The Director of Public Prosecutions has been permitted to access an audio recording of an appeal court sitting dismissing teacher Enoch Burke’s appeal against orders requiring him to stay away from a Co Westmeath school.
The access applies only to the recording of when the court actually sat on March 7th. Access was not granted, at this stage, to any recording of chaotic scenes which occurred after the judges left the bench.
The digital audio recording (DAR) is sought for the appeal by Simeon Burke to the Circuit Court against his conviction by the District Court of a “volatile” public order breach arising from his conduct during the Court of Appeal’s delivery of its judgment in his brother’s case on March 7th.
The reading of the judgment was twice interrupted by members of the Burke family, leading to the judges leaving the bench. After they left, there were chaotic scenes and some members of the family, including Enoch and Simeon Burke, were physically removed from the court by gardaí.
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At the CoA today, Gráinne O’Neill SC, for the DPP, sought a copy of the DAR concerning the March 7th hearing up “until the court was cleared”.
Enoch Burke, who participated in the application by telephone link, told the judge he was not objecting to the DAR being released as long as the recording was limited to when the court was sitting.
He objected, for GDPR and other reasons, to any release of any recording made while the court was not sitting. The court is not entitled to engage in surveillance of people of which they are unaware and audio obtained without those present been informed amounts to covert surveillance without knowledge, he said.
When he said he understood the DAR runs when the court is in session and is switched off otherwise, Mr Justice John Edwards said there is an ambient back up on all times.
Mr Burke said there should have been no recording when the judges rose. He said he contested that the court had made any direction to clear the courtroom and said the gardaí “had no right whatsoever to clear the court that day”.
Mr Justice Edwards said Mr Burke had raised an important issue concerning whether a DAR recording of matters when a court was not sitting could be used for anything beyond back up.
He directed the release of the DAR to both sides only in relation to when the court sat.
The judge said, while he would grant liberty to apply to the Circuit Court for more extensive disclosure of the DAR record, he regarded as serious the issue raised by Mr Burke concerning use of the DAR.
The CoA last March concluded Enoch Burke had made out no grounds to overturn High Court orders, made last August and September, which restrained him attending at Wilson’s Hospital School in Co Westmeath pending a disciplinary process.
The process was put in train arising from Mr Burke’s behaviour at a school event in June 2022 when he publicly opposed a May 2022 request from the then school principal that teachers address a transitioning student by their preferred name and using the pronoun “they”.
Simeon Burke was arrested in connection with the incident at the Court of Appeal. He was remanded in custody for a time after refusing to sign a bail bond on a public order charge. He was ultimately convicted of that charge at the District Court and fined €300.
He and his sister Ammi have made complaints to the Garda Siochana Ombudsman Commission (GSOC) in connection with the Garda handling of the matter.
Last month, in his judgment on the full hearing of the dispute between the school and Enoch Burke, Mr Justice Alexander Owens ruled the school was entitled to suspend Mr Burke.
He awarded €15,000 damages to the school against Mr Burke over his continued attendance at the school despite the court orders restraining such attendance.
That fine is separate from the fine of €700 daily imposed by another High Court judge over his continued attendance at the school from January last.
Mr Burke was jailed in September for contempt of the orders restraining attendance and spent 108 days in prison before being released last December without purging his contempt.
The €700 daily fine was imposed arising from his return to the school when the new term opened in January.
Separately, Mr Burke has appealed to an independent panel against a notice of dismissal served on him by the school earlier this year.
