Circumventing circuses
Lamenting in protest
To visible police
Presence sponsored fear
Battalions of riot police
With rubber bullet kisses
Baton courtesies
Service with a smile
[From “Deer Dance” by System of a Down]
This is a piece that I’ve awaited the opportunity to write forever.
I’ve had the pleasure of being involved in the tale at many diverse levels and can thus narrate it in a way that is both broad and very focussed. I’m a busy little subversive!
Despite my boast above, it’s impossible to feel unique or special. It is my peers in this tale who are deserving of respect. They were the ones who bore the brunt of the blowback that facilitates the privilege I have in putting this piece of history into words.
It’s an amazing story. Imagine, if you will, a bunch of resolute and active republicans (and others) offering an Irish judge a thunderous round of applause, in an Irish courtroom. That’s the end of the tale and that’s why I’m telling it first. You might consider it a spoiler. I promise you it’s not. There’s another piece of information missing that will take its impact from the unbelievable, to the absolutely amazing.
It all kicked off innocently enough. I was talking with my friend, Raymond, it was the 19th or 20th of May, 2011. We were chatting about some of the videos that had appeared, of certain arrests made when Elizabeth came to town. Steven Bennett was all over Youtube. He’d been arrested whilst taking pictures of the goings on. Another mental video (that we’re unable to find – by the time we knew that it was needed, it’d long since disappeared from Youtube) showed a gentleman being very violently arrested by multiple gardaí. It also showed a young woman protesting about the violence of the arrest. She was arrested too, none too gently either. Raymond told me that I knew the young man in the video; Sofian Murphy, a young activist I’ve a lot of respect for. I couldn’t fathom him doing anything that warranted that type of treatment by the gardaí. Anyhow, time passed, both cases, against Steven and Sofian were struck out, so I let the matter drop from my mind. The prosecution had failed to honour the Court’s order for the evidence to be handed over to the defendants.
So, like I said, I forgot about the matter. One bright day in late September or early October, the following year, I was in the company of Madam K and we were into some form of devilment or other. We met a young lady who knew Madam K. She was familiar to me, I’d seen a tiny part of her performance for Occupy Dame Street and if talk was to be believed, she was an up and coming star. Anyhow, we learned that she’d been arrested too, on the day in question, 17th May 2011. It clicked with me instantly: she’d been the lady who’d been bodily hauled by the gardaí because she’d dared to be disgusted at the violence used against Sofian, during his arrest. The young lady said that the Evening Herald had recently published an article that claimed that she was being prosecuted in the matter. She’d at that time, not received a summons. She asked that I meet up with her and her manager, to discuss some possibilities.
I was appalled. This was a very dirty trick by the State. There are only a few possibilities with regard to the origin of the article in the Herald. The DPP told them, the gardaí told them or someone involved in processing the summons to be, told them. The young lady in question who had secured one of the best known managers on the planet, was due to head to the US to perform in some pretty prestigious events and venues. Get a conviction, especially when the conviction has to do with protest, it can be very hard to get into the US…
The young lady and her manager procured some professional legal help and I went in search of evidence and eye witnesses. With the help of Raymond, this was accomplished in short order. I found out that the video where I’d seen her protest against the violence of Sofian’s arrest had disappeared at this point. Raymond then went about attending each of the mention dates in Court, once the summons had been served and the matter commenced. I was up to my neck in other stuff at the time and practically every mention date coincided with other events of importance.
Raymond caught up with Steven Bennett and Sofian Murphy. Their cases had come back from the dead too. Steven was representing himself. As a longtime and experienced activist, he knows his way around a courtroom. He’d recently succeeded in defending himself in another case and he was keen to do the same in this one. He asked if Raymond and myself would lend a hand in this one, as the amount of evidence to consider was going to be colossal. I became his McKenzie.
A little while later, in December of 2012, I got a call from Raymond. We needed to hook up. We’d had a Gary Doyle order complied with and had received close to 80 statements, pictures and video evidence that spanned 12 DVDs. We had to decide how to analyse everything and how to distribute the workload. That was easy I thought, Raymond could do it! As it turned out, that’s not too far from what actually happened.
Raymond scanned all the documents, one of which was a forensics report on a bomb and he used OCR software on the material that it could be used on. The result was an extensive database of evidence that was searchable. This in turn facilitated a forensic examination of these documents that would have completely frustrated an eyes-only approach. All sorts of interesting patterns and pictures started to appear. Way more about that later!
At the same time, Raymond was trying to examine and copy the video evidence contained on the 12 DVDs. He informed myself and Steven that more than half of the discs were unreadable. He said that the fact that the discs were unreadable was the fault of whoever produced them. When Raymond tells you something like this your ears prick up. Raymond’s an expert on optical media and I doubt that there are many with his degree of expertise in the country. He was a leading expert on the matter for a major software multi-national at one point. So like I said, when he says there’s a problem, that’s provably the fault of the State, you bloody well listen.
I want to step backwards in time at this point. So that I might provide the framework to the vista that provided a backdrop to what I was looking at. Normally I look at cases in isolation. This particular case cannot be looked at in that fashion. When one looks at this case in isolation, one only sees the associated unfairness of it. When looked at in tandem with what was happening at the time of Elizabeth’s trespass, the State’s malfeasance is clear and its obvious deliberation cries out for examination and a response.
There’s a thing in law that’s known as “reasonable suspicion.” Most people are familiar with it, it’s often called “probable cause” in movies etc. There are many ways to consider reasonable suspicion. To me, it’s very simple. Without reasonable suspicion the gardaí could demand identification upon a whim or a desire. They could search you. They could detain you. There are certain situations however, where the State can and does suspend basic liberties. A Mandatory Alcohol Testing checkpoint (a MAT checkpoint) for example. However, the suspension of a need for there to be a reasonable suspicion is a very solemn matter and an inspector must sign a document that precisely defines the geographical location of the checkpoint and this document must be produced in court in any prosecution that the checkpoint facilitates.
I made a video with Madam K when the queen came to town. We’ve shown how the Public Order Act was misused to suspend these basic freedoms, specifically Section 21. Section 21 requires a reasonable suspicion to search somebody. People were conned into believing that the gardaí had a right to demand that they submit to a search. We’ve gone into this in more detail and you see it here:
The point is that the State had the gardaí ensure that anyone who was not pleased to have the British queen here was not getting anywhere near her route and destination. Most other folks, who were just going about their lawful business also, were caught up in this fascism too, as they were subjected to arbitrary stops and searches. The gardaí violated basic rights and ethnically cleansed the centre of Dublin to ensure that Lizzie wasn’t upset by anything she might see. The whole thing was a lie. The picture presented was one of reconciliation and of acceptance. The true picture was that a bunch of thugs, using batons, pepper spray, fists and crimes, acted to prevent a demonstration that would have established in no uncertain terms that Lizzie was not welcome in Dublin.
There was nearly a mini riot up at Dorset Street. The gardaí allowed that to peter out and go on its merry way. They then picked on those who hadn’t been, for the very most part, involved in the fun and games. Arrests followed.
Elsewhere, Madam K was getting hassled for having the audacity to be carrying a tiny Irish flag. I was meandering somewhere else, we’d split up to gather as much footage as possible, and I was filming various instances of rights violations and harassment.
Steven Bennett was attempting to make his way to join Éirígí in their protest. Madam K and I also planned to join them. We’d caught up with them earlier in the day beside the Spire on Dublin’s O’Connell street. At that time I filmed Madam K give a loud and very nuanced rendition of “God Save the Queen,” for what we suspected was either a group of British agents or some deep-cover gardaí in the vicinity. After that, we retired to the Kylemore for some much needed coffee. We figured that we had plenty of time to rejoin Éirígí at the Spire. We figured wrong. All hell broke loose as the gardaí effectively kettled the group. Shortly after this, a large crowd could be heard coming up Henry Street, chanting various anti-queen slogans as they marched to join their comrades at the Spire. The gardaí quickly mobilised to completely block off and separate Henry Street from O’Connell Street. As the new arrivals came face to face with the garda blockage at Henry Street, the good folks at the Spire made their move. They quickly moved towards Henry Street and they expertly and efficiently executed a wedge manoeuvre, forcing their way out of the kettle and straight through the centre of the gardaí blocking their access to Henry Street. I filmed flags, banners and the odd garda hat fly into the air as the gardaí tried for all their worth to batter and injure the activists. Brian Leeson and his comrades didn’t leave one single activist behind as they broke through and joined their friends on the other side.
From there, Éirígí and their supporters made their way to Parnell Square. That’s where myself, Madam K and a host of other activists joined them later, before the British monarch’s arrival. We all knew that Éirígí intended to protest without violence. That’s why most activists joined them on the day. Éirígí were true to their word and they ejected the few people who threw stuff at the gardaí as the car bearing Lizzie made its way up O’Connell Street. They ejected them immediately. Despite this I witnessed many Éirígí activists abused by gardaí over the next few days.
The gardaí have long held a particular dislike for republicans, I was reminded of that by all of this. The full picture of what was going on now serves me as the defining example, any time I contemplate the depth of this prejudice.
The gardaí allege that Steven Bennett was arrested after he failed or refused to comply with a direction given to him under Section 8 of the Public Order Act. The alleged direction was that he immediately leave the area. It was allegedly broadcast from a loudspeaker on a garda van and it was allegedly issued by a garda who was allegedly acting under the orders of his superior to broadcast the demand. There is no evidence whatsoever, in any of the garda evidence, that either the superior officer or the garda who shouted the demand, even saw Steven, much less that either of them saw him engaging in behaviour that would have allowed them to make the Section 8 demand. In other words, there’s not a scintilla of garda evidence to suggest that the gardaí had any business in ordering Steven away from the area and similarly, there’s nothing to suggest that Steven was obliged, legally or otherwise, to leave the area, even if he had heard the alleged order. We felt that if this matter had gone to court, that this argument alone would have sufficed to vindicate him. Of course that’s just one of a bunch of arguments that would have done the job. I’d also like to add that this pattern of the gardaí misusing the Public Order Act, constituted the evidence to be used against the majority of those who were persecuted by the DPP in this matter. It’s my humble opinion that had these farces gone to trial, that they’d all have been thrown out, if a reasonable judge got to try them.
In the video that Steven has on his Youtube channel, the video that’d he’d not have been allowed to show to the Court, you can see Steven is close to the wall of Whelan’s Hardware, photographing armoured gardaí as they march threateningly towards protesters. One of the armoured thugs assaults Steven. Immediately after that, Steven is grabbed by the thugs and dragged behind them where lots of gardaí can be seen to jump on him. At this point his camera/phone was dropped by him and picked up by a garda. The camera/phone has not been seen or heard from since. There is no demand to leave the area, emanating from a garda van to be heard on this video.
The prisoner was eventually placed in a transport and conveyed to the Bridewell garda station. He was searched and separated from his remaining belongings, including a €50 note whose company he was never to enjoy again.
It wasn’t long until the veteran campaigner realised that this was no ordinary arrest. Shortly after this realisation began to dawn on him, he was taken outside to another transport and brought to Cloverhill where he was locked up with a few other prisoners. He had no idea what crimes the other prisoners were alleged to have committed, nobody was saying much and there was an uneasy quiet.
Later in the evening Steven, along with a number of other prisoners arrested in similar circumstances, were paraded before Justice Patrick Clyne. Steven wasn’t very impressed with the judge at the time. Another defendant told me that the judge had been a “right prick.” Steven’s bail was set at €300. He obviously didn’t have that, indeed, he had €50 less than he thought he had. He had to spend a sleepless night in a cell in Cloverhill. His daughter arrived the next morning, paid his bail and rescued her father. On top of this, Steven was banned from many areas in Dublin. At the time, Steven was attending a series of meetings with “Real Democracy Now.” He wanted to attend but now he couldn’t. Steven was one of the first people to arrive at Dame Street and Real Democracy Now arrived shortly after to form the Occupation of Dame Street. When the charges against him eventually died and were subsequently resurrected, there was no application to reimpose these punitive bail conditions. This goes to show the temperament of the State, in its initial reaction to those who’d been arrested and associated with disputing the welcome given to Lizzie. Had there been such an application, it would have been fought with a clarity of mind that Steven wasn’t afforded at the time of setting the initial bail conditions. It’s quite likely that had this argument ensued, Steven would have won it, considering the fact that the Court was eventually disposed to referring to all of the charges against all of the defendants as “trivial matters.”
From the garda perspective, when this matter first went to court, this was a massively complex issue with hundreds of gardaí involved and the security and reputation of the State at stake. To Steven, it was a matter of simplicity; a violation of his basic rights. The judge granted Gary Doyle orders. A Gary Doyle order is similar to a discovery order in civil litigation. The State must hand over copies of all evidence they have in relation to the defendant’s alleged crime. Time and time again, the State failed to hand over this material, citing the alleged complexity of the matter as the reason for the failure. Finally, when the time arrived to actually try the matters, for some of the defendants, the gardaí still had not complied with the Court’s order to produce the evidence. The judge, rightly at this point, threw each and every case out.
There is a law, the Petty Sessions (Ireland) Act 1851, that states that a defendant must be brought before a magistrate, before six months have passed from the date of the alleged offence. Modern legislation has amended this to ensure that a summons must be applied for before the six month limit in all matters of summary judgement. In other words, in a District Court prosecution, if it proceeds on foot of a summons, the summons must have been applied for within the six month time limit.
Sergeant Waters, who seems to have had little to do with the matter to this point, applied for summonses, one day before the six month time limit was due to elapse. I must say that it is not my intention to cast any shadows on Sergeant Waters’ character. I had few dealings with him. But where our paths did cross I found him to be pleasant and decent minded (more about that later). The cases were running again, despite the fact that each and every defendant thought the matter finished.
Many months after all the cases were thrown out, as I’ve already recounted, I encountered Miss Elaine Harrington, aka Temper-Mental Miselayneous.
The State’s evidence against Elaine was that she’d been sitting on the ground, playing a bodhrán and was reciting poetry. They claimed that her poetry was incitement and that she was making “gang signs.” How she made these signs is unclear, what with playing the bodhrán. Anyhow, she was not charged with membership of an illegal organisation. The gang signs have not been described, so I’m at a loss and would welcome anyone out there to bring to my attention any example of one of these signs that would have relevance in Ireland. Elaine was not charged with incitement either.
There is no doubt that Elaine has a way with words and that she performs them in a way that demands notice and respect. But I do not hear or feel incitement. I find the evidence against Elaine to be highly provocative and thoroughly ignorant. And to be very blunt, I find this to be even more intolerable, given that it can be proven that the evidence against her, the most important evidence, is a complete and utter act of fabrication.
Elaine’s one and only offence on the day was that she was not afraid of the gardaí despite their brutality and that she was not prepared to stand silently by as a young man was brutalised by multiple thugs in armour.
When I met with Frank Murray, Elaine’s manager, he was very concerned about Elaine’s prospects, should she be convicted. Elaine was not present at this meeting so Frank was very frank in spelling out his hopes and dreams for her and his fears too. I might add that Frank is no amateur. Frank managed Kirsty McColl, the Pogues and Thin Lizzy to but touch on the influence this man has had on music. Indeed, in my days as a musician, I’d have given both my legs just for the opportunity to meet with him. It suffices to say that Elaine had a lot at stake and that the pressure put on her by the thoughts of having her dreams and accomplishments shattered must have been soul destroying.
The young man whose shameful arrest inspired Elaine Harrington to outrage was Sofian Murphy. I really like Sofian. He’s a gentleman, who every time I meet him, convinces me that he’s never coming up for air! He’s always going somewhere or coming from somewhere to go somewhere else. He’s a very affable man, with a keen social conscience, who’ll offer a helping hand wherever and whenever it’s needed, regardless as to what it might cost him.
According to garda evidence, he’s a man to be feared. According to their evidence, he’s the type of guy who will attack you with a bicycle in one hand and a steel garda barricade in the other. I’d guess that Sofian weighs less than 10 stone…
The most compelling evidence that the State had against Sofian was a truck load of video evidence. The most compelling part of this evidence is where Sofian, on his bicycle, stops right in front of a garda van that is just about to do a 180º turn and rapidly exit the area, following a number of other garda vans who’d done likewise. There was a large number of civilians present, some of them throwing stuff at the gardaí in front of them. These garda vans had pulled in behind the crowd and had rapidly reassessed their planning. It cannot be disputed that when Sofian came to a stop, that some folks attacked the garda van with kicks, wallops and debris. The video shows Sofian moving and the garda van is seen to accelerate into a right turn that was very lucky not to have resulted in either a casualty or a serious injury to either Sofian or the others in the immediate vicinity. As the van exits the camera’s view, a bicycle can be seen to be flying at the van and bouncing off the side of it. The bicycle in question, sailed over Sofian’s head to accomplish this. Sofian was still on his own bike at the time. Sofian was not charged with obstruction.
On top of that, no garda statement mentions this incident in evidence against Sofian.
Another way to see this particular footage, to add a full range of possibilities, is that Sofian was cycling away from what was becoming a potentially hazardous situation. He was nearly hit by the garda van as it attempted its illegal manoeuvre. He stopped to remonstrate with the idiots who nearly ploughed into him. Seeing the potential hazard that was developing for the gardaí as people attacked the van, he quickly turned his bicycle and attempted to get out of the way.
Short of that particular incident, I see nothing whatsoever to suggest that Sofian needed to be prosecuted. Quite a few garda statements disagree with this view, but there’s nothing with regard to video evidence to support their allegations.
I spoke with Diarmuid Breatnach, who’d been in the vicinity of Sofian’s arrest. He didn’t see the actual arrest, but he’d witnessed bodies being bundled into vans. A few minutes after Sofian was arrested, a resident of the area approached a garda who was close to the scene of the arrest. The resident, a lady, was carrying a running shoe, a hat and a bicycle lock. She informed the garda that the items belonged to the gentleman who’d just been arrested. The garda told her to bin them. Diarmuid asked her for the items and told her that he’d return them to their owner. He subsequently made a complaint to the Garda Ombudsman Paintjob and the complaint, as expected, went nowhere. The Ombudsman’s reply to Diarmuid was that the complaint “ is inadmissible on the grounds that the behaviour alleged is not of such a nature that it would, if proved, amount to a breach of Garda discipline.” The items were returned to Sofian at a later date, after Diarmuid had gone to a lot of trouble to ascertain who owned them. The running shoe was of no use to him as its partner had been taken from him when he arrived at the garda station. He was given some footware that was many sizes too large. The bicycle lock was of little use to him. At the time of his arrest, the gardaí just left the bicycle where it fell. To quote Diarmuid on this widespread and disturbing practice: “Apparently there is nothing wrong in a Garda officer not only refusing to take charge of the property of a person he has arrested on the street but in addition instructing a member of the public to dispose of it.”
.
.
Don’t open your eyes you won’t like what you see
The blind have been blessed with security
Don’t open your eyes take it from me
I have found
You can find
Happiness in slavery
[From “Happiness in Slavery” by Nine Inch Nails]
In January of this year, I attended one of the few mention dates that I’d attended since this whole sorry debacle started.
Judge Clyne, the judge who’d initially imposed bail conditions on the some eight defendants present was back for the first time, since that time. He was quite surprised and just as concerned that these matters were still before the Court. A barrister for one of the defendants complained to the judge that she had still not received copies of pepper spray reports from the State. The DPP claimed that these reports were privileged. The argument then shifted to the delay in prosecuting these matters. One of the barristers for one of the defendants made an application to have the matter concerning his client struck out because of the monumental delay. He cited relevant case law and developed his argument. Judge Clyne was quite familiar with the case law and went on to explain the meanings of judicial delay, prosecutorial delay and systemic delay, for the knowledge of those in the courtroom. The DPP attempted a counter argument that was long winded, repetitive and in my opinion, very far off the mark. Judge Clyne decided at this point that it’d be fairer for everyone concerned (especially the DPP) if a hearing was convened where everyone would get to make an argument regarding delay and prejudice, general and specific. He proposed a date. Judge Clyne is a moveable judge and his schedule is mental, so there were only a few possibilities available. A date that was fixed didn’t suit Steven at all. Elaine Harrington had been separated from the group at an earlier point and her trial date had been fixed. It was important, Steven, Raymond and I had concluded, that Steven’s trial and her trial should be heard at the same time, so that certain defences would become available, that in other circumstances would not have been usable or as effective. Steven was due to make an application to have his hearing at the same time as Elaine’s. But this changed absolutely everything. Instead Steven made an application that the Judge hear arguments prior to the date of Elaine’s trial, so that he’d not be prejudiced by either having to miss out on the defences available via Elaine’s trial, or be forced to miss the opportunity to take part in the hearing that Judge Clyne had convened. The judge said to the DPP: “I understand that, do you?” once Steven had made his application. This pre-empted the DPP from needlessly and ineffectively attacking Steven’s argument, a preoccupation with her that was becoming evident to all. The judge fixed a suitable date and all was set. The added bonus was that now Elaine’s legal team would be able to take part in the special hearing, once they’d made a motion to set aside her hearing date.
On the next day there were nine defendants.
Unfortunately there was no Judge Clyne. Instead we had Judge Coughlan. I’ve seen Coughlan in action lots of times and would describe his judicial ability by describing him as an arsehole. Indeed, only last month, Coughlan appeared in a Youtube video filmed by some renegade or other where the good Judge spends most of his time screaming at a defendant to “shut up.” For good measure, the judge didn’t allow the defendant the opportunity to mount a defence before moving to convict him. The barristers for the other defendants didn’t want Coughlan to hear their arguments because Judge Clyne had taken charge of the matter and had already heard partial arguments. We didn’t want Coughlan to hear the arguments for different reasons, having to do with what we thought of him. Coughlan agreed to not hear the matter despite an impassioned argument from the DPP that basically stated that if we were so concerned about delay that we’d not be introducing it ourselves. In fairness to the DPP, this was best argument she had to offer, in all her mindless rhetoric, including her alleged arguments at the actual hearing.
As Judge Coughlan was about to leave, Raymond leaned over and whispered to me the name of a defendant who’d long since been separated from the main group and whose address we were unaware of. “Ah fuck!” I thought to myself. It was too late to have a chat with Steven and have him make an application, the judge was nearly out of the room. I stood and addressed the judge’s back. He turned around and stared at me. I asked him if he’d remind the DPP that there was a defendant and his legal representatives who were unaware of the special hearing and that they might like to be made aware of it. I addressed the judge as I felt it might be unwise to approach the DPP directly. She might well have attempted to have me charged for interfering.
The DPP immediately went on the offensive. She launched into the right of legal representatives to determine, along with their clients, all legal strategies and pursuits. The judge began to parrot her waffle at me in rebuke. Sergeant Waters must have got my point, that being that legal practitioners and their clients cannot make any determinations regarding matters they are ignorant of. He declared at this point that he’d ensure that the defendant and his representatives knew of the upcoming hearing. This didn’t phase Coughlan at all, he just continued to rant his nonsense at me. My job accomplished, I sat down in the middle of his tirade. Fuck him. Aint nobody paying me to listen to his shit. And there’s no wage that’d cover it.
I was impressed with the Sergeant’s decency, especially since he displayed it at a time when it was going against Coughlan and the DPP.
The next sitting, still no Judge Clyne. The DPP made the same stupid argument and was ignored. The date was fixed for the 12th of April in Court 44 of the Bridewell.
Before I go into the details of the hearing itself, which I promise will be relatively short, I want to bring up some outstanding issues.
Steven had his argument prepared at the time that Judge Clyne had first failed to appear. It was written down, so I’m in a position to publish it now, here it is (I should add that the second part of the first argument was not included at this time. I was talking to a friend of mine, one of the barristers for one of the other defendants. I was given some new case law and this is what facilitated the second part of the first argument.):
1. Judge, in my first application I’m relying on the matters discussed on pages 9, 10 and 11 of the McFarlane case.
The court initially struck out these present cases because of blameworthy delay. I did not at any point inform the court of any prejudice that hindered my ability to present a defence. It is therefore my submission that the court presumed prejudice on my behalf, as is described in the pages of the McFarlane judgement that I have indicated to you.
It is my understanding, that in proceeding with these cases, that the court is in effect, overturning the Court’s earlier judgement that presumed a prejudice and it is my understanding that this court does not have the jurisdiction to overturn a decision of a fellow District Court judge. In other words Judge, I say this matter is improperly before the Court and that the Prosecution should have applied to the High Court to overturn the District Court’s presumption of prejudice before attempting to resurrect this dead thing here.
To further this argument Judge, I shall approach the matter from another angle. This time, I shall rely on the ruling of Justice Herbert from the Judicial Review, Stephen Heaney v Judge Brady and the DPP, from 2007, with the judgement in same delivered in November in 2009.
Judge, after the matters presently before the court were struck out, the sergeant applied for new summonses, a day before the 6 month time limit elapsed, we’re told. We have also been told that there was subsequently a problem with these summonses, but we’re not told what the nature of that problem was. In any event, new summonses issued and here we are. From the scant details we do possess, one thing is very clear: The summonses applied for, a day before the 6 month limit, did not die a natural death. They did not lapse. On page 11 of the Heaney judgement we have the following:
“The forgoing authorities establish that a District Judge who issued a summons on foot of a complaint made to him or her or to him within the statutory period of six months may, where that summons has not been served and has lapsed or been struck out, issue a fresh summons on a subsequent application made outside the period of six months, based upon the initial complaint having been made within that period. They also establish that an appropriate District Court Office which has issued a summons (whether inside or outside the statutory six-month period), on foot of an application made by an authorised person within the statutory period, may issue a fresh summons on a subsequent application by such a person outside the statutory period, provided that the original summons had not been served and had lapsed.”
The current summonses have issued despite the fact that their predecessors did not lapse. The normal counter argument that says an appearance fixes any defect in a summons does not repair the fact that this matter is improperly before the Court.
2. My second application Judge, has to do with prejudice also. It is my belief that some of this prejudice applies generally to all the cases before the Court.
I found video evidence Judge, that’s now on my Youtube page, that I say establishes that my arrest was an unlawful arrest. Unfortunately for me Judge, I do not possess the original of this footage and due to the passage of time it is not available to me. Thus this footage is inadmissible. This has disabled my ability to defend myself to the point of unfairness. It also goes towards proving that I had possessions on me at the time of my arrest, that are not recorded on the custody record. I still have not recovered my possessions.
Furthermore Judge, the Court ordered the prosecution to turn over its relevant video evidence to the defendants. This evidence arrived on 12 discs Judge. Of those 12 discs, 7 of them were unreadable, due to improper labelling and for other reasons, the fault of the prosecution. Indeed, this improper labelling had the propensity to damage equipment that tried to read them. Of the 7, I have managed to have the contents of 2 of them recovered. To remedy this matter Judge, will require yet more delay. Delay that is prosecutorial, and it is blameworthy delay. Of the 7 discs of video footage I have access to, there are but a few seconds of the video evidence that is somewhat relevant to my case, the rest, the vast majority of it, is superfluous and irrelevant.
On the last occasion this Court sat we were informed that part of the delay experienced had to do with the complexities of the cases and co-ordinating garda witnesses.
The State has supplied me with 80 odd statements. Many of them are unsigned and are not dated. Of the statements that are signed and dated, it can be established that the statements were completed well before the commencement of the Winter of 2011. It would seem to me that garda co-ordination was complete before the year of 2012 had even begun.
Furthermore, and still on the matter of these statements. The vast majority of these statements have nothing whatsoever to do with my case. Indeed, included with the treasure trove supplied by the State, there is included a forensics report with regard to an explosive device and its associated statements. For the life of me Judge, I cannot establish any present case that this material is relevant to. It is superfluous. It is, I submit, only there in an attempt to add colour to the State’s alleged cases. On top of this Judge, forcing an untrained litigant to have to study material of no relevance, is an abuse of process and an attempt to abuse me. It forces delay, and this is the least of what it attempts to force, into my defence. When sifted Judge, the material relevant to my case is short, simple and straightforward. My case should take no more than 15 minutes or so to hear, as is the norm with such cases. The complexity the State speaks of is purely to do with adding superfluous material that adds unnecessary complexity and that’s where the alleged complexity arises.
Part of the evidence handed over by the State says that two pepper spray reports have been submitted by the gardaí. The State says that the reports themselves are privileged. I have case law here Judge, if the Court wishes to see it, that establishes that neither the DPP nor any other officer of the Court has the authority to declare any evidence privileged, that it is a matter for the presiding judge to decide, having examined the relevant evidence himself or herself.
In fairness Judge, I’m not claiming that either pepper spray report has any relevance in my case. On the other hand, the admission that the pepper spray reports exist, leads me to an interesting and very relevant conclusion. There is no admission of baton reports. It is my understanding Judge, and I’m sure the sergeant can correct me if I’m wrong, that when an officer draws his baton, it is mandatory that he or she produces a baton report. There is no acknowledgement of the existence of any baton report produced. There is no actual baton report supplied to me by the prosecution. Many of the statements handed over contain admissions that gardaí produced batons on the day in question. I require the reports and they have not been supplied, indeed there is no indication that they even exist. I require those reports for my defence and it seems to me that I should have received them already and that getting them at this stage will introduce yet more unfair delay into proceedings.
To conclude Judge, the MacFarlane case points out, as indeed you yourself pointed out on the last occasion, that the Court has much less tolerance for delay in cases that aren’t of an extremely serious nature. These cases Judge, despite the prosecution trying to paint them as very serious matters, what with forensic evidence of explosives etc. remain simple matters of public order that are about to drag into their third year due to malingering, inordinate and inexcusable delay.
Judge, I have made these submissions out of a sense of fairness and out of concern for the rights of my fellow defendants. I believe that it is proper that the Court be fully informed as to the nature of these cases. I therefore mean no disrespect whatsoever, when I withdraw each and every submission that I’ve made, in so far as they relate to me personally. Another thing this delay has compounded Judge, is an absolute sense of outrage. Despite the prejudice I believe I have established, I believe I can still defend my case and it is my explicit intent to wipe the floor with the prosecution and its witnesses. I ask you Judge, to allow my case to proceed so that I might fully clear my good name and not have to rely on a technicality to kill the case that would still leave a taint in as far as my good name is concerned. I realise the difficulty that this presents Judge, should you agree with my submissions, especially since I have argued to establish that this matter is improperly before the Court, but I see no alternative to my making of this request.
Thank you Judge.
Links to case law used:
The McFarlane Case: http://www.bailii.org/ie/cases/IESC/2008/S7.html
The Heaney Case: http://www.bailii.org/ie/cases/IEHC/2009/H485.html
The Shell Case (Only a judge can declare privilege): http://www.bailii.org/ie/cases/IEHC/2006/H268.html
As can be seen, Steven was pursuing a very ballsy course of action.
I should point out that Steven only got to go into a tiny part of his argument, about the DVDs supplied by the State, with Judge Clyne. The rest of his arguments remain untested by the Court. The first part of the first argument would have been a controversial one. When the cases were initially binned, they were binned because the prosecution had failed to comply with the Gary Doyle order. The judge said nothing about delay and the Court would be very unlikely to want to guess at the Judge’s reasoning. We were going to argue that whether or not the Court agreed that it was essentially delay that had caused the cases to be binned, that the presumption of prejudice was self-evident and that regardless as to whether the Court considered delay to be the cause, that the result presumed prejudice and that the argument from that point onwards was a moot one.
The bomb. This story would be incomplete if I were to ignore this. It gives me a lot of pleasure to take the State’s intention to sensationalise the evidence against the defendants and use it to sensationalise the defendant’s victory instead.
There’s a forensics report. The bomb was apparently not intended to be a bomb. It was a type of device that was well known to be part of the republican arsenal. At the very same time gardaí have never seen a device like it before. Confused? Good! It was allegedly intended to be a firearm, but it was so badly constructed that it would have failed in this primary purpose, and thus, the bullet would have merely exploded instead, had the firing mechanism functioned. The first problem that this improvised firearm would have encountered was the lack of a metal barrel. The barrel of a gun allows for aim and provides that the forces produced during firing are controlled and they thrust the projectile in a specific direction, giving the bullet a greater range. Within reason, the longer the barrel the greater the range. The barrel of this particular weapon was manufactured out of flour, water and some other secret ingredients. Bread. Rather than have the weapon fire by means of depressing a trigger, this particular gun used a circuit board to act as a timer. In other words, the weapon would be more than useless if it was used defensively. Aside from its basic lack of functionality, this particular design flaw would have made the potential for an offensive action, at its very best, a very frustrating one.
Anyhow, the gardaí, once they’d assessed the lethality of this lead sandwich, had the army bomb disposal unit blow the shit out of it. The forensics report was compiled from a replica sandwich prepared by the gardaí.
Not one statement, or any other evidence suggests that any of the defendants had anything to do with, or any knowledge of this indigestion inducing baguette. The State planted this device into the evidence against the defendants. The State would have you believe that someone ordered a subordinate to “take a Bap and blow the fucking head off the queen!” The poor unfortunate thought their commander was referring to a tasty treat. The rest is histrionics.
There’s nothing to suggest that the gardaí didn’t plant the actual device. After all, they’ve plenty of form in planting explosives to both secure false convictions and gain undeserved praise and credit. In fact, this point has more relevance to the truth than any suggestion that this alleged evidence was relevant to the alleged crimes of Steven Bennett, or any of the other defendants. Remember, that this evidence was handed over on foot of a Gary Doyle order. It masquerades as relevant evidence, but in reality, it is an indictment of both the DPP and the gardaí.
There was another bullet too. Someone tried to shoot a sergeant by throwing it at the fucker. Republicans just aren’t what they used to be… The sergeant’s instinctive urge to gather and preserve evidence had him pick it up and immediately hand the round around to his subordinates so that they could get their trotters all over it and destroy any potential to collect fingerprint evidence or any other forensic material. Like the sandwich, there’s no suggestion that this fuck up of the highest calibre had any relevance to any of the defendants’ cases.
The half of the video evidence that could be viewed confirmed a long held belief. When gardaí using video cameras or pole-mounted street cameras film an incident, they almost always pan the camera away from the scene when the suspect is being arrested. For the very most part, the camera is panned to something of no evidential value whatsoever, dead space. It is practically unassailable, the argument that suggests that gardaí do not want to gather evidence of arrests. The reasoning behind this particular reluctance is self-evident and it is a matter that requires urgent attention.
RTE supplied some footage to the gardaí. Some of this footage was relevant in Steven’s case, though it went nowhere in as far as showing any wrongdoing on his part. When the State hands over video material, it must be a copy of the original and it must not be edited footage. The RTE footage can be seen to be fastforwarded at one point, when it’s played. There’s plenty of other material on it that shows that it was most certainly edited before it was given to gardaí. Also, there’s no statement from the RTE employee who allegedly copied the footage and gave it to the gardaí. In other words, this alleged evidence would have been disallowed. And Steven’s case wasn’t the only case it was allegedly relevant to.
Here’s the report that Raymond compiled regarding the faults with regard to the DVDs handed over to Steven:
Discs Info
RTE –
Drive used = Pioneer DVR-116D
Disc – Maxell DVD-R
Menu – NTSC, Video content – PAL
Structure of disc implies DVD VR Format (a DVD recording format that allows for the recording of ongoing video footage on a singe disc). This can be seen by the inclusion of the VIDEO_RM folder in the root directory (I don’t think that is part of the standard but a common feature none-the-less).
This format also allows you to edit the video directly from the disc, so you can delete certain parts, rewind, fast forward and other editing options. DVD VR formats allow you to add new video, change menus, add chapters, split clip, remove video segments and more.
It’s normally used with DVD-RW, DVD-RAM or DVD+RW discs (i.e. re-writeable).
It’s a format that is meant to be read on the same player that created the disc, it’s difficult to confirm if it will work on other drives. The resulting media are not DVD-Video compliant, and will not play back in some DVD-Video players.
DVD-VR is non-DVD-Video, special use for editing, and can only be played back on similar recorders, and sometimes players that also support VCD/SVCD formats. The video can use bitrates and resolutions not supported on DVD-Video. The use of DVD-VR and DVD-RAM for video, in my opinion, should have never been implemented due to the confusion it causes and lack of playability in DVD-Video players. It is not something that should be adopted for evidence in court.
DVD+VR is a subset of DVD-Video. The creation of DVD+VR was to bridge a gap between “Video Mode” (DVD-Video) and “VR Mode” (DVD-VR) found on DVD recorders (DVD-R and DVD-RW media). However, this has largely failed because DVD+VR made discs have a tendency to corrupt themselves during the editing process (IFO damage). It appears that the RTE disc has errors in the IFO files but I have not ascertained if this is the cause yet.
This disc also appears to be of edited footage rather than the expected original. e.g. between 5.00 and 6.00 minutes in the same person is carried out by his limbs from the crowd by the gardai 3 times. The video also slows down, it appears to rewind. At 39.45 minutes the video changes to footage shoot earlier in the day at a different location – The spire at O’Connell Street, after starting off on Dorset street later in the afternoon. At around 1 hr and 6 minutes into the footage the video goes into fast forward, showing different locations until the end of the footage.
Disc labelled RC (2) –
Unreadable on two optical drives. Cannot even confirm format (standard) used.
Discs labelled KK2; KK1; McMillan;PH6 – Discs with problematic physical stickered labels –
Notified the defendant by phone of concerns regarding these discs – I have very serious concerns that the labels on these discs may cause defects to the discs and the optical drive they are in if someone attempts to use them.
Feeling under pressure due to time constraints from the handoff at the latest mention date in December, and not wanting anyone else to risk using them, I decided to try one of them, after making the phone call to the defendant, warning him that it is likely to irretrievably impair the optical drive in the computer. Subsequently, on testing it in the drive, there was severe vibration and the label partially broke off at high speed. The optical drive was damaged, destroying it.
All the discs I checked had problems of one type or another but this aspect, the awful quality of the labelling, was the single worst issue, it was likely to cause phyiscal harm to any machine that they were used in. At best it was sheer ignorant stupidity, lacking any basic intelligence or common sense, at worst, it was a deliberate attempt at sabotage or injury.
This type of problem is known as ‘unbalance’ and is a fundamental aspect of disc quality control. Disc unbalance causes the disc and drive to vibrate. This vibration causes the track location to shift at moderate amounts of unbalance, transferring the rotational frequency into the radial servo channel. Severe vibration at high speed can permanently damage the spindle motor bearings.
Unbalance is caused by an uneven distribution of mass around the disc, e.g. Offset of the centre hole can cause unbalance as can an outer rim that is not perfectly centered or not circular in shape. Slight variations in thickness of a disc or an asymmetric label also results in unbalance. Dynamic unbalance of less than 0.04N (Newtons) [or around 0.009 pounds of force] is required by the Red Book for 120mm diameter audio discs rotating at 600rpm for instance. Since radial force increases as the square of the speed, 0.04N at 600rpm translates to 21.6N or 4.86 pounds at 24x. A 24x CD drive is spinning at 14,000 rpm, this results in high radial forces on the bearings of the optical drive.
IW – Similar problems to RTE disc. Appears to be DVD-VR and has the problems associated with that format. IW and RTE also have multiple recordings of the same footage.
Finally, before I get to the matter of the hearing, I want to talk about the slimy thug who arrested Steven and Elaine. Yup, they were both arrested by the same pig. This particular piece of filth also arrested a third gentleman, Donal Dunne. Garda Alan Carroll of Santry Garda station prepared three sworn statements for the three prosecutions. Each of the three statements are identical, excepting where Carroll copied and pasted in the names and identifying details of each of the three defendants. Hence the reason we wanted Steven’s case to be tried at the same time as Elaine’s, so that we could confront him with his manufactured evidence. Each defendant was arrested at 16.40pm. Each defendant allegedly “… also resisted arrest punched and kicked out on a number of occasions and was shouting verbal abuse…” The circumstances leading to each arrest are identical in all three statements, despite the actual circumstances being vastly different, not to mention that the times of the arrests were obviously different too.
If even one of the statements was telling the truth, one would have to guess at which defendant Carroll was referring to. This would be a guess based on the balance of probabilities and it is a standard far lower than the standard that requires that the case be proven beyond a reasonable doubt.
This act of manufacturing evidence was a wilful and deliberate act. Carroll even went to the trouble of ensuring that Elaine was referred to as “she” to distinguish from where he referred to Steven and the other defendant as “he.”
.
.
Don’t you love farce?
My fault, I fear.
I thought that you’d want what I want –
Sorry, my dear.
But where are the clowns?
There ought to be clowns.
Quick, send in the clowns.
[From “Send in the Clowns” by Stephen Sondheim]
On April 12th I arrived at the Bridewell court a little after 10.00am. Steven and Raymond were already there. We rapidly ascertained that Judge Clyne would be present. The barristers for the other defendants were happy to allow Steven make his applications first. We were all set and chomping at the bit to hit these cases with a shovel over the back of the head.
The alleged offences had been committed on the 17th of May 2011. We were now nearly into the third year of prosecuting them.
Clyne was in fine form. His jokes were funny, apt and not calculated to cause offence or humiliation. He dealt with the cases in front of him efficiently and fairly. I found him to be very agile mentally and very quick on the uptake. If he is consistent in this approach and I’ve no reason thus far to think otherwise, I’d consider him to be one of less than a handful of judges in the District Court who understands the job and is competent at doing it.
The cases before the court continued up until shortly after 12.30pm. Then we were called.
One of the barristers immediately asked the Judge to hear Steven’s applications first. He also reminded him that Steven was a lay litigant and that he was being helped by myself, his McKenzie Friend. The judge was having none of it. He wanted to hear professional arguments first and Steven could add anything that he thought had been missed afterwards. Dashed was our hope of the shovel blow. But we need not have worried. Steven threw the last punch anyway!
The judge also pointed out to Steven that I was there to whisper advice to him, that I had no standing in the court and that I wouldn’t address the Court. It was refreshing to find that the judge completely understood my function.
It was now approximately 12.40pm. It was suggested to the judge that we break for lunch at this point and return at 1.40pm, rather than having the flow of arguments interrupted by the lunch break. The judge declined this approach and instead declared that the case would proceed through the lunch hour as he wanted to be out of the courtroom by 3.00pm (as I said earlier, Judge Clyne is a moveable judge and he travels all over the country, his desire to be finished by 3.00pm was to be expected). At that particular moment my purpose was amended. As well as being Steven’s McKenzie, I was now his official clock watcher too.
The barrister who’d requested that Steven go first, kicked off the debate. He was also the barrister who’d initially made the application to strike out the case because of delay when Judge Clyne had first appeared in January.
The barrister’s first argument was a complex one. He referred to the Heaney case to give his argument substance. This was the same case law that had been given to me by my friend. The thrust of the barrister’s argument was that the Petty Sessions (Ireland) Act should have been the vehicle that facilitated the issuing of summonses for the present cases, rather than the modern legislation. This meant that the judge who initially binned the cases should have been approached to issue the summonses rather than having them processed in the fashion that they were.
The DPP argued that the Heaney case clearly showed via the “vice versa” bit in it that the gardaí could use either method when applying for a summons. In fairness to her the barrister wasn’t arguing that there weren’t two methods. He was arguing that one of them was not available. The State Solicitor ate up valuable time arguing the same point over and over and over. The barrister, for the most part, was content to allow Judge Clyne pick apart her argument.
We had taken a similar line in our argument with regard to the Heaney case. But it was radically different too. I’m sure that I heard Sergeant Waters state on an earlier date, that there had been a problem with the summonses applied for on the day before the six month limit expired and that those summonses had not been served. This facilitated us in taking a different route through the Heaney case. In order to reissue a summons, it must both have lapsed and not have been served. Our reasoning was that if the first summons was invalid, it cannot have ever been a valid summons and thus was never in a position to lapse. If I’d misheard the sergeant, we risked little in our differing approach as the barristers had the other side of the argument well in hand.
Next up was my second favourite part of the hearing. The barrister told judge Clyne that he wished to call his client as a witness, to demonstrate a general bias that prejudiced each of the defendants. A gentleman took the stand and was sworn in.
He told the Court that when he’d been arrested that there had been three specific individuals who’d witnessed the arrest and what had happened prior to it. He also said that they’d witnessed lots of other arrests. His first witness, after the cases had been struck out had joined the Foreign Legion, his second witness had emigrated to Australia and his third, a lady, had died.
The DPP opened her cross examination by asking the gentleman if he was a member of any organisation. I smiled inwardly at her stupidity. The gentleman replied that he was indeed a member of an organisation, he was a member of Republican Sinn Féin. He added that his three witnesses had not been members. The DPP thought she was on a roll – she was, but it wasn’t the type of roll she thought it was – she next asked him if any of his associates had been present and had witnessed his arrest. He replied that about 40 of them had witnessed his arrest. She asked him if he’d be able to get any of them into the courtroom to give testimony on his behalf. He replied that he could make a phone call there and then and have the 40 of them in the courtroom within the hour. It was all I could do, to not burst out laughing.
The witness was excused and his barrister pointed out to the Court that the first thing the DPP would do if the gentleman’s 40 witnesses turned up to testify for him would be to establish their obvious loyalty towards their comrade. The DPP spent a lot of time acting like something out of a Punch and Judy show with the “Oh no it isn’t” approach. She spent an incredible amount of time bickering with both the barrister and Judge Clyne.
There were some short arguments made after that that didn’t really get anywhere. Nonetheless the DPP fought them tooth and claw, as if her life depended on it. At 3.05pm I whispered the time into Steven’s ear. Steven answered me with a smile. The next time the DPP shut up long enough to take a breath, Steven approached the bench and made his move.
At this point the DPP glared at me. If looks could kill, they’d still be searching for my body.
Steven told the judge that the State had failed to comply with the Gary Doyle order and that it was provable that the State was at fault with regard to the video evidence we were unable to view. He told the judge that he’d brought an expert witness who could guide the court through the intricacies of the matter. At this particular point I was caught between feeling elation and feeling sorry for Judge Clyne as I watched the light go out of his eyes upon the realisation that Steven was bringing the Court right back to the moment that the cases had been initially thrown out.
The DPP went ballistic. She told the Court in tones close to hysteria that there had been nothing wrong with the DVDs and that she’d brought along the garda who’d put the material on the DVDs to give evidence. I was thinking to myself that if she was going to give evidence, that she should be fuckin’ sworn in first. The judge was kinder in his outlook. He pointed out to her that just because one DVD player played a DVD it didn’t mean that another player would do so and he reminded her of an earlier case in the day where there’d been a massive wait whilst a garda had tried to get video evidence to display via the court’s video system. He waved off further dispute from her and asked if anyone else had had a problem with matters arising from the Gary Doyle order. One barrister had. He said that the DPP had given him a look at two pepper spray reports earlier in the morning but that she hadn’t furnished him with copies. The DPP said that the reports were for internal garda use and didn’t advance the barrister’s case, where he was alleging that multiple people had been sprayed. The judge demanded to see the reports. He declared them irrelevant and they were handed back to the DPP.
The Judge returned his gaze to Steven who immediately started where he’d finished, only to be stopped again. The Judge shook his head and addressed the courtroom. He gave a reasoned judgement as to why he was dismissing each and every case because of the delay and the prejudice that accompanied it.
The republicans and the others at the back of the court gave the judge a quick round of applause.
The DPP lost her mind completely and began to gush that none of the arguments had been completed and that she’d not been allowed to make all of hers. The judge pointed out that they’d moved from one argument to another and that they had indeed been completed. The DPP continued to screech at the judge saying that not every defendant had given evidence to establish bias despite the fact that the evidence of the Republican Sinn Féin member had been used to establish a general bias. And on and on she went…
The judge slammed his fists, hammer style, onto the bench and glared at the DPP who was immediately struck dumb in terror. “Why am I still listening to this!?” he roared. “You are subverting what I stand for!”
There was a loud round of applause from the back of the courtroom, some cheering too.
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