An October 2022 article claiming Enoch Burke was moved from one jail cell to another for his own safety as he was “annoying” other prisoners contained inaccuracies for which the newspaper held up its hands, the editor of the Sunday Independent has told the High Court.
Alan English said Mr Burke, who is suing alleging he was defamed in the piece, became a “national talking point” after the court heard of his refusal to stay away from Wilson’s Hospital School in Co Westmeath.
Mr Burke was first jailed in early September 2022 for breaching a court order restraining him from attending at the school, which had suspended and later dismissed him after he publicly objected to being instructed to refer to a male student using they/them pronouns.
On the third day of Mr Burke’s defamation action, Mr English said there is a “distinction between the public interest and what the public are interested in”, but Mr Burke “ticked both boxes”.
He said the Sunday Independent is in the business of reflecting the national conversation, and it has run a “diverse” set of opinions about Mr Burke’s situation.
Mr English said the wider issue of transgender students and gender ideology had become a big talking point and was the subject of debate on RTE’s Joe Duffy show in the summer of 2022, shortly before Mr Burke came to prominence.
He believes the topic was something of a “hot potato”, which many media publications were anxious about covering. He felt the issues were of great public interest, but debate was being “shut down”, which he does not think is a healthy situation.
He made space for the “divisive” topic to be covered in the newspaper, including publishing a whole page of readers’ letters about gender issues after being “absolutely inundated” with views in response to an article the paper had published.
Mr Burke is suing Mediahuis, as publisher of the Sunday Independent, the newspaper’s editor Alan English and reporter Ali Bracken alleging he was defamed in a story published on October 9th, 2022, during his first prison stint.
The article cited unnamed sources in support of its statement that Mr Burke had been moved to a new jail cell for his own safety as he was “annoying other prisoners” and “repeatedly expressing his outspoken views and beliefs”.
The newspaper issued an apology on January 1st, 2023 and clarified that Mr Burke’s cell change was for “operational reasons only and not for the reasons stated in the article”. It strongly denies defamation and pleads fair and reasonable publication on a matter of public interest.
Mr English said there were no pre-publication “red flags” about the piece. The editor accepted there were inaccuracies, for which the paper apologised, but he does not accept “at all” that it contained anything defamatory. He is not the type of editor who is slow to correct an error, he added.
He said he has the "utmost respect" for the writer of the piece, who is a reporter of "longstanding", "utmost integrity" and reliability.
During cross-examination, Mr Burke pressed him on elements of the story that Mr Burke contends were untrue but for which the newspaper did not apologise. Mr English disagreed with his propositions and said it is “eminently possible” that Mr Burke was indeed annoying other prisoners.
He disputed Mr Burke’s characterisation of the piece as a “bag of lies”, saying instead: there were inaccuracies and “we held our hands up”.
“Unfortunately, some information from a source turned out not to be correct,” he added.
Earlier, Mr Justice Rory Mulcahy temporarily left the courtroom after repeatedly asking Mr Burke to refrain from agitating a legal point the judge said he would deal with after all the evidence in the case is heard.
Mr Burke disputed a submission from Ronan Lupton SC, for the defence, that “recklessness” was not a concept that arises in defamation law. He submitted that the term did appear in the Defamation Act.
Mr Justice Mulcahy said he understood Mr Burke’s point, which would be better made after the evidential stage of the case, during legal submissions. He was not making any conclusions on the legal issues for now.
Mr Burke said Mr Lupton had made an “abominable”, incorrect statement and the judge should “slap counsel on the hand”. He accused the judge of being “obsequious”.
Mr Justice Mulcahy and Mr Burke had a back and forth over the matter, with the judge saying Mr Lupton’s submission was “not abominable”. From what Mr Burke has said, it does seem Mr Lupton’s submission was incorrect, but he was not going any further than that, the judge said.
Mr Burke complained, at which point the judge said: “Mr Burke you do not get to dictate to me”.
After consulting with members of his family, Mr Burke pressed the point again, saying: “Judge, what I need you to say is that is incorrect. It is an incorrect statement for counsel to make on the law.”
Mr Justice Mulcahy attempted once again to get Mr Burke to move on, before the judge left the courtroom for a short period.
When he returned Mr Burke called his mother to the stand. Martina Burke said she was “absolutely horrified” and “deeply humiliated” after reading the “utterly false, defamatory” article.
“I could not believe what I was reading [...] I was well aware that it was not true– that it was lies,” she said.
It was “hurtful” that the paper would paint her son as “somebody who annoys people so much to the extent they beat you severely”.
Mrs Burke said she has known her son for more than 30 years, and he is “reserved” and “very private”. She said the story seemed to be a “malicious attempt” to “destroy” her son and “assassinate” his character.
Under cross-examination, she, like Mr Burke, refused to confirm his age. She was repeatedly asked by Mr Lupton, appearing with Lewis Mooney, if she understood that her son was in breach of a court order. She said the court has a duty to uphold the Constitution and she was “sorry, that is all I can say”.
Asked if she was humiliated when her son was imprisoned, she said she is not humiliated by someone standing for their beliefs. Mr Lupton asked if she was distressed when he was sent to Mountjoy. She said she was not.
Mrs Burke added: “I do not believe he is in contempt of court because the court has a duty. If he was, I would be the first to say it.”
She denied she was directing her son to remain in prison.
The defence will continue presenting its case on Friday before the parties make their legal submissions. It denies Mr Burke’s claims.
