Archive for February, 2014

Last Summer, there was a particular sit-down protest, down the road from the Rossport solidarity camp. Someone had spotted two Shell vehicles and had led them, at a snail’s pace, to the area where the protest took place.

A group of people sat on the road, in front of the first Shell vehicle. Others directed all cars that arrived, around the protest and they continued on their merry ways. This facilitation ended with the arrival of the gardaí and the gardaí didn’t resume it.

Eventually there were to be four gardaí on the scene.

Terence Conway was arrested at this protest.

Terence Conway

Terence Conway

The garda who arrested Terence was at the scene for approximately an hour prior to the arrival of Garda “Rape” McHale, who gave a Section 8 direction. Terence was accused of two offences under the Public Order Act. He was accused of an offence under Section 9, obstructing traffic, and an offence under Section 8, for failing or refusing to leave the area immediately after being directed to do so.

Terence’s trial took place last December. We approached the trial from a strategic perspective. We knew that we could show that the garda evidence, video and statements, went nowhere to show that Terrence had committed a crime. As far as we were concerned, it not only vindicated him, it exhibited, in very clear terms, garda malpractice and it wasn’t just down to a single officer, it shows systemic and procedural malpractice. It identified the pathogen, Garda “Rape” McHale, and it showed how his infection spread. But of course, Belmullet Court was in the way of publicly exposing this. Garda malpractice has long been ignored in Belmullet. Thus we decided to do the very minimum necessary to win the case. The bonus being that if we didn’t win the case, we’d get the opportunity to annihilate the case in Ballina Circuit Court, possibly in front of the president of the Circuit Court. And we’d not have given the prosecution a heads-up on of what was possible during the first trial – they’d be babes in the wood, in front of the president.

The fateful day in December arrived. We’d put a lot of time and effort into planning a very short trial. We’d even gone so far as to estimate, for the judge, during that last date, when it was due to be heard, that the trial would take half an hour. That’s exactly what it took. We spent most of the cross-examinations establishing facts to mislead the gardaí into thinking that we’d also use them in the appeal, which of course we didn’t. One undisputed fact that we established was that Terence, when he’d first approached the scene of the protest, before the arrival of any garda, had given some DVDs to one of the Shell drivers and had explained to him that there was nothing about the protest that was directed towards him personally. Terence, when he went away from that driver, was assured that it was policy not to attempt to move any vehicle during this type of protest, until the gardaí ended it or it ended of its own volition. In other words, Terence was very sure, each time he approached the protest, that so long as it continued, he couldn’t be obstructing traffic. Another fact was put to the arresting garda in the form of an accusation. It was put to him that the gardaí had stopped people from directing traffic around the protest. It was put to him that the gardaí chose not to direct this traffic around the protest to facilitate a PR exercise on behalf of the State and Shell. The more people annoyed, the better. Let’s not forget that the arresting garda was on the scene for more than an hour before the first and only Section 8 direction was given. Another important fact was put to the garda who filmed the video evidence. It was put to him, that he’d shut off his camera shortly after he’d filmed Garda “Rape” McHale giving the Section 8 direction, and that he’d done this as he needed both his hands free, to assault people. He obviously disagreed with our reasoning, however, he was unable to offer any reason as to why he stopped filming.

The cross-examinations finished and the State rested. Terence made a number of applications to toss the matter, based on the fact that there was no evidence whatsoever before the court that accused him of a crime. The chimp in the expensive suit, newly appointed to the bench, didn’t even bother to look at Terence or put an answer to his applications, he merely turned to the prosecuting pig and asked to hear about prior convictions. This was where I nearly had a heart attack. Terence had a suspended sentence hanging over him. Thankfully the chimp ignored this and just fined Terence. Half an hour. It was close to Christmas after all, and the GSOC were (and are?) currently investigating all that free booze that Shell’s go guys had gotten for their pet pigs. Santa had even shown up earlier, in the courtroom, with beverages for the poor and tired gardaí.

So, last Thursday, 20th February 2014, we arrived in Ballina for some blood. There were five of us in the car, journeying from Terence’s home and the case was barely touched on during the ride. We arrived a minute or two after ten. Things weren’t due to kick off for another half hour so we went across the road from the court in search of tea and coffee. Again, the case wasn’t a topic for talk. Dread? Not really. I think the word “savouring” adequately describes where we were.

The case was called. Terence and I made our way to the front of the courtroom. The first prosecution witness, Garda “Rape” McHale, a petty little man, a total and utter arselicker, danced his way to the stand. His body language denoted the aspect of a god, however, his uniform and history denote a pig, rank and vile. Terence immediately fired off the first tactical shot of the slaughter. He informed Judge Groarke, president of the Circuit Court, that he’d not be contesting the validity of the video evidence. Thus the Chief State Solicitor could show the video before we cross-examined his first witness. And of course it dispensed with the prosecution in needing most of its witnesses. It tightened up on the efficiency of things for us and it kept some gurriers off the streets for a few hours. A “win win” tactic.

Garda “Rape” McHale witnessed a group of people, seven of them, sitting on the road and blocking traffic, there were others present too. “Rape” approached the seven and asked them to leave as they were committing an offence under Section 9 of the Public Order Act, they were obstructing traffic. He then left them for a few minutes before returning to them to issue a Section 8 direction, ordering them to leave the area immediately. It’s important to note that “Rape” didn’t say in evidence, nor does it say in his statement, that he approached anyone else. Anyhow, Terence heard the direction. He didn’t leave. He was arrested. End of.

The video evidence: this evidence starts with “Rape” approaching the people sitting on the road. The camera is panned to ensure that all those who are sitting, can be identified. Nobody else is thus identified until after the Section 8 direction is being given. Though it’s quite clear that Terence is there. The video evidence is taken from behind “Rape” as he directs those in front of him. To the right, you can see that someone is filming “Rape.” That someone was Terence. Soon after “Rape” starts to issue the Section 8 direction, Terence’s face can clearly be seen.

McHale finished giving his theatrical direction, or his “soliloquy” as Terence called it, during cross-examination. Terence immediately addresses “Rape.” He basically introduces “Rape” to those present as being a thug of ill repute. He reminds everyone that this particular piece of work was descended from a similar piece of work (a Garda McNulty) who gained noteriety during the incident at McGrath’s pier (A scandalous day for the gardaí that the State is afraid to talk about). The very same incident that later and allegedly, had Shell seeking to have a statement changed, as it scandalised one Superintendent Joe Gannon, and Joe, well, Joe was Shell’s man. Anyhow, the camera was turned off or paused, immediately after Terence said what he’d had to say. The next scene shows gardaí dragging the protesters and pedestrians from the road and throwing them to the side of it. Then the camera pans and Garda “Rape” McHale and the arresting garda, Garda Shane Prendergast, can be identified. Prendergast throws Terence to the ground. The Chief State solicitor called for the video to be paused at this particular moment and asked “Rape” if that had been Terence’s arrest. “Rape” obliged his better and said that it was. “Rape” was then handed over to Terence for disposal. Before disposal, Terence asked the president to view the remaining few seconds of the video to establish that Terence had not been arrested at that time and that Garda Prendergast can be seen to be moving away from Terence and directly towards his next victim.

Terence started out friendly enough by establishing that someone who looks at, gestures towards, another person and talks, is talking to that person, or would be judged to be doing so by an observer. During this line of questioning, Terence developed a particular theme, aimed directly at the president, rather than the witnesses (though it was fun to watch them move from being unafraid of contradicting this to being very afraid of doing so). Terence put it to “Rape” that the video evidence clearly shows that he didn’t arrive until after “Rape” had commenced issuing the Section 8 direction. Judge Groarke would make a good poker player. But he did a double take on this assertion and we knew that the hook had caught. We intended that he’d conclude that Terence’s defence somehow hung on this assertion. We intended, possibly unfairly so, that after this, the judge would allow us lots of leeway or rope, in the defence. Whether this leeway, that we did receive, was the result, or whether it was the judge’s own sense of fairness that gave Terence what was needed, I don’t know. But I tend to believe it was the judge’s fairness. But why take the chance?

Terence put it to “Rape” that it was reasonable for an onlooker to conclude that the Section 8 direction had been given to the sitting protesters, and that the onus had been on “Rape” to make Terence aware that the direction included him, if it was intended to include him. “Rape” was having none of it. Terence was there and he’d heard the direction.

Terence put it to “Rape” that Section 8 of the Public Order Act allows a garda to direct “a person.” There is nothing in the section that allows a garda to give the direction to a crowd. “Rape,” being the consummate professional that he is, explained to the president that there had only been 4 gardaí present and that they were vastly outnumbered and that to have issued lawful directions individually, wouldn’t have been feasible.

After this, Terence took “Rape” elsewhere. You see, “Rape,” in his statement, says that after he gave the direction, that he and the other gardaí commenced moving folks, those sitting, those standing and those walking; everyone. Indeed the video evidence captured how Terence was moved. And they continued to move people for more than 20 minutes. After which, Terence was arrested by Garda Prendergast, for failing or refusing to comply with the Section 8 direction given by “Rape”. When Terence was arrested, “Rape” and the garda with the video camera, Garda Quinn, left the scene with him. The peaceful protest was intensified and ongoing. Yup, it was feasible to spend nearly half an hour, kicking the shite out of everyone present, but it wasn’t feasible to just tell them to “fuck off,” individually.

When this period of questioning started, the defence had already effectively ended. And there was no way around this, unless “Rape” McHale tried to do a quick repair. And we were ready for that, in the unlikely event that he’d have the wit to spot the glaring omission. You see, he had given the direction. Which meant, that in order for him to be actually able to lawfully direct Terence, he must first have suspected him of having committed the Section 9 offence of obstruction. He’d not mentioned any of Terence’s movements prior to giving that direction. Thus a reasonable suspicion that an offence had been committed, was not in evidence before the court. Indeed, no witness statement makes any mention of Terence’s movements whatsoever, other than to say he heard the direction. And all mention of him occurs after the Section 8 direction is described. That should take some of the sting out of the fish hook lobbed at the judge. Terence most certainly is on the scene prior to the issuing of the Section 8 direction. However, in the prosecution’s narrative, he doesn’t become an object of interest until after the direction is given. In other words, there’s no fucking evidence whatsoever that suggests that Terence committed an offence, there isn’t even any to justify a suspicion against him. That the case was over wouldn’t have been that obvious at this particular point. Terence used the cross-examination of Garda Prendergast, to make it very apparent.

I’m getting ahead of myself…

“Rape” McHale agreed with Terence that the Public Order Act does not allow a garda to arrest a person for obstruction. The garda’s only pathway is to issue a Section 8 direction and to perform an arrest then, if that doesn’t remedy the situation.

McHale was asked about his use of force. It was put to him that the Public Order Act clearly says that a garda can arrest someone for failing or refusing to comply with a Section 8 direction. But it makes no mention of the use of force being an alternative. “Rape” made lots of noise but failed to supply a reason for the use of force.

It was put to the garda, and he agreed, that Terence had not been arrested for more than 20 minutes after he’d issued the Section 8 direction. In other words, “Rape” and comrades had spent the time trying to physically conclude the situation. Thus proving that his earlier assertion, that the video evidence showed Terence being arrested, was perjury.

In the December trial, Terence had put it to “Rape” that he’d had no lawful authority to justify the use of force. McHale told the chimp that “we had to move them…” Blah, blah and blah. We were hoping that we could force the same words from his maw this time too, along with whatever bullshit tale to justify them, he’d concocted in the meantime. The objective being that Terence would get to put it to him that we were not disputing that the violence was compulsion based, that what we were getting at was that there’s a massive difference between a lawful compulsion and a mental one.

So, after asking Garda “Rape” McHale: “Can you tell this court, in what way did this situation resemble a situation where you are lawfully justified in using force?”, we were expecting to finish his testimony with an examination of his compulsions. But his answer, given to the president of the Circuit Court, stopped us in our tracks. So much so, that Terence declared that there were no more questions.

McHale told Judge Groarke that arresting someone was to use force and basically that the force he’d used was lesser and was preferred to arresting someone. I absolutely believe that “Rape” actually sees it this way. And I honestly believed that this case would provide evidence that this was the modus operandi of the gardaí. But I though it’d have to be proven and argued. I didn’t even fantasise that “Rape” McHale would volunteer it. I’ll have a lot more to say on this after I deal with the second witness, Garda Shane Prendergast.

Garda Prendergast agreed that he’d been on the scene for more than an hour before “Rape” McHale arrived with his pet for the day, Garda Quinn and his trusty video camera.

During that hour or so, nobody was issued any direction to leave. Nobody was accused of obstructing a garda doing his duty. Nobody attacked or made any threatening moves towards any member of the force. It was further established that those in the nearby solidarity camp and those who had business there, were not forbidden from leaving the camp. Garda Prendergast agreed that people were coming and going, from and to the camp and that some of them even chatted with him. There was no need to be throwing them around at this point.

After about an hour, the pathogen arrived, Garda “Rape” McHale. Within minutes, after “Rape” issues the one and only Section 8 direction, the peaceful setting is replaced with gardaí beating pedestrians and protesters alike, with the formerly friendly and chatty Garda Prendergast taking a very active part. Garda “Rape” McHale described the pathogen, for the judge, and Prendergast’s immediate infection shows that the issue is endemic, infectious and is systemic rather than an isolated aberration, with a cause from outside the force. I’ll get into the root of this very shortly.

It was put to the arresting garda that he’d not arrested Terence for some twenty or so minutes, after the first instance of putting hands on him, that had been captured in the video evidence. Prendergast agreed.

It was put to Garda Prendergast, that Terence had the right to defend himself from the moment the garda had first put hands on him, using whatever reasonable force was necessary to put a stop to him. Prendergast didn’t agree.

It was put to the garda that Terence hadn’t acted to defend himself. The garda told the judge that Terence had resisted being “pushed” by him, but that he’d kept his arms and hands by his sides.

It was put to Garda Prendergast that if Terence had acted to defend himself, that the reaction of his comrades would have been bloody and brutal. Garda Prendergast immediately told the judge that this was not correct. Thus showing that he’s either a mind reader or that it’s garda instinct to defend fellow gardaí, no matter what the cost.

This line of investigation was continued by Terence sticking it to Prendergast: “I put it to you, that of the two of us, only one of us acted to defend the peace and it wasn’t you.” Prendergast responded by gaping at Terence. Neither the judge nor the prosecution had anything to say on it either.

This very un-garda-friendly line of examination concluded with Terence again sticking it to Prendergast: “I put it to you, that by the time you tired of the horseplay and decided to arrest me, that you had long since lost any lawful or moral authority to act as a garda.” No response to this either.

Seeing that he wanted to establish himself as a side-show attraction, Terence skipped ahead to the mind reading question, to end the examination in as contemptuous a way as possible.

“What is it that makes you conclude that Garda McHale suspected that I had committed an offence, when he approached the sitting people and not myself?”

The Chief State Solicitor was on his feet, objecting. The judge agreed. But you could see that the point had made its mark. Terrence, after getting Prendergast to agree that he’d arrived after the Section 8 direction (just for the shits and giggles of it), declared no more questions. Judge Groarke, before the prosecution could call, if it wanted to call, its third witness, Garda Quinn, demanded paperwork from the Chief State Solicitor. I was saddened. At this point Garda Quinn would have served no more purpose other than to act as entertainment for me. Terence had promised me this when we decided to work together. Anyhow, Judge Groarke looked at the paperwork and barked at the Chief State Solicitor a couple of times, who miaowed back. After this, Judge Groarke declared: “I’m granting your appeal Mr Conway.” And that, as they say, was that.

Thanks to two very special whistleblowers, garda whistleblowers, “garda discretion” has become a topic for public discourse.

Discretion is at the heart of the sickness here. When Superintendent Joe Gannon first went to Rossport, he took violence with him. He initiated a garda policy in the area, that re-wrote Irish legislation, without recourse to the legislature. He initiated a policy of no arrests. When a garda believes that a person has committed an offence, under the Public Order Act, the garda has the discretion to decide to arrest or not arrest that person. It’s slightly different for a Section 9 offence of wilful obstruction, a garda must give the person concerned an opportunity to leave the area and then may arrest the person if they fail to comply with the direction to leave. Either way, the power to arrest is discretionary. When Gannon removed this discretion, he left no alternative, the gardaí had to resort to the use of force to solve situations. And by god, use it they did. Gannon was also at the heart of the incident on McGrath’s Pier. The GSOC, not having the power to investigate the corruption of garda policy, had to make do with recommending to the Garda Commissioner, that Gannon be disciplined. The Commissioner told the GSOC to go fuck itself. They did as they were told.

This policy was implemented, according to Gannon, to ensure that no more martyrs emerged from the ranks of Shell to Sea. Thanks to the confession of Garda “Rape” McHale, to the president of the Circuit Court and the example of Garda Prendergast being infected and acting on it, we have compelling proof of systemic corruption. More to the point, the president of the Circuit Court has in no uncertain terms, been made aware of it. What’s he going to do about it?

Aside from Judge Groarke possibly not giving a shit, isn’t the Chief State Solicitor bound by his code of ethics, to report such a matter to the DPP?

Should I hold my breath?