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‘Bellanaboy’ used in Garda attempt to prejudice
unrelated case at Killarney District Court.
mayo | environment | news report
Saturday January 19, 2008 15:37
by Anthony O'Halloran
anthonyohalloran
at gmail dot com
Garda smear tactics fail while clutching at
straws to prosecute Shell to Sea campaigner with no evidence of any crime
committed.
At Killarney District Court, Co. Kerry
on Tuesday 15th January 2008, Mr Niall Harnett of Doonagore, Liscannor,
Co Clare was acquitted of 2 public order charges following a ruling by
Judge James O'Connor, who found that there was no evidence of any crime
committed and dismissed the charges after a full hearing of the matter
which lasted about 1½ hours.
Garda Brendan Cronin KY144 who
initiated the charges, and Garda David Hannon KY180 both testified in
court, but cross-examination by Mr Harnett, who represented himself,
revealed that the Gardaí had neither evidence nor reasonable cause to
suspect that Mr Harnett had committed any offence.
Inspector
Barry O’Rourke, prosecuting for the DPP, never even suggested foul play
either and could only resort to smear tactics and prejudice in raising
Mr Harnett’s Shell to Sea profile as ‘a protester with an interest in
shoving his nose into business that didn’t concern him’, and had to be
reminded by the judge that this was no crime.
On Saturday 21st October 2007, Mr Niall Harnett was in
Killarney for a weekend break with his girlfriend. They were walking
through town later that night when they came upon an incident which
involved some Gardaí who were restoring order following a row which
involved a number of men.
Evidence in court revealed that Mr
Harnett was standing close by as an onlooker when Garda Cronin challenged
him. Garda Cronin testified that Mr Harnett was interfering and he felt
threatened by him. Mr Harnett testified that Garda Cronin was pushing him
around and shouting at him, refusing to say how he was interfering when
questioned. Mr Harnett testified that he had a lawful reason to be there
and Garda Cronin had offered no lawful reason for him to move on. Garda
Cronin said he arrested Mr Harnett for failing to comply with his
direction.
Mr Harnett was arrested and held in custody at Killarney
Garda Station. He was charged under Sections 8 & 24 of the Criminal
Justice (Public Order) Act, 1994 and released from custody 2½ hours
later.
In court on Tuesday, Mr Harnett requested to make a
submission on preliminary matters and an application for strike out of the
charges, relating to his treatment in custody and the lack of Garda
evidence discovered to him in a pre-trial Gary Doyle Order when Judge
O‘Connor stipulated that a detailed precis of evidence was required. He
began to read from a written submission which he handed to Judge James
O’Connor, but he was interrupted shortly afterwards by the judge who said
that this submission was going to the heart of ‘core evidence’ and as such
could not be considered as ‘preliminary’ at all. He disallowed the
submission and put the matter back for a full hearing later, despite Mr
Harnett’s indication that he had not expected and was unprepared for a
full trial that day.
The case was called again later, the last of
the day, which is usual for ‘contested matters’.
Inspector Barry
O’Rourke, prosecuting for the DPP (Director of Public Prosecutions) called
Garda Brendan Cronin as his first witness.
Garda Cronin read a
statement from his official Garda notebook giving brief evidence to the
effect that he was investigating a row with another Garda when Mr Harnett
approached the scene. He said he explained to Mr Harnett that they were
investigating a row, that he was interfering with their attempts to do so
and that he felt threatened by Mr Harnett. He said that he arrested Mr
Harnett after he refused to move on following directions given under
Section 8 of the Public Order Act.
Under cross-examination from Mr
Harnett, who defended himself in court, Garda Cronin conceded that Mr
Harnett had neither spoken nor attempted to engage with anyone at the
scene. When questioned as to how this amounted to interference, Garda
Cronin simply repeated what he’d said before in testimony. When questioned
on what was threatening about Mr Harnett’s behaviour, he said that his
behaviour was ‘hindering’ their investigation. When questioned on that, he
said that Mr Harnett was ‘not helping’. Mr Harnett asked Garda Cronin
“Well which was it - threatening, hindering, or unhelpful”. Garda Cronin
just repeated himself. Mr Harnett asked him was there anything provocative
at all about his behaviour and Garda Cronin said “No”.
Mr Harnett
then quoted from the charge sheet which said that Garda Cronin had
suspected, with reasonable cause, that Mr Harnett, without lawful
authority or reasonable excuse, was acting in a manner which consisted of
loitering in a public place in circumstances, which gave rise to a
reasonable apprehension for the safety of persons or the safety of
property or for the maintenance of the public peace. Mr Harnett again
asked Garda Cronin what was it about his behaviour that led him to suspect
any of these things. Garda Cronin simply looked to the judge and muttered
something like “Huh?”
The judge repeated the requirements as set
out in Section 8 of the Criminal Justice (Public Order) Act 1994, and Mr
Harnett went on to ask Garda Cronin to accept the fact that there had been
nothing provocative about his behaviour at all and had been no threat to
anyone or any thing or to the maintenance of the public peace. Garda
Cronin appeared dumbstruck by the law and an embarrassing silence filled
the courtroom, only to be interrupted by Mr Harnett when he concluded with
“No further questions, Judge”.
Garda David Hannon was then called
to give evidence for the prosecution which amounted to not much more than
‘man came to area, man stayed in area, man asked to leave the area under
Section 8 as he had nothing to do with the incident, man failed to leave
area’. Under cross-examination from Mr Harnett, Garda Hannon conceded that
there was nothing about Mr Harnett’s arrival on the scene that amounted to
threatening interference or provocative behaviour at all.
Mr
Harnett then took the stand to give his own evidence of what had happened.
He said he had arrived on the scene and was standing close to the Gardaí
who were dealing with “what appeared to have been a row“. He said that
Garda Cronin approached him very aggressively and pushed him hard into the
chest knocking him backwards. He said Garda Cronin told him to ‘stop
interfering’. He said he asked Garda Cronin to explain how he was
interfering and he refused. He said he began to explain why he was there
but Garda Cronin kept bullying and shouting over him and insisting that he
was interfering. He said that Garda Cronin appeared to change tactics when
challenged and ask Mr Harnett for his name and address. Mr Harnett asked
him why he felt entitled to ask for it and Garda Cronin replied only to
say that if Mr Harnett didn’t give him his name and address he would be
arrested. Mr Harnett told Garda Cronin that he had committed no offence,
that he was not interfering, that Garda Cronin wouldn’t explain how he was
interfering, and in those circumstances he asked Garda Cronin why he felt
entitled to ask him for his name and address. Mr Harnett was then told
that he was under arrest, physically restrained, put in to a Garda van and
brought into custody at Killarney Garda station.
Mr Harnett went on
to give an account of his treatment in custody. He said he had written to
the Gardaí to ask that the member in charge, (who has responsibility for
the treatment of persons in custody in accordance with the regulations),
Garda Theresa Wedel KY166 be called as a witness that day in court and be
given the opportunity to tell her side of the story. Inspector O’Rourke,
prosecuting, simply said that she would not be called.
Mr Harnett
went on to say that when he was introduced to Garda Wedel at the station
she, and the other 2 Gardaí, had bullied him into making one phone call
before being given a copy of his rights in custody. He says he requested
and was denied access to a solicitor and a doctor despite having received
an injury to his hand while being arrested, which was noted in the custody
record. He said he was searched and had property confiscated from him,
including his glasses, and when he was finally given a copy of his
‘custody rights’ he was refused his glasses and not allowed to read his
rights and forced to the cells despite protesting vigorously in the
company of all three Gardaí.
2 Hours later Mr Harnett was charged
under Section 8 of the Public Order Act for failure to comply with a
direction given by a Garda Cronin and Section 24 of the same act for
failing to provide the said Garda with his name and address. Mr Harnett
said he was asked to sign a bail bond to appear at Killarney Court on
November 20th 2007 but he was legally unsure whether he should sign it or
not and asked the member in charge Garda Theresa Wedel whether a solicitor
had been called. Garda Wedel said that she had tried to call a solicitor
(and a doctor) but none were available. Mr Harnett refused to sign the
bond at this stage and was returned to the cells. A half-hour later Mr
Harnett was given the option to sign the bail bond again and he said that
circumstances where his girlfriend was alone in town and him stuck in a
cell he felt compelled to sign the bond, under duress. He said his
property was returned to him but an issue arose over one item of property
and Garda Wedel scrunched up the envelope that had contained his property
and threw it in the bin behind her. Mr Harnett said he asked her were the
contents of my property accounted for on the envelope and asked her could
he see the envelope. She said “It’s gone now Niall”. He asked her would
she retrieve it from the bin and let him see it, to which she replied “No,
it’s gone now Niall”.
Mr Harnett pointed out to the judge a number
of serious omissions from the custody record. He said that there was no
accounting for calls allegedly made by Garda Wedel to a solicitor and a
doctor. Nor was there was any record of the search and his personal
property accounted for. Mr Harnett pointed out that these were abuses
contrary to Sections 17(6), 21 & 23 of the Criminal Justice Act, 1984
(Treatment of Persons in Custody in Garda Síochána Stations) Regulations,
1987, which provide for 1) a record of any search, 2) medical treatment,
and 3) matters to be recorded, respectively. Mr Harnett again reminded the
court that his glasses had also been refused him so as to disallow him
from reading the copy his ‘rights in custody’.
Inspector Barry
O’Rourke stood up to cross-examine Mr Harnett. He asked him why he had not
put his evidence of treatment in custody to Garda’s Cronin and Hannon in
cross-examination of them. Mr Harnett said he had no problem doing so now
if the court felt it was important to recall those witnesses. Inspector
O’Rourke declined the offer. Mr Harnett went on to point out that the
Gardaí had been invited to present Garda Wedel and her testimony would
have helped shine some light on the matter, but they had declined that
also.
Inspector O’Rourke went on to ask “Are you the same Niall
Harnett that has been involved in public order disturbances up in
Bellanaboy, Co Mayo”. Mr Harnett raised an objection to the judge about
the relevance of this but went on to say that what had been going on at
Bellanaboy over the past year and a half amounted to Garda abuse of power
with violence when dealing with peaceful protest, as witnessed by
many.
Inspector O’Rourke asked Mr Harnett to say what it was about
his behaviour that night in Killarney that drew the attention of Garda
Cronin. Mr Harnett conceded that he would have an interest in witnessing
Garda behaviour given his own experiences of abusive Gardaí.
Inspector O’Rourke, in cross-examination, never suggested that Mr
Harnett had committed any offence at all but rather concluded by putting
it to Mr Harnett that he was simply ‘sticking his nose into business that
didn‘t concern him’.
In conclusion, Judge James O’Connor
expressed concern about Mr Harnett’s treatment in custody especially with
regard to him being refused his glasses to read his rights.
He went on to give his ruling on the matter and
said simply that Mr Harnett had committed no
crime.
He dismissed both
charges.
I spoke with Niall Harnett
afterwards.
AO’H - “How do feel Niall, you must be happy with the
result?”
NH - “Yeah obviously. It’s clear there was no case to
answer.”
AO’H - “Why do you think they prosecuted you?”
NH -
“The Gardaí don’t like me because I’ve challenged them at Bellanaboy and
tried to hold them accountable to the law. Garda Theresa Wedel KY166 has
been to Bellanaboy and is known there as a bully. When I came to the
station she knew me. “Niall” she said, “what are you doing down here so
far away from Bellanaboy? To what do we owe the pleasure?”
AO’H -
“We heard today in court that charges were withdrawn against the men
involved in the earlier incident referred to by Garda Cronin. It’s strange
then that they took such an interest in prosecuting you.”
NH -
“Well it’s clear they knew me and Inspector O’Rourke did some homework on
me. He knows there was no case to answer and no cause to prosecute. In
spite of that, it appears he decided to waste the court's time and abuse
the processes of law, in an attempt to teach me a lesson for having my
eyes and ears open to Garda behaviour in public. And I’m surprised he
chose to resort to smear and prejudice only, because he had appeared to me
to be an intelligent lawyer, till now. He’s articulate too, and he knows
it, but maybe he’ll learn to keep his mouth shut in future.”
AO’H -
“Are you going to take this any further?”
NH - “Well I‘m certainly
looking at my options.”
AO’H - “You’ve a few more court cases
coming up haven’t you?”
NH - “Yes, I’m charged with similar
offences at Bellanaboy. That’s set for hearing on 12th March at Belmullet
District Court. I’m contesting that also”.
AO’H - “What about your
own High Court case against Sgt. Conor O’Reilly and An Garda
Síochána?
NH - “That’s back for mention in the High Court in early
March also, to set a date for a full hearing.”
AO’H - “How do you
feel about representing yourself?”
NH - “It’s not easy but I feel
it’s the right thing for me anyway. The biggest advantage over having a
lawyer is that I know exactly what happened, I was there. It’s hard to
have to make the courtroom your practice ground though. You find no
forgiveness there if you make a mistake. But I’m learning and I get great
help and advice from my friends Seán Ryan and Owen Rice. I want to thank
them especially.
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Comments (11 of 11)
Jump To Comment: 1 2 3 4 5 6 7 8 9 10 11Well done Niall, great to hear of a courtroom success. Best of luck with your other cases.
We should all take note that Niall has just mis-proven the common myth that if a Guard asks you for your name and address you have to give it. Niall didn't give his name or address when asked and in court the judge said he committed no crime.
Section 24 of the Criminal Justice (Public Order) Act 1994.
Section 24.—(1) Where a member of the Garda Síochána finds any person committing an offence under a relevant provision, the member may arrest such person without warrant.
(2) Where a member of the Garda Síochána is of the opinion that an offence has been committed under a relevant provision, the member may—
( a ) demand the name and address of any person whom the member suspects, with reasonable cause, has committed, or whom the member finds committing, such an offence, and
( b ) arrest without warrant any such person who fails or refuses to give his name and address when demanded, or gives a name or address which the member has reasonable grounds for believing is false or misleading.
(3) Any person who fails or refuses to give his name and address when demanded by virtue of subsection (2), or gives a name or address when so demanded which is false or misleading, shall be guilty of an offence.
(4) A person guilty of an offence under subsection (3) shall be liable on summary conviction to a fine not exceeding £500 or to a term of imprisonment not exceeding 6 months or to both.
(5) In this section "relevant provision" means section 4, 6, 7, 8, 11, 13, 14, 15, 16, 17, 18 or 19.
Remember, it's all about 'reasonable cause' and 'offence committed'.
Solid stuff Niall. Lots of respect to anyone who takes the lead in representing themselves. Best of luck with the forthcoming cases. Good report too. MK
Very well done Niall - admittedly u were lucky to get a Judge with an eye to justice!
Don't represent your self in court ever. In my experience working for a large financial institution where the institution has been both plaintiff and defendant invariably persons who represent themelves are seriouly disadvantaged.
If you cannot afford a solicitor, and the proceedings are to be held in public consider bringing along a McKenzie friend. A Mckenzie friend can be a law student, but not a solicitor, or barrister. A McKenzie friend is simply a member of the public who may take notes and offer encouragement or make quiet suggestions. Under no circumstances can they act as an advocate, and they have no rights of audience. An Attorney-At-Law and some other qualified practitioners, may be a McKenzie friend, but they cannot offer legal advise. Also a Judge may become concerned if they believe a foreign lawyer is involved without the supervision of an Irish Solicitor.
McKenzie v McKenzie is described in court as: In the matter of McKenzie and McKenzie in the year 1970, in the third volume of the all English Reports at page 1034. Though any Judge in Ireland will be familiar with the case, and in fact if you say the person is a friend assisting you by taking notes they may not comment further.
One further comment, in contentious matters in any of the courts, it is important to sit quietly and not to react to the evidence of the other side or the conduct of witnesses or their supporters. Judges are only human, and most experienced Judges will carefully observe the demeanour of all the participants as an aid to decision making.
Finally rule number 1: Don't represent yourself!
As titled - Niall has shown what can be done when people decide not to accept stitch-ups that have gone on for too long in too many places.
Beir bua!
Powerful stuff, Niall. Keep it up!
You conducted yourself very well in court.
Never mind the begrudgers and the detractors.
And as for the 'never represent yourself' brigade, they obviously have never seen the sad collection of solicitors that some people have had the misfortune to employ.
A good solicitor is a strong ally, but if the only solicitors available are too incompetent, unreliable, or too cosy with the local cops and you are a clear thinker, aware of your rights, and the law, and have a calm manner then you're a lot better off defending yourself.
I can see how cops get the red mist around closing time at weekends, having seen Temple bar on a Saturday night when cops can end up outnumbered by drunks, and get scared of being surrounded.
But, if they are a professional body, they should develop the self discipline to discern between drunken louts and law abiding citizens. In pushing you away, that Garda was leaving his colleague unsupported, which was not very clever. They should have been able to tell by talking to you that you weren't causing trouble, but knee jerk reactions rather than rational thinking seems to be what was driving their actions.
But even going past whatever excited state they were in at the time, they, and their superiors should have dropped the charges afterwards, when it was obvious they had no case. I agree 100% with your opinion that they wasted taxpayers money and the time of the court and the Gardai in prosecuting a phoney case, motivated by their personal dislike for Shell to Sea activists.
Beir Bua a chara.
For information on another stitch-up, and another way of trying to deal with such matters, please see letter to Dr Maurice Manning (President of Human Rights Commission in Republic of Ireland) at http://www.humanrightsireland.com/DrMauriceManning/15January2008/Email.htm