Sunday 25 February 2018

Water charges protester takes High Court challenge against district court order

Tim Healy

A WATER charges objector claims his constitutional right to protest has been breached by a District Court order that he stay away from all Irish Water meter installers pending the hearing of public order charges against him.

James Kelly, described by his counsel as "a passionate water charge protester", was given leave by the High Court to challenge the imposition of a bail condition on him requiring that he did not engage in protests. The order also acts as a stay on any steps to apply the bail condition pending hearing of the High Court case.

Mr Kelly, Rockfield Green, Blackrock, Co Dublin, faces two charges under the Public Order Act of obstructing a garda and failing to obey the direction of a garda.

He appeared before Dun Laoghaire District Court  where Judge Anne Watkin refused to grant him bail unless he agreed to the non-protest condition. 

He agreed and was freed but later "thought better" and his lawyers re-applied to the same judge to vary the bail terms because he believed they interfered with his right to peaceful protest, his counsel Mícheál P O'Higgins told the High Court.

Mr Kelly has no objection to a more limited condition along the lines of that recently imposed by a High Court judge in relation to a number of other water charge protesters, some of whom ended up in prison for refusing to comply with that order.  

That order required protesters not to interfere with water meter installers GMC Sierra, who was working on behalf of Irish Water, and who claimed they were being subjected to harassment and intimidation.

Mr O'Higgins said Judge Watkin rejected a proposal earlier this month from Mr Kelly's lawyers that the condition should be varied to state he would not interfere with public access and egress without prejudice to his right to protest.

The State had also objected to such a variation and gardai said they would be applying to revoke Mr Kelly's bail claiming he had already been in breach of it. 

The issue was now more than one of "academic interest" because it appeared Mr Kelly is going to be arrested at some point for breach of bail, counsel said.

Asked by Mr Justice Seamus Noonan was there any significance to the fact that Mr Kelly had originally consented to the the bail condition, Mr O Higgins replied the view may be taken that he had acquiesced but it was their argument that the District Court judge did not enjoy the power to impose such a condition when it was in breach of a constitutional right.

Mr Justice Noonan granted counsel leave to bring a judicial review and also put a stay on any steps being taken to impose the bail condition pending hearing of the High Court proceedings.  The case returns to court in October.

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