Jobstown legal argument: Obstruction or false imprisonment?

Section 15 of the Non Fatal Offences Against the Person Act 1997 sets out the offence of false imprisonment as follows: "A person shall be guilty of the offence of false imprisonment who intentionally or recklessly takes or detains, causes to be taken or detained or otherwise restricts the personal liberty of another without that other's consent." 

In submissions to Judge Melanie Greally defence lawyers for all six defendants argued that the six men on trial should not have been charged with this offence and the case should not be decided by a jury.

While not suggesting their clients were guilty of any other criminal conduct, defence lawyers said there were a range of other, lesser offences under the Public Order Act with which they could have been charged.

These offences, they said, were designed to deal with any alleged criminal conduct at demonstrations or protests.

False imprisonment must involve total restraint or deprivation of a person's liberty.

Senior Counsel Roisin Lacey, who represented Scott Masterson, said it was "easy to forget that and say this was a very difficult situation, there was no easy way out but the court would be in error if it was to ignore the fact that the law is unambiguous".

Blocking the movement of the cars carrying then tánaiste Joan Burton and her adviser Karen O’Connell was at "its height a nuisance, certainly an irritant, it may have been obstructive and it probably was but Mr Masterson is not charged with obstruction.

"The State has chosen not to go down that route and he has been charged with a very specific crime and the mental element required to be proven by the prosecution is incapable of being proven in this case."

She referred to video footage of her client in which he can be heard saying "tell her to get out of the car and answer us," 

This, she said, did not fit with the requirement for the prosecution to prove intent in relation to a charge of false imprisonment.

Senior Counsel Padraig Dwyer, who represented Frank Donaghy, said it was the first time the State had witnessed the use of false imprisonment charges as a response to the behaviour of people at a demonstration. 

He said it was very important case and "while we as lawyers can spend days arguing about the nuances of sit-down protests ... the message which will go out onto the streets of this country if there are convictions is that when one joins a sit-down protest one is at risk of being charged with a very serious offence".

Senior Counsel Kerida Naidoo, who represented Cllr Kieran Mahon, said the prosecution was trying to redefine the offence of false imprisonment. 

He argued that at all times Ms Burton and Ms O’Connell were under the control of gardaí. He said they were placed in the cars by gardaí and stayed in the cars until gardaí decided they should get out.

He said the situation arose in the context of violent disorder but his client was not complicit in that violence. 

Mr Naidoo said there was no alternative interpretation of the offence of false imprisonment.

He said the prosecution was artificially drawing a line between the violence and a sit-down protest. 

"The prosecution is saying they're not guilty of the violence but you have to put it in the pot to convict of false imprisonment. They are saying by their presence [the defendants] aided others in the completion of the offence.

"Unless they are saying they aided, abetted, counselled or procured the violence which is necessary for complicity [my client] can't in law be guilty of that crime."

All six defence lawyers asked the judge to direct the jury to find their clients not guilty.

Prosecution Counsel Sean Gillane said the law on the offence of false imprisonment was clear. 

He said the prosecution had always made it clear that the intention of preventing the cars from moving was to prevent the occupants moving. 

"It was the occupants of the vehicle who were being restrained and that restraint was total. That is a matter of fact to be determined by a jury."

He said it was a serious muddying of the waters to suggest the two women were in the Avensis by choice. 

"It can’t be right particularly in the context of the evidence to say someone is free or not restrained because they could do something to escape. If a man or woman is imprisoned in a room and the door is locked is it not false imprisonment because they could jump out a window to escape?"

In her ruling following the legal argument Judge Greally said the central requirement for the offence of false imprisonment of total restraint remained unaltered. 

She said restraint could be achieved by overbearing the will of the person confined. She said it was possible to remove the violence from the situation and still establish the elements of false imprisonment. 

These were matters which could and should be determined by the jury.