Lay litigants: Murphy spent 20 years challenging wrong conviction

Occasionally, a lay litigant takes on the system and actually wins. One such case was completed in the Supreme Court last month, involving a farmer from west Cork.
Lay litigants: Murphy spent 20 years challenging wrong conviction

It started with cow dung on the road and ended twenty years later in the Supreme Court. Along the way, Stephen Murphy learned a lot about the state. Principally, he discovered that once the apparatus of the criminal justice system is directed against you it takes major perseverance to pursue justice all the way to resolution.

Stephen Murphy is from Drimoleague in west Cork. He still lives today in the home in which he was reared, but in June 1996 there was major trouble in the area. The Murphy family, Stephen, his father Stephen Snr and sister Anne, were, as they saw it, being seriously put upon. Two years earlier, their neighbours, John McCarthy and his son Dermot, had reclaimed some land which affected a water source for the Murphys.

Relations between the two households soured. The Murphys harboured a sense of injustice about the prevailing situation. This fed into a dispute over the McCarthys driving their herd of cattle past the Murphy home.

The Murphys claimed that the cows liberally relieved themselves of their dung on the roadway, giving off fumes that caused health issues for the family. The gardai were called a number of times in 1994 and 1995 to deal with the disruption. Then matters came to a head on Thursday 27 June 1996.

At around 8.30am, Dermot McCarthy was driving his herd on the road. He claimed that Stephen Murphy Jnr was en route to work in his car and he used the vehicle to block the cattle, sending them back up the road. Dermot McCarthy phoned a guard he knew, Michael McCarthy, who was no relation, but was known to the McCarthys through horse breeding. Garda McCarthy was off-duty. He passed on the complaint to his colleagues at Bantry station.

An hour later, there was more hassle. Dermot McCarthy later outlined the event in a statement.

“The squad car from Bantry and a Garda Walsh arrived. He went into Murphy’s house and my father and myself turned the cows along the road towards the field.. As the cows went along Stephen Murphy senior and Anne Murphy came out onto the roadway and stopped the cows and were shouting and roaring.

“Garda Walsh asked them to get back and let the cows through. They refused and he asked them several times.”

That evening at 4.30pm, there was more of it. This time it was alleged that “as a result of the excitement the animals fouled the roadway.”

Stephen Murphy Snr was also alleged to have said he’d “get a gun and shoot every one of them if necessary”, an apparent reference to the cows rather than the McCarthys.

Two days later there was a reprise with more confrontation despite the presence of the gardai.

As a result, the three Murphys were charged with a number of public order offences. There was, however, one major problem. Stephen Murphy Jnr was charged with the incidents on June 27 when he wasn’t actually present.

This, it would be discovered years later, was down to a typist’s error. When transcribing written statements, Junior was mistakenly inserted where Senior should have been.

The Murphys were convicted of a whole series of the public order offences in the District court, where they were represented by a solicitor. They appealed to the Circuit court, where a number of the convictions were set aside.

The Murphys were still not happy that some of the convictions stood, and they initiated a judicial review of the decision. In particular, Stephen Jnr was aggrieved that he was still convicted of offences allegedly committed when he wasn’t even present.

“I argued about how I wasn’t there,” he says of his appearance at the Judicial review, where he represented himself. “In the end the DPP ruled that the summons weren’t properly drafted and I won.”

The judicial review result was delivered on 5 March 1998, clearing the Murphys of all but two of the offences. Stephen Snr died the following February.

By then, Stephen Jnr and Anne had decided to initiate a civil action against the state for malicious prosecution. Their case was that the prosecutions against them were motivated by the friendship between Garda Michael McCarthy and the McCarthys.

Anne Murphy also sued for what she claimed was “false imprisonment” arising from being “barricaded inside her house due to the actions of the gardai” on that day.

“I approached solicitors in Cork and none of them were interested,” Murphy says. “They said that as other colleagues had left it they wouldn’t be taking it on. The whole thing was a mess.”

So he decided to read up on the law and represent himself and his sister in court. Years earlier he had studied aspects of the law as a part of an accountancy course, but now he would be taking on the state in the highest courts in the land.

The ruling issued by Judge Charleton last week referred to the challenges of a lay litigant taking on the state.

“Often people feel aggrieved by some real or perceived personal wrong and added to that is the conviction that the administrative system or legal structure of the State has let them down.

“One characteristic of this is the serial addition of defendants as wrong allegedly piles upon wrong, which in some cases looms as the perception of persecution.

“Thus, the job of a judge is; to attempt to dispel the charge of emotion over the facts; to endeavour to find key facts within the characteristic confusion of allegation; to try to find if there is, or ever was, a root cause for the disgruntlement.

There was plenty of emotion in the legal documents submitted by Stephen Murphy. He likened the gardai to the Black and Tans, “Nazi Gestapo” and even “Blue Shirts”. One line of argument forwarded was that the Murphys had been “entrapped in a crime by the defendants”.

Murphy took to the task in earnest. In particular, he went through a long process of discovery, obtaining rosters, the superintendent’s report on the prosecution and correspondence between the force and the old Garda Complaints Board, to which Murphy had earlier made a complaint.

Much of this was to go towards putting together his case based on a claim that Garda McCarthy had acted maliciously against him in aiding his neighbours.

The High Court hearing in 2003 brought little joy. Judge Aindrias O’Caoimh dismissed the action, ruling that the prosecution was not malicious, that it was down to typist’s error.

At that point, many a lay litigant may have thrown in the towel, but the Murphys’ sense of injustice drove the siblings for another thirteen years, all the way through an appeal to the Supreme Court.

The final outcome brought a similar result in legal terms, but the Supreme Court judges had some harsh words for the gardai, whose work was described as “slipshod”.

Referring to the charges brought against Murphy for offences he couldn’t have committed, judge Charleton ruled: “That original conviction should never have happened. Furthermore, there should never have been a recommendation to the district superintendent of the gardai to prosecute him in respect of any such offence…This is not impressive. While there is nothing wrong with the other charges, it is necessary for the gardai to exercise care in the prosecution of citizens.”

However, the judge ruled, that the wrongful prosecution was down to human error rather than malice on the part of anybody.

Judge Frank Clarke, sitting with Judge Charleton and Judge Elizabeth Dunne, said that despite the result, the state should make a “significant” ex gratia payment to the Murphy siblings for what they had been put through it attempting to right a wrong over 20 years.

Normally, having lost the case, the Murphys would be left with paying the costs for the state bodies, but Clarke said any application for such costs by the state would be “treated with severe disdain”.

The Murphys were not happy with the outcome. Outside the court, Anne Murphy referred to “cowboy rule in west Cork”. Later, speaking to the Irish Examiner, Stephen Murphy pointed to the fact that it took him to go to the High and Supreme Court before the typist’s mistake was acknowledged.

“They could have come to me but they fought me twice over it,” he says. “And to this day I’ve never even seen that statement.”

”He doesn’t regard the recommendation that the state make a payment as any major victory.

“I was never looking for money. All I wanted was justice. It maddened me the amount of money they wasted all along the way. It could all have been sorted out a long time ago.”

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