I was with the Mary Kelly party today in the Hugh Kennedy court. I've written a court report of it on Indymedia (I know I said I'd not write anything there again - but was asked to do so by friends - so I made an exception in this instance): Court report here.

In part of the article I have been somewhat vague. Allow me to clear this up here.

When I speak of the "immediacy" argument I'm referring to an old section of the law relating to lawful excuse. This section has long since been removed and was removed long before Mary interacted with the plane in Shannon Warport. Basically, it used to be the case that a defendant, in order to rely on the defence of lawful excuse, had to be acting to prevent something that was imminent from happening. This is no longer the case. Now, in order to plead the defence of lawful excuse a defendant must show that s/he had an honestly held belief that something was happening or going to happen and that the court can decide if such beliefs and actions are reasonable (in a legal sense of reasonableness). This brings the law into line with international law, with such entities as the Geneva Conventions and Nuremberg Principles.

Hermes wrote:

I was with the Mary Kelly party today in the Hugh Kennedy court. I've written a court report of it on Indymedia (I know I said I'd not write anything there again - but was asked to do so by friends - so I made an exception in this instance): Court report here.

In part of the article I have been somewhat vague. Allow me to clear this up here.

When I speak of the "immediacy" argument I'm referring to an old section of the law relating to lawful excuse. This section has long since been removed and was removed long before Mary interacted with the plane in Shannon Warport. Basically, it used to be the case that a defendant, in order to rely on the defence of lawful excuse, had to be acting to prevent something that was imminent from happening. This is no longer the case. Now, in order to plead the defence of lawful excuse a defendant must show that s/he had an honestly held belief that something was happening or going to happen and that the court can decide if such beliefs and actions are reasonable (in a legal sense of reasonableness). This brings the law into line with international law, with such entities as the Geneva Conventions and Nuremberg Principles.

Thanks Hermes. That is a fascinating account and I almost felt I was there. Hardiman is a fast worker all right.

My fingers are crossed. What a contradictory country we are, that turns its back on responsibility for rendition, but which has given us the Ploughshares decision.

Excellent report Hermes. Sounds like Mary played a blinder. Was she nervous or anything ? She was able to keep her thinking cap on anyway.

Did they give a date for the ruling ?

Thanks folks.

Fingers crossed here too CF, toes too. With regard to the obvious contradictions you point out: That's the way the State plays it and in truth, my hat's off to them, even though I've no respect for the methodologies used. Activists are tied up in the courts for years and often criminalised. This puts a stop to their activities and renders support and agreement with them null and void. Then years later, the State in a seemingly frank and honest look at itself, revisits its actions, and clears the names of the condemned, damned, and offers its apologies.

Cynical approach, but very effective.

I don't know when the decision will be arrived at, it could take up to three months. The DPP representative has been ordered to provide details of the evolution of the lawful excuse section in Irish law for the Judges' consideration. However long it takes, it seems to me that they'll allow the appeal. To do otherwise, they'd have to come up with counter arguments to arguments that they themselves made to the Senior Counsel for the DPP today. Of course this would not be unheard of and I'm very biased (and hopeful). However, the barrister got some beating and it'd be unusual for the judiciary to be so critical and then find his case proven despite this.

Mary was incredibly nervous but hid it admirably. She played an absolute blinder and her McKenzie who was praised big time by her has helped prepare an uncluttered argument on paper that I've yet to see the likes of elsewhere. Tres impressive!

I'm assuming she was convicted under the Criminal Damage Act, 2001 - none of the Indy links say what part of the law was relevant.

For information, the explanation of criminal damage (statute book) is here.

And the explanation of 'without lawful excuse' - again from the Statute Book, is here.

It's not unheard of for judges to play devil's advocate with an appellant or with the prosecuation - and then find in a way that seems to contradict that; it seems to me to be a way of thinking out loud.

It's a terrible pity the indymedia reports are so subjective. As someone who regularly reports on court to make (part of) a living, I'd be out of a job if I wrote anything as subjective and biased as the indy linked articles I've read just now about Mary Kelly.

Her appeal seems to be built on very solid foundations - let's hope it goes through.

I'm inclined to agree with her

Kate P wrote:

I'm assuming she was convicted under the Criminal Damage Act, 2001 - none of the Indy links say what part of the law was relevant.

For information, the explanation of criminal damage (statute book) is here.

And the explanation of 'without lawful excuse' - again from the Statute Book, is here.

It's not unheard of for judges to play devil's advocate with an appellant or with the prosecuation - and then find in a way that seems to contradict that; it seems to me to be a way of thinking out loud.

It's a terrible pity the indymedia reports are so subjective. As someone who regularly reports on court to make (part of) a living, I'd be out of a job if I wrote anything as subjective and biased as the indy linked articles I've read just now about Mary Kelly.

Her appeal seems to be built on very solid foundations - let's hope it goes through.

I'm inclined to agree with her

You've a great eye for detail Kate. You're absolutely right, many of the reports on Indy were very subjective. This arises for two reasons: the first being that many of these writers have an intimate knowledge of the case and of Mary's reasoning, and secondly, because Indymedia does not seek to emulate the mainstream media - it's all about 'passionate tellings of truth,' and truth can be very subjective, especially when it's passionate. It's fair to say that the mainstream media, for the most part, ignored this case and others like it.

I take your point about a lack of precise information regarding the law under which Mary was convicted. There is a school of though (which strangely enough I belong to, considering my own views on the law), that suggests that the mainstream media (particularly when it suits them to do so) provide way too much focus on the intricate workings and nuances of law (without ever explaining them) and, very little focus on the reasonings of the average citizenry. This balance was tipped, I think, in the reports on Indymedia - the balance could have been repaired by the mainstream, but wasn't. I think it fair to comment also, that in this particular case, that the trappings of the Court and indeed the law itself were not the specific focus of the Indy articles - afterall, the average citizen might have a vague notion as to the wording of whatever law he or she is expected to obey and it's this vague notion that's examined in these articles and indeed, in this case the law had made provisions for these beliefs, yet the judge ignored them.

It must be remembered that Carroll Moran J. also heard the first case and actually allowed Mary her witnesses and defence, yet in the trial in which she was finally convicted, he disallowed them. One of his decisions has to be incorrect. I think, that for the most part, that court reporters were very right to focus on the bullshit as opposed to the trappings of the law. To have offered the other would have falsely coated the farce with a veneer of respectability and credibility. We owe no such subservience.

I take your point, with regard to the fact, that you would be unemployed if you decided to write in such a fashion and I sympathise. But, I totally disagree with you about the implication that such writings are not subjective. Subjectivity is not removed just because the author decides to remove his or her views from the way that they write. Such views are simply replaced with the views of the establishment and are just as subjective, more to the point, they point at a conformist way of viewing issues and leave little room for the formation of individual opinion. This of course is not a potshot at journalists, especially your good self. Jesus, I know you've got to put food on the table and that if you don't do the job the way you've been shown and asked to do it, that you'll fail and go hungry to boot.

All in all, I find the mainstream media's way of doing court reports to be deeply unsatisfying and god help us, for the most part, they're all we have. I think, that in a lot of ways, that they can lead to an incredibly false opinion as to what happened in a courtroom and indeed a false opinion in the reader that he or she is well informed about a particular issue. A good example of this would be the reports we discussed on the recent nazi cases. Again, I'm not getting at journalists, tis a hard and thankless job enough for an honest reporter, without me having a go. It's just that I think the working model is flawed and I think that models like the Indymedia project go some way towards righting this. Of course, folks like myself have a very long way to go before this is achieved, especially since we're thinly stretched

Wearing one's activist hat one minute, one's journalist's hat the next and wearing a faux wig in the court itself after that, would tax anyone. Tis amazing at all that there's any coherence to be found.

Here's an article by Harry Browne on Mary's conviction - whilst it doesn't go too deeply into the discussion of relevent law, it does fill in many of the blanks that result from many of the postings you've read: LINK.

I have a small question Hermes.

You listed a great amount of material that Kelly passed up to the judges, from UK precedents to Geneva convention stuff.

Are the appeal judges obliged to consider all documents 'passed over' during an appeal, or can they have a giggle later and feck them in the bin ?

Is there any limit to the amount of documentation an appellant can dig up? I can imagine that over burdening a trio of appeal judges could be unhelpful to one's plight.

A spot on observation EvotingMachine0197.

I've often dreamt of giving a set of judges a truckload of caselaw for their consideration.

As much as I'd be tempted to do so, it would be counterproductive to do so. To be successful, one should be as consise as is possible. Produce only enough to establish that which you seek to prove and enough to do the dirt on the opposition's case. Essentially, the Judges might not even refer to the caselaw you provide, unless they are unsure of how to progress. Indeed, you'll find that many judges will recite caselaw in their rulings, that was not produced by either side. The dreaded third way of viewing an issue.

Mary did pass a lot of paperwork to the judges. To a degree this was unusual. This is nonetheless an unusual case, with very few precedents established in Irish law to guide the judges in the making of their decision. It was felt, that if a lot of British caselaw, that clearly establishes Mary's argument in law, were handed in, that it would aid the judges, seeing that we've so little authorative caselaw on this topic, and that the British justice system is considered to be operating within the bounds of international law, in regard to this issue.

But you're right, they could easilly bin the lot and have a giggle about it. I'm not too bothered whether they do or not. To me, the facts of the case speak much louder than the caselaw, and in my opinion point to the conclusion that Mary was shafted.

No doubt we'll do a post mortem on the ruling when it arrives, regardless as to what it spells. Even then, I suspect that the caselaw will not be a major factor, in either our discussion, or indeed, in the judges' ruling itself.

Judges in the Superior Courts might be viewed as having a perverse habit of sounding sympathetic to one party nd then deciding for the other party. I haven't heard this in repsect of Hardiman though.

To be honest, I can't see Mary Kelly winning her case because removing protection from the planes would be an interference with the Government's right to conduct foreign policy on behalf of the State. To do that would be undemocratic.

If she were pleading a lack of Mens Rea then that might be different. However, I think she is trying to say that she had an excuse.

Mary Kelly really annoyed me while I watched the program in that she could not seem to take in what people were saying to her while and only heard what she wanted to hear. Also, as far as I could tell, most of the justification from experts only became known to her after she had committed her act of sabotage.

I do have a lot of sympathy for her because she seems a decent skin her actions were done out of a sense of right rather than badness. However, ignorance coupled with self righteousness and a lack of respect for the democratic authorities is a recipe for disorder. For those simple reasons, I would expect the conviction to be upheld.

If the Court do quash her conviction then it will be morally and legally and correct to sabotage the equipment of any state we believe is being used by another state in unlawful killing even if our Government forbids it. In that case, we will all be duty bound to refer in the first instance to our moral compasses and to take whatever physical action is necessary (beyond domestic political protest) to prevent such killing. If that is the way the Supreme Court sees it then that is the way it will be. Personally, I think making time for all my missions of damaging property and tying up foreign soldiers is going to interfere with my work.

An interesting take on the issue Zhou. I'm glad that you've voiced this as it incorporates many aspects that are the past and current popular viewpoints of the majority (it would seem). I'll tackle it later and in depth when I've a bit of time on my hands. I'll just say that I think you're wrong regarding Mary's ability to listen. It's often the case that more material ends up on the cutting room floor than in such documentaries. Also, Mary knows her mind and knows the arguments that are constantly put to her, her perceived lack of sensitivity for such views and questions comes from having faced such things many many times, not an inability to listen. If she were deaf she'd never have taken an axe to that plane to begin with.

In the meantime, here's a copy of a statement from the woman herself (typos and all!): A statement from Mary.

I share Zhou's perception that judgements that place a very heavy weight on an individual "doing the right thing" are surprising and clearly very inconvenient to government and possibly to wider society. I assume therefore (judges in general not being anti-establishment thinkers) that this issue goes right to the heart of law in a fundamental way that is hard for the judiciary to ignore or override. Is that the case in your view Hermes? Can you explain it?

cactus flower wrote:

I share Zhou's perception that judgements that place a very heavy weight on an individual "doing the right thing" are surprising and clearly very inconvenient to government and possibly to wider society. I assume therefore (judges in general not being anti-establishment thinkers) that this issue goes right to the heart of law in a fundamental way that is hard for the judiciary to ignore or override. Is that the case in your view Hermes? Can you explain it?

I'll have a quick stab at answering it, I'll go into a lot more detail tonight if I've got the time and don't go unconscious before I have to.

Activists like Mary Kelly and the Ploughshares have a lot in common with civil rights activists like Martin Luther King. However, there are marked differences too. Folks like King were willing to break laws and do the time to illustrate bad laws. Whilst Mary and the Ploughshares were very willing to be jailed for their actions, they are different from King, in that it can be argued that they were not breaking laws but upholding them.

The problem is of course, that the argument that our government are breaking international laws, is hard to use as a defence, when it is not the government on trial.

From the trials at Nuremberg (to speak of but one of the foundations for international law), we have the obligation as individuals to put a stop to War Crimes, Wars of Aggression and Crimes Against Peace (even if in doing so we violate our domestic laws - though I'd argue that no domestic laws were violated in the cases of Mary Kelly and the Ploughshares - the court has agreed with me regarding the Ploughshares and they did the same action as Mary, on the very same plane).

In Irish law we have many instances where the duty to obey certain laws are superceded by the right to ignore them in certain exigencies. Self-defence and lawful excuse being two very good examples. Self-defence is well covered with regard to Irish law and in particular, Irish caselaw. Lawful excuse is a different story. In one sense, it's well covered by caselaw, eg. breaking a window, trespassing and breaking and entering to save a baby in a fire, is well covered in both caselaw and common sense. However, reconciling lawful excuse in terms of international law, is hardly covered, if at all.

I'll flesh out the above later.

Regards.

Hermes wrote:

An interesting take on the issue Zhou. I'm glad that you've voiced this as it incorporates many aspects that are the past and current popular viewpoints of the majority (it would seem). I'll tackle it later and in depth when I've a bit of time on my hands. I'll just say that I think you're wrong regarding Mary's ability to listen. It's often the case that more material ends up on the cutting room floor than in such documentaries. Also, Mary knows her mind and knows the arguments that are constantly put to her, her perceived lack of sensitivity for such views and questions comes from having faced such things many many times, not an inability to listen. If she were deaf she'd never have taken an axe to that plane to begin with.

In the meantime, here's a copy of a statement from the woman herself (typos and all!): A statement from Mary.

It is true that the editing of a documentary can ruin a peron's character. I have sympathy for her if that is the case.

Hermes wrote:

cactus flower wrote:

I share Zhou's perception that judgements that place a very heavy weight on an individual "doing the right thing" are surprising and clearly very inconvenient to government and possibly to wider society. I assume therefore (judges in general not being anti-establishment thinkers) that this issue goes right to the heart of law in a fundamental way that is hard for the judiciary to ignore or override. Is that the case in your view Hermes? Can you explain it?

I'll have a quick stab at answering it, I'll go into a lot more detail tonight if I've got the time and don't go unconscious before I have to.

Activists like Mary Kelly and the Ploughshares have a lot in common with civil rights activists like Martin Luther King. However, there are marked differences too. Folks like King were willing to break laws and do the time to illustrate bad laws. Whilst Mary and the Ploughshares were very willing to be jailed for their actions, they are different from King, in that it can be argued that they were not breaking laws but upholding them.

The problem is of course, that the argument that our government are breaking international laws, is hard to use as a defence, when it is not the government on trial.

From the trials at Nuremberg (to speak of but one of the foundations for international law), we have the obligation as individuals to put a stop to War Crimes, Wars of Aggression and Crimes Against Peace (even if in doing so we violate our domestic laws - though I'd argue that no domestic laws were violated in the cases of Mary Kelly and the Ploughshares - the court has agreed with me regarding the Ploughshares and they did the same action as Mary, on the very same plane).

In Irish law we have many instances where the duty to obey certain laws are superceded by the right to ignore them in certain exigencies. Self-defence and lawful excuse being two very good examples. Self-defence is well covered with regard to Irish law and in particular, Irish caselaw. Lawful excuse is a different story. In one sense, it's well covered by caselaw, eg. breaking a window, trespassing and breaking and entering to save a baby in a fire, is well covered in both caselaw and common sense. However, reconciling lawful excuse in terms of international law, is hardly covered, if at all.

I'll flesh out the above later.

Regards.

There is definitely two sides to the argument. I have a problem with people taking the law into their own hands where there is a free press, free elections, freedom of speech, democratic institutions and he right to protest. I agree that it is not clear cut all the same. The war in Iraq was illegal and we were being used as a staging post. As a matter of interest, did Mary Kelly's actions pre-date the UN resolution which made it legal to participate in peace/security/rebuilding operations after the illegal invasion?

My feeling about retrospective legalisation of an illegal war would be a bit like the way people feel about retention of planning permission for unauthorised development, only more so.

cactus flower wrote:

My feeling about retrospective legalisation of an illegal war would be a bit like the way people feel about retention of planning permission for unauthorised development, only more so.

Like retention permission, the resolution allowing the clean up did not absolve the perpetrators of original crime. You can stil be prosecuted for illegal development and convicted even if you do get retention. It is only a side issue anyway. The main issue is as to whether Mary Kelly acted legally if the plane was involved in illegal actions, or "parked illegally" as MK might say.