Re: Do You Know Your Rights - Who Does?   Tue May 13, 2008 12:13 pm

Quote :
- The statute's reference to a place where the public have access together with the reference to intent (only) to cause a breach of the peace makes it clear that it is not necesary that the public be there. It you are in a deserted alleyway around the corner form the synagogue then you can be arrested before anyone sees you. Similarly, why the heck would people get together all their paraphanelia and head to a public place unless they were ready to be seen and it was their intention to put themselves in a place where they might be seen? That is not recklessness, that is intention. Do it in your garden if you don't want to be seen.


That would have been my understanding of the situation too, Zhou, though the fact that they were clearly in a very isolated spot could be seen to offer some mitigation, could it?
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PostSubject: Re: Do You Know Your Rights - Who Does?   Tue May 13, 2008 12:24 pm

It might and it mightn't. Were they hiding from the cops or from the public? I was on a counrty walk recently and there was a gang or young lads and ladies skulling cans and about to set a car on fire. I turned back rather than deal with them. They were in a place where the Gardai weren't likely to get them but they didn't care a fig for members of the public out walking.

I would put these nazis in the same boat. They were happy enough to be intimidating to whomever came upon them while avoiding the wrath of the Gardai. It sounds like the most cowardly of political statements. On the other hand they didn't seek out particular people to scare them (that we know of - it is possible there was a sinister reason for their choice of location) which would lessen the crime. Perhaps the judge did mitigate the sentences based on their choice of venue.

Stating the obvious I know, but mitigation is of course not a defence and does not affect the general character of the offence.
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PostSubject: Re: Do You Know Your Rights - Who Does?   Tue May 13, 2008 1:18 pm

One last point - how are we to expect gardai and citizens to understand and uphold the law and the Constitution when the Mahon Tribunal, comprised of a panel of three judges and assisted by senior counsel and other counsel and solicitors, cannot grasp the simplest provisions of the Constitution?
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