DPP -v- Mary Kelly
Neutral citation (2011) IECCA.
Court of Criminal Appeal
Judgment was given by Mr Justice Adrian Hardiman on February 25th, 2011, Mr Justice Éamon de Valera and Mr Justice Michael Peart concurring.
Judgment
The trial of Mary Kelly for damage to a US aircraft in Shannon in January 2003 was neither safe nor satisfactory, as the jury had not been instructed correctly as to the significance of the amendment of the Act under which she was charged. The conviction was quashed and no retrial ordered.
Background
In January 2003, shortly before the invasion of Iraq, Ms Kelly forcibly entered Shannon airport and caused extensive damage to a US naval aircraft there for refuelling. She said she did so “to prevent it going to Iraq, to prevent the killing of innocent Iraqi people”.
She was charged with two offences: trespass and criminal damage. She received a one-year suspended sentence for trespass, but the jury failed to agree on the second charge and there was a retrial, where at Ennis Circuit Court in October 2004 she received a two-year sentence, suspended for four years.
She appealed against that conviction on grounds including that the trial judge misdirected the jury on the issue of the defence of justification, which Mr Justice Hardiman said should properly be referred to as the defence of “lawful excuse”.
In the 1991 Criminal Damage Act, under which Ms Kelly was charged, “lawful excuse” was held to exist if the accused damaged property “in order to protect himself or another . . . and believed that the other was in immediate need of protection”, and if the person honestly believed the action was necessary for such protection.
Mr Justice Hardiman noted the 1991 Act had been amended by the Non-Fatal Offences against the Person Act 1997 – before the alleged offence. This provided a defence of lawful excuse if the accused “damaged the property . . . in order to protect himself or another . . . and the Act or Acts alleged to constitute the offence were reasonable in the circumstances as he believed them to be”.
The reference in the 1991 Act to “immediate need of protection”, an objective defence, was not present in the 1997 amendment. Under the amendment, the circumstances referred to were as the accused “believed them to be”, a highly subjective defence.
The applicant pointed out that she gave extensive evidence as to what her motivation was in damaging the aircraft. However, the judge ruled that this was irrelevant, as the “lawful excuse” defence was not available to her. He considered there had to be a connection in time and space between the action taken and the end sought to be achieved, and stated there was no such connection in this case.
The applicant submitted the judge’s statement that there had to be a connection “in time and space” between her action and the protection of life in Iraq was wrong in law, and that the amended Act was silent concerning time, space and “immediate” need.
Mr Justice Hardiman said the transcript created the impression that as late as day five of the trial it appeared the judge had been thinking of the unamended Act.
When Ms Kelly drew the attention of the trial judge to the amendment, the response of the prosecuting counsel appeared to be to claim that there was an implied, although no longer express, requirement of immediacy. The prosecuting counsel submitted that the omission of the word “immediate” did not make any difference, which appeared to involve the proposition that in enacting the amendment the legislature had acted in vain. The alleged offence was therefore to be found from an implication which was not at all obvious to a lay person, or indeed a lawyer.
There was a high constitutional value to the principle that the criminal law should be clear and precise so a citizen may know what was within the law.
Ms Kelly had no notice of what the prosecution case turned out to be: that the amending statute meant absolutely nothing and made no difference at all to the principal Act. The court could not find that the trial and the verdict were safe and satisfactory, and the verdict was quashed. The full judgment is on courts.ie
Appellant represented herself; Stephen Coughlan BL, instructed by the Chief Prosecution Solicitor, for the DPP