The Court of Criminal Appeal has quashed Mary Kelly’s conviction for criminal damage to a United States naval aircraft at Shannon Airport, finding that the trial and verdict were not safe or satisfactory.
In a judgment delivered on 25 February 2011, the court treated Kelly’s application for leave to appeal as the appeal itself and allowed it. The decision rested on the trial judge’s handling of the statutory defence of lawful excuse. The court did not decide Kelly’s other arguments about excluded evidence or a separate statutory defence.
Kelly admitted damaging the aircraft on 29 January 2003. She had told gardaí she acted to prevent it going to Iraq and to prevent the killing of Iraqi civilians. The aircraft had landed at Shannon, County Clare, to refuel on a journey to Sicily as part of logistical preparations for proposed United States military actions.
The disputed issue was whether her actions could amount to lawful excuse under section 6 of the Criminal Damage Act 1991, as amended in 1997. The amendment replaced wording that expressly required an “immediate need of protection” with a test asking whether the act was reasonable in the circumstances as Kelly believed them to be. The appeal court said the amended provision made reasonableness subjective to her honestly held beliefs.
At her 2004 retrial in Ennis Circuit Criminal Court, Kelly represented herself. The trial judge repeatedly told the jury that the defence required a connection in time and space between the damage and the lives or property she said she was trying to protect. He told them there was no immediate nexus in the case.
The appeal court said the transcript suggested the judge had initially approached the case as though the original, unamended wording applied. It also found that the prosecution argued the amendment had not removed an implied requirement for immediacy, and that the complex legal issue was not explained to Kelly with sufficient clarity.
The court said the judge’s comments to the jury could have been understood as a binding direction of law or as an opinion on the facts. If they were an opinion on the facts, the jury should have been told that they were free to reach their own view and were not bound by it. The transcript did not show that this had been done.
The court therefore allowed the appeal and quashed the conviction. It made no ruling on the excluded evidence, the separate defence under the 1997 Act, or any defence based on what the judgment called the “Nuremburg principles”.