Protest obstructing Israeli Ambassador was ‘without lawful authority or reasonable excuse’

Stephen Bennett, 45, was convicted and given a suspended sentence in the District Court for preventing or interrupting the free passage of a person or vehicle in a public place.

Mr Bennett was participating in a protest outside the Israeli Embassy in Dublin, with others, in the aftermath of Israeli airstrikes on the Palestinian city of Gaza, in July 2014. The protest was “generally peaceful” and without any threat of violence.

A short sit-down protest occurred in which Bennett and another person lay on the road to obstruct the free passage of the Israeli Ambassador’s car (in which the Ambassador was travelling), and an accompanying unmarked Garda car.

Gardaí directed Bennett to desist from obstructing the public road under section 8 of the Public Order Act and outlined the consequences of breaching that instruction. The obstruction caused by the sit down protest lasted approximately 20 seconds because of the “quick intervention by gardaí rather than any decision” by Bennett to end it.

In the District Court, Bennett unsuccessfully argued that the prosecution had failed to prove he had obstructed traffic without lawful authority or reasonable excuse.

The District Judge took the view that there were issues of safety, security and sensitivity involved and that therefore the obstruction caused by Bennett was without lawful authority or reasonable excuse. She convicted Bennett, and his fellow protester, and gave him a five month suspended sentence.

In proceedings with the right to peacefully protest at its “core”, Bennett’s lawyers, lead by Giollaíosa Ó Lideadha SC, sought clarification from the High Court.

In a case stated, the High Court was asked whether “a sit down political protest - which obstructs the passage of a car for a period of about twenty seconds, in circumstances where there were no threats of violence, overt or otherwise, towards the occupants of the car - is capable of lawful authority or excuse”.

The High Court had answered the question in the negative stating that: “There may well be occasions, where a peaceful protest causes obstruction in a public place, and a trial judge … decides that the prosecution has not rebutted the defence of reasonable excuse”. However, “this prosecution and this conviction is not one of them”.

Dismissing an appeal against the High Court ruling yesterday, Mr Justice Alan Mahon said the District Judge’s concerns were not simply confined to “sensitivity”. There were issues relating to safety, security, prevention of access by the Ambassador to the Embassy, the provocation of others to commit unlawful acts and Bennett’s failure to voluntarily desist thus requiring forceful removal.

Mr Justice Mahon said there was good reason to be concerned that a protest which prevents, blocks or otherwise obstructs the free passage of an Ambassador, in respect of whom there is an “obvious security risk”, and no matter how well intentioned the protesters might be, “might lead to a situation where lives could be endangered”.

He said there may well be, and there undoubtedly are, circumstances where the wilful prevention or interruption of free passage in a public place can be undertaken with lawful authority or reasonable excuse.

However, on the facts of this case, “such circumstances certainly did not arise on this occasion”.

He said the High Court judge applied the facts as found in the case stated. The High Court judge had answered the question in the context it was asked. In other words, he had considered the question by reference to the facts of the case, Mr Justice Mahon said.

He said it would be impossible to answer the question posed without reference to the particular facts, either real or imagined. It was certainly not possible to answer the question in some general way.

It was noteworthy that, while the sit-down protest could not be said to be violent in the ordinary use of that term, it did involve some, albeit limited, physical resistance by Bennett’s challenge to the effort to physically remove him by holding on to the leg of another protester.

Mr Justice Mahon said he would dismiss the appeal. Mr Justice George Birmingham and Mr Justice John Edwards said they agreed with their colleague’s judgment.

The High Court had found that the District Judge applied the correct legal principles to the facts presented to her, namely that she was entitled to determine that the sit down protest, as it occurred, amounted to a prevention or interruption of the Israeli Ambassador and his driver in a public place without lawful authority or reasonable excuse.

Section 9 of the Public Order Act states: “any person who, without lawful authority or reasonable excuse, wilfully prevents or interrupts the free passage of any person or vehicle in any public place shall be liable on summary conviction to a fine not exceeding €200.”

Ruaidhrí Giblin, Ireland International News Agency Ltd.