Republican Damian ‘Dee’ Fennell has been acquitted of encouraging terrorism and inviting support for a proscribed organisation during a speech in a Lurgan graveyard in 2015.
Mr Fennell was arrested after a speech at St Colman’s Cemetery on April 5 2015 at an Easter Commemoration organised by the Irish Republican Prisoner Welfare Association.
The event, recorded on video, was attended by approximately 70 people with video footage posted on YouTube and the IRPWA Facebook page.
Police obtained copies of the footage and the postings were later removed from both sites.
The defendant’s house was also searched and police recovered a handwritten page of the speech in the kitchen.
He was charged with encouraging terrorism, inviting support for a proscribed organisation and addressing a meeting for the purpose of encouraging support for a proscribed organisation.
However Mr Fennell, who replied ‘no comment’ during police interviews said in a statement through his solicitor that he was giving a personal opinion ‘as to why both armed struggle and the IRA exist’.
“At no stage did I encourage anyone to join any organisation; at no stage did I encourage anyone to engage in violence against anyone. While rightly publicly rebuking Sinn Féin for welcoming a commander in chief of the British Armed Forces to Ireland, I did not encourage violence in stating my legitimate anti-monarchist views in the course of my speech. I legitimately encouraged those gathered to become actively involved in republicanism as opposed to simply being supporters of republicanism. I used a historical quote in an analogist way to do so; I did not encourage anyone to join any armed organisation. In the course of republican/loyalist and state commemorations and re-enactments quotations are used legitimately. I believe my arrest is politically motivated and is a prime example of the PSNI being driven by the agenda put forward by unionist elected members representatives and loyalist paramilitaries.”
The defendant did not give evidence at trial.
Judge Geoffrey Miller QC, sitting without a jury today in Belfast Crown Court, acquitted Dee Fennell of all charges.
He referred to the right to freedom of expression which is enshrined in Article 10 of the European Convention of Human Rights (ECHR).
He said it was clear that any limitation placed on these rights must be both proportionate and necessary: “Any analysis of the defendant’s words must therefore be made within the context of the surrounding circumstances, the provisions of the terrorism legislation and his Convention rights as enshrined in Article 10”.
In relation to count one of encouraging Terrorism contrary to the Terrorism Act 2006 the judge said some aspects of the statute (passed after the London bombings in 2005) were left ‘somewhat opaque and lacking in clarity’.
Judge Miller said there could be no doubt that the statement was published when it was posted on social media but noted that the prosecution rejected any assertion that the defendant was responsible for the postings. The prosecution instead argued that the oral delivery of the speech amounted to “publication”. The prosecution also argued that this was a case of direct encouragement – an assertion that violence against the State is legitimate and an enjoinder to join the IRA. Section 1 of the 2000 Act is worded in a way that the offence can be committed either intentionally or recklessly. The prosecution acknowledged that it would need to show that the defendant was aware of the risk that an effect of the statement would be to encourage terrorism and in the circumstances known to him it was unreasonable for him to take that risk.
Judge Miller said he had “great difficulty” in reconciling the oral delivery of a speech with the statutory requirement that it be “published” and agreed with the reasoning set out by the defence that to do so would result in a breach of the defendant’s Article 10 rights to free speech. He acquitted the defendant.
Both the prosecution and defence accepted that counts two and three involve an interference with the Article 10 right to free speech.
Judge Miller said the speech was full of “hyperbole and rhetoric”, the content was “unashamedly partisan with florid and somewhat archaic references such as to “our martyred dead””.
The judge said many would regard what the defendant said as “deeply objectionable” and “grossly offensive”, particularly the oblique reference to the murder of Lord Mountbatten and members of his family.
However he noted that the relevant Act does not criminalise “expressions of views or opinions, no matter how offensive”.
Judge Miller said he could see no ground for not drawing inferences from the defendant’s refusal to give evidence.
Acquitting Mr Fennell of counts 2 and 3, he concluded: “However offensive the words used by the defendant might be in the ears of many right thinking members of society they were expressions of personal opinion, which did not invite or encourage support for the IRA.”