The prosecution of a schoolboy accused of the false imprisonment of then Tánaiste Joan Burton is a “recipe for totalitarianism”, his barrister has argued.
On Tuesday, Judge John King adjourned the trial until October 21st to decide if he is going to throw out the case. The 17-year-old's legal team have contended that it is not in accordance with Irish or European human rights laws and that the State has not made out a case to answer.
The youth denies falsely imprisoning the former Labour Party leader and her advisor Karen O'Connell, who were allegedly trapped in two garda cars for three hours during a demonstration at the Fortunestown Road in Jobstown, Tallaght, on November 15th, 2014. He was aged 15 at the time.
The Dublin west TD had been at a graduation ceremony at An Cosan education centre when a water charges protest took place outside. She told the court earlier that she was frightened and did not think she had the alternative of being able to get out of Garda cars surrounded by people shouting abuse and banging on windows.
The State has closed its case and, on Tuesday, the boy’s legal team asked Judge John King to dismiss the charges. It was day four of the trial at the Dublin Children’s Court.
The boy's barrister Giollaoisa Ó Lideadha SC told Judge King the case is "unprecedented" and is a "recipe for totalitarianism. If the charge of false imprisonment is not dismissed, that would amount to a failure to vindicate the constitutional rights of the accused, failure to uphold the right to fair trial, failure to uphold the obligation on the authorities not to abuse their powers and not to act arbitrarily or in a manner inconsistent with basic fairness".
Counsel has also submitted that the prosecution has failed to prove their case beyond the necessary proof of reasonable doubt and they had used a too literal interpretation of the law on false imprisonment in a case where a person was detained for seconds in one instance and minutes in another.
He said his client makes no apology for the demonstration, but certainly did not want any personal trauma to be caused. Applying for a dismissal, he argued that the prosecution has not proved that a criminal case has been caused.
He said the teenager “was never told he was committing an offence or committing a public order offence or an offence of an entirely different magnitude, false imprisonment. My submission is that the decision to charge in relation to this matter in the first place was not in accordance with constitutional rights and the European convention on human rights”.
He said the case touches on the right to protest, freedom of expression and freedom of assembly. He said the teen had nothing to do with any of the unpleasant things that happened such as screaming and throwing objects while the slow march was taking place.
The prosecution case is that the former Tánaiste and her advisor were detained by the actions of the teenage defendant, in conjunction with the actions of others.
Replying to the points raised by the defence, prosecuting counsel Tony McGillicuddy BL said the video evidence showed the teenager had a megaphone and was encouraging people to sit down around the cars. He said there was evidence that the first garda car was blocked. At a Garda 4x4, the boy used the megaphone to encourage others to sit down and he sat down also, he said.
He argued that to call it an innocuous peaceful protest is wrong when you see the evidence from Joan Burton, her advisor, gardai and the footage shown in court.
Judge John King said the case will resume next month. He said he wanted to read the case law furnished by the defence and to review the evidence and the submissions in detail. He told the prosecution and defence teams that he will give a decision when the case resumes on October 21st.