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Cite as: [2011] IECCA 25

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Judgment Title: DPP v Mary Kelly

Neutral Citation: [2011] IECCA 25

Court of Criminal Appeal Record Number: 245/04

Date of Delivery: 02/25/2011

Court: Court of Criminal Appeal

Composition of Court: Hardiman J., deValera J., Peart J.

Judgment by: Hardiman J.

Status of Judgment: Approved

Judgments by
Hardiman J.
Quash conviction, no re-trial

Outcome: Quash conviction, no re-trial


Hardiman J. 245/2004
de Valera J.
Peart J.

Between :




JUDGMENT of the Court delivered this 25th day of February, 2011.
This is an unusual case both in terms of its own facts and in terms of the difficulties which arose in the trial.

The facts can briefly be stated. On the 29th January, 2003, about two months before the United States’ invasion of Iraq, the applicant, Mary Kelly, forcibly entered upon an area of Shannon Airport, County Clare, where there was a United States Naval aircraft. She caused considerable and expensive damage to the aircraft. It had landed at Shannon for the purpose of refuelling on its journey to Sicily in connection with logistical preparations for proposed United States military actions.

A considerable number of potential issues at the trial arising from the above facts were removed by what the applicant said to the gardai immediately after she was apprehended on the day on which the events took place. She said:
          “I am here to damage the plane, to prevent it from going to Iraq to prevent the killing of innocent Iraqi people”.

She never resiled from that position.

It follows from the foregoing that the basic facts of this case are not in dispute. What was in dispute both at the trial of the applicant and on the hearing of this appeal was the more technical question of whether she was entitled to avail of a statutory defence of “lawful excuse”. This will be set out in some detail below.

History of the prosecution.
Arising from the incident described above, the applicant was charged with two offences. These were as follows:
(1) An offence of trespass.
(2) An offence of causing criminal damage without lawful excuse, contrary to s.2(1) of the Criminal Damage Act, 1991. This is the offence which is the subject of the present judgment.

The applicant was first tried in Kilrush Circuit Criminal Court in July, 2003. On that occasion, she was convicted of the offence of trespass for which she received a one year suspended sentence. The jury failed to agree on a verdict in respect of the criminal damage charge and a retrial was directed.

The second trial took place at Ennis Circuit Criminal Court on the 28th October, 2004. There, the applicant was convicted of the offence of criminal damage and she received a sentence of two years imprisonment which was suspended for a period of four years. She represented herself at this trial, by choice. When, after conviction, the matter was remanded to the 1st December, 2004, for sentencing, the applicant was represented by a solicitor, instructing Senior and Junior counsel on her behalf.

The applicant now applies for leave to appeal against that conviction. In the circumstances, and for reasons which will appear later in this judgment, it seems possible to deal with the application on the basis of grounds two and four of the grounds of appeal filed with the applicant’s notice of application for leave to appeal, dated 3rd June, 2005. These are:
“(1) -
(2) The learned trial judge misdirected the jury on the issue of the defence of justification [sic] and on the ingredients of the offence and in the indictment [sic].

(3) -
(4) In all of the circumstances taken together the trial was unsatisfactory particularly where the applicant was appearing in person without the benefit of counsel and thereby the trial was in breach of Article 38.1 of the Constitution.

(5) - ”

When the statutory provisions are examined, it will become clear that the “defence of justification” referred to at para.2 above should properly be a reference to the defence of “lawful excuse”.

The Offence of Criminal Damage.
Section 2 of the Criminal Damage Act, 1991 provides as follows:
      “2(1) A person who, without lawful excuse, damages any property belonging to another intending to damage any such property or being reckless as to whether such property would be damaged, shall be guilty of an offence”. (Emphasis added)

The words “without lawful excuse” which are at the centre of the present appeal, were further addressed in s.6 of the Act. Section 6(2) provides as follows;
      “6(2) A person charged with an offence to which this Section applies shall, whether or not he would be treated for the purpose of this Act as having lawful excuse apart from this subsection, be treated for those purposes as having lawful excuse:
      (a) [irrelevant]

      (b) [irrelevant]

      (c) If he damaged… the property in question… in order to protect himself or another or property belonging to himself or another… and, at the time of the act or acts alleged to constitute the offence he believed -

      (i) that he or that other … was in immediate need of protection and

      (ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

      6(3) For the purposes of this Section it is immaterial whether a belief is justified or not if it is honestly held.”

The foregoing sets out the relevant Section dealing the defence of lawful excuse as it was when originally passed in 1991. The Section is set out in the briefest possible form and with material which is not directly relevant to this trial deleted.

Nevertheless, like other statutes passed with the intention of reforming the criminal law in the 1990s, it is a difficult Section to construe and apply. Without crystal clear guidance from a judge it must be considerably more difficult for a jury to consider and apply.

Most unfortunately, as will be seen, considerable difficulty and confusion arose at the applicant’s second trial in the explanation of the law to the defendant and the jury. This must be set out in some detail for the purpose of this judgment.

Points not immediately relevant.
In addition to the legal difficulties which arose at the trial, and which are about to be discussed, there were a number of serious issues arising as to the admissibility of evidence sought to be called by the defence as well as another statutory issue. These will be considered, to the extent necessary, after the issues already indicated have been dealt with because, if the applicant is successful on these legal issues, the other issues will not arise.

The amendment of the Statute.
The Criminal Damage Act, 1991, s.6, was amended by the provisions of the Non-Fatal Offences against the Person Act, 1997. This amendment occurred prior to the acts of damage to the American airplane which the applicant admitted and therefore prior to either trial. Accordingly, it is s.6 as amended, and not s.6 in the original form, which is relevant to the trial.

The amendment was effected by s.21 of the Act of 1997 which provides as follows:
      “21 - Section 6(2) of the Criminal Damage Act, 1991, is hereby amended by the substitution for paragraph (c) of the following paragraph:

      ‘(c) If he damaged… the property in question… in order to protect himself or another or property belonging to himself or another… and the act or acts alleged to constitute the offence were reasonable in the circumstances as he believed them to be’ ”. (Emphasis added)

It will be seen that s.6 of the Act of 1991 provided a defence to a person who damaged property in order to protect himself or another or other property belonging to himself or another, but on certain conditions. Under the 1991 Act the conditions for the availability of that defence were:
      “(1) That the defendant believed that the person or property being protected “was in immediate need of protection” and
      (2) That the means of protection adopted (here, the damaging of the military aircraft) “were reasonable in all the circumstances”.

The 1997 Act substituted a new text for paragraph (c) in the original Section 6. The effect of this was to alter the conditions on which the defence was available to mean that the act or acts alleged to constitute the offence had to be reasonable in the circumstances as [the defendant] believed them to be.

There are a number of relevant observations that may be made about the Section, and the Section as amended. Firstly, both require the acts which are the subject of the defence to be “reasonable”. The Section as amended makes it clear that this “reasonableness” is to be assessed in the circumstances, not as they actually were, but as the defendant believed them to be. This is a highly subjective defence. In the original s.6 there was a further condition that the person or property being protected was “in immediate need of protection”. This condition is of an objective nature. Its effect is that one cannot commit an act of malicious to someone else’s property in the name of protecting oneself or a third party unless the person to be protected actually needs protection, and that this need for protection is immediate. In other words, under the original s.6, the defence required this element of immediacy. The relevance of this provision to a case where an act of damage is committed in Ireland with a view to protecting third parties described as “innocent Iraqi people”, in Iraq, from a future attack, is obvious.

The submissions of the applicant (1).
The applicant pointed out that, at the second trial, she gave evidence in her own defence as to what her motivation was. But the learned trial judge ruled that she could not call certain expert evidence which she sought to adduce as to the capacity of her action to disrupt the United States war effort in such a way as could or might save a life or lives of those “innocent Iraqi people”.

As noted above, this is an aspect of the case which will, if necessary, be considered later. It is mentioned here only insofar as it provides necessary context for the understanding of her principal legal submissions.
The evidence which was excluded would have been directed at the reasonableness of her action as means to achieve her intended end, given the provisions of s.6(2) of the Act, as opposed to the reasonableness of her belief, since the latter is “immaterial” by reason of the provisions of s.6(3), cited above, provided only that the belief is “honestly held”. There appears to have been no dispute as to the genuiness or sincerity of the applicant’s belief although she did seek to call evidence from a Dr. Ray Murphy, a lecturer in law in UCG and she stated that his evidence would have been relevant to her state of mind at the time she took this action. Dr. Murphy’s evidence was disallowed. It may be observed that, in general, an issue of law is not to be the subject of evidence but of legal argument and of authoritative guidance by the trial judge.

In any event, the learned trial judge ruled such evidence to be irrelevant and directed the jury to the effect that the defence of lawful excuse was not available to the appellant since he considered that there had to be a connection both in time and in space between the action undertaken and the end sought to be achieved.

Applicant’s submissions (II).
In due course, some statements of the learned trial judge both in rulings and in his charge to the jury will be considered. On the hearing of this appeal, essentially, the appellant submitted that the learned trial judge prevented her from raising the defence of lawful excuse which was open to her under the Section and further misdirected the jury in this regard in such a way as to amount to giving them a direction to convict.

Onus of proof.
Sections 2 and 6 of the Criminal Damage Act, 1991, defined the elements of the offence and separately defined what the legislators intended to be embraced by the phrase “lawful excuse”. It is these Sections that determine what the prosecution must satisfy the jury of in order to discharge the onus of proof that is at all times upon the prosecution.

It is trite law to state that the defendant at trial is not under any onus to prove anything. It is for the prosecution to prove beyond reasonable doubt that the offence was committed. Further, in the particular circumstances of this offence, where the applicant put forward material that she says constitutes a “lawful excuse”, it is for the prosecution to satisfy the jury, beyond reasonable doubt, that this excuse advanced by the applicant was not a “lawful excuse” for the purposes of the Section. In other words, the prosecution must negative the defence.

To put this another way, the prosecution was obliged to remove any reasonable doubt which the jury may have had that the action of the appellant was “reasonable” in the circumstances as honestly believed by the appellant. It was therefore necessary for the prosecution to prove beyond reasonable doubt that the action taken was not “reasonable” in the circumstances as honestly believed by the defendant.

In her written submissions lodged for the purpose of this case the applicant has said:
          “In other words, the defence is available regardless of the legality or otherwise of the threat which the defendant is trying to avert. The only thing I must prove is that my act could have averted the threat.”

The applicant developed this submission by saying that she was prevented from doing that by the refusal of the learned trial judge to allow her to call her evidence.

Of more immediate relevance, she complains that the judge informed the jury during his charge, that the defence of lawful excuse was not available to the appellant because:
          “There has to be a connection between what she did and what she was trying to prevent in time and space and it appears to me that there isn’t in this case.”

This statement appears to mean that the judge considered that the applicant’s excuse for her actions did not meet the statutory requirements because Shannon Airport was too far away from the people whose life or lives she was trying to protect so that there was no immediacy of time in the danger which she was seeking to remove. The phrase “connection in time and space” associated with “immediacy” is often repeated.

Earlier, on Day 4 of the trial, and in argument as opposed to in his charge to the jury, the learned trial judge had said:
          “As regards the interpretation of this particular statutory provision, that doesn’t apply. There has to be some connection in time and space. It cannot cover a situation thousands of miles away and at some future point in time.” (Day 4, pp 26 - 27)

The applicant submits that this statement is wrong in law and she points out, very centrally, that Section 6(2) of the Act, in its amended form, is silent as regards time and space and “immediate” need. She contrasts this with the fact in its original form the Section did refer to “immediacy [… was in immediate need of protection”].

The course of the trial.
This Court has to approach the trial on the basis of the transcript which is before us. It has very often been remarked, notably in
Hay v. O’Grady [1992] 1 IR 210 that it is difficult for the “arid pages of a transcript to give an entirely accurate impression of what took place at the trial. Nevertheless it has to be said that in this case the transcript conveys an impression of considerable confusion at the trial on a very important legal point. This turns on the question of “immediacy”. Does an “immediate” “need” for protection have to be invoked notwithstanding the amendment of the Act, before the defence is triggered at all? Is this a question of law (for the judge) or a question of fact (for the jury)?

Most regrettably it has to be said that the transcript creates the impression that for some days of the trial the learned trial judge had not fully appreciated the effect of the fact that the Act of 1991 had been amended in the manner already set out, which of course removed the express mention of an “immediate” need for protection.

In fairness to the learned trial judge, it must be said that the Indictment merely laid the relevant count as follows:
      “Statement of Offence.
      Criminal damage contrary to s.2(1) of the Criminal Damage Act 1991”.
There is no mention of the Amending Act, the Non-Fatal Offences Against the Person Act, 1997.

Discussion of the Amendment.
During the course of the trial the applicant gave evidence in what can only be described as a highly discursive manner, and in language which is not altogether clear. Factual evidence and legal submissions are all mixed together, the applicant saying that she wanted to give evidence and to call certain witnesses to show the jury the reasonableness of the action which she took when she damaged the aircraft and that “this would help stem justification for the action I took” (sic). She gave a lengthy narrative account of her life story leading up to her decision to take action against the aircraft and said:
          “… so I decided I had to stop these planes landing there [i.e. Shannon] that I had to try and stop these planes, that I had to do something to protect life, the life of the Iraqi people, and to prevent crimes that I knew those warplanes were involved in”. [Day 3, p.45]

Continuing, she said that she had asked a friend to buy an axe with which she intended to damage the aircraft “to protect life and prevent crime”.

In cross-examination, the question of the destination of the aircraft being Sicily and not Iraq, and the fact that there had been evidence that the aircraft was travelling for logistical purposes (i.e. carrying spare parts to Sicily) and that it had no offensive capability. The applicant maintained that nevertheless the aircraft was part of the military build up for an invasion of Iraq, and that it was for this reason that she damaged it, in order to protect the lives of people in Iraq and to prevent what she saw as a crime. She said that her witnesses “will be helping build the facts of my case and demonstrate the reasonableness of my action”.

The applicant then called a Commandant Horgan who discussed the definition of “military logistics”. The judge considered that his evidence was “not very relevant” to the charge against the applicant and that he would not allow it. The applicant then called a Mr. Denis Haliday who gave evidence about “international law”, and said he had a certain expertise to support the case that the applicant was making in her defence of lawful excuse. He then started speaking about Nazi Germany and the judge held his evidence was not admissible. In discussion as to the reasons for this ruling the learned trial judge said:
          “It is not a defence to an offence to criminal damage because of perceived infringement of international law elsewhere. It is a matter of lawful excuse if you damage property in the defence of life, limb or other property… in immediate danger”. [Day 3, p.88 - Emphasis added]
The following day the applicant complained that she was not receiving a fair trial and was not being allowed any latitude in relation to her witnesses’ evidence.

On the next day again, the learned trial judge explained his reasons for excluding the evidence once more by saying:
          “… I am going to spell it out again. The argument you are making that you damaged this plane, you say, in order to prevent lives being lost in Iraq and to protest against crimes against humanity and peace and in protest against the use of by the U.S.A. of Shannon is not a lawful excuse and cannot be run as a defence. Now I can’t make it any plainer and you can’t call witnesses on these points or to that effect, do you understand that?” (Day 5, p. 2-3)

In further argument, the learned trial judge said:
          “The particular statute that we are concerned here is the Criminal Damage Act of 1991. That is the law and that particular provision says that ‘a person who without lawful excuse damages any property belonging to another intending to damage such property or being reckless as to whether such property would be damaged shall be guilty of an offence’. That is the charge which you have to address and which you are accused of. As regards whether you have a defence to the matter, you can only damage property, other property, if there is an immediate threat to your person or to your property. The important word here is ‘immediate threat’. It is not the threat that you might perceive might happen miles away or at a future point in time. That the law”. (Day 5, p.6: emphasis added)

The judge had earlier said:
          “Lawful excuse is to damage property in defence of your person or another person or in defence of your property but the threat to the person, your person, another person or to that property must be immediate…”. (Day 4, p.13, emphasis added).

On the same day, he said that the defence did not cover damaging property “in the belief that you are defending something many miles away, a considerable distance away, and also somewhere in the future. It has to be immediate, that’s the basis on which it is not relevant”.

In response to these repeated statements of the requirement for immediacy the applicant opened the Criminal Damage Act, 1991 and the Amendment in the Non-Fatal Offences against the Person Act, 1997. Having heard these provisions the learned trial judge said, addressing counsel for the prosecution:
          “… she is saying now that s.21 of the 1997 Act amends the 1991 Act to allow her to damage the plane if she thought it was reasonable and she had that honest belief whether or not it was justified”. (Emphasis added)

Later, in addressing the applicant the learned trial judge said:
          “Ms. Kelly, the provisions in this statute as you read them and as now agreed is that the law does not give lawful excuse to someone’s belief that they are defending lives or property thousands of miles away and at some distant point in the future…. We agreed what the text is”. (Emphasis added)
From these statements, and from the run in the case in general and in particular the repeated emphasis on immediacy, it would appear that the trial judge had been thinking, for the first several days of the trial, to the un-amended section of the Criminal Damage Act, 1991. That is what he appears to have quoted as late as day 5.

Charge to the jury.
The charge to the jury also proceeded a little chaotically, in part because Ms. Kelly, who was conducting her own defence, made some of the requisitions well after the usual time for doing so and while the jury had already been deliberating, the other side and the judge being of the opinion that the requisitions had finished. But a number of things emerged quite clearly. One is that the jury were correctly told that the issue in the case was that of “lawful excuse” (see Day 6, pp 50-51) and about lawful excuse the judge said:
          “But for this to operate as a defence, members of the jury, that’s what I have just said, there has to been a situation where the act done has sufficient connection with the intended avoidance and that it can be considered to have been an act done to prevent property or life. There has to be some connection in time and space between the life or property being threatened and the property being damaged. That cannot be said to be the case as regards an act, lives or property being protected which were - taking Ms. Kelly’s evidence at its face value, thousands of miles away and some time in the future there has to be some immediate nexus or connection between the two. That doesn’t exist in this case”. (Day 6, pages 57ff - Emphasis added)
Ms. Kelly objected strongly to the language of “connection in time and space”, and pointed out that the imminency referred to by the prosecution appear to be a matter of time alone. She continued:
          “Space was never a consideration here. It has been introduced by you solely [i.e. the learned trial judge] and you further said that I cannot take pre-emptive action as on my own evidence the immediate nexus does not exist. That is a wholly unfair reconstruction of the case to present to the jury and pre-empts their decision on the fact by effectively denying the legitimacy of my defence on no good grounds”.

The jury were brought back on a couple of occasions to have a little more said to them, but its relevant content did not change. After Ms. Kelly’s objection the judge referred to:
          “… the second caveat is that there has to be a connection between what she did and what she calls the evils she was trying to avoid. There must be some connection in time and space between that”.

The learned trial judge next asked the foreman of the jury if it would help them to have a copy of s.6 of the 1991 Act and the foreman stated that it would. The judge there upon again stated:
          “The subjective test as to what she had in her mind, whether you believe that or not is an objective test and added to that there must be a connection between what she did and the life she said she was trying to protect. There must be some connection in time and space between that…”. (Day 6, pp 73-74)

The jury then went out but there was further discussion between Ms. Kelly and the learned trial judge as a result of which the trial judge went through the statutory provisions again. He then added:
          “… secondly, and this is subject to what I said to you before, that there has to be a connection - put it this way, this is a defence which Ms. Kelly is raising but there has to be a connection between what she did and what she says she was trying to prevent, in time and space and it appears to me that there isn’t in this case. So if you have any queries about any of this then, members of the jury, please come back”. (Emphasis added)

Limitations of a transcript.

The Court wishes to repeat what it has already said that the impression of a trial gained from a transcript may be a very misleading one. But it is the only objective record available to go on.

Safe and satisfactory?
This Court’s role on the hearing of an appeal such as the present one is to see whether it can be said that the conviction is both safe and satisfactory. Based on the transcript, it seems difficult to regard the trial as satisfactory. This is for reasons both positive and negative which (still focussing on the points to do with the 1991 statute as amended) might be summarised as follows:
(1) The learned trial judge does not seem to have been made aware until well into the trial that the 1991 Act had been amended so as to remove the express mention of “immediate need of protection”, as a trigger of the defence of lawful excuse. This seems clear from the learned trial judge’s references “immediate” and to “now” at vital stages of the transcript, quoted above. After the self represented applicant had, as part of the defence case, opened the 1991 Act and the amending provision the learned trial judge turned to the prosecution for a reply to the point which the defendant was “now making”.
The phrase, quoted above, was:
          “She is saying now that s.21 of the 1997 Act amends the 1991 Act…”.
He also said:
          “Well, the word ‘immediacy’ (recte ‘immediate’) is in the original Act and it seems to be omitted from the amended text”.

With all respect to the learned trial judge, and indeed to the prosecution, the transcript suggests that the applicant was at all times aware that the statutory provision had been amended: but the first quotation above in particular seems to suggest that this came as new information to the learned trial judge.
It should of course be noted that it is the responsibility of the prosecution, who are able to decide on the precise charge to be brought and to know what it is well in advance, to keep the learned trial judge abreast of the statutory foundation and any amendments thereto. The trial judge comes fresh to the case, often without notice and perhaps after another case has just finished and will not normally have an opportunity to study the statutory provisions in advance.

(2) The prosecution’s reaction to the applicant relying on the amendment was to argue that, notwithstanding the deletion of the phrase about “immediate need”, there must be a requirement for immediacy even if not expressly mentioned in the amending provision. By way of reply, Ms. Kelly relied on the statutes, which she opened again and the judge asked the prosecution for further submissions. The prosecution replied that counsel believed that the judge had already ruled on the matter. This was a rather unfortunate submission because whereas the learned trial judge had indeed made several remarks to the effect that immediacy or a “connection in time and space” was required, he had apparently done so before becoming aware of the amendment to the statute. Counsel repeated his argument that the immediacy requirement remained, and that “it had to”. The judge asked why that was so and counsel repeated that there must be:
          “A connection in time and space as between the act and the person to be protected or the thing to be protected, that’s what gives rise to the immediacy”.

      Counsel went on;
          “It’s very difficult to get the point across to Ms. Kelly but the first person to be protected under the Section is oneself. Clearly that has to deal with acts of self defence where some instrument or some weapon is being used against a person. Now that has to imply immediacy”. (Day 4, p.26: emphasis added)

(3) It thus appears that the prosecution submission on this point came down to this: that there remained an implied, though no longer an express, requirement of immediacy in the need for protection.
      In answer to a further question from the trial judge, prosecuting counsel confirmed that he was saying that the omission of the word “immediate” in the amended statute “didn’t make any difference”. The argument appears to have ended with the statement, which is unfortunately imprecise in its wording:
          “I am bound by the statutory provision of s.6 as amended of The Criminal Justice Act (sic) of 1991 and I hold that the evidence about the war in Iraq and the use by U.S. military of the airport at Shannon are not matters which would constitute a lawful excuse and are therefore not relevant”.
It would appear obvious that the learned trial judge intended to refer to s.6 of the Criminal Damage Act, 1991 instead of the words actually used. This error, simply a normal error in speech, was particularly unfortunate due to the confusion which had arisen as to what precisely the statutory provision was and what it meant.

(4) It will clearly be seen from the foregoing that the prosecution case was that the amending statute simply “didn’t make any difference”; the law, according to the prosecution, was exactly the same after the amendment as before it. This appears to involve the proposition that, in enacting the amending provision of 1997, the legislature had acted in vain. But there is a canon of construction presuming that the legislature does not act in vain, and for good reason. (See Bennion Statutory Interpretation sub. tit. “Parliament does nothing in vain, doctrine that”.)
      It is of course the role of a judge at a criminal trial to explain the relevant law to the jury. See, generally, Coonan and Foley The Judges’ charge in Criminal Trials, (Thomson Round Hall, Dublin 2008), paragraph 3 - 41. Very often this will create no difficulty but it obviously gave rise to considerable difficulty here. An issue of very considerable legal difficulty and subtlety had arisen at the point when the prosecution eventually came to putting their case on the basis that, notwithstanding the removal of the words “immediate need of protection” and their substitution by others which made no express mention of “immediate” or “immediacy”, the law was in fact unchanged and that the requirement for an element of immediacy continued to exist by implication. The difficulties inherent in that argument included, to mention only the most obvious:
      (i) It assumed that the substitution of other words in 1997 had no effect whatever so that the law remained, after the amendment, in exactly the same state as it did beforehand.

      (ii) A vital aspect of the defence - the availability of the defence of lawful excuse upon which the applicant had relied from the beginning (as her statement to the guards shows) was, in the end, said not to be constituted by the statute mentioned in the Indictment, but by an implication from it which is not at all obvious to a lay person or (speaking for myself) to a lawyer either.

      (iii) There must also be considered the high constitutional value, affirmed in many cases over the years, that the criminal law should be clear and precise so that a citizen may know, without having to qualify as a lawyer, what is within the law and what is prohibited. This principle was recently reaffirmed in the Supreme Court in DPP v. Cagney and McGrath [2007] IESC 46 and the cases mentioned there, including A.G. v. Cunningham [1932] IR 28 and
      King v. Attorney General [1981] IR 223. In the first of these cases O’Byrne J. referred to:
          “The fundamental doctrine recognised in these courts that the criminal law must be certain and specific…”.

      In the second case, Kenny J. stated:
          “It is a fundamental feature of our system of government by law (and not by decree or diktat) that citizens may be convicted only of offences… which, created by statute, are expressed without ambiguity… in my opinion both governing phrases (in s.4 of the Vagrancy Act 1824)… are so uncertain that they cannot form the foundation for a criminal offence”. (Emphasis added)

Ms. Kelly was a lay litigant. On other occasions, when she wished, she was represented by solicitor and counsel but she has an absolute entitlement to represent herself if she wished. The wisdom of that course is not a matter for the Court. But when she decided to represent herself, she had absolutely no notice of what the prosecution case turned out to be: that the amending statute meant absolutely nothing, made no difference at all and that there was an implied requirement for immediacy in the need for protection before the defence of lawful excuse was triggered. This argument by the prosecution apparently developed only after, several days into the hearing, it appears to have been first realised (by anyone other than Ms. Kelly) that the 1991 Act had been amended, and what the implications of that were.

The prosecution argument, that the amending statute made no difference at all, raises serious legal issues as to whether it was correct to presume that the Oireachtas had acted in vain, as was implicit in the prosecution case. The Court cannot see on the transcript that this complicated and far reaching legal issue was in anyway explained to Ms. Kelly with sufficient clarity. It does appear obvious from the later remarks of the learned trial judge, quoted above, that he substantially accepted the prosecution case that there was need for a nexus in time and space between the act to be protected against and the act of damage committed.

The judge then informed the jury, on at least two occasions, that there was no “immediate nexus” or connection between the two. These references are quoted above.
This observation, in itself, was either a direction in law, which the jury were bound to accept, or was an observation on the facts. In the latter case the expression of opinion by the judge which, if accepted, would in practice make conviction inevitable, should properly have been accompanied by a statement to the effect that this was a matter of fact, that the jury must form their own view on it, that the judge’s view was not binding and should be accepted by the jury only if they agreed with it. None of this was done and it does not appear from the transcript that the prosecution or the learned trial judge directed their minds whether this issue, or the topic of “lawful excuse” in general was a matter of fact or a matter of law, or a mixed question.

In those circumstances, and without going beyond this first point, the Court cannot find that the trial and the verdict was safe or satisfactory. We will therefore treat the application for leave to appeal as the hearing of the appeal, allow the appeal and quash the conviction.

It will be observed that in deciding the case on this, the narrowest of the points urged, the Court has not found it necessary to reach a conclusion on the various questions raised as to the propriety of the exclusion of certain evidence or on the availability of another statutory defence based on s.18 of the Non-Fatal Offences against the Person Act, 1997. Nor has the Court considered the availability or otherwise of any defence under what was referred to as the “Nuremburg principles”. It behoves the Court to express its judgment on the basis of the narrowest issue capable of resolving the case and we do so here.

We would only add what must in any event be obvious: that the statutory provisions affecting this case are, quite apart from the misfortunes which afflicted this particular trial, in a state of some confusion and perhaps ambiguity and might with advantage be looked at again by the proper authorities. It is important that a case of this sort should be resolved, as it is the defendant’s constitutional right, by a trial before a jury. There is therefore a particular imperative on the draftsman to produce a statutory provision which is capable of being readily understood by an ordinary person. And writing for a general audience, it will be found, produces better draftmanship.

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