Two members of the Burke family were removed from Court of Appeal proceedings by gardaí on Friday after interrupting the presiding judge, who told Enoch Burke he was his “own worst enemy” for making similar interjections.
Mr Burke is opposing a civil application by the Garda Síochána Ombudsman Commission (Gsoc), which is applying for access to ambient audio recordings as part of its investigation into how gardaí acted during an incident that led to student lawyer Simeon Burke being convicted of a public order offence.
As part of its investigation, Gsoc applied for recordings that are made in case the main Digital Audio Recording (DAR) system, used when the court is sitting, is turned off. The ambient recorder runs before and after the DAR system is active, when the court is not sitting, which created a question for the Court of Appeal over whether or not it had the jurisdiction to even decide on the application.
Simeon Burke (24) was arrested on March 7th last following a disruption while the Court of Appeal was delivering a judgment in the case of his brother Enoch, who was contesting the lawfulness of his suspension from Wilson’s Hospital School.
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Simeon Burke, with an address at Cloonsunna, Castlebar, Co Mayo, was later convicted of an offence under the Public Order Act for engaging in threatening, insulting and abusive words and behaviour on or about the Four Courts, Inns Quay, Dublin on the day. He, Enoch and their sister Ammi Burke lodged complaints to Gsoc following the incident, alleging mistreatment by gardaí.
Enoch Burke appeared by videolink from Mountjoy Prison at the Court of Appeal on Friday and accused Mr Justice John Edwards of “mischaracterising” his submissions and the court of having its own “private agenda” on the matter.
Mr Burke, who was dismissed from his job for alleged gross misconduct, has been in Mountjoy since September. The school’s board of management asked the court for orders committing him to prison over his deliberate failure to comply with a permanent injunction to stay away from the premises.
The teacher says his dispute with the school revolves around his refusal to comply with an alleged direction from the school which he says goes against his Christian beliefs. He is also appealing against his dismissal.
At the outset of Friday’s hearing, however, Mr Burke claimed the court had jurisdiction to refuse the Gsoc application and began to speak over the judge and Eoin Lawlor BL, for Gsoc.
“Mr Burke, you’re your own worst enemy. Just let the court engage with counsel on the other side first and I’ll come to you in a moment,” said Mr Justice Edwards.
Mr Justice Edwards told Mr Lawlor that he wished to be addressed on whether or not the court had the jurisdiction to make any order in the matter and said he was minded to strike out the matter if the court did not. Mr Lawlor asked for time to do so.
At a previous hearing in July, Mr Justice Edwards said the Court of Appeal noted concerns over the use of recordings on an ambient system where “persons may be unaware it existed”, in what could be regarded as “covert audio recording” of gardai and others present in court.
After continual interruptions, Mr Justice Edwards on Friday warned that Enoch Burke’s microphone would be muted, at which point his father, Sean, and brother, Isaac, stood and loudly protested while Enoch Burke continued.
The judge asked for silence and then asked the court staff to mute the microphone. Sean and Isaac Burke then began repeatedly shouting “objection” to the move. The two men shouted “Madame Registrar! Why is he being silenced again?” also claiming that court proceedings were “not fair”.
Mr Justice Edwards then asked the registrar to summon gardaí to the court to have Sean and Isaac Burke removed.
“It is my firm direction these two gentlemen be removed because they are in contempt of the court,” Mr Justice Edwards told the two attending Garda sergeants.
Sean and Isaac Burke were then removed, telling the court that the removal was “totally unacceptable, not lawful”, that the judge was “abusing” his power and that people had “the right to address the court”.
Before being ejected, Isaac Burke said to those present in the court that the proceedings were “a disgrace and you are all engaging in it and all a part of it”.
When it came to his turn to speak, Enoch Burke said he had now been forced to make his submissions “uphill” after being muted and due to two of his family members being removed. Simeon Burke remained in the court taking notes.
Mr Burke said the court did have the jurisdiction to make a decision on the availability of the ambient recordings and had done so in refusing an “identical” application made by the Chief State Solicitor’s Office on June 9th in the same matter.
On that occasion, the Chief State Solicitor’s Office was denied the ambient recording but was granted access to the DAR recordings and to transcripts.
At a previous hearing of the Gsoc application, the court had questioned who the data controller actually was in terms of the ambient recordings and suggested the Courts Service and possibly the Data Protection Commissioner could be notice parties.
On Friday, Mr Burke said the court itself was indeed the data controller of the ambient recording and was now choosing to respond “in an entirely different manner to an identical application”.
“What we have now is the court seeking to evade dealing with this matter. It is not open to you to delegate this matter,” he said, adding that it was “utterly disingenuous” to delegate to the Courts Service.
Mr Burke then said Mr Justice Edwards was paid “in excess of €300,000 to rule - not to delay - and not to the advantage of one party, Gsoc.”
Mr Burke said there were “very grave implications for the administration of justice should anything other than dismissal of this application occur,” adding that the proceedings were “partial” to Gsoc if not dismissed.
After Mr Burke finished his submission, Mr Justice Edwards again muted his microphone and said he was adjourning the matter to be addressed “exclusively” on the issue of whether or not there was a prima facie case to but put in front of three judges to decide on whether or not the court had jurisdiction to deal with the ambient recording application.
Mr Justice Edwards then adjourned the matter to December 8th.