Sarah Harte: Right to peaceful protest can’t be at a cost to human rights of others

Dozens of students have set up an encampment on the grounds of Trinity College Dublin to pressurise the college authorities to cut ties with Israel due to its actions in Gaza. Picture: @TCDSU_President/Twitter

Everywhere you look at the moment there’s protest. 

Some of it is healthy and some quite the opposite because there’s a marked difference between protests that may be disruptive but democratically acceptable and protests that are designed to target and intimidate public figures.

Doubtless inspired by the ongoing protests in Ivy League colleges in the USA where up to 2,000 people have been detained, our privileged youth have been protesting in Trinity College Dublin in an attempt to pressurise the college authorities to cut ties with Israel due to its actions in Gaza. And it looks like it might be working.

Up to 70 colourful tents are camped out on Fellow’s Square near the entrance to the Book of Kells which is blocked by a hillock of benches.

 This jolly-looking encampment which is being called “Free Trinity” has been sparked in part by the TCD students union being fined €214,000 for financial losses arising out of disruptive protests during the year as well as the college’s stance on Gaza. 

And it looks like the protest may be working, as the college authorities have promised to end investments in Israeli companies that feature on a United Nations “blacklist”.

Meanwhile, access to the Book of Kells, or Kelly’s book as American tourists sometimes call it, was due to remain closed to the public. 

In addition, restrictions on public access to the campus continue although last weekend a misty-eyed MEP Clare Daly managed to make it through comparing the protests to the Vietnam ones telling students that they would change history.

A sign for the Book of Kells which is closed to the public because of the student protest on the grounds of Trinity College. Picture: Leah Farrell/© RollingNews.ie

While her statement that Ireland has done nothing to support Palestine is nonsense, I agree with Daly that the collective action by the students is a good thing.

Apart from the odd protest on the abortion issue my generation, one step off carrying briefcases to lectures and joining golf clubs, was too busy plotting their careers and updating their CVs to protest.

It’s legitimate that peaceful protest involves some level of disruption. 

I struggle with the idea that peaceful protest should involve criminal damage, so when I see eco-protesters performatively throwing soup at the Mona Lisa, I tend to harbour unfashionable thoughts that their parents should have taken a firmer hand with them as children.

But although I lack a revolutionary spirit, I can see there may be bravery in committing arrestable acts and threatening future careers out of a desire to stop the world from burning.

Crossing the line

A red line is crossed though when you engage in intimidation and harassment of public figures under the guise of protest-making.

Last Thursday anti-migrant protesters unfurled a banner outside An Taoiseach’s home in Greystones and it’s not the first time this has happened to Simon Harris.

In 2019 protesters followed his wife and three-week-old baby home from a walk and blocked his drive. 

This involves intimidation of a person who is not even an elected representative.

Last month, men in balaclavas draped banners on the wall outside Roderic O’Gorman’s house before being told to leave by the gardaí. 

I know a young man in Paris who no longer wears his balaclava on his scooter to keep cosy because he noticed that it upset mothers and kids when he passed the local school, such is the fear in France of terrorist attacks. 

Let’s take it that unless you’re on a ski slope, balaclavas are intimidating.

Helen McEntee, the justice minister, had a bomb threat at her home causing her family including two small children to be evacuated. 

Recently, Paul Murphy the People Before Profit TD received a death threat: the words “Paul Murphy RIP” were painted on a wall near his home. 

Earlier in the year protesters gathered outside his house when he was bathing his baby.

These acts are all intimidatory although my sympathy for Murphy is tempered. He was there in 2014 when Tánaiste Joan Burton and her adviser remained inside a car for three hours while water charge protesters rocked it and hurled abuse at them. 

Subsequently, Murphy and others were acquitted of charges of false imprisonment.

Two years ago, his take on this event to the Irish Examiner podcast was that he and others had “played a productive role on the day” and that the fact that they had been charged with false imprisonment “was a very, very dangerous and a very serious attack on the right of people to protest”. 

I’m assuming he viewed what happened as necessary to stop the machinery of oppressive power trained on the ordinary people, but his attempts to euphemise the incident fall flat as a pancake. 

A red line was crossed on that day.

Paul Murphy TD leaving Terenure Garda Station in Dublin in February 2015 after he was arrested earlier that morning and questioned about a protest in which Joan Burton (tánaiste at the time) was blockaded in her car. File picture: Colin Keegan

But what do our current laws say about curbing the right to protest, and what can gardaí legitimately do to respond to protesters who cross that line?

Generally, Article 40.6 of the constitution allows laws to prevent or control meetings “which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public”.

Under the Criminal Justice (Public Order) Act 1994 the gardaí are empowered to dictate that protesters engaged in behaviour which involves disorderly conduct, threatening, abusive, or insulting behaviour, involves display of material which is threatening or abusive must disperse and may arrest them without a warrant if they don’t comply, with the risk of criminal prosecution.

However, one suggestion currently being floated is that gardaí could rely on the Offences Against the State Act 1939 to prosecute extremist protesters for intimidating politicians at their homes and places of work.

Section 7 of this act protects the cabinet, TDs, senators, and the judiciary from acts of intimidation that constitute behaviour outside of ordinary political protest.

Used in the context of organised criminal gangs and dissident republicans with possible prison sentences of up to 20 years on conviction for breaching the legislation it has provoked controversy. 

Potentially trials could be referred to the Special Criminal Court which was introduced in 1972 in the context of the Troubles. 

Human rights organisations have called for the abolition of this court because the non-jury court is believed to undermine the constitutional right to a jury trial.

Another feature of this legislation that has attracted extensive criticism is the procedural rule that a garda’s “belief” can form part of the evidence against an accused person which potentially presents an obstacle to a fair trial. 

It also allows people to be prosecuted for conspiring to intimidate although in practice it’s not always straightforward to make conspiracy charges stick.

This anti-terrorist legislation is heavy-duty stuff. 

You want to avoid cracking a nut with a sledgehammer and maintain a broad human rights perspective when acting within the parameters of the criminal justice system and the proposal to extend its remit will be interpreted as mission creep.

My question is does An Garda Síochána not already have enough powers under the Criminal Justice (Public Order) Act to deal with those lurking outside politicians’ homes without resorting to the anti-terrorist legislation or enacting new legislation to ban protests outside private homes as Fianna Fáil senator Malcolm Byrne suggests we do?

Either way, the writing is on the wall, literally in Paul Murphy’s case. 

There are undeniable security concerns around politicians’ safety and intimidatory protest hurts us all because good people won’t go into politics if they don’t feel protected.

The state has an important duty to vindicate the citizenry’s right to peaceful assembly, but it can’t be at the expense of the human rights of politicians and their families, including Paul Murphy.