Red Rag

The two activists who painted “No War” on a sail of the Opera House argued that they had acted to defend the lives of innocent Iraqis who were bombed by the invading forces. It came as no surprise that their argument was rejected by the court, because the link between their high profile graffiti and the machinery that caused the innocent deaths is so remote.

But on the other side of the world, five Irish activists (including one Irish Australian, Ciaron O’Reilly) are running the same line of defence, with a much greater prospect of success.

Although Ireland maintains an official policy of neutrality in international conflict, it does allow the US military to use Shannon Airport as a refueling point for aggressive missions. When it became apparent that planes involved in the war on Iraq would be making pitstops in Shannon, the airport became a focal point for the anti-war movement.

Five members of the Catholic Worker Movement took inspiration from the long history of “ploughshares” disarmament activity, especially the actions of Mary Kelly just a month earlier, and damaged a US Navy plane by hitting it with hammers. After months of legal arguments about jurisdiction — Mary Kelly did not get sympathetic treatment in Shannon — the five succeeded in having their trial moved to Dublin.

The five do not deny that they damaged the plane, but they are defending the criminal damage charge on the basis of “lawful excuse.” They claim to have acted on their sincere belief that they were preventing the deaths of innocent Iraqi people.

The Criminal Damage Act 1991 relevantly provides:

6. ( 2 )    A person charged with an offence to which this section applies shall … be treated for the purposes of this Act … as having a lawful excuse—

( c )    if he damaged or threatened to damage the property in question … in order to protect himself or another … and, at the time of the act or acts alleged to constitute the offence, he believed

( i )    that he or that other or the property, right or interest was in immediate need of protection, and

( ii )    that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

( 3 )    For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.

Essentially, the trial will boil down to whether the group’s beliefs were honestly held. Understandably, the judge has been reluctant to allow the trial to become a platform for political propaganda, but this goal conflicts with the defendants’ right to lead evidence about the political beliefs that form the basis of their defence:

The judge had the jury removed and accused the defense of “conducting a propoganda campaign against war.” The defense admonished the judge. “Your Lordship is not here to conduct this case.”

When the prosecution rose to object to the defense strategy, Judge O’ Donnell said, “I’ve been waiting for you to comment.” At this point the defense angrily accused the judge of doing the prosecution’s job. One of the defense lawyer’s asked the judge “to take that comment back, to withdraw it.” The judge said he would not tolerate “histrionics.”

The defense accused the judge of politicizing the case. One of the attornies for the defense respectfully said “The defense my client relies on is a right. Your Lordship is not doing my client a favor. I do not need Your Lordship’s permission to run this defense…Your Lordship raises concerns about politics. My clients were influenced by political events. I introduce that evidence absolutely and unapologetically.” He described the notion that the expression of political views makes this a political trial as a “misconception.”

The judge apologized “most profusely,” but went on to say “I have to ensure a fair trial for the accused but I will not allow the promoting of an agenda.” He repeated that photos of Iraqi children killed by a US missle attack on January 25, 2003 would not be admissable.

It seems that after this exchange the court became hopelessly bogged down in legal arguments about the scope of “lawful excuse” and the evidence that can be admitted to support it. Yesterday the five’s legal team won the technical argument; the jury was discharged and a mistrial declared, though full reasons for the decision have not yet been made public. The DPP must now decide whether to press ahead with the case. While on one hand I hope they drop the case and let the activists get on with their lives, on the other hand I hope they press ahead — I’d like to see the debate about “lawful excuse” played out to its full conclusion.