Ploughshares Trial - Closing Arguments

national | anti-war / imperialism | news report Thursday July 20, 2006 20:21 by Liberty Belle

An account of the submissions made by counsel for the prosecution and the defence before the jury.

Today's submissions were quite lengthy so this is necessarily an incomplete account of all that was said. Please add corrections and ommisisons as a comment.

Counsel for the defence and prosecution summed up their cases before the jury. The judge will summarise for the jury tomorrow and continue on Monday, at which point the jury will retire to consider their verdict. The prosecution got the day rolling with a lengthy submission from Mr Devally.

His main line of argument was that the defendants did not have a “lawful excuse” to commit the action. Under the law if a person charged with the offence has a lawful excuse for damaging property he or she will not be found guilty of criminal damage.

One of his arguments was that the accused did not just seek to directly impede the US military in its impending invasion but also sought to raise the consciousness of others as to what was happening in the Middle East. He argued that in this democratic society (sic) this was an incorrect way of effecting change. Either one could seek a ruling from the courts as to the legality of Ireland’s role in the war with regards to the use of Shannon or one could march in the street as on February 15th 2003 or one could lobby elected representatives to change the government’s policy and ultimately one could change the representatives at an election.

Counsel for the prosecution also attempted to downplay the importance of the testimony of the expert military witness that the defendants’ action could have saved life and property in Iraq. He argued that the causal chain was too difficult to understand and he introduced a scientific concept called chaos theory, the popular version of which states that a butterfly flapping its wings in the Amazon could cause a hurricane in Florida. Similarly with regard to the actions of the accused it was difficult to say if they had any impact on the lives and properties of Iraqis.

The prosecutor laid before the jury various examples of what he considered would amount to lawful excuse (e.g. breaking into a burning building). He argued that the action of the defendants was not reasonable in the circumstances. There were other ways of acting on their honestly held belief that the US military's use of Shannon Airport should be halted, such as requesting the police to intervene or the government to take appropriate action.

There were three separate submissions from three barristers acting for the defendants. They differed considerably in style.

A theme running through the day was the emphasis on the right of the accused to the presumption of innocence. It is for the prosecution to prove guilt, not for the defence to prove innocence. If the jury have a genuine doubt, it doesn’t even have to be a massive doubt, as to the guilt of the accused (in any criminal case) they should acquit. This applies right across the board so if the accused put forward a defence, in this case that they had lawful excuse to damage property, then it is for the prosecution to prove beyond reasonable doubt that they didn’t. If doubt remains, then acquittal should follow.

As there was agreement on the basic facts of the case, the main arguments revolved around the issue of lawful excuse, though at times counsel were not averse to referring to wider issues such events in the Middle East in attempting to give context to their arguments.

The first submission from the defence argued that any wider issues such as whether the defendants hoped that their actions might contribute to the raising of awareness of the impending war, was not actually relevant to the charge as before the courts. The fact that they may have done so did not remove the defence that they also had lawful excuse under the law. That lawful excuse was that they honestly believed that their actions could help save a life and property in Iraq. He went on to argue that not only was their belief honestly held, but that their action was reasonable in those circumstances. The damaging of the infrastructure of war contributes to the lessening of the ability of that war machine. He gave the example of the German counter-offensive in Belgium in 1944 where the Axis forces’ counter-attack came to a halt due to a lack of petrol for their vehicles rather than a military defeat on the field. The importance of background infrastructure to a war should not be underestimated.

The second barrister for the defence adopted a more oratorical style and emphasised the intentions and courage of the accused and the destruction caused by war. He made frequent reference to the Bible, notably the Sermon on the Mount and its “Blessed are the peacemakers speech”, and said the defendants were attempting to practice in a sincere way their religious beliefs, beliefs to which many people pay nominal heed but is not always followed.

The third counsel for the remaining two defendants reverted to a more analytical approach and contested some of the prosecution’s core claims. It was noted that it is for the prosecution to prove beyond reasonable doubt that the defendants did not have lawful excuse. It is not for the defendants to prove that they did have it. He went on to argue why he considered the prosecutions case to fall short of ascertaining that level of confidence and that a jury must acquit if they had doubts.

He read back some of the prosecutions descriptions of the case which he claimed were classic indicators of doubt. For example, the prosecution had said that the defence’s evidence was strong and that the case was a difficult one to decide.

He noted that some of the prosecutions hypothetical examples of what would constitute a lawful excuse were inadequate to prove that this defence did not apply. For example, the prosecution repeatedly used the scenario of a burning house which a person damages in order to save life. The prosecutor had said this would be justified, but that this example was very different to the case being tried as one could not say that there was an emergency situation. The police or some appropriate body should have been called to deal with the situation. The defence counsel countered that the analogy was inappropriate as the Dail in 1997 had removed the word “immediate” from the legislation and that the prosecution’s reliance on emergency-style examples did not reflect accurately the case on trial. There was no imperative for the defence to show that their action was prompted by an immediate threat. He also rebutted an example of destruction of tobacco being exported to a country with no health warnings as being an inaccurate analogy to the case in hand.

The prosecution’s arguments, counsel for the defence submitted, did not impinge on the defendants’ right to rely on the defence of “lawful excuse”. While the prosecutor might think that it may open an appalling vista of posse-style justice, that was a matter that he or the Director of Public Prosecutions should take up with the Minister for Justice with a view to changing the law. The law as it stands, however, enables an accused of relying on the defence and so, it was argued, the prosecution had fallen short of inducing reasonable doubt on this issue.

Mr O’Higgins went on to challenge Mr Devally’s grasp of science and chaos theory. He referred back to the expert witness on military affairs. That expert had given evidence that there was a reasonable possibility actions of the accused could have saved life and property could neither be ruled in nor out. Counsel for the defence noted that the prosecution had not called any expert witness to counter this evidence, nor had they sought to challenge his testimony. The defence argued that as an expert witness could not rule out the reasonable possibility that their actions saved life and property, then the actions could fairly be said to be reasonable, and therefore the jury should acquit. This was so as it was for the prosecution to prove beyond reasonable doubt that it was not reasonable yet they had not challenged the expert witness nor brought their own expert witness to give evidence to the contrary.

It was also submitted that the great majority of legal opinion on International Law were of the view that the American-led war in Iraq was illegal and that while it wasn’t for an Irish court to decide that issue, it was an opinion worth bearing in mind when considering the actions of the defendants. It is in this context that one of the defendant’s statements make sense, namely, “I didn’t go to Shannon to commit a crime; I went to Shannon to stop a crime”.