The Court of Appeal has allowed the Garda Síochána Ombudsman Commission (GSOC) access to a limited ambient audio recording of Courtroom No. 1 at the Four Courts, finding that the recording could assist its criminal investigation into alleged Garda conduct during the removal of members of the Burke family on 7 March 2023.
In a judgment delivered on 12 April 2024, Mr Justice John Edwards said the court had jurisdiction under Order 123, Rule 9 of the Rules of the Superior Courts and its inherent jurisdiction to control its own process. The three-judge court held that the disruption which interrupted judgment delivery, and the conduct that continued in the courtroom and its environs after the judges left, formed an uninterrupted continuum that was part of the proceedings. The ambient recording of that period was therefore a contemporaneous record of proceedings.
GSOC is investigating complaints from members of the Burke family alleging Garda misbehaviour, including the use of force to remove people from the courtroom and the circumstances surrounding Simeon Burke’s arrest. The court said the investigation concerns alleged assault causing harm. GSOC argued that the recording could provide objective evidence about what happened and whether Garda members acted on court directions. These are allegations under investigation; the judgment did not determine whether Garda members acted unlawfully.
Enoch Burke opposed access, arguing that the ambient system was unlawful and intruded on privacy and data protection rights. He also argued that the recording was unnecessary because investigators could use witness statements, the primary court recording and other evidence. The court found no concrete evidence that his private or confidential communications had been captured, and said he could not raise other people’s rights on their behalf.
The court concluded that access was for a legitimate investigative purpose and was necessary and proportionate. It considered that the personal data involved would be the voices of people who spoke during the relevant incident. It also held that processing the recording for a criminal investigation could be lawful under section 41 of the Data Protection Act 2018.
The court did not decide whether the ambient recording system’s operation had breached data protection law. It said that issue was not established on the evidence before it and noted that complaints about court data processing could be made to the assigned judge under section 157 of the 2018 Act. The judgment records that the request for the primary recording had already been granted with consent; the contested application concerned the ambient recording.