The Garda Siochana 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 from an ambient system given “persons may be unaware it existed”. They could be regarded as “covert audio recording” of gardaí and others present in court, he added.
The 24-year-old was arrested on March 7th last following a disruption while the Court of Appeal was delivering a judgment in the case of his brother, Enoch Burke, who had contested the lawfulness of his suspension from Wilson’s Hospital School.
Simeon Burke, 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.
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He and his sister, Ammi Burke, have lodged complaints with Gsoc over their treatment by gardaí 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.
‘Not closing the door’
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 the data protection rights of those present in court and there is a question over who has jurisdiction over the recordings.
Mr Justice Edwards 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”.
Objection
It could, the judge said, “be regarded as covert audio recording” of gardaí 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 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.