The jury in the case of six men accused of falsely imprisoning former Labour tánaiste Joan Burton and her adviser has been sent home for the night after considering its verdict for about an hour on Monday.

The 11 members - seven men and four women - will resume deliberations on Tuesday afternoon in the case, which is in its ninth week.

Judge Melanie Greally had earlier urged the jury to be “fearless” when considering the evidence in the trial, the charges in which arise from an anti-water charges protest in Jobstown, Tallaght in November 2014.

She said the constitutional right to protest cannot be exercised at the expense of a person’s right to personal liberty.

Judge Greally said the jury members could not be “deaf and blind” to the political aspects of the case or ignore the water charges aspect of the evidence.

The judge told the jury in the trial that they must set aside any views they have about the prosecution witnesses in the case and whether they approve or disapprove of them.

The accused have all pleaded not guilty to the false imprisonment of Ms Burton and Karen O’Connell, by restricting their personal liberty without their consent, on November 15th, 2014, at Fortunestown Road, Jobstown, Dublin during a protest over water charges.

The accused are: Solidarity TD Paul Murphy, of Kingswood Heights, Tallaght; Solidarity councillors Kieran Mahon, Bolbrook Grove, Tallaght and Michael Murphy, Whitechurch Way, Ballyboden; Scott Masterson, Carrigmore Drive, Tallaght; Frank Donaghy, of Alpine Rise, Belgard Heights, Tallaght; and Michael Banks, Brookview Green, Tallaght.

Peaceful protest

The judge told the jury in the Dublin Circuit Criminal Court that the right to peaceful protest is recognised in Irish and European law but only peaceful protest that is protected.

She said the use of violence by a small number of persons should not automatically lead to the loss of rights of those not engaging in violence. Protest can be annoying and can even temporarily impede the activities of third parties, she told the court.

The law says it is an offence if someone intentionally causes the restriction of a person’s personal liberty without their consent. There is no requirement that violence be involved, she continued.

The judge said the issue of consent is not one that the jury has to be concerned with in this case.

The restraint must be total and not partial and in the case before the jury there were two potential means of escape to be considered.

She asked if the women could have gotten out of the car and vehicle which were surrounded by water charges protesters on the day in question, or could the vehicle have reversed out of the situation as suggested at one stage by the Garda Air Support team.

A means of escape must be a reasonable one, meaning it does not involve a threat of danger. If a vehicle is moving, albeit slowly, it does not offer a defence if the women were not able to leave the Fortunestown Road, the judge said.

She said it was not usual for the penalties that apply to an offence to be outlined before a jury but in this case the offence carries a penalty of up to life imprisonment. The “cat is out of the bag” in relation to that fact, so she was addressing the jury on the matter.

There was a range of sentencing options available to the judge if there was a conviction, including non-custodial options, and the matter was solely one for her.

The jury, Judge Greally said, should “banish the consequences of their decision when applying” their minds to their assessment of the case.

Likewise it was not the jury’s role to consider whether different charges should have been brought, or whether others who were on Fortunestown Road on the day in question, had been charged or not.

Politically motivated

The judge said the jury must also assess claims that the case is a “politically motivated” one and that it is more an effort of the “political establishment to assert itself” in the face of the successful movement against water charges.

She said the jury must consider inconsistencies between statements made by Garda witnesses and the video evidence and decide if it was calculated to cast Paul Murphy in the worst possible light.

She asked if this was “the establishment” coming down on Paul Murphy for political reasons and if the TD was being prosecuted for who he is rather than what he did.

Judge Greally said the case is “not about curtailing the right to protest,” which is a right that already has defined limits. “Your verdict is not about sending a message”.

Protests can be angry and unruly and sometimes have to be to be effective but the right to protest ceases when the law is violated. “Unlawful conduct does not become lawful because it was at a protest”.

The judge said that while the accused cannot be held responsible for the violence of others, it was “utterly wrong” to suggest that the violence of others was not relevant to the case.

She said statements characterising the protest as peaceful did not make the protest peaceful. If she was sitting on the grass with her legs crossed holding a placard while “all hell is breaking loose around me”, it cannot be said to be a peaceful protest. It can only be said that she is acting peacefully.

The judge said the criticisms made against the gardai must be difficult to sustain if the jury decided it was not a peaceful protest and there was a threat to the safety of Ms Burton.

If there was a threat to Ms Burton’s safety then many of the acts aimed at impeding her became “impossible” to justify, the judge said.

She said that Inspector Derek Maguire’s request on the day that the protesters leave did not comply with the required wording under the public order law and could not be viewed as a valid direction.

It was “merely a request that has no force in law”.