The Court of Appeal has refused Enoch Burke’s applications to set aside a case-management ruling and to attend in person at a forthcoming hearing in a Garda Síochána Ombudsman Commission (GSOC) application concerning a court recording.
In rulings delivered on 9 January 2024, the court rejected Burke’s claim that a hearing on 8 December 2023 was “void”. It said an administrative error led GSOC’s counsel to attend physically in a courtroom despite a direction that all parties participate remotely. The court found that this caused no prejudice to Burke: he participated by video and audio link, and both sides made written and oral submissions. It refused his request for a fresh hearing.
The 8 December hearing was a case-management listing. The court was considering whether GSOC’s application should be dealt with in that list or referred to a three-judge court to determine a jurisdictional issue. Edwards J transferred it to a full court, finding there was a substantive dispute about jurisdiction that he could not decide in a directions list. The court did not decide whether it has jurisdiction to grant GSOC’s request for any digital audio recording that may exist relating to a Court of Appeal courtroom on 7 March 2023, or whether the recording should be released.
Burke also sought to revoke directions requiring the hearing scheduled for 15 January to be hybrid, with him participating remotely from Mountjoy Prison, and asked for a production order to attend in person. He argued that remote participation would leave him without assistance or support, and that the hearing raised serious legal issues.
The court held that section 26(4) of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 did not apply because GSOC’s application was not an appeal proceeding. It also rejected Burke’s fairness and access-to-justice arguments. The judges said remote participation was necessary to maintain order, citing his past interruptions and refusal to follow directions during hearings. They said a remote link would allow his microphone to be muted if needed.
The court refused to revoke the hybrid-hearing direction and refused a production order for the 15 January hearing. It said Burke could renew his request if he offered a sworn undertaking to behave respectfully, follow court etiquette and abide by rulings. The jurisdiction issue and GSOC’s underlying request remained for the scheduled hearing; these rulings did not resolve them.