As six men were found not guilty of falsely imprisoning former tánaiste Joan Burton and her adviser at a water charges protest, Isabel Hayes looks at how the arguments played out.
Nine weeks after the Jobstown protest trial opened in Dublin Circuit Criminal Court it took a jury just three hours and 10 minutes to return unanimous verdicts of not guilty.
Six men, including Solidarity TD Paul Murphy, had been on trial since April 26, charged with falsely imprisoning the then tánaiste Joan Burton and her adviser for three hours during a water charges protest in Jobstown.
Paul Murphy, South Dublin County Councillors Michael Murphy and Kieran Mahon, Scott Masterson, Frank Donaghy, and Michael Banks, had all pleaded not guilty to falsely imprisoning Ms Burton and Karen O’Connell by restricting their personal liberty without their consent at Fortunestown Road, Jobstown, Tallaght on November 15, 2014. The charge comes with a maximum sentence of life imprisonment.
The charges against a seventh accused, Ken Purcell, were dropped at the conclusion of the prosecution case after Judge Melanie Greally ruled that the extension of his garda detention in February 2015 was unlawful.
During the trial, the prosecution argued the men were “plainly involved in the restriction of liberty” of the two women, who were trapped in Garda cars for three hours after they left a graduation ceremony at Jobstown.
Garda helicopter video from the Jobstown protest pic.twitter.com/M8pX2uedll— jonathan (@Earl1995Lfc) May 3, 2017
The trial heard that when Ms Burton attended the church ceremony that day, eggs and water balloons where thrown at her. She was advised by gardaí to leave in an unmarked Garda car in order to avoid the crowd.
However, their car was immediately surrounded by protesters, including the accused men, and they were unable to leave the church yard.
At one point gardaí moved in and unsuccessfully tried to remove the accused men, pulling off Paul Murphy’s top in the process. Ms Burton and Ms O’Connell remained in that car for about an hour before a decision was made to move them to a Garda jeep.
The trial was told that a police cordon set up to protect the women as they made their way to the jeep was immediately broken up by protesters, many of whom were screaming abuse.
The jeep was also then surrounded and moved “inch by inch” along Fortunestown Road over the next two hours before the women ran to waiting Garda cars and left the area.
The Public Order Unit was called in and several gardaí described how they feared for the safety of the tánaiste and their colleagues during the protest. They said the crowd was abusive and hurling “missiles” including sticks and lighters.
The prosecution submitted that by surrounding the cars containing Ms Burton and Ms O’Connell, the six men worked together with a “shared intention” to totally restrict their liberty.
“Joan Burton and Karen O’Connell were trapped,” Sean Gillane SC, prosecuting, told the jury in his closing address last week.
“Their liberty was not just restrained, it was totally restrained. Their liberty was never in truth restored until they were running down that road coming up to 4 o’clock that afternoon.”
The jury was told 11 people have yet to stand trial in relation to alleged violent incidents at the protest that day.
Defence counsel argued that it was this “fear of violence” that led to the women being kept in the vehicle by gardaí, not the peaceful acts carried out by the accused men. Some defence counsel were highly critical of gardaí, who they said were unprepared for the protest and made unwise tactical decisions.
They submitted there was “something rotten at the core of this investigation” because evidence given by gardaí was proved “demonstrably wrong” in court by video footage.
Extensive video footage of the protest was repeatedly played throughout the trial. They came from sources including videos uploaded by protesters present on the day, RTÉ footage and clips from the Garda air support unit.
In her closing charge to the jury, Judge Melanie Greally said that “on a number of instances, there was garda testimony describing events that were not borne out by the footage”.
As a result, she said they should regard the video footage from that day as the primary and most reliable evidence, as it was not subject to the “frailties of human memory”.
The defence argued that at worst, their clients were involved in obstructing a vehicle, or delaying and inconveniencing the women — a legitimate feature of peaceful protest as recognised by the European courts.
They argued the DPP had a range of charges open to her under the Public Order Act and that she had not chosen a charge that could be proved.
The defence asserted the case was 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 vote on Fortunestown Road
A key part of the case was video footage of a vote that Paul Murphy held on Fortunestown Road over two hours into the protest. During the clip, which was played several times throughout the trial, Paul Murphy called on the crowd to vote on whether to “march her (Joan Burton) out of here or keep her here”.
Paul Murphy and Michael Murphy voted for Ms Burton to be slow-marched to the bypass within the next half hour, although Paul Murphy also told the crowd he didn’t care “either way” and would go along with what was decided.
The crowd voted to keep the women there, but the jeep ultimately made it to the bypass within the next half hour and the women left the area.
The prosecution argued that this vote indicated that Ms Burton and Ms O’Connell were not free to go.
“It’s crystal clear from the man’s own mouth,” Mr Gillane said of Paul Murphy. “The suggested option of a slow march is no more than a suggested alteration or changing the form of confinement selected by these detainers.”
However, the defence was highly critical of a failure on the part of gardaí to locate the Fortunestown Rd vote footage, which they argued showed Paul Murphy was seeking to bring the protest to an end.
Sean Guerin SC, representing Paul Murphy, said he carried out the vote on Fortunestown Road at the request of the senior garda at the scene in an effort to bring it to an end.
Mr Guerin said gardaí at trial had given “inaccurate, incomplete or misleading” accounts of the vote and he expressed astonishment that a woman who called for Ms Burton to be kept there for the night was not charged with any offence.
The prosecution also relied on an interview that Paul Murphy gave to RTÉ later that day in which he said Ms Burton “was detained for a number of hours by us”.
Joan Burton’s evidence
Ms Burton, who gave evidence over four days, told the trial she was “quite frankly terrified” throughout the protest, describing the crowd surging around her as “very, very wild”, and “enraged”.
“They were wishing all kinds of stuff on me, illness and death; shouting and roaring names like ‘c**t’ and ‘bitch’,” she said.
Ms Burton became upset as she told the court that her shoe began to come off as she tried to make her way to the garda jeep while surrounded by the cordon of gardaí.
“I kept thinking if the crowd got us, where would we run to, and how would I run without my shoe,” she said.
During lengthy cross-examination, Ms Burton denied she was relaxed while in the car. The court was played some of the 42 videos taken from her phone that day, including one in which she could be heard telling Ms O’Connell that she should put a message on social media describing the number of children who were “roaming” the area.
In another clip, Ms O’Connell could be heard saying: “This always happens at the end of protests. The fucking dregs decide not to finish it.”
Ms Burton agreed with defence counsel that this was “completely unacceptable” but said they had been in the car for three hours at that stage and they were “stressed out”.
Ms O’Connell gave evidence that she was “petrified, crying and very, very fearful” and that Ms Burton was trying to calm her down and reassure her.
Argument in the absence of jury
During lengthy submissions in the absence of the jury at the end of the prosecution case, defence counsel submitted that the case should not go before the jury for deliberation.
They submitted the charge of false imprisonment could not possibly apply to their clients, who they said were engaged in a peaceful protest.
They argued that if the case went to the jury for deliberations, it would undermine the fundamental right of assembly, as set out in the Constitution.
Judge Greally was told it would be a “travesty” to expose the accused men to the possibility of being convicted of a crime that carries a maximum sentence of life imprisonment.
Judge Greally denied the application, saying she believed the jury was capable of deciding whether the prosecution case of false imprisonment had been met.
In her ruling in the absence of the jury that ultimately led to the charges against Ken Purcell being dropped, Judge Greally said that the extension of Mr Purcell’s garda detention in February 2015 was unlawful.
“Putting it mildly, the first three hours of his detention were not put to good use,” the judge said.
She noted the superintendent who made the decision to extend his detention was given a “misleading” impression as to how the investigation was progressing that day.
“The casual and languid approach of the interviews is inexplicable on the face of an arrest that was pre-planned and carried out at 7.30am with great precision,” she said.
The trial heard that some of the defendants were arrested by groups of gardaí during dawn house raids in February 2015, despite most of them telling gardaí they would make themselves available for interview at any time. Some of the men’s children witnessed their arrests, which the defence described as over the top and heavy-handed.
Several other accused persons are still before the courts facing various charges from the protest, including violent disorder and criminal damage. In October 2016, a 17-year-old boy was found guilty of false imprisonment of the two women.
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