A peace activist convicted over an incident in which an anti-war slogan was written on a US naval aircraft on a taxiway in Shannon Airport has argued before the Supreme Court his actions were with a view to protecting lives.
Dan Dowling and a co-accused maintained “lawful excuse” for their actions, arguing the purpose was protection of lives where US aircraft were transporting weapons via Ireland to the Middle East to endanger lives, especially of children.
A core issue in Dowling’s appeal is whether a defence of necessity, which is part of a lawful excuse defence to a criminal damage charge, is also available to a charge of trespass with alleged intent to carry out criminal damage.
A five-judge court heard the appeal on Thursday on the basis that clarification of the scope of the necessity defence is a matter of “general public importance”.
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Chief Justice Donal O’Donnell said judgment will be given on a later date.
Dowling, of Grace Dieu, Waterford, a civil servant aged in his early 40s, and Edward Horgan, Newtown, Castletroy, Co Limerick, a retired soldier in his late 70s, were acquitted in January 2023 of criminal damage but convicted of trespass arising from the incident at Shannon Airport on April 25th, 2017. Both were ordered to pay €5,000 each to a women’s refuge in Co Clare.
The alleged damage consisted of writing “Danger, danger, don’t fly” in marker on the US plane before being stopped by Irish Defence Force personnel. The trespass charge under section 11 of the Criminal Justice (Public Order) Act 1994 related to trespass creating a reasonable inference of intent to commit an offence or to unlawfully interfere with property.
Both men represented themselves at their trial. Only Horgan gave evidence, during which he said he and Dowling were acting with a common purpose, and both men made closing arguments.
After Dowling’s appeal against conviction, taken on grounds including errors in how the trial judge charged the jury on the available defences, was rejected by the Court of Appeal, he secured a further appeal to the Supreme Court.
Opening the appeal barrister Seán Guerin argued the defence of necessity is incorporated into the defence of lawful excuse.
The loss of human lives in the Middle East was what motivated Dowling and he was concerned US military aircraft were not searched at Shannon, Guerin said. Dowling wanted in some way to minimise the numbers of people killed in the Middle East, especially children. He felt he had lawful excuse for his actions and was also making a protest to prevent wrongdoing.
None of the limitations on the lawful excuse defence that the Director of Public Prosecutions and Attorney General argued for are written in the relevant statute, he said.
Barrister Fionnuala O’Sullivan, for the DPP, said Section 11 can include a “very narrow” defence of necessity but that did not arise in this case. Dowling, in his appeal, is trying to say trespass and criminal damage is “all bundled into one offence”, she said.
The evidence was not sufficient to raise the defence of lawful excuse to criminal damage and that defence should not have been left to the jury, she submitted.
In exchanges with the judges, counsel accepted evidence was given at trial about rendition flights via Shannon and about aircraft carrying arms to the Middle East. No “causal link” was made out between the writing on the aircraft and protecting others, she submitted.
The Chief Justice remarked it seemed writing on the aircraft was part of the protest and was aimed at doing something to stop this State allowing such flights.
In submissions for the Attorney General, who was joined to the appeal to address legal issues, barrister Remy Farrell said the Attorney’s primary concern is to ensure “the line is clearly drawn” between the common law defence of necessity and the defence of lawful excuse, specifically where that may arise in relation to the right to protest.
The Irish Human Rights and Equality Commission was also joined to the case to address legal issues. Its barrister, Michael Lynn, said the right to protest is relevant in many cases in relation to whether or not there should be a conviction.
