‘Peace activist’ successfully appeals Shannon Airport criminal trespass conviction

An “peace activist” has successfully appealed his conviction for criminal trespass during a protest against the presence of US military aircraft at Shannon Airport in 2017.

The Supreme Court allowed the appeal by Dan Dowling, who was convicted in January 2023, alongside a co-accused, of criminal trespass at the airport. At the same trial, a jury acquitted both men of a charge of criminal damage relating to anti-war daubings on a US military aircraft on April 25th, 2017.

In its judgment, the Supreme Court said the Director of Public Prosecutions (DPP) had clearly alleged that the criminal trespass occurred with the intent to commit the criminal damage. Where the DPP had failed to prove criminal damage, the Supreme Court found that the offence of criminal trespass could not be established “when the allegation is that the trespass was carried out with the intent to commit that criminal damage”.

Dowling (40s), of Grace Dieu, Waterford, and Edward Horgan, of Newtown, Castletroy, Co Limerick, a retired soldier in his late 70s, were ordered to pay €5,000 to a women’s refuge following their convictions. Following Wednesday’s decision allowing Dowling’s appeal, the Supreme Court ordered that he should not be retried.

The separate trespass charges came under section 11 of the Criminal Justice (Public Order) Act 1994 regarding trespass creating a reasonable inference of intent to commit an offence or to unlawfully interfere with property.

The court heard that the words “danger, danger, don’t fly” were written on a plane before both men were intercepted by members of the Irish Defence Forces.

Dowling subsequently lost an appeal against his trespass conviction and then successfully applied to appeal to the Supreme Court.

He argued there had been a “lawful excuse” for the actions, submitting the purpose was protection of lives where US aircraft were transporting weapons via Ireland to foreign countries.

Dowling’s question submitted to the Supreme Court was whether a defence of “necessity”, which was a part of the dismissed criminal damage charge, was also available to the charge of trespass, as they were linked charges.

The Supreme Court said in its judgment that the criminal trespass charge was linked to “something more than mere trespass”, which must be established in the eyes of any jury.

“If otherwise, the offence would be complete on committing the act of trespass without any damage or interference to property,” it said.

“The section requires, at a minimum, more than an intention to effect a de minimis interference and must amount to an intention to have an effect on the use or enjoyment of the property."

The court added: “Clarity is required in relation to an offence of criminal trespass. The ‘offence’ or ‘unlawful interference with property’ must be identified or at least be clearly identifiable from the material which forms the prosecution case.

“In this case, it was clear that the DPP’s allegation was that the trespass occurred with the intent to commit the criminal damage offence.

“Where the DPP cannot establish an ingredient of the offence of criminal damage – that it was committed without lawful excuse – the DPP cannot establish that the offence of criminal trespass was committed when the allegation is that the trespass was carried out with the intent to commit that criminal damage.

“In those circumstances, the existence of a lawful excuse for any acts of damage means that the prosecution could not satisfy the jury that the accused had entered as a trespasser in circumstances giving rise to the reasonable inference that he intended to commit criminal damage."

The Supreme Court then allowed the appeal and directed that there be no retrial in the matter.