Sunday 4 December 2016

Jobstown teen let off with 'conditional discharge' after guilty verdict

Tom Tuite

Published 21/10/2016 | 17:02

Joan Burton: shoe came off during aggressive protest. Photo: Tom Burke
Joan Burton: shoe came off during aggressive protest. Photo: Tom Burke

A Dublin youth has walked free from court with a “conditional discharge” despite being found guilty of the false imprisonment of Joan Burton during the Jobstown protest.

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The 17-year-old boy denied falsely imprisoning the former Tanaiste and her advisor Karen O'Connell in two garda cars for three hours during the demonstration at the Fortunestown Road in Jobstown in Tallaght, on November 15, 2014.

He went on trial at the Dublin Children's Court and faced the possibility of custodial sentence of up to two years.

The Dublin west TD and former Minister for Social Protection had been at a graduation ceremony at An Cosan adult education centre when a water protest took place outside. She and her advisor told the court earlier that they were too frightened to get out of Garda cars surrounded by people shouting abuse, throwing missiles and banging on windows. One protester shouted they hoped Burton would die, the trial was told.

The boy's legal team had asked Judge John King to dismiss the charges.  His barrister Giollaoisa O Lideadha SC argued that it his was a right to protest case. He had also contended that the prosecution was “unprecedented” and a “recipe for totalitarianism” and that there was an agreement with gardai that protesters would march ahead of a car carrying the two women.

Following the four days of hearing evidence and legal arguments, the boy, who cannot be named because he is a minor, was found guilty on Friday by Judge King who held it was “indisputable” that the former Labour leader and her advisor were detained against their will, and he said the boy was present throughout.

He said that all the elements of common design were laid out and he was satisfied that the offence as charged had been proven beyond reasonable doubt and he was entitled to convict.

“The first thing I would say is that this was an atrocious series of events; it is a terrible offence, however, it is noted that the accused was not acting in isolation and was in the presence of many adults who should have known better and he may have been influenced to some extent by those adults,” Judge King said.

He also said the teenager was an “active participant” in blockades around garda cars carrying Burton and her advisor.

The youth appeared shocked at the verdict and the judge allowed a break before proceeding to finalise the case. Det Garda Paul Smith told the court that neither Joan Burton or Ms O'Connell wanted to provide victim impact statements. Det Smith agreed Joan Burton has said she, “did not have any desire for any young person to go to jail in respect of the charges before the court”.

The trial judge was furnished with a booklet of testimonials about the boy who has no prior criminal convictions and who was accompanied to court by his parents. He also noted the teenager has recently had a series of medical problems which remain undiagnosed and they may have been related to the stress he was under.

Judge King complemented the teenager on his realisation of the necessity for social justice and he noted the youth's previous good record as well as work he has done in his community and for charities – including helping the homeless, for which he has received awards.

He said he was imposing the “conditional discharge” sparing him a possible sentence and leaving him with a clean record.

About a hundred of his supporters were outside the courthouse cheering “Jobstown Innocent, Labour guilty”, which intensified as word got out that the judge was satisfied the boy was guilty.

After the teenager was released by the court, his solicitor Michael Finucane told reporters: “It is important to emphasise that this is a young man placed at the centre of a very high profile and stressful case that went on for a number of days. My client has asked me to say he is extremely relieved the proceedings have ended and the stress on him and his family, to some degree, has been lifted for the time being but he is disappointed by the outcome.”

He added that the defence team was “considering options but I can confirm that an appeal of some sort will be taken in due course”.  The teen was also thankful of all the support he had received.

The teen's father told reporters his son was not guilty and he blasted the verdict saying, “there is no justice in this country” and he added that there would be an appeal.

Videos obtained from Youtube, RTE as well as Ms Burton Ms O'Connell's phone was shown during the lengthy hearing and the court heard evidence from the two complainants and garda witnesses.

Delivering his verdict on day-five of the non-jury trial, Judge King said Joan Burton and her advisor were surrounded by protesters when they left An Cosan and they had to be protected by gardai. He said their progress to St Thomas's Church for the conclusion of the graduation ceremony was obstructed and gardai had to force their way through but were helmed in against a fence.

He noted Joan Burton was hit on her head with a balloon while Karen O'Connell was struck on the back and they had to push through the crowd. He said their personal liberty was restricted by the action of the crowd and in his view both were victims of an assault.

He said that at the church the crowd remained at gate. It was decided Burton and Karen O'Connell would leave in an unmarked garda car at the side of church. As they exited they were seen by a protester who advised the teenage defendant who ran to get the protesters.

He said the crowd ran around to the unmarked garda car surrounded it, shook it, banged on the roof. He noted evidence that they put placards against windows and shouted abuse while someone damaged the wing mirror and another threw a water meter at the car. He noted that protesters sat at the rear and it could not safely reverse.

He noted missiles were thrown including an open tin of beans which struck one garda.

He noted Joan Burton stated she was anxious to get out and she wanted to leave as soon as possible but was not able to do that. He noted she felt extreme hostility and she was apprehensive about “Where would they run to?” if they go the car doors were opened by the crowd. He noted that Karen O'Connell said she was frightened and that she was not in a position to leave and safe.

He said the evidence was that gardai then formed a cordon to a Garda jeep at the church entrance and gardai acted as a screen.

The crowd was pushing on top of her surging and aggressive and “at one stage she felt she was about to fall and began to lose her shoe”.

He said she was unable to move freely and gardai were trying to protect her. He noted that Karen O'Connell said gardai had to encircle them in a “cocoon” and the movement was like a scrum. He noted her evidence of hearing profanities and she was crying began hyperventilating.

He noted someone grabbed Ms O'Connell's collar and a garda had to break their hold. He said their liberty was again restricted during their passage between the two vehicles. While in the jeep, he said, protesters sat in front to prevent it moving and one of them smashed the front windscreen.

He said the crowd got bigger and Joan Burton and Ms O'Connell could only leave at the protesters' whim. One protester told gardai that said if their public order unit was removed they would “slow march” the jeep out of the area.

He noted the protesters slow marched in front of the jeep and at the N81 gardai had a chance to move them to another car. Burton was told by gardai she would have to go as fast as possible to the other car and as she ran people were coming toward her whom she felt were menacing.

In relation to the charges against the boy, he noted from the evidence that he was first seen as Joan Burton walking to St Thomas's Church holding a phone to her while saying “talk to us Joan”.

He said the teenager was “an active participant in the blockade of the unmarked car”.

He said the boy had a loud hailer and video evidence showed him shouting “shame, shame, shame on you” when he was at the back of the car. He noted footage at various stages showed him in confrontation “or at least animated conversation with gardai”

He said the “most damning” evidence came from Gda Sergeant Michael Phelan who said that at the church, a female shouted and the boy ran to the protesters and they surrounded the unmarked garda car.

Judge King said the next mention of the teenager was in the vicinity of the jeep when he had a megaphone and was telling others to sit down. He was also chanting “no way we won't pay” and the jeep was blocked. The judge also said the teenager was gesturing to the crowd in manner to suggest the he was trying to co-ordinate them. He said the boy also handed the megaphone to another person who asked the crowd if they should let Karen O'Connell and Joan Burton go.

“In fairness,” he also said he noted the teenager handed the megaphone to a female protester who asked crowd to stop throwing objects.

He also noted Gda Inspector Derek Maguire gave evidence that the teenager was orchestrating the crowd.

Prosecution barrister argued Tony McGillicuddy that the prosecution case was that the former Tanaiste and her advisor were detained by the actions of the teenage defendant in conjunction with the actions of others.

The defence cited the right to protest and freedom of expression under the Constitution and the European Convention on Human Rights. However, Judge King held that these protections were not unqualified rights and were subject to conditions and penalties as necessary for public safety and disorder, crime prevention and protection of the rights of others.

Mr McGillicuddy also said the court had a number of options including detention as well as supervision orders as well as the power to give a conditional discharge.

The defence pleaded with the court to leave the youth without a criminal conviction. Mr O Lideadha asked the court to note the youth did well in his Leaving Cert and has been offered a job which will also pay for him to do go to college.

He also said that during interviews the youth was made aware of the distress caused to the two people involved and he expressed his apologies.

“I am making the case he is very deeply involved in community service as it is already. A separate community service order is not necessary,” the defence barrister submitted.

Judge King noted the teenager had until this had lived a “blameless life” and never came to Garda attention before and that he wanted the case to be finalised. He said the court confirms it was satisfied of the guilt of accused in respect of both charge but he decided to order a conditional discharge.

The teenager was warned that this was on condition he does not re-offend in the next nine months.

Protesters condemning the prosecution waited outside the courthouse in Smithfield every day of the trial while messages of support online poured in from all round the world including people in Seattle, Berlin, Stockholm, Brussels, Edinburgh and other locations.

Meanwhile Anti-Austerity Alliance TD Paul Murphy and 17 other people are to face trial next year on various charges, including false imprisonment, in connection with the protest.

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