Jury retires to consider Jobstown verdicts; judge tells them to be 'fearless'

Judge Greally told the jury she did not expect them to be “deaf or blind” to the political element of the case, or the emotions that water charges generated across the nation.

The judge said the jury might have “natural sympathies” towards the accused men's predicament. She said they may know some of the defendants from their political activity, and they may like or dislike them.

“You may be concerned about the consequences of your decision for any number of reasons,” Judge Greally said. “I ask you to be fearless and put aside your sympathies or strong views you may have in this case or indeed of the political climate (at the time of the alleged offence).”

Solidarity TD Paul Murphy and five other men have pleaded not guilty to falsely imprisoning Ms Burton and her adviser Karen O’Connell by restricting their personal liberty without consent at Fortunestown Road, Jobstown, Tallaght on November 15, 2014.

The two women were attending a graduation ceremony at An Cosán adult education centre when demonstrations broke out around them. They remained in cars for three hours after they were surrounded by protesters.

The prosecution alleged that the accused men and others totally restrained the women by obstructing the cars and that they did so intentionally.

Outlining the prosecution case, Judge Greally said the prosecution alleged the protest was not peaceful, that there was a risk to Ms Burton's safety and she was entitled to leave Jobstown when advised by gardaí to do so.

Judge Greally said the defence case was that there was no false imprisonment and that the accused men were exercising their constitutional right of peaceful assembly.

She said the defence denies the women were totally restrained and maintain that obstructing the car was no more than “an inconvenience, delay and a nuisance” – a legitimate feature of peaceful protest as recognised by the European courts.

The judge said the defence asserts the case is politically motivated and that it was an attempt on the part of the political establishment to assert itself in the face of the successful campaign against water charges.

The judge said it was open to the jury to consider whether the “establishment was coming down upon Paul Murphy” in response to his successful campaign against water charges.

“If Paul Murphy is being prosecuted not for what he did but for who he is, does that argument extend to the other accused?” Judge Greally said. She said Michael Murphy and Kieran Mahon had a profile in their own community, “but it's not a national profile”.

She said the rest of the accused were “ordinary citizens”.

“How far does that argument go?” she asked.

Judge Greally said the video footage was “hugely important” and was supplemented by witness testimony. She said “on a number of instances, there was garda testimony describing events that were not borne out by the footage”.

“These type of discrepancies may influence how you view the evidence,” she said. “It's a matter entirely for you to assess the impact of the inconsistencies and its effect on the issues you decide.”

Outlining Article 40 of the Constitution, which deals with fundamental rights, Judge Greally said that as citizens of the State, Ms Burton and Ms O'Connell were “entitled to their personal liberty” and the six accused men “had a right to protest peacefully”.

These were not competing rights, but co-existed, she said. “The right to protest, even peacefully, can't be exercised at the expense of the right of personal liberty,” she said.

Judge Greally outlined the definition of the charge of false imprisonment, which she said must involve “total restraint”. She said if there was a means of escape, or egress, than the restraint could not be total.

Judge Greally said the jury must consider whether Ms Burton and Ms O'Connell had a means of escape. She said two such possible means of escape had been raised at trial – that they get out of the car and leave Fortunestown Road on foot, or that the Jeep reverse as advised by the Garda Air Support Unit.

She said a means of escape must be “without danger to the persons confined” and the “age, physical condition and state of attire of the person may be relevant”.

“If you conclude there was a reasonable means of escape or egress available to Joan Burton and Karen O'Connell and it wasn't taken...then there can be no false imprisonment,” Judge Greally said.

The judge said the jury must consider whether the accused men's actions prevented the women from leaving Jobstown as they wanted to do, or was it a “mere delay, inconvenience and nuisance” as submitted by the defence.

“Was getting out a reasonable option? Was reversing the jeep an option?” Judge Greally said.

Judge Greally said there were some critical aspects for the jury to consider, including whether the protest was peaceful. She said the consideration of this issue would “determine the lens through which they viewed the actions” of the accused and others on that day, including gardaí.

Judge Greally told the jury: “Do not confuse anger and hostility with violence”.

She said the defence submission that this was a political peaceful protest was “not good enough”.

“Does it in fact survive scrutiny?” she said. “The mere fact of saying something is peaceful does not make it peaceful.”

She said if the jury decides the protest was peaceful, then they must consider the actions of the gardaí that day, including whether the protest was mishandled from the start, if gardaí failed to prepare, if the decision to move the women from the church was the wrong decision, if they ended up being left longer in the cars than they should have been and whether gardaí should have engaged with protesters.

However, if the jury decided the protest was not peaceful, Judge Greally said many of the criticisms of gardaí raised at trial were “difficult to sustain”.

She said they must then view the conduct of gardaí as a “reaction to the violent protest which posed a threat to Joan Burton's safety”.

“If there was a risk to Joan Burton's safety, then the actions of the accused in impeding her exit are impossible to justify,” she said.

Judge Greally said the case is “not about curtailing the right to protest”.

“As valued a right as that is, it already has limits,” she said. She said the jury's verdict was “not about sending messages...It's about deciding whether these limits were exceeded.”

Judge Greally told the jury it was true that the maximum sentence for the crime of false imprisonment is life imprisonment. She said it was common practice in criminal trials to not inform the jury of the maximum penalties involved because it “may affect the decision of the jury”.

“The cat is out of the bag in this case,” Judge Greally said, adding she therefore felt compelled to raise the matter with the jury.

She said there was a full range of sentencing options available, including many which involve no element of imprisonment. But she said this matter was one for the judge alone to consider.

She urged the jury to “banish all considerations” of sentencing matters when considering the question of the guilt or innocence of the accused.

Paul Murphy (34) of Kingswood Heights, Tallaght; Kieran Mahon (39) of Bolbrook Grove, Tallaght; Michael Murphy (53) of Whitechurch Way, Ballyboden, Dublin; Michael Banks (46) of Brookview Green; Scott Masterson (34) of Carrigmore Drive, Tallaght and Frank Donaghy (71) of Alpine Rise, Tallaght have all denied the charges.