07 Aug 2022

Judge was 'wrong' to dismiss charges against Irish Water protesters

Judge was “wrong” to dismiss charges against Irish Water protesters

A District Court judge was “wrong” to dismiss charges brought against Irish Water protestors arising out of an incident in Dublin three years ago, according to the Court of Appeal. 

Dublin man James Kelly faced a District Court charge of preventing or interrupting, without lawful authority or reasonable excuse, the free passage of a flatbed truck driven by an Irish Water contractor at York Road, Dun Laoghaire in Dublin on May 18, 2015. Mr Kelly also faced a charge of failing to comply with the direction of a garda on the same occasion. 

Gerard Gilmartin, a contractor for Irish Water, gave evidence in the District Court that he was in charge of health and safety and traffic management at York Road where water metres were being installed on the day in question. 

At around 2pm Mr Gilmartin said he saw a flatbed truck which had been stopped by a group of protestors. He observed that traffic had to drive around the truck onto the opposite side of the road to get past. 

Garda Sergeant David Gilmore gave evidence that he arrived at the scene shortly after 3pm and observed a number of people standing on the road immediately in front of the truck and three females sitting in a circle on the road to the rear.

Sgt Gilmore gave a direction to the people in front and behind the truck, believing they were committing an offence. He left the scene to discuss the situation with a superintendent and two inspectors. He returned to find the truck in the same position with the engine running and the same people in the same positions, preventing the vehicle from moving forward. 

All of the people, including Mr Kelly, were arrested. The truck was then driven off and traffic was able to move as normal.

Under cross examination in the District Court, Sgt Gilmore was asked about his understanding of Section 9 of the Criminal Justice (Public Order) Act 1994. He confirmed that it was an offence of wilful obstruction of traffic but made no mention of the lawful authority or reasonable excuse elements of the offence.

District Court judge Anne Watkin dismissed the Section 9 charge against Mr Kelly on the basis that she couldn’t discount the possibility that another form of reasonable excuse or lawful authority was available to the defendant. 

Judge Watkin also dismissed the Section 8 charge on the basis that she could not be satisfied the sergeant had the reasonable suspicion required to issue the direction to the protesters under the section.  

However, in an appeal of a case stated on Tuesday, president of the Court of Appeal Mr Justice George Birmingham said the evidence as to what occurred at York Road on the day in question provided a “clear basis” for concluding that the free passage of a vehicle was being prevented and that this was occurring without lawful authority or reasonable excuse. 

In his view, Mr Justice Birmingham said there could be no lawful authority or reasonable excuse for the conduct described by the Irish Water contractor and the garda sergeant.

He said their evidence “could and indeed should have led to a conclusion that free passage was being prevented or interrupted without lawful authority or reasonable excuse”.

It must be appreciated, he said, that this was a “deliberate and intentional blocking of the free passage of a particular vehicle, for which there could be no excuse”. 

“This was not a situation where the free flow of traffic was impeded as a consequence of a legitimate protest such as might occur where a protest march or public meeting is organised or where a picket is placed.

“Quite simply, it is my opinion that there can be no doubt about this, what took place on York Road was not a legitimate protest,” Mr Justice Birmingham said. 

The fact Sgt Gilmore did not recite the statutory formula, or did not refer to the individual ingredients of the offence, did not preclude the drawing of an inference that he, in fact, reasonably suspected that the vehicle was being denied free passage without lawful authority or reasonable excuse. 

It was “inconceivable” that he would form any other opinion, the judge said. 

Mr Justice Birmingham said the district judge was wrong to accede to the defence’s application to dismiss the charges. To the extent the High Court upheld her approach, he said he would disagree. 

Mr Justice John Edwards and Mr Justice Patrick McCarthy said they agreed with their colleague’s decision.

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