Enoch Burke’s parents, his sister Ammi and brother Isaac protested outside the Criminal Courts of Justice on Monday after the Court of Appeal refused to allow them to attend in person when they failed to make an undertaking that they would not interrupt proceedings.
Enoch Burke, who is in Mountjoy Prison, was only permitted to participate in proceedings by video-link, after he failed to make an undertaking to accept rulings of the court and not to talk across the court, interrupt the proceedings or be argumentative. Mr Burke denied that he or his family had ever come to court to disrupt proceedings, saying that his family is law-abiding and that he was raised to have respect for law and order.
Mr Burke is a respondent before the Court of Appeal in an application by the Garda Siochána Ombudsman Commission (Gsoc) for access to digital audio recordings of a previous court hearing involving Mr Burke on March 7th last year.
During that proceeding, a “melee” arose when members of the Burke family began shouting and were forcibly removed by gardaí. Arising from that, Enoch’s brother Simeon Burke (24) was arrested and 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.
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Both Simeon and Ammi Burke have made a complaint to Gsoc about their treatment by gardai on that occasion. At Monday’s hearing, Eoin Lawlor BL, for Gsoc, said that the alleged offence under investigation is assault causing harm, an arrestable offence.
As part of its investigation, Gsoc has asked the Court of Appeal to release recordings of what happened after the court had risen. It has previously been explained that an “ambient” recording system remains on at all times, even when the court is not sitting. It exists in case the official audio recording system fails or is inadvertently switched off.
When today’s substantive hearing got under way Eoin Lawlor BL, representing Gsoc, made an application under Order 123 of the Superior Courts Rules. The order allows courts to issue “a record of proceedings” to interested parties. Enoch Burke has objected to the application on the grounds that the recordings were made after the court had risen and were therefore not a “record of proceedings”.
Mr Lawlor said the recordings are required as part of a criminal investigation. He said that the court has an inherent jurisdiction to release the recordings to ensure its processes are not abused by disorderly conduct that forced the court to rise and required the court to be cleared.
Although the ambient recording was made after the court had risen there was, Mr Lawlor said, a “continuum” in relation to the court having to rise and what happened immediately afterwards. He said the evidence contained within the recordings may be probative of innocence or guilt and the application is proportionate given that Gsoc is seeking data limited to what was said at a specific time, in a specific location where no expectation of privacy arises.
Counsel said that the processing of personal data, which can be restricted by privacy laws, is lawful where it is used to prevent, detect, investigate or prosecute criminal offences.
Enoch Burke, representing himself, said it is clear that “proceedings” refers to the period when the court is sitting. “The meaning of ‘proceedings’ is clear and to suggest the rules are not clear is a smokescreen: It is to introduce chaos where there is clarity. Proceedings are when the court is in session,” he said. He said the only purpose of the ambient system is as a backup to the main system and he pointed out that there is no signage anywhere to tell those attending court that they are being recorded.
“The State is not entitled to engage in surveillance of citizens of which they are not aware,” he said. He described the intended use of the ambient recordings as a breach of the right to privacy under the Constitution and of European law and General Data Protection Regulations (GDPR).
Mr Justice Edwards, sitting with Mr Justice Patrick McCarthy and Ms Justice Tara Burns, thanked all the parties involved for their “excellent submissions” and reserved judgment, saying the court had a “lot to think about”.
Mr Burke, who was dismissed from his teaching position at Wilson’s Hospital School for alleged gross misconduct, has been in Mountjoy since September 8th after 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 school.
The teacher says his dispute with the school revolves around his refusal to comply with an alleged direction from the school, which he said goes against his Christian beliefs, to refer to a student by a different name and to use the pronoun ‘they’. He has also launched an appeal against his dismissal.
Following an interruption of proceedings in the Court of Appeal last December, the Court of Appeal wrote to Enoch Burke’s father Sean, mother Martina, sister Ammi and brother Isaac telling them they were excluded from the court for today’s hearing. Mr Justice John Edwards spoke to all four on Monday morning via video-link and asked them to give an undertaking that they would not interrupt if they were permitted to attend.
Speaking from the Ashling Hotel, close to where the court was sitting, Sean Burke said the court had not followed fair procedures in excluding him from court because he was not given a hearing. He accused the court of “putting the cart before the horse” and asked for the exclusion order to be rescinded.
Martina Burke’s microphone was switched off after she repeatedly raised the appointment of Ms Justice Maire Whelan to the Court of Appeal. “She didn’t even apply for the position and you sit beside her with a straight face,” Ms Burke said to Mr Justice Edwards. Ms Justice Whelan was not on the bench for Monday’s hearing.
Isaac Burke accused the court of defaming him by saying that he “burst into court” and began “roaring and shouting” during a previous hearing. Mr Justice Edwards accepted that he may have used “hyperbole” when he said Mr Burke burst into court but the judge insisted Mr Burke had interrupted proceedings and addressed the court with a raised voice, necessitating the court to rise and requiring Isaac and Sean Burke to be removed from court.
Mr Justice Edwards rejected Mr Burke’s claim that he had been defamed.
Ammi Burke’s microphone was also switched off when she began making applications on behalf of Enoch Burke despite being repeatedly told that she is not on record as his solicitor and is therefore not entitled to speak on his behalf in court. In all cases, Mr Justice Edwards said the court had not received the undertakings it sought and it therefore refused to allow Martina, Sean, Isaac or Ammi to attend Monday’s hearing.
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