The Garda Síochána Ombudsman Commission (Gsoc) has been refused access to "ambient" audio recordings of a court "melee" as part of its investigation into how gardaí acted during the incident that led to student lawyer Simeon Burke being convicted of a public order offence.
In rejecting the application on Friday, Mr Justice John 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 gardaí and others present in court.
Simeon Burke (24) was arrested on March 7th this year following a disruption while the Court of Appeal was delivering a judgment in the case of Simeon's brother Enoch Burke, who had contested the lawfulness of his suspension from Wilson's Hospital School.
Simeon, 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.
Burke and his sister, Ammi Burke, have lodged complaints with the ombudsman over their treatment by gardai at the hearing. As part of its investigation, Gsoc has applied for "ambient recordings" that record what is happening in the higher courts.
Mr Justice Edwards explained that the purpose of the ambient system is to record proceedings in case somebody forgets to turn on the main Digital Audio Recording (DAR) system.
He said the ambient system, if it was working, may have recorded what was said after the court had risen when the DAR system would have been turned off.
Mr Justice Edwards refused the application but said he was "not closing the door" to a further application for the recordings. There are, he said, concerns for data protection rights of those present in court and there is a question over who has jurisdiction over the recordings.
Data controller
The judge said the court may not be the data controller when a recording is made while the court is not sitting, and he suggested the Courts Service rather than the court may be the appropriate data controller.
He said that if Gsoc wishes to pursue the application, the Courts Service should be put on notice and made a party to the proceedings. The Data Protection Commissioner will also have to be made a notice party, he said.
He said there is a further issue regarding the appropriateness of the application given that it is a request for the court to get involved in the "evidence gathering process" in an ongoing investigation by Gsoc.
There are further concerns, he said, with the use of recordings on the ambient system where "persons may be unaware it existed".
It could, the judge said, "be regarded as covert audio recording" of gardai and others who were in court including the Burkes. He noted that Enoch Burke objects to the ambient recordings being made available to investigators.
Mr Justice Edwards said he was not making any findings but was acknowledging the potential arguments that could be made. He told lawyers for Gsoc that he is not "closing the door" to their application but if they wish to renew they will first have to produce evidence that the ambient system was actually recording at the time.
If that is established, he said Gsoc will not "necessarily get anything" as the issues raised "will have to be fully argued where very serious issues are raised".
The matter was adjourned to October 6th to allow the parties to consider the judge's comments.
Gardaí are also investigating the incident and previously sought the same recordings that have been requested by Gsoc.
The Court of Appeal rejected the application by An Garda Síochána but did make available the DAR recordings from when the court was in session.
Simeon Burke is to appeal his conviction to the Circuit Court.
