THE COURT of Criminal Appeal has quashed an anti-war activist’s conviction for damaging a US military aircraft with an axe.
The court also said it would not direct a retrial against Mary Kelly, Fort Lorenzo, Galway, because of the “undoubted confusion which afflicted” her trial.
The prosecution had argued a change in the law providing a justification for her actions made no difference to the case, but this “complicated and far-reaching legal issue” was not explained with sufficient clarity to Ms Kelly, the appeal court said.
The trial judge had also “not fully appreciated” this change in the law until well into the case, the appeal court said. In 2004, Ms Kelly was found guilty by a jury at Ennis Circuit Court of criminal damage to the US navy aircraft, costing €1.1 million.
Judge Carroll Moran imposed a two-year suspended sentence over the January 29th, 2003, incident related to an aircraft which had landed for refuelling at Shannon airport on its way to Sicily with spare parts connected with proposed US military actions.
Ms Kelly denied the charge and pleaded lawful justification on grounds she wanted to stop the aircraft from going to Iraq so as to prevent the killing of innocent people.
She appealed the conviction, saying the trial judge had misdirected the jury on the defence of justification and the trial was unsatisfactory, particularly as she had represented herself.
Yesterday, the appeal court, comprising Mr Justice Adrian Hardiman, Mr Justice Eamon de Valera and Mr Justice Michael Peart, quashed her conviction saying the trial and the verdict was not safe nor satisfactory.
Considerable difficulty arose at the trial in the explanation of the law to Ms Kelly and to the jury, the appeal court said.
Central to the trial was Ms Kelly’s claim of “lawful excuse” and the interpretation of that under the 1991 Criminal Damage Act and a later amendment under the 1997 Offences Against the Person Act.
The 1991 Act provided criminal damage could not be committed if a person is protecting oneself or somebody else provided there was an “immediate need” for such protection, the appeal court said.
The 1997 amendment changed that so as to provide a defence to criminal damage if the defendant believed the act (of damage) was reasonable in the circumstances.
While Ms Kelly represented herself, and the wisdom of that was a matter for her, she was given no notice by the prosecution of its argument this change in the law made no difference to the charge against her, the appeal court said.
The prosecution argued, when the case was well advanced, that the new law had an “implied requirement” of “immediate need” to protect oneself or someone else before the defence of lawful excuse could be triggered.
Neither the judge nor the prosecution directed their minds as to whether the issue of “lawful excuse” was a matter of fact or a matter of law, or a mixed question, the appeal judges said.
Apart from the “misfortunes which afflicted this particular trial”, the appeal court said the authorities might look again at the laws at the centre of this case. It was important a case of this sort should be resolved because it is the defendant’s constitutional right to have a trial before a jury, the appeal court said. There was “a particular imperative” on those drafting laws to produce a statutory provision “capable of being readily understood by an ordinary person”, the appeal judge added.