Analysis: Paul Murphy case will test limits of right to protest

TD summonsed to court to face charges of falsely imprisoning Tánaiste Joan Burton

Anti-Austerity Alliance TD Paul Murphy. Photograph: Dave Meehan

Anti-Austerity Alliance TD Paul Murphy. Photograph: Dave Meehan

The serving of a summons on Paul Murphy TD ordering him to a court hearing to face charges of falsely imprisoning Tánaiste Joan Burton has formally begun what should prove to be an interesting legal battle. Video evidence will be central to Murphy’s case.

Acts of alleged vandalism, public disorder or even assault against others facing the least serious charges will be decided by video footage in conjunction with evidence that seeks to identify the key people in the footage.

However, legal sources said evidence of that kind, even if it appeared damning, would not be enough to convict Murphy and the 13 other people also charged with falsely imprisoning Burton and her assistant Karen O’Connell at Fortunestown Road, Jobstown, west Dublin, on November 15th last.

Burton and O’Connell were trapped in their car for a number of hours when protesters surrounded the vehicle and staged a sit-down protest as the Tánaiste tried to leave a graduation ceremony at An Cosán College.

Proving those charged with false imprisonment were present, and took an active or leading role in the incident, would not be sufficient to deliver a guilty verdict – a verdict, it is worth noting, that could lead to a custodial sentence of up to life imprisonment. The State must also convince a jury the action was an act of false imprisonment rather than a robust – even ugly and obnoxious – protest against the introduction of water charges.

Unknown territory

In that regard the State is entering unknown territory.

It is open to the Circuit Criminal Court trial judges to outline what constitutes false imprisonment to the jury. But it is for the jury to decide whether those constituents were present on the day.

And, with any given jury inevitably comprising individuals opposed to water charges, that may prove challenging.

Legal sources said protesters were normally charged with public disorder and charges of false imprisonment were unusual. They said the right to protest is a constitutional one and the jury will be asked to decide whether the events went further than protest.

“The threshold is not as high as most people think,” said one experienced barrister of the charge of false imprisonment.

“Mention the term and some people would think of kidnapping or holding people against their will in a violent way. But, technically speaking, any act that impedes a person is an action of false imprisonment. It could be as simple as putting your hand to a person’s chest or deliberately blocking their passage through a doorway by standing in the doorway and refusing to move.”

Another source said what might prove crucial is whether the nature or tone of the protesters’ actions changed in the course of the incident.

“If a protest changes, more malice or intensity is present; all of these things will be factored in. But even if some of these people admitted they were there and in court outlined in great detail their actions on the day, it’s the jury that’ll decide whether they were protesting and ventured beyond that into the sinister and the criminal.”

Irish Times, Wed, Sept 16, 2015



When policing justice is given the elbow

About a year ago, Enda Kenny visited Roscommon town. Local party members awaited his arrival. As the Taoiseach's car drew up, a man named John McDermott stepped forward, hoping to speak to Mr Kenny.

McDermott was an independent candidate in the pending by-election. He wished to ask the Taoiseach why he promised before the 2011 election to keep open the A&E at Roscommon Hospital. And why, after the election, he voted to close it.

He was one of a small number of people protesting the broken promises.

As Mr Kenny's car stopped, a Fine Gael politician, Frank Feighan TD, put himself between McDermott and the car. He forcefully propelled McDermott away from the car and halfway back across the footpath. As he did so, with his back to McDermott, he repeatedly swung his right arm backwards, delivering several elbow blows to McDermott's midsection.

As he was pushed backwards, McDermott received a punch to his back from an unknown assailant among the Fine Gael supporters.

You can see the incident on YouTube. All 43 seconds of it. Search for "Kenny ignores attack" - a rather unfair headline, as there's no evidence that Kenny saw what happened.

Mr Feighan subsequently admitted the assault. "In hindsight, I misread the situation and overreacted."

Cut to Jobstown and the Joan Burton sit-down protest. As a result of that, Water Tax protestors have accused the Garda of political policing. Measuring the Jobstown affair against the Roscomon affair may help us understand why. Recently, for instance, gardai blocked the water tax protesters from collecting funds door-to-door in Tallaght.

Unlike large parties, with big donors, political campaigners such as the water tax protesters raise funds by asking for small donations from a large number of people. This is for posters, banners, transport, etc.

The Garda have cut off the campaign's source of funding by refusing a collection permit. They claim the money may be used for the "commission of an unlawful act".

Let us compare unlawful acts - what happened in Jobstown and what happened in Roscommon.

Someone threw a water balloon at Minister Joan Burton and it hit her in the face. Protesters sat on the ground in front of her car. It was a traditional sit-down protest, there was no violence.

Burton stayed in the car for over two hours, surrounded by large numbers of police, perfectly safe. Then, she transferred to another car and left the area. Protest over.

Sometime after that, tension escalated between local people and police in Robocop gear. A young man threw a brick in the direction of a police car.

Now, people should not throw things in the vicinity of other people. Even a water balloon. And certainly not a brick. The sit-down protest was legitimate. The fact that it went on so long was silly.

No one was hurt. Perhaps the balloon could be classified as an assault, but water balloons are children's toys. Kids throw them at one another all the time. The only damage done was to Burton's dignity.

The matter could have been dropped. Or there could have been minor public order charges. Instead, there is , if leaks to the media are correct, a liklihood of bringing people before a higher court where punishment, upon conviction, is greater.

The act of sitting down in front of a ministerial car has allegedly been interpreted as "false imprisonment". The punishment for that, in theory at least, ranges up to life in jail. And now, the police are preventing water tax protesters in the area from collecting donations from supporters.

Compare and contrast with what happened in Roscommon.

John McDermott was assaulted. It was a minor matter, spur of the moment, rush of blood to the head. No lasting damage, though he had a sore stomach. But it was an act of physical assault. In terms of seriousness, the Roscommon incident involved repeated body blows. There was no equivalent assault in Jobstown.

Fine Gael, quite rightly, has not been smeared as a result of the Roscommon incident. The media don't keep raising it, as they raise the Jobstown incident. They don't persistently demand that Fine Gaelers who weren't involved should condemn it. The local branch of Fine Gael has not been blocked from collecting funds.

If the Roscommon incident was treated as the Jobstown incident was treated, the fracas would have been blown up into a major scandal that reflected on the whole of Fine Gael. And there might even have been leaks to the media that Mr Feighan was about to be charged with attempted murder.

Ludicrous? Of course. But no more so than the treatment of the Tallaght protesters.

It's beyond question that the Jobstown incident received special treatment from the police. The dawn raids, the multiple arrests, the lengthy interrogations.

In an unprecedented move, someone leaked to RTE, details of the charges which are allegedly under consideration.

Revealing operational details of an unresolved case is interference with the administration of justice.

If any protester committed such a serious act there would be uproar among politicians and the media.

But no one cares about this serious crime. It was committed by "our kind of people".

Now, senior gardai are blocking the Tallaght protesters' right to collect funds.

It's two-and-a-half years since Clare Daly TD was stopped, handcuffed, taken to a station and put in a cell. The news that she was caught drink driving was immediately leaked to the media. The news was false.

There's supposed to be an investigation into that malicious leak. But the failure of GSOC in such matters is equalled only by the failure of the Garda Siochana to live up to the standards of the Keystone Kops.

If Lucinda Creighton or Shane Ross, for instance, received this kind of treatment there would be bloody murder in the media. Politicians would be aghast. Lucinda and Shane are "our kind of people".

The political establishment and the mainstream media don't seem to see those such as the water tax protesters and Clare Daly to be "our kind of people". They have the wrong accents. And, more important, they have the wrong politics.

The police should arrest anyone who commits a crime, and bring them to court.

But, the police appear to see political dissent, in itself, as verging on criminal. Don't the police understand they have two duties - to protect order, and to protect the right to protest?

The political establishment is cool with undermining a basic condition of democratic governance - impartial policing.

And the media isn't too put out about it, either.

Voting is just one part of democracy. The essentials of democracy include an impartial police force and a media that protects points of view other than its own.

Without free, informed debate there is no choice. Without the right to campaign freely, there is no choice. Without choice, what is voting for?

Sunday Independent published Sept 9, 2015


Socialist Party TD Paul Murphy among 27 facing charges over Jobstown incident

A sitting TD and two South Dublin councillors are due to be charged with the false imprisonment of the Tánaiste and her special advisor last year.

Paul Murphy faces charges of false imprisonment over Jobstown incident

Paul Murphy faces charges of false imprisonment over Jobstown incident

RTÉ News has learned that Socialist Party TD Paul Murphy and two Anti-Austerity Alliance councillors, Kieran Mahon and Mick Murphy, are to face two charges of falsely imprisoning Labour leader Joan Burton and Karen O'Connell at Fortunestown Road in Jobstown on 15 November 2014.

They are among 27 people to be charged in connection with the incident in Tallaght.

Thirteen are to be charged with false imprisonment, while 14 others will be charged with violent disorder or criminal damage.

They include men, women and juveniles. Some are facing multiple charges.

RTÉ News understands that the process of charging the 27 people by summons has already begun and those summonses to appear in court are expected to be issued by next week and then served.

Gardaí do not expect to have to carry out any arrests.

Prosecution proceedings are under way in connection with the incident.

Ms Burton's car was surrounded by protesters who banged on it and chanted slogans and she and Ms O'Connell were trapped in the car for over two hours.

The Director of Public Prosecutions has directed that those to be charged face trial on indictment before the Circuit Criminal Court although they will first appear in the District Court.

However, unlike the District Court, cases before the Circuit Court can be tried before a jury but the penalties upon conviction are more severe. 

Paul Murphy said he is not surprised to learn he is due to be charged and described it as an attack on the right to protest.

He said the charges he faces worry him and all the others who are facing similar charges. He said they are taking it very seriously and they will fight it legally.

He also said the fact that they are hearing they are going to be charged from RTÉ needs to be investigated, along with grievous media leaks that are already being examined by gardaí.

Two anti-austerity alliance councillors have reacted to the news they are due to be charged.  

Cllr Mahon said most reasonable people would see the charges as an overreaction to the events on the day.

He said he is very angry and if the Government choose to pursue the charges they will fight them in the courts. 

He said courts have ways of turning things and they will look for jury to take a clear view of what has happened and understand the political aspects of the case.

He said the way things have been leaked in the media over recent months is an indication of the level of political involvement. 

Cllr Mick Murphy described the leaking of info through the media, which he said is illegal, as very odd. 

He said he has been involved in many protests and nothing like this ever happened.

He said it is extremely serious that the political establishment has decided to take this "tack" over a protest and said there is an effort to put them off what they are doing, which has zero chance of working.  

http://www.rte.ie/news/2015/0911/727274-jobstown-gardai/