Tipperary farmer into his fifth month in prison

international | rights, freedoms and repression | news report

Tuesday June 19, 2007 21:25

by william considine

A couple of months ago the story of Thomas Kennedy's unlawful imprisonment was carried on Indymedia. In the meantime he remains in prison being periodically brought back to Judge Olive Buttimers Court. He believes he is unjustly imprisoned and Judge Buttimer states she will keep him in prison until he changes his mind. Justice, the Kennedy family and the tax payer is the loser in Olive Buttimers merry-go-round. This is todays episode.

Today I witnessed a court hearing in the South East Circuit Court in Wexford before Judge Olive Buttimer.

Around 2.30pm, elderly Tipperary farmer, Tom Kennedy was bought into the court room by two prison officers with handcuffs and chains. He was warmly greeted by his son, brother and other supporters and they took there places in the centre of the court.

There were preliminary exchanges of words and papers between the judge and one of the prison officers.

Judge Buttimer then asked Tom what he had to say for himself. Tom rose in a dignified manner before the court and clearly read from three sheets of paper. The judge did not face him, or look at him, and sat sideways and appeared to be engossed in some yellow coloured papers in her hand.

At the end of Tom's presentation she asked if he was yet ready to change his mind. He said he was not. Judge Buttimer then recommitted Tom to prison and ordered that he be brought before her again on 3rd July.

Afterwards. I was allowed to speak with Tom and he gave me the three pages and asked me to copy them and publicise them. I transcribe the three pages below:
-------------------------------------------------------------------------------------------------------------------------------------
At Nenagh court on June 12th, 2007, I was unlawfully recommitted to prison by you, Judge Buttimer. I will now draw your attention to the Supreme Court Case DPP Stafford V Fagan 1994 I.R.265 at 288.
Denham J. said:

"A cornerstone of the Rule of Law is that persons in authority must be able to justify their actions if called upon to do so by reference to a specific rule in statute or in common law"

Judge Buttimer, you failed to identify any such law or statute to justify your action. You asked me "if I was successful in a court case, would I expect to have that court order enforced?" You have asked me the same question on several occasions so for the record I am now advising the court that my answer is as follows:

I would not expect any individual to recognise a court order that was made in excess of jurisdiction and which would unlawfully dispossess any person of their property and have the effect of unlawfully committing that person to prison.

It is well to remember here the Supreme Court Judgement in the case of Burke V Minister for Labour 1979 I.R. 354 in which the court stressed constitutional propriety, natural justice and fairness in procedures.

Henchy J. for the Supreme Court said;

"....it is to be necessarily inferred as part of the legislative intention that the bodywhich makes the orders will excercise its functions, not only with constitutional propriety and due regard to natural justice, but also within the framework and terms and objects of the relevant act, and with basic fairness, reasonableness and good faith. The absoluteness of the delegation is susceptible of unjust and tyranous buse unless its operation is thus confined" quoted in J.M. Kelly, The Irish Constitution, page 254

Today, I am a victim of that unjust and tyranous abuse and have been since you unlawfully committed me to prison on March 6th 2007

It is necessary to refer here to what Barrister, Mr Patrick Tracey, said on June 12th 2007, at the court in Nenagh oncerning my Habeus Corpus hearing at the Four Courts where Mr Justice McGovern presided. Mr Tracey did not attend that hearing and he misrepresented to the court at Nenagh, what Justice McGovern expressed at the Four Courts. Justice McGovern did not refer to my rights at that hearing. What the Honourable judge did imply was that my rights were infringed. He confirmed the lawful existence of Justice Gilligan's order. When he examined Justice Herbert's order, he said: "How could he (Herbert) vacate Justice Gilligan's order?"

Justice McGovern advised me to appeal the (your) committal order. When the barrister representing Cork prison was asked to prove to the court that I was lawfully detained, he failed to do so. The barrister told the court that he only had a committal order and that the judge that made the committal order (yourself) may have made a mistake. There were several witnesses in court who can support this evidence.

I ask you now to take honourable action and admit you made a mistake and release me from unlawful custody.

Thomas Kennedy, Rossestown, Thurles, Co Tipperary

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Comments (21 of 21)

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what's this about?

by Jimbob

Wed Jun 20, 2007 11:35

how did this case originate? for future reference it might be handy to put that in the summary, then more people are likely to read it as it will make more sense.
Good to see the guy has court support.

Justice

by dee

Wed Jun 20, 2007 14:21

When you go to court you don't get justice, you get The Law.

It seems that is what this man is getting. I admire his single-mindedness but he is misguided.

"A man's got to know his limitations" - Dirty Harry

Why

by What

Wed Jun 20, 2007 21:51

What idin this man do?

Response the the Question

Thu Jun 21, 2007 11:38

On 7th March 2007, Thomas Kennedy represented himself in a civil case concerning his home and land, In the course of the hearing he told Judge Buttimer that he thought she was wrong. She then committed him to prison for contempt. In the meantime he has been in prison and brought back periodically to her, to be asked to change is mind. As in his latest response above he has declined to change his mind.

Perhaps, thumbscrews might be cheeper for the tax payer?

Too serious for flipancy

Thu Jun 21, 2007 13:09

I regret the sarcastic comment in the last line of my last post. The issue is too important for sarcasm.

It is a cornerstone of the Universal Declaration of Human Rights that all persons are entitled to hold opinions and express them without fear.

In this case, the state has imprisoned Tom Kennedy solely in order to coerce him into changing his opinion.

This case is a test of Irelands Human Rights policies.

Disturbing

by Jim O'Sullivan

Thu Jun 21, 2007 13:41

I have just come across this post and find it very disturbing indeed. It surely cannot be possible for a judge to take a citizens liberty because of a point of view held. To differ with the view of a judge is not contempt of court. I would appreciate further details of the original hearing and the exact exchanges between the court and the defendent. It appears here that the judge is being very flippent with the liberty of a citizen.

Justice for the Forgettable

by pinkie

Thu Jun 21, 2007 14:35

William, you say that Mr Kennedy’s imprisonment was “unlawful”. My understanding is that he was sent to prison for contempt of court, which is in accordance with the law of the land. You could argue that it’s unfair, but I wonder what qualifies his supporters to adjudicate on what’s lawful or not? Mr Kennedy chooses to interpret the law in a manner that suits his own case. He also has chosen to stay in prison by refusing to apologise to the court. This approach to drawing attention to his case does not appear to have been very successful to-date.

Yes, freedom of speech is a cornerstone of any democracy. However, the law protects our freedoms and can prevent us from abusing them. For example, the law prohibits me from making racist or slanderous remarks. This restriction of my freedom of speech is in the interest of society as a whole, and is not an infringement of my “human rights”. In Mr Kennedy’s case, his approach interfered with the workings of the court and therefore with the rule of law that governs society.

That said, I have some sympathy for the man’s predicament and for his substantive case, although the position of the other party, the defendant, has been ignored in all reporting up to now. I would suggest that the man apologises to the court and seeks justice by another means. Languishing in prison will do his case no good.

Contempt of Court

Thu Jun 21, 2007 15:49

To all who have responded to this post so far, Your concern is both welcome and well founded.

To previous poster, Contempt of Court is not part of the law of the land, in that, as far as I know, it is not covered by the constitution or any statute of parliament.

Contempt of Court is ad hoc, Judge made, rules for behaviour in their own court room. For some judges, taking notes is considered a contempt, for others, mobile phones ringing is considered contempt . Contempt is discretionary on the part of the judge. Contempt is subjective and should change with the times.

In this case, the judge has gone too far. Four months too far. Her stubborness in using the might of the state to make Tom resile from saying she made a mistake is totally perverse of all notions of fair procedure and practise. Repeated ad hoc imprisonment without sentancing in order to coerce a person to change his mind, is equivalent to Quantanamo.

The lady has lost the run of herself

Contempt of court

Thu Jun 21, 2007 16:14

William, laws are documented in the Irish Statute Book. To suggest that the content of an act is not law simply because it’s not mentioned in the Constitution is ludicrous and without any basis.

Your Guantanamo analogy does the prisoners there a great disservice. Unlike them, Mr Kennedy has had the opportunity to use the legal system to seek justice, an opportunity that he has not used very well up to now. Unlike them, he can walk free from prison by simply apologising to the court. And you call the judge stubborn?!!

Observer

Thu Jun 21, 2007 16:53

pinkie, you say that Kennedy could," walk free from prison by simply apologising to the court"
Apologise for what exactly?

Give us the full information

by Kieran O'Sullivan - Personal Capacity

Thu Jun 21, 2007 17:33

This story doesn't make any sense at all. Before anyone can make a judgement on it we would have to no much more so I suggest starting at the beginning.

1. What was the case that this man was involved in. We need details not vague stements.
2. What point of law did he disagree with the judge on. What was the judges point of view.
3. What manner did he make his objection.
4. Who is he in disupte with.
5. Does the judge have a harsh reputation.

The original poster has done this case a disservice by not providing information from reading this case so far I would just dismiss this hole story as a crank. I would like to be convinced otherwise. I have met enough cranks in my time to know exactly how they behave that is making vague assertions and then screaming about personal injustices done to them when they are asked legitimate questions.
I will ask once again WHAT EXACTLY IS THIS ABOUT.

This is worrying.

by Lawman

Thu Jun 21, 2007 17:36

If I'm reading this right then this Judge has crossed the line as to his interpretation of the relevant instruments. I'm suprised Mr Kennedy's brief hasn't refered the case to the Europen Court..

Questions and Answers

by nothing

Thu Jun 21, 2007 22:12

Thomas bought land from his brother in the 1974. He paid him with cheques and has a record of the cheques. He subsequently farmed this land with his other two brothers for over twenty years. In 1996, the brother that sold the land passed away leaving a will. His will contained other land but did not contain the particular parcel of land bought by Thomas.

In spite of this, the executor/solicitor claimed it was part of the deceased's estate and brought a case against Thomas and his brothers to remove them from the land. In that case, Thomas's lawyers let him down badly by not submitting the documents that would have proven the purchase, so Thomas and his brothers lost the case and a court order ensued to remove them from the land.

http://www.indymedia.ie/article/82175#comment191902

Regret

Thu Jun 21, 2007 22:43

I sat in that court last Tuesday feeling revulsion at what was going on. I should have stood up and shouted shame when she ordered him back to prison. If everyone shouted shame she couldn't lock us all up. People here should wise up. At any point in time up to 10% of prison places are filled by judges with contempt committals. Contrary to what another poster here has written, the laws of contempt are not written law. There are only broad general provisions that "give cover" to each judge to decide what they want to regard as contempt. Each judge is at liberty-WITHOUT OVERSIGHT- to do what he or she wants. Whatever judge Buttimer's original motives might have been, the whole thing has descended into a disgracefull besting match. The judicial and prison service costs taxpayers a great deal of money and it should not be used by a public official against a citizen like this. Yes, judges should come down hard on criminals but it should not be used to prevent an elderly farmer from stating his views on how the law has been mis-used by greedy people to evict him from his land.

In regard to the last two posts, I am speechless. The first obviously believes in extermination for everyone he regards as a crank. God help us all!

I would ask the last poster to read the original post again.

Finally, I feel too strongly about this matter to debate this any further on this site. A man is in prison for four months who should not be in prison. He is not a criminal and he has never been sentenced to prison. He is there because the citizens of this state don't care about the rights, feelings or liberty of people like Tom. In particular posters on this site don't care.

If anyone does care let them assemble at Clonmel Court house on 3rd July.

Mystified not not caring

by ntohing

Thu Jun 21, 2007 22:47

Would you care to explain?

Contempt

by nutting but contempt

Thu Jun 21, 2007 23:11

To tell a judge that (s)he is wrong is not contempt...
To tell a judge that (s)he is deliberatley and knowingly being wrong (i.e. is biased) is, unfortunately enough to land you for contempt.

The clever way of saying a judge is biased (and I've seen barristers do this) is to say that " a reasonaable and impartial observer could come to the opinion that the decision was biased"
(of course you're not saying that there is bias, just that it might appear to be there, and that the law must not only be done, but be seen to be done) carefully worded, this is the way to imply bias without being done for contempt.... and in the best use I saw of it, the judge withdrew and the case collapsed.

What your friend should say to get out of this, is to apologise to the court, if anyone thought that he was alleging that the judge was biased, but that the ruling was such, that it could have appeared to be biased....

that should save enough face for the judge to release him. And yeah, Judges act like little monarchs in their court rooms. In fairness, it shouldn't be contempt to vent spleen like that. If the judge feels slighted, (s)he should use the law like the rest of us and sue the man for slander...

RE: William's regret

Fri Jun 22, 2007 09:53

William, You continue to insist that contempt is “not written law”. Contempt of court is covered in a range of Irish statutory instruments, too many to reference here. It is written law and is sound law. Just because you find something unjust it does not make it illegal. I don’t know how many people have been imprisoned for contempt of court, but, if your figures are correct, you should bear in mind that these people will have been imprisoned for a variety of misdemeanours, including failure to appear at court, failure to pay court fines, etc, and not just for giving lip to the judge. Many of those are not the types of characters that Mr Kennedy would like to be associated with. As mentioned before, Mr Kennedy himself will determine how long he spends in prison.

You appear to be disappointed that you’ve encountered opinions that are not in unison with yours. However, your conclusion that “citizens of this state don't care about the rights, feelings or liberty of people” is extremist and totally untrue. You seem to imply that this issue is too serious for you to debate further on this website. Yet, did you not feel strongly enough about it to open this debate in the first place? There are many serious issues highlighted and debated on this site. The quality of the posts does make any issue more or less serious. Please credit the readers with the ability to separate the wheat from the chaff in this regard.

Thanks for the Information

Fri Jun 22, 2007 10:07

To the poster who privided the info thanks. That is exactly how to post a story like this give a short consise background. As to
william considine coment about exterminating cranks well those words condem them seleves if he had posted the background info I would have know that this was not merely a crank.

The obvious solution to this is for the man in question to find a form of words to purge the alledged contempt and then look into the issue of getting his land back. The person who provided the original info stated that he had copies of cheques given to his brother this coupled with the fact that he has farmed the land for a prolonged period of time would give him good grounds for an appeal. I doubt that he has exausted all his lines of appeal.

Lawyere like anyone make mistakes and if it is the case that they failed to provide documentry evidence to the court in the original case then this could be rectafied.

william considine nobody is debating with you that the judiciary need drastic reform or that there are serious problems with the legal profession. While I accept that this story is not a crank it has not gone unnoticed by me that it was not you who provided the background infor to theis case. In future when you are posting an article backup your opiniion and just give us the information.

My suggestions as to how this man can succeed in his campaign.

1. Purge his contempt. Going to prison has not helped his case.
2. If he wants to take they legal ruite he could appeal the original decision or try to take a new case. I'm not a lawyer so can't advise him on that.
3. Forget the legal ruite and get the support of his neighbours and friends to get the land back. Much less expensive.
4 Talk to the person who inherited the land and come to some kind of arrangement with them.

Note on Why I Mistakenly Dismissed This Story
As someone who has been involved in left wing politics for a long time now I have developend a seriosu dislike of cranks. And there are certain rules of thumb for detecting them.

1. They are pre-occupied with their own particular point of view or case.
2. The have an overly bureaucratic view of the world. For exampel they expect every single word of a meeting to be minited.
3. They are often aggressive. I have seen people at meetings make the most outragious attacks on the chair because they haven't beel alloed to go on and on and on and on ...!
4. They will not answer specific questions or provide background information. This is common to all cranks.
5. They are often paronide.
6. They are completely unreasonable.

I must acknowledge that some people who behave like this have very good reasons in that they have suffered real injustice but the behaviour makes it impossible to work with them.

While in this case I was mistaken I have seen perfectly good campaigns destroyed by cranks. An example of this was Frank McGrearty's meeting in the mansion house which had some very good people like the Whelock family and then there were people who were just there to make statements which were in some cases clearly unture.

aliquis non debet esse judex in propria causa

by Seán Ryan

Fri Jun 22, 2007 18:49

No person shall be a judge in his own cause.

This is an ancient principle, it is proper to apply it to Irish law and it is supposed to be applied.

If someone says a judge is wrong, or indeed for that matter, that a judge is biased, surely the Judge finding that person in contempt is a prima facie example of the violation of aliquis non debet esse judex in propria causa.

S. House

by Help

Fri Jun 22, 2007 20:37

Sean
A question for you
Does a farmer need planning to build a slatted house on his land nowadays. ?
Appreciate your help

Ranting vs Facts

by Hutz

Thu Mar 27, 2008 12:54

I'm all for the common man making his point, but we need:

1. The exact statement made to the judge - "scandalising the court" is punishable as contempt, and includes specifically any statement claiming that the judge is biased or behaving in any way contrary to the rule of law - defamatory statements, basically. If we have facts, we might know this.

2. Details as to why the individual took no action against his solicitors. To say they were negligent is a serious charge, and needs to be backed up. If they dropped the ball and lost "his" land, he may have a case in negligence. If he worked the land and suffered detriment as a result of a promise of land, he may have a claim in equity under proprietary estoppel. But we don't know. No facts, you see.

If we have this information, we can make an informed judgement of whether he is being victimised by a vindictive judge, as is being claimed, or just being bullheaded about not being allowed to say what he wants.

So please: Do yourself and this man a favour - No ranting. No emotive language. No accusations against contributors for not agreeing. Just the facts. Thanks.

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Tipperary farmer into his fifth month in prison

Comments (21 of 21)