What their “lawful excuse” could mean
Wednesday, July 26th, 2006Irish Eagle is trying to figure out exactly what a lawful excuse is in the context of yesterday’s court decision on the Shannon Airport protesters; a worthwhile question to put forward.
If my understanding is correct the court found that the accused committed unlawful damage to the aircraft but did so in order to uphold another, arguably more serious law; in that sense they had a lawful reason under which to attack the vehicle. If that explanation is correct it means that the Irish Courts accept that US action in Iraq is legally questionable and so halting their movements by any means is justified (as the aircraft was damaged and no-one was harmed for the greater good of theoretically saving lives abroad and stopping illegal attacks that would cause greater damage).
Under that pretense not only does this ruling draw the spotlight back onto Irish involvement in the war on Iraq it also creates the potential for further court action on the continued use of Shannon as a military stop-over. If the Irish courts are willing to accept that one has a lawful reason to stop the progress of US soldiers it could also be reasoned that the courts believe the US presence in Shannon is potentially unlawful. Perhaps we will now see a court action challenging the presence of the US military in Shannon under the argument that we are assisting a war that has been deemed illegal and perhaps even that we are going against our neutrality by accomidating one side of the conflict above the other.
Then again the war in Iraq has changed so much since 2003 that while the invasion was illegal the presence of the US is no longer deemed the same; in other words it could be said that our involvement in their war during 2003 was against international law however our assistance today is part of the country’s internationally recognised reconstruction.
While words like ‘war’ have no definite technical meaning is the current situation in Iraq even deemed a war any more by the UN, given that no state army is fighting the US and only terrorists and insurgents are fighting the invaders?
Blogs elsewhere
July 26th, 2006 at 5:04 pm
I don’t agree with the decision, but this - pointed-out in the In Fact, Ah comments - is key:
“The Criminal Damage Act, 1991, amended in 1997, provides a defence of lawful excuse to the offence if the accused was acting to defend himself or another or property belonging to himself or another.
The action taken must be reasonable in the circumstances as the accused believed those circumstances to be. It is immaterial whether such a belief is justified so long as it is honestly held.” - The Irish Times
July 26th, 2006 at 5:09 pm
Interesting; so by that definition US planes can be damaged by the public as long as they honestly believe that they are protecting other people or their properties (in Iraq)?
July 26th, 2006 at 5:18 pm
Apparently so. I thought it ludicrous. There are so many circumstances I can imagine which would enable me to legally do things which would be a lot more serious than damaging a US plane. What if you thought the government was a damaging force? Or worse still, democracy?
July 26th, 2006 at 5:35 pm
A quite questionable section of the law indeed; while your examples aren’t quite the same I do see your point, and as you point out it’s not about being justified but showing that you honestly believed your life was in danger.
A person I know in the Dept of Justice told me about a guy who keeps sending in letters to them about the surveilance he believes they are carrying out on him; at one point he sent in an opened microwaved meal that he claimed they had poisoned in an attempt to kill him… would he have a legal excuse to do in McDowell?
July 26th, 2006 at 7:58 pm
Next step assasination!
July 26th, 2006 at 9:20 pm
Far from being a quite questionable area of the law, the presumption of innocence, which according to an ineluctable logic requires a subjective test of the guilt of those persons upon whom awesome criminal sanctions are to be imposed, is a democratic fundamental.
It is up to a jury to infer from the circumstances of a case whether or not an act was criminally intended. Let’s not gainsay the 12 good men and true. We’re not communists or facists after all.
July 26th, 2006 at 9:30 pm
No one is questioning their innocence or guilt of criminal damage, they admit to doing it, the questionable area of the law is that anyone can act in an otherwise illegal fashion if they honestly believe their own or anothers life is in danger; at least that’s what I read from the above quote… perhaps further reading would be required to understand the entire situation but that’s what I take from it.
They went to court not to cast doubt on their actions but to suggest that they were legally justified; I’m not going to reject the decision of the court but I am concerned about the possible abuse of the law.
July 27th, 2006 at 12:37 am
Er, wrong dude. You are questioning their innocence. They are innocent by reason of lawful excuse.
Would you question someone’s right to use lethal force in self-defence? Same thing. If he or she honestly believed the force used was reasonable, he or she cannot be found guilty of murder.
I think the confusion is in the face that there are two elements to consider, the actus reus and mens rea of a crime, in other words the guilty act and the guilty mind.
It is an ancient principle of the common law that a person who commits an unlawful act cannot be guilty unless his mind also be guilty. A jury infers this from the plea of the accused and the circumstances of the case which indicate whether or not the accused’s claim not to have formed the mens rea (guilty mind) in conjunction with the complained of act is reasonable. Remember, a person must be found not guilty beyond a reasonable doubt. If there is a reasonable doubt, he must walk.
The court isn’t concerned with what someone else would have done or thought in the circs (which is where you guys seem to be confusing what ye think was reasonable for the plane attackers to do with what they thought was reasonable - an objective test vs subjective test), it is concerned with testing the accused’s attitude subjectively.
These rules are in place to protect us all when we come into the unequal contest in the criminal law which pitts the individual accused against the State, which is a pretty big and bad boy. Have we already forgotten Donegal?
July 27th, 2006 at 12:41 am
couple of typos - fact not face and “guilty beyond a reasonable doubt” not “not guilty beyond a reasonable doubt”.
A Man for all Seasons has some worthwhile stuff to say about giving the devil benefit of law for our own protection. Have a look.
July 27th, 2006 at 12:54 am
Er, wrong dude. You are questioning their innocence. They are innocent by reason of lawful excuse.
Thank you but I think I know what I’m doing; I am not questioning their innocence; they were found innocent under an Irish court, in accordance with Irish law. I am questioning the logic behind the law itself not those who benefit from it.
Would you question someone’s right to use lethal force in self-defence? Same thing. If he or she honestly believed the force used was reasonable, he or she cannot be found guilty of murder.
This is very different; reasonable force allows a person to defend themselves if they feel they are in real and immediate danger, this law allows them the same right for others. That is not a problem in a situation where, say, I see some guy being beaten up by a maniac but the fact that it is unlimited makes it a potential loophole; I know as well as you do that those soldiers and planes are likely to have killed in Iraq but do I know for certain? Can I honestly believe that these are murders waiting to kill? Obviously under this law I can.
It is an ancient principle of the common law that a person who commits an unlawful act cannot be guilty unless his mind also be guilty. A jury infers this from the plea of the accused and the circumstances of the case which indicate whether or not the accused’s claim not to have formed the mens rea (guilty mind) in conjunction with the complained of act is reasonable.
I don’t think all law, regardless of its nature should allow people to commit a crime because they believe it is not and of course there is also the technicality of proving how they thought; as far as I’m concerned these people knew what they were doing was illegal in Ireland but they felt it was for the greater good
Remember, a person must be found guilty beyond a reasonable doubt. If there is a reasonable doubt, he must walk.
But they are guilty of damaging the plane, they admit that; they got off because they had “reasonable excuse” which is a very open-ended law.
The court isn’t concerned with what someone else would have done or thought in the circs (which is where you guys seem to be confusing what ye think was reasonable for the plane attackers to do with what they thought was reasonable - an objective test vs subjective test), it is concerned with testing the accused’s attitude subjectively.
I know the issue is not the right and wrong of this; frankly my opinion is that I support non-violent protest and oppose the existance of US military in Shannon, I also feel that these people knew what they were doing.
I do not question the basis of their release either, i can see the legal justification for that, I simply wonder if the law is in need of a change, or at least a review; it is possible to argue that many things are a threat to the lives and property of others everywhere
These rules are in place to protect us all when we come into the unequal contest in the criminal law which pitts the individual accused against the State, which is a pretty big and bad boy. Have we already forgotten Donegal?
I know why the law exists, I just refuse to accept it as right… do remember that it is the big bad state that created those laws in the first place.
July 27th, 2006 at 1:34 am
You haven’t understood any of my points, which is fair enough, I probably haven’t explained them reductively enough.
You keep repeating that they were guilty of criminal damage, and then state that you are not saying they aren’t innocent. But the law doesn’t work like that.
You can only be guilty if you carry out an unlawful act having formed criminal intent. There are two elements. Two. Unlawful act, criminal intent.
You’re wrong to state that my example of self-defence is “different” because the law is about abstracting principles which are then applied to different sets of facts. If the law was decided on a case by case basis, it would be a complete nightmare with some judges deciding that person A was guilty in circumstances in which other judges would allow person B to walk free.
Uncertainty and arbitrary treatment by the State on this level is properly called tyranny.
I notice a further element of confusion in that you think because they knew what they were doing, they should be found guilty. But you’re definition of what they were doing is too narrowly defined as “beating a plane with a hammer” whereas what they were doing was “beating a plane with a hammer to inhibit the ability of the USA to wage war in Iraq”. Beating a plane with a hammer would be illegal, beating a plane with a hammer to prevent what you honestly believed to be a crime is not.
I’d rather the airport and USAF provided better security than that we abandoned ancient principles of law which protect us all.
July 27th, 2006 at 11:45 am
What happened to my comment?!
It was a good one too.
July 27th, 2006 at 4:57 pm
Sorry copernicus; I just noticed your two comments were blocked by Spam Karma 2 for some reason, odd considering it let you post before and you’re the first genuine comment to get stopped!
You keep repeating that they were guilty of criminal damage, and then state that you are not saying they aren’t innocent. But the law doesn’t work like that.
OK, I see your point; they’re not guilty of anything, what I should have said is that they have made no qualms about damaging the plane in a way that would have been considered unlawful under other circumstances.
It all seems to me that it allows people to plead ignorace to the law, or plead that they killed one person to protect another but my knowledge of the law is not strong enough to truely know how this can be applied and to what extent etc.
July 27th, 2006 at 7:54 pm
Well, if you pop over to Planet Potato you’ll find the same people who are outraged that the Plane Bashers got off on the basis of reasonable use of force are also outraged that Mr. Nally didn’t.
It was decided by the court that Mr. Nally could not have formed the reasonable belief that what he did was A OK. What appalls me is that people seem to think the law is a beauty contest - smelly hippies should be locked up while daycent oul lads from the farmer classes should be free to do whatever they want.
July 27th, 2006 at 8:21 pm
“OK, I see your point; they’re not guilty of anything, what I should have said is that they have made no qualms about damaging the plane in a way that would have been considered unlawful under other circumstances”.
The fact what they done would have “been considered unlawful under other circumstances” is meaningless. It’s just a different way of stating ‘they would be guilty in other circumstances’, which is missing or ignoring the point that they had a lawful excuse.
Which goes back to copernicus’ point that…
“You’re wrong to state that my example of self-defence is “different” because the law is about abstracting principles which are then applied to different sets of facts… Uncertainty and arbitrary treatment by the State on this level is properly called tyranny”.
Adam, would it be wrong for me to think that your suggested change of law wouldn’t allow lawful excuses in certain cased? Wouldn’t that case again be covered by copernicus’ point quoted above?
July 27th, 2006 at 8:29 pm
I realise that now; I wouldn’t suggest any particular legal change as I’m not really qualified to do that, I do wonder what by-products this aspect of the law could produce and so I question it, but I am not questioning it because I think it’s wrong, I am questioning it because I am unsure.
If copernicus is correct in what he says then no change needs to be made and I would agree under that basis that a change in US security would be more appealing than an alteration in Irish law.
On the topic of my original post I am interested to see what happens next, especially considering the protesters promise to take the US out of Shannon one way or another (possibly through the same methods that put them in front of a court in the first place).
July 27th, 2006 at 8:35 pm
Damn, another post in the spam ether.
August 5th, 2006 at 1:36 pm
Something that may help the questions raised re. the verdict in our case.
We were charged under the Criminal Damage Act of 1991, which only applies to property. Therefore the comments re. injury, murder of people do not apply to this act and the ‘lawful excuse’ defence.
From the outset the jury were informed by the presiding judge the legality of the war was not justiciable in a domestic court of law. Nevertheless, she did allow an expert in International law to testify that our belief that the war would be illegal was ‘reasonable’ belief supported by the majority of international law experts outside of the U.S. The jury were told at various junctures during the trial that they were not to rule on whether the war was illegal, but rather whether our action had a ‘lawful excuse’ and thus was not criminal.
Arson is an uncontrolable act of damage and it probably would not be seen as ‘reasonable’. The judge’s house was not going to be deployed as a support mechanism for an illegal (no UN mandate), immoral(almost all religious/humanist leaders), unwinnable (many military experts)
war. If you did set fire to the judge’s house you would probably be charged with attempted murder, and rightfully so.
Important to note that only those not in the courtroom could be surprised by this verdict. During the course of the trial the prosecutor and one of the detectives involved in the case expressed extreme doubt that any jury would ever be able to convict our group.
Our testimony in the trial, supported by the ‘Statement of Faith’ we brought with us during the disarmament, aswell as expert military and international law evidence given to the court and in the context that there is a statutory defence of ‘lawful excuse’ granted by the Oireachtas in the Criminal Damage Act of 1991 (amended in 1997 to remove the ‘immediacy clause’) in that if one has an honest belief (subjective test) that they are protecting property or life of another, their own life or property, or property and life they have a vested interest in, and that their action is reasonable (objective test) taken into consideration all the circumstances, then a person can be deemed to have a lawful excuse to damage property. Under Irish law it is ‘immaterial whether a belief is justified once it is honestly held’ and of course, ‘reasonable’ taking into consideration all the circumstances.
After two weeks in court, the jury unanimously accepted our defence - only about 3% of criminal cases end in acquittal and a minority of these end in unanimous acquittal.
The State, with all it’s resources, were unable to even convince one juror of our guilt.
The mainstream Irish media, State authorities and US Embassy have lied in public broadcasts without ever retracting that we:
1) Hospitalised, assaulted, overpowered a Garda (something the garda in question denied 3 times on oath during our 3 trials)
2) That the Irish taxpayer would have to pay the alleged $2.6 million damages to the US Navy plane (the Dept. of Transport have only recently stated the Irish taxpayer would not have to pay the damages).
So, we were actually found to have committed an act of civil obedience by doing damage to property because taking into consideration all the circumstances it was found to be reasonable we were acting to save lives and property - the military expert who gave evidence in our case accepted that this would have been a likely chain of events initiated from the act. This act did not turn the law on it’s head and does not unleash a pandora’s box for every and any joe and josephine to wage carnage against their neighbour’s dog who barks above an acceptable decible nor towards their neighbour who plays music to loud at night time thus preventing you from getting your required 8 hour nightly snooze.
Don’t forget, the law we are talking about only refers to damage of property. It is the Non-Fatal Offences Against the Persons Act of 1997 amongst other laws that deal with a person who may be acting in self-defence by doing damage to another person. In this light an accused has to try prove he/she had employed ‘a justifiable use of force’.
The judge on our case ruled that this law did not apply in our case as the basis/purpose of the law
was concerned with those charged with damage to a person. That we already had a statutory defence within the 1991 act (amended in 1997 as stated above).
So the big question now is how does Irish society take the popular mandate from the conscience of the Irish community, 12 ordinary randomly selected members of society, and once and for all end the US military use of Shannon and Ireland’s increasing role in the arms trade, facilitation of troops/munitions being deployed to a theatre of war.
Our hope is that the 1,100 US soliders passing through Shannon today, tomorrow, and into the near future would be supported to conscientiously object to kill and be killed, to wound and be wounded, in the Middle East. That instead, they would go back to their loved ones and join the growing GI resistance with the Iraq Veterans Against War (www.ivaw.net) and other peace groups protesting against, what Madeline Albright (of all people) calls the greatest foreign policy disaster in the history of the US.
You can check out a debate on how this may be achieved at the following thread:
http://www.indymedia.ie/article/77460
It has taken 3 trials (the first two collapsed due to the judge’s bias) brought by the Irish State to establish that we are innocent of any wrongdoing. That what we did on February 3rd 2003 was lawful.
The war planes at Shannon and the munitions and troops that pass through on them do not make Ireland or the world a safer place. The should not be protected by the ‘Guardians of Peace’ or the ‘Irish Army’. Instead they should be refused landing, refueling and overflight privileges and the Irish gvt. and all sectors of Irish civil society and the Irish church should at once awaken from their silence and condemn the carnage the U.S./UK and their coalition partners have unleashed in the Middle-East.
The cynicism of the Irish gvt.s’ recent refusals of Israeli weaponry being carried on U.S. planes to help destroy Lebanese lives and civilian infrastructure beacause of the ‘current conflict’ makes their position in support of the Iraq war and occcupation completely untenable. Is their not a current conflict in Iraq - mandated or not in 2004, the war was not initally mandated by the UN. Ireland would do well to take a courageous stance once and for all on this issue and stop facilitating a U.S. gvt. out of control in their quest to bomb the world into ‘democracy’.
They should start by stopping to pull down hard-fought for civil liberties and democratic rights in their own country (right to privacy - unravelled by their mass phone tapping, freedom of assembly - remember the 1,600 protestors rounded up in NYC 2 years ago during the Republican convention, restorative justice - 2.5 million of mainly Hispanic/Afro/Asian ethnicity currently imprisoned in the U.S.)
And as we say in the Catholic Worker, let’s continue to ‘afflict the comfortable and comfort the afflicted’!
August 5th, 2006 at 6:42 pm
Thank you for that rundown Damien and for taking part in the debate; certainly seems to resolve a few issues and uncertainties I had about the ruling.