A cement truck, emblazoned with the slogans ”Toxic Bank Anglo”, “1,000,000 on golf balls” and “500K for golf”, was driven into the gates of Leinster House on the morning of Wed 29th September. The driver, Joe McNamara, was arrested and has been charged with criminal damage in Dublin District Court. McNamara’s act was supported by a small group of people who gathered outside Pearse St Station where he was being held.
It was reported that in court today his solicitor focused on his entitlement under Article 40.6.1.° of the Constitution to express his opinion on what he believes to have been “his unfair treatment at the hands of the banks”. While this article (and indeed Article 10 of the ECHR) protects the right to political dissent and to communicate political satire or criticism, this is not likely to serve as a defence in court. Rather than conceiving of his act as a legitimate expression of opinion which justifies or excuses damage to property, it is probable that a defence based on lawful excuse will be raised. Essentially, this would require McNamara to characterize his behaviour as an act of civil disobedience which is lawfully excused.
Section 2(1) of the Criminal Damage Act 1991 makes it an offence to damage, without lawful excuse, any property belonging to another , either intending to damage or being reckless as to whether any such property would be damaged. Section 6(2)(c), as amended, provides that a person has lawful excuse if he damaged the property to protect himself or another or property, and if his act was reasonable in the circumstances as he believed them to be. Section 6(3) states that it is immaterial whether a belief is justified or not if it is honestly held. If McNamara relies on this statutory provision, he is using the defence of necessity; namely that he committed the offence because circumstances forced him to and that the decision to break the law was justified.
This defence is construed in a limited way, due to the fears of “the social anarchy that would prevail if people were allowed to take the law into their own hands” (People (DPP) v Kelly (Circuit Court, Ennis, 29 October 2004; 2 December 2004)).
There has been no Irish appellate level decision on lawful excuse for criminal damage. However, the Circuit Court decision in People (DPP) v Kelly is relevant. Mary Kelly had damaged US aircraft in a bid to ground them and thereby protect Iraqi citizens. The trial judge directed the jury that the defence did not apply because there was no proximate connection between Mary Kelly’s act and the people she was trying to protect. Similarly, it is unlikely that Joe McNamara can claim his action was an act of civil disobedience with a legitimate excuse. Moreover, while the necessity defence has been raised successfully in other jurisdictions for a variety of offences, such as escaping from prison to avoid rape and for possession charges and driving offences, the decision of the English Court of Appeal in Southwark London Borough Council v William precludes such a defence raised on economic grounds. Thus, McNamara seems likely to face conviction, though his distaste for the banks may be shared by fellow citizens.