GUBU
It is 1822 and Thomas Marks has the iron hook which replaced a hand tight on the neck of Catherine Hanrahan, a young and pregnant woman.
Marks is a one of six bailiffs, send to collect money by seizing property towards securing rent owed to the Kilkenny/Waterford landlord Pierce Forristal by Hanrahan's father Thomas Power. Marks had collared Hanrahan after she and two other women tried to usher the family's pigs to safety. She breaks free of his grip and makes a run for it. Marks calmly puts one foot on a stone, rests his pistol on his knee and shoots her in the back. She dies in agony six days later.
The RIC, newly constituted, has been spreading terror in the general area and there is not much reason to be confident that any agent of the powerful will be adequately punished in court. Another bailiff William Cooney testifies that Hanrahan struck Marks two or three times with a wattle and called, as Gaeilge, for someone to come and ''knock the black Protestant's brains out''. Cooney further claims that the pistol accidentally went off when Marks fell on the ground.
Key evidence is provided by a doctor who testifies that Hanrahan could not have been shot in the manner she was (horizontally) unless both she and Marks were on the same level. The jury makes its decision in a matter of minutes, acquitting Marks of murder but finding him guilty of manslaughter. Justice is served to some extent and he gets six months.
A hundred years passed, it is 1922. Marks, Hanrahan and all the collated and filed ghosts of British justice and bureaucracy are trapped in the inferno of the Public Record Office at the Four Courts. The clock can now be set at Year Zero for the nascent Irish state. The six year old promise to cherish all the children of the nation equally is already half forgotten. Churchill and Lloyd George are smiling to themselves, they have an obvious interest in seeing us fail. Time will tell if we can prove them wrong.
But there has been no accident. In order to subdue Gargan and get her keys, MacArthur has bludgeoned her with a lump hammer. He intends to drive to Edenderry, where he plans to take a shotgun from Donal Dunne, the young farmer who advertised it, so that he can rob a bank and secure his lifestyle.
MacArthur swerves the ambulance at the hospital gates and abandons the car and Gargan beside the Central Bank. He finds his way to Edenderry by bus and meets up with Dunne. Asking to try out the shotgun in a deserted patch of bog, he shoots Dunne in the face and drags the dead or dying man into bushes. After driving back to Dublin in Dunne's Ford Escort, he tries and fails to rob an American diplomat, then holes up at the apartment of a close friend, the Attorney General Patrick Connolly SC. The two had attended an All-Ireland semi-final the previous Sunday, where they sat together in the VIP box and shook hands with the Garda Commissioner Patrick McLaughlin.
Connolly asks the barrister Taoiseach Charles Haughey if he should allow the affair to interrupt his plans for a holiday in New York. Haughey wishes him a good trip. The press scrum which greets Connolly in New York makes him think instead about going back home, which he later does. Haughey takes it all in his stride and describes the events in adjectives Conor Cruise O'Brien arranges into GUBU - grotesque, unbelievable, bizarre and unprecedented.
The barristers defy public anger, close ranks and protect their own. A five minute 'trial' puts the unpleasantness to bed. It is agreed (primarily between the DPP Eamonn Barnes BL and MacArthur's counsel Paddy MacEntee SC) to have MacArthur plead guilty to Gargan's murder and leave Dunne's murder unprosecuted.
The presiding judge James MacMahon (I don't have confirmation of his being a senior counsel) refuses to allow the prosecution to read a statement of evidence into the record. Instead he allows MacEntee to enter into the record a psychological report claiming that MacArthur is not a danger to society - with the apparent intention that this will later be used to secure for MacArthur an early release. But the public, and a media which is at this time far from separate from the public, holds the upper hand and makes sure that MacArthur is kept in some form of captivity for 30 years.
Forty years later, it is 2022 and a century of national independence is complete. The barristers have learned a lesson, but it is not the lesson - of humility and service - they needed to learn. The Celtic Tiger and everything that followed it has made their leaders extraordinarily wealthy on top of being powerful. They have taken near total control of media where they need it, mostly through a weaponization of defamation law and an attendant expectation of legal advice being sought before publishing, also by controlling the reporting of controversial court cases through what are effectively press releases.
Malcolm MacArthur, ten years a free man, can be seen once again attending art exhibitions, book launches and such around the city centre. In the suburbs, Keith Greene lies in a disused golf bunker with a bullet in his head, soon to die. The murder and manslaughter trial of the senior counsel who has shot him will be a masterclass in leprechaun law.
We have made a lot of progress since 1822, and a little progress since 1922. But some things have gone backwards.
GUBU TOO
Keith 'Bono' Greene left home with his friends Robin Duggan and Kallum Coleman (and with Coleman's dog Vin) on February 22nd 2022. They trespassed on lands owned by the Belfast company Sagacious Investment, in order to hunt for foxes or badgers. No wild animals would die, Vin would. And Greene would join him in death.
Sagacious Investment was owned by Diarmuid Rossa Phelan, a senior counsel and a big cheese in Trinity College. He had been a part of Michael Lowry's high-powered legal team at the Moriarty Tribunal (interestingly, Lowry called the barristers ''untouchables'' in the Dail and likened senior counsel to welfare cheats), which included two of our most senior judges today. Phelan also owned farms in Wexford and, according to Wikipedia before its content was changed after the shootings, in Colorado. He has an apartment in Boulder and is registered as an attorney in New York.
Greene died on February 24th 2022. Phelan was arrested on the 25th. Garda John Coughlan made a statement on the 26th, concerning an alleged assault committed by Phelan on August 26th 2021 against Kevin McHale, a neighbouring farmer in Wexford. Garda Coughlan sent a file to the DPP on February 27th. The DPP would decide in April 2022 that Phelan should be charged with a Section 3 assault.
In applying for bail in the murder/manslaughter case, Phelan did not reveal all his assets to the court and submitted three different addresses in south Dublin. He answered Ms. Justice Deirdre Murphy's enquiry about the development value of his 180 acre Tallaght farm with ''E1.8 million at least''; E1.8 million was the agricultural value of the land, a fraction of its potential value. In addition to this, he made the false claim that he was ''usually resident in Northern Ireland''.
Detective Sergeant Michael McGrath said that the Gardai were objecting to the bail application on the bases that Phelan, an American citizen, was likely to run and that having him free was too big a risk to take. The detective said he also feared that ''the prosecution witnesses in the case may be ''interfered with''. Judge Murphy (a senior counsel) questioned Phelan at length by video link, the last time he would be questioned in court. She refused bail on the grounds of flight risk alone.
Phelan appealed and Mr. Justice George Birmingham (a senior counsel) overturned Judge Murphy's decision on April 8th. This despite telling the applicant that he had left Judge Murphy ''totally in the dark'' about his finances and saying that ''I don't believe the bail application ... was presented in a way that the High Court would have expected''. A claim that Phelan had procured E50k from his sisters was oddly used to justify the decision. Judge Birmingham ignored the Wexford assault charge in making his decision, though it had been revealed to Judge Murphy's court. The media similarly chose not to report it until a month ago.
*****
No locals were employed at the Tallaght farm, but four foreign nationals worked there, in exchange for bed and board. All four were present when Vin was heard barking in a wooded area on February 22nd. It is not clear from the evidence later given if Phelan already had his Winchester shotgun on him or picked it up from the three shotguns he kept at the farm (he owned ten firearms in total, as well as archery equipment). But he had the shotgun strapped to his shoulder when he went to investigate the barking with the young Frenchman Julien Roudaut.
Phelan was a man under some pressure at the time, trying to keep the farm free of vandals, thieves and drug users. Stones were thrown at his SUV on one occasion. And threatening gestures were made at him in court in 2017, after he had three men successfully prosecuted for trespassing.
Vin was tied to a tree when Phelan shot him dead. A Garda would put it to him that this was a great provocation, but the prosecution would not emphasise this simple point at trial. Roudaut claimed not to have seen the dog being shot. Phelan implausibly said that he thought the dog was ''going towards the sheep'' and might have attacked them. He would never be charged with what was a serious offence under the Animal Health and Welfare Act 2013. How close he was to the dog when he shot it and where exactly Roudaut was at the time would not be examined in court.
Uniquely for a murder/manslaughter trial, what happened after the initial shooting (and maybe before it) has been reported mainly on the killer's terms. The three hunters were said to have ''exploded out of the bushes'' - 'exploded' being a word which implies violence, of which there was none. The quote comes from Phelan's first Garda interview (the recordings were played in court). He said that the men were ''screaming and roaring'', ''threatening about who shot the dog, something about a claim and about getting me''.
Phelan grabbed Roudaut's phone and rang 999. Greene took out his phone and said he was also ringing the guards. Roudaut would say that one of the men (it was a constant and very peculiar feature of the evidence that the individual men were almost never identified, even Greene from Coleman - two very different looking men - as if to say 'what does it matter, these people only belong in our courts as defendants') had something black in his hand which he thought might have been a gun but could only have been a phone. Roudaut would say that he did not have his glasses on.
Greene (illegally) videoed Phelan for a short time and is recorded saying, ''You're fucked now, watch. This is not the end of it, mate, I'm telling you. You shot the fucking dog for nothing.'' He and Coleman pressed Phelan, who retreated up a bank and told them to go back. Phelan would tell the Gardai, ''They were coming to fulfil the threats they had made [a line quoted in almost every media overview]. The lead man had something towards the front of his jacket [a psycho-suggestive support to the notion that violence was believed to be imminent], I couldn't tell you what it was. I want to stress that I was terrified [more a retrospective pleading than a statement of evidence]''.
Phelan took a Smith and Wesson revolver from his pocket and shot three times. As to where he shot, he would tell the Gardai, ''My memory is the arc over their heads from left to right ... from what I remember is, I shot left in the air towards the right over their heads in this sort of direction.'' Greene fell. Robin Duggan, who sensibly hadn't left the woods, rang 999, saying, ''A farmer is after shooting my friend, point blank range ... You have to get an ambulance.''
The Gardai arrived before the ambulance and met Diarmuid Phelan driving his SUV with a first aid bag over his shoulder. He told Garda Sergeant Simon Whelan that the three spent rounds from the revolver were ''possibly crow-shot''. The remaining five rounds being hollow point bullets, the Sergeant pointed out that it was unusual to have two different types of ammunition in a gun. Whelan would later testify, ''At that moment Mr. Phelan went silent, he didn't answer.'' The round found in Greene's head was a hollow point bullet and neither of the other fired rounds was found. Yet the suggestion that Phelan might have believed that all the fired rounds were crow-shot gained widespread acceptance.
*****
Hannah Felgner was a German medical student who looked after Greene as best she could until the ambulance arrived. She would testify that one of the two men said, ''We're going to call the police'' and one or the other said, ''We're going to get you charged for that'' and asked, ''Why would you do that?'' She said they kept following Phelan, yelling at him. She said that ''there was just a sudden change of tone where (Phelan) screamed very aggressively and very loudly 'Keep your distance' as he shot into the air.'' She said that after the first shot was fired, the two men ''immediately, in that very second, turned around and started running away ... and a few seconds after that Diarmuid shot one of the guys into the back''. Her opinion was that the ''two guys didn't seem a danger to any of the people that were there ... they were expressing that they were upset.'' Defence counsel Sean Guerin SC suggested that at most Greene had started to turn when the fatal shot was fired, but she insisted that he was fully turned.
The Frenchwoman Alexandra Fernandes thought that 'the first man' (Greene) was crying, also that he had a cigarette in his left hand and 'something pink like a ball' in his right. She was afraid that he was going to take it out on Phelan's sheepdog, which she was holding on a lead. She said that Phelan looked normal, Roudaut preoccupied. Her evidence differed greatly from that of the other three workers, in her saying that 'the first man' was ''maybe five or six metres'' from Phelan when the first shot was fired, that he kept walking towards Phelan after the first shot and (as reported here) that ''she had seen him turn to go back at the same time she heard the third shot''. But she also said she avoided looking when the second shot was fired, so it is probable that she was (understandably) hiding from the situation and as a result could not properly observe what was happening.
The Frenchman Pierre Godreau was asked if Phelan looked frightened as he walked from the woods and said, ''No, he was really pissed off''. Phelan, who had his own translator in the courtroom, challenged the translation some days later and had it (marginally) changed. But Godreau had described Coleman and Greene as being ''really angry too'', so there can be little doubt as to what he meant.
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