Burke v The Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Cregan
• Judgment Date: 14 April 2023
• Neutral Citation: [2023] IEHC 180
• Docket Number: [2023 522 SS]
• Court: High Court

In the Matter of an Application Pursuant to Article 40.4.2 of the Constitution of Ireland

Between

Simeon Burke

Applicant

and

The Governor of Cloverhill Prison

Respondent

[2023] IEHC 180

[2023 522 SS]

THE HIGH COURT

Unlawful detention – Due process – Excessive force – Applicant seeking an order directing the release of the applicant – Whether the applicant was being lawfully detained

Facts: The Court of Appeal sat on 17th March 2023 at 2 pm, in order to deliver its judgment in the case of The Board of Wilson's Hospital School v Burke [2023] IECA52. The defendant in those proceedings was Mr E Burke. Other members of the Burke family were also in court at the time, including the applicant, Mr S Burke, and Ms Burke. It appeared from the affidavit of Garda McGrath that, after about 40 minutes, as the members of the Court of Appeal were reading their judgments, Ms Burke began to interrupt the Court by shouting at the Court. It appeared that other members of the Burke family also began to shout. The members of the Court of Appeal could not be heard above the noise of the members of the Burke family and the members of the Court rose for a few moments to allow peace to be restored to the courtroom. When they reappeared, they attempted to resume reading out their judgments again, only to be met with further interruptions by members of the Burke family. As they were interrupted in the giving of their judgments, members of the Court of Appeal rose again and left the courtroom, and their judgments were subsequently delivered electronically. When the three judges were in chambers, the tipstaff of the President of the Court informed Garda McGrath that, on the instructions of the Court, he was to remove, or the Gardaí were to remove, the two female members of the Burke Family, which he then proceeded to do. Subsequently, all members of the Burke family were removed from the court and shortly thereafter, the applicant was arrested and brought to the Bridewell Garda Station and then to the District Court. The applicant applied to the High Court for: (i) an inquiry pursuant to Article 40.4.2 of the Constitution; (ii) an order directing the release of the applicant; and (iii) an order quashing District Court proceedings entitled DPP v Simeon Burke. The application was grounded upon the affidavit of the applicant. The applicant in his affidavit and in his submissions made the following arguments: first, that he was wrongfully and unlawfully arrested, that the Gardaí had no warrant or authority to remove him from the courtroom, that he was never, in fact, arrested, or if he was, that he was unlawfully arrested; secondly, that when he raised these matters before the District Court, his concerns were neither accepted nor rejected, and that this was a breach of his constitutional right to fair procedures; thirdly, that his detention was wanting in due process of law; fourthly, that the process leading to his arrest, imprisonment and being brought before the District Court was of such a nature as to outrage, insult or defy the legal or constitutional authority of the Court; fifthly, that excessive force was used; and sixthly, that there was a flaw on the face of the warrant, in that the name of the arresting officer was not the Garda who arrested him.

Held by Cregan J that, having carried out the inquiry into the legality of the applicant’s detention, based on the evidence and the legal submissions, the applicant’s concerns were unfounded. Cregan J was aware at all times that the burden of proof was on the State to prove the legality of the detention, and he approached the investigation in that frame of mind. He held that if there had been an infirmity in the State’s case, he would have had no hesitation in releasing the applicant from his imprisonment. Cregan J was satisfied, having heard all the evidence and considered all the submissions, that all of the applicant’s allegations and submissions were utterly without foundation. Cregan J held that the applicant’s completely unacceptable actions in disrupting the Court of Appeal and in his interaction with the Gardaí, were solely responsible for landing him in the position in which he was.

Cregan J held that the applicant was being lawfully detained. In the circumstances, Cregan J refused the application.

Application refused.

JUDGMENT of Mr. Justice Cregan delivered ex tempore on 14th April, 2023 .

Introduction

1 . The application before this Court is an application by Mr. Simeon Burke for:

(i) an inquiry pursuant to Article 40.4.2 of the Constitution;

(ii) an order directing the release of the Applicant; and

(iii) an order quashing District Court proceedings entitled DPP v Simeon Burke.

2 . The application is grounded upon the affidavit of Mr. Burke.

3 . The initial application for an inquiry into the legality of Mr. Burke's detention was brought by Ms. Ammi Burke, Mr. Burke's sister, to the High Court on Wednesday, 12th April 2023. The High Court (Mr. Justice Barr) directed that an Article 40 inquiry should be held into the legality of Mr. Burke's detention the following day, 13th April 2023. The inquiry was held before me on Thursday, 13th April and Friday 14th April 2023.

4 . Counsel for the Respondent produced a certificate in writing, certifying the detention of the applicant.

5 . Counsel for the Respondent also indicated that he wished to put replying affidavits before the Court, and these affidavits were received by the Court at 2.30 pm.

6 . The inquiry commenced at 3 pm on Thursday and continued until 8 pm. Mr. Burke opened all the affidavits and made submissions on his own behalf on the evidence and on the law.

7 . Ms. Ammi Burke also wished to make submissions on behalf of her brother. Counsel for the Governor of Cloverhill Prison objected that it was not clear whether Ms. Burke was doing so as a solicitor or as a McKenzie Friend. However I allowed Ms. Burke to make submissions on behalf of her brother for two reasons:

• (i) first, because Article 40.4.2° provides that; “A complaint that someone is being unlawfully detained can be made by or on behalf of a person who is being detained” (emphasis added), and, in my view, this constitutional provision should be interpreted broadly in this respect; and

• (ii) secondly, because I was concerned that Mr. Burke, having spent one month in prison, might not have had the resources at his disposal to properly prepare his application and in my view, the justice of the situation required that he be allowed the assistance of his sister, Ms. Burke, who is a qualified solicitor.

8 . Later in the day, counsel for the Governor indicated that there were statements of a further 10 to 12 Gardaí in respect of this matter, which he wished to also put before the Court. A further affidavit exhibiting all these statements of evidence was sworn and furnished to the Court and admitted into evidence.

Article 40.4.2° of the Constitution

9 . Article 40.4.2° of the Constitution provides as follows:

“Upon complaint being made by or on behalf of any person to the High Court or any judge thereof, alleging that such person has been unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made, shall forthwith inquire into the said complaint, and may order the person in whose custody such person is detained, to produce the body of such person before the High Court on a named day, and to certify in writing the grounds of his detention and the High Court shall upon the body of such a person being produced before that Court, and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention, unless satisfied that he is being detained in accordance with the law.”

The background to this application: the incident at the Court of Appeal

10 . In order to understand the circumstances leading to Mr. Burke's detention, it is necessary to set out the somewhat unusual background to this application.

11 . The Court of Appeal sat on Tuesday, 17th March 2023 at 2 pm, in order to deliver its judgment in the case of The Board of Wilson's Hospital School v Burke [2023] IECA 52. The Defendant in those proceedings was Mr. Enoch Burke, Mr. Simeon Burke's brother. Other members of the Burke family were also in court at the time, including his father Mr. Seán Burke, his wife, Mrs. Burke, Ms. Ammi Burke, Mr. Simeon Burke, Mr. Enoch Burke and others.

12 . It appears from the affidavit of Garda Michael McGrath that, after about 40 minutes, as the members of the Court of Appeal were reading their judgments, Ms. Ammi Burke began to interrupt the Court by shouting at the Court. It appears that other members of the Burke family also began to shout. Ms. Burke takes exception to this description, and says they were not shouting, but that there were objections to what the Court was saying. It appears, however, that regardless of the characterisation, the members of the Court of Appeal could not be heard above the noise of the members of the Burke family and the members of the Court rose for a few moments to allow peace to be restored to the courtroom. When they reappeared, they attempted to resume reading out their judgments again, only to be met with further interruptions by members of the Burke family. As they were interrupted in the giving of their judgments, members of the Court of Appeal rose again and left the courtroom, and their judgments were subsequently delivered electronically.

13 . Of course, it should go without saying that it is absolutely disgraceful that any member of the Burke family should behave themselves in such a way that members of the Court of Appeal were unable to conduct the business of the Court and to give judgment in this case in open court. It was also the case that if Mr. Enoch Burke was unhappy with the decision, he could have sought to...