Two members of the Burke family were again removed from Court of Appeal proceedings by gardaí after interrupting the presiding judge, who told Enoch Burke he was his “own worst enemy” for similar interjections.
Mr Burke is opposing a civil application by the Garda Síochána Ombudsman Commission (Gsoc) who are applying for access to 'ambient' audio recordings as part of its investigation into how gardai 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 'ambient recordings' that record what is happening in the higher courts in case the main Digital Audio Recording (DAR) system, used when the court is sitting, is off.
However, the ambient recorder runs both 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 the application.
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, Dublin on the day.
Simeon, Enoch and Ammi Burke lodged complaints to Gsoc following the disruption, 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 further accused the court of having its own “private agenda” and “flip flopping” on the matter.
Mr Burke, who was dismissed from his position for alleged gross misconduct, has been in Mountjoy since September 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.
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 have jurisdiction. 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 gardaí and others present in court.
On Friday, after continual interruptions, Mr Justice Edwards threatened that Mr Burke’s microphone would be muted, at which point Mr Burke’s father, Sean, and brother, Isaac, stood and loudly protested, while Enoch Burke continued.
Removed
“Mr Burke, please! Will ya silence, Mr Burke!” said Mr Justice Edwards, who was also attending by video-link, before asking the court staff to mute the microphone.
Sean and Isaac Burke then began repeatedly shouting “objection” to the muting of the microphone.
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 now he had 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 9 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 Commissioner be notice parties.
Today, Mr Burke said that 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".
"The court does have jurisdiction and did so on June 9 - it was not struck out; it was refused, and it is the responsibility of the court to do so again today. The court is flip-flopping because of its own private agenda and it's reprehensible to the idea of justice. It must do justice and take responsibility in the matter. The ambient DAR is unquestionably illegal," said Mr Burke.
"What we have now is the court seeking to evade dealing with this matter. It is not open to you to delegate this matter. The Courts Service only acts on the direction of a court in relation to the DAR. It's not hoovering, cleaning or the switching on and off of lights. It’s 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." "You are paid public money to be fair, to be just and to deal with the matter,” he added.
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 8.
"I will hear Mr Burke and Mr Lawlor on that issue alone and that is all that I am concerned about at this point and we will see if I send it to a panel of three or refuse the application outright.
One of those two things will happen," said Mr Justice Edwards.
