Arson, assault, violent disorder, criminal damage, endangerment and breach of the peace – these are among the possible charges, some carrying sentences up to life imprisonment, available to gardaí and the DPP when examining the conduct of those directly involved in the Dublin riots.
Pursuing the ringleaders of last week’s events may prove more difficult but the options open to prosecutors include bringing charges such as inciting hatred and conspiring to riot.
The jailing last June of three men for 15 years each after they were convicted of multiple offences, including assault and violent disorder, during a vigilante attack on men guarding a repossessed farmhouse in Co Roscommon underlines how judges are prepared to impose tough sentences for such behaviour.
That case was prosecuted on the legal principle of common design, which provides if two or more people embark on a plan together to commit crimes, each is criminally liable for anything done by the other.
Such prosecutions involve painstaking investigative work and take time, with more than four years elapsing between the incident at Strokestown in late 2018 and the 50-day trial this year. The prosecution evidence included eyewitness evidence, video footage recorded on a bodycam worn by a security guard on the night of the incident and material taken from devices of some of the accused.
A businessman who posted messages on Facebook about a company owner involved in the evictions, including a message saying the owner “should be hounded at every opportunity”, was separately found guilty in February 2019 of harassment and jailed for 3½ years. Earlier this year, he lost a High Court challenge to the legality of his detention.
Most of those charged to date in connection with the events in Dublin have been charged under section 6 of the Public Order Act 1994, a summary “breach of the peace” offence that carries a €500 fine and/or up to three months’ imprisonment.
Section 6 makes it an offence for any person in a public place to engage in “any threatening, abusive or insulting words of behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned”. Several of those charged under section 6 were remanded for possible further charges.
Tony Collier, a partner in Ferrys Solicitors and an experienced criminal law solicitor, says possible further charges could include violent disorder under the Public Order Act.
Under section 15 of that Act, violent disorder occurs when three or more people are present together in any place, public or private, and use, or threaten to use, unlawful violence in such a way as to cause a person “of reasonable firmness” to fear for their own or another’s safety.
A person convicted on indictment of violent disorder shall be liable to a fine and/or to imprisonment for up to 10 years.
Riot is another serious public order offence carrying a maximum sentence of 10 years. It requires, among other things, that at least 12 people together in one place use – or threaten to use – violence with a common purpose and that the accused used unlawful violence, making it harder to prove than violent disorder, Collier said.
The offence of endangerment under the Public Order Act may be applicable to some cases. It concerns those who intentionally or recklessly engage in conduct that creates a substantial risk of death or serious harm to another, with penalties on conviction ranging from a fine of up to €1,500 and/or imprisonment for up to seven years.
Offences of criminal damage to property and vehicles fall under the Criminal Damage Act 1991 and carry penalties ranging from up to 12 months’ imprisonment on summary conviction or a maximum 10 years on indictment.
A person convicted of arson can be sentenced for terms up to life imprisonment. In relation to arson of a vehicle in which individuals are present, charges including attempted murder are possible. The Act provides a person who damages any property with intent to defraud shall also be guilty of an offence.
Other options for prosecutors include charges of assault, assault causing harm and assault causing serious harm, under the Non-Fatal Offences Against the Person Act 1997 which carry penalties on conviction ranging from a fine of €1,500 and/or terms of imprisonment up to 10 years.
Under the Criminal Justice Miscellaneous Provisions Act 2022, which became law in early November, the maximum sentence for assaulting, or threatening to assault, a Garda or other emergency worker has been increased from seven to 12 years.
In relation to looting of shops, the charges available include burglary under the Criminal Justice (Theft and Fraud) Offences Act.
Charges may also arise from the ongoing Garda investigations into a small number of far-right agitators suspected of stoking the protests and riots through online posts on social media and messaging apps.
If Gardaí believe the content of the relevant material concerns an arrestable offence, they have to establish the identity of the individuals involved and prove the provenance of the material. That may require seeking search warrants to seize phones and other devices and court orders requiring the release of data from devices.
Collier believes the options for prosecuting alleged agitators are more limited and time consuming than those for prosecuting those allegedly directly involved in the riots.
The Prohibition on the Incitement to Hatred Act 1989, which made incitement to hatred a crime, is rarely used, he said. The Act prohibits certain forms of threatening, abusive or insulting conduct that are intended or likely to stir up hatred against a group of people on account of certain characteristics, including race, colour and ethnicity.
Lawyers have estimated the number of prosecutions under the Act at between 30 and 50. They believe the low number is due to perceived difficulties in proving a case.
Collier describes that Act as “a product of its time”, noting it imposed a high burden of proof on the prosecution and capped prison sentences at a maximum of two years.
The Minister for Justice intends to repeal the 1989 Act and replace it with the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill which introduces a wider range of prosecution options and new offences carrying higher penalties. If that Bill had been enacted before the riots, that would have increased the prosecution’s options, according to Collier.
Bringing charges of conspiracy to riot, or to cause a riot, is another option for dealing with the suspected agitators, he said.
The law on conspiracy was codified in the Criminal Justice Act 2007. To prove a conspiracy – an agreement to engage in an unlawful act – the prosecutor does not have to establish the accused were on the ground, and evidence against one alleged conspirator may be used as evidence against others to support a case of being part of an organised group.
Senior counsel Ronan Lupton, whose expertise includes the law on data protection and freedom of expression, endorses Collier’s view that bringing charges against some posters on social media alleged to have played a part in inciting the riots can be a complex process.
Lupton, who has acted as an adviser to the Government on issues connected to online content and online harms, said that if the identity of a poster is known, a prosecution for incitement is more straightforward.
If an anonymous poster on social media is suspected of incitement, the DPP can apply for court orders requiring the relevant social media platform to provide information such as an IP address aimed at identifying the poster, Lupton said.
Such applications are made in the High Court but the proposed new Defamation Act provides they can be made through the less expensive Circuit Court route.
While several politicians, including Taoiseach Leo Varadkar, have urged judges to be tough on those involved in the riots, judges do not have discretion to impose disproportionate sentencing.
Senior counsel Tony McGillicuddy, whose expertise includes criminal law, said: “Politicians can make general statements but judges have to decide cases on an individual bases in line with the law, well-established sentencing principles and guidelines from the superior courts.”
The principles of sentencing include to punish and to deter the individual offender and others from committing a similar offence in the future and rehabilitation, he said.
Sentencing has to be in accordance with the overall principle of proportionality, he added.
