Judges refuse to hear application for inquiry into lawfulness of Simeon Burke’s detention

Sister of remand prisoner, who has refused to sign a bail bond allowing his release, made two appeal to High Court

Two High Court judges have, at separate hearings, refused to hear an application by a sister of remand prisoner Simeon Burke for an inquiry into the lawfulness of her brother’s detention.

Ammi Burke, accompanied by brothers Isaac and Josiah, went before the judges on Tuesday seeking an inquiry, under Article 40 of the Constitution, into the matter.

Simeon Burke (24), of Cloonsunna, Clonshaugh, Co Mayo, has denied a breach of the peace offence in connection with certain events in the Court of Appeal on March 7th last. His trial on that charge has been listed before the District Court next Monday.

He and members of his family were escorted from the Court of Appeal by gardaí on March 7th after events which disrupted the delivery of that court’s judgment dismissing his brother Enoch Burke’s appeal over orders restraining him attending at Wilson’s Hospital School in Co Westmeath.


Refusing to sign bond

Simeon Burke, who is pursuing a barrister at law degree at the Kings Inns, has been in custody since then after refusing to sign a bail bond with a condition to stay away from the Four Courts. He alleges his arrest and detention are unlawful.

On Tuesday morning, before Mr Justice Mark Heslin sat as duty High Court judge for the courts Easter vacation, the court registrar approached Ms Burke in the courtroom and told her the judge considered that she lacked legal standing to seek the inquiry. Ms Burke disputed that but the registrar repeated that was the judge’s view.

When the judge sat at about 11.15am, the Burkes remained in court while he dealt with some matters in his list.

As he moved to rise, Ms Burke raised the Article 40 matter and said she was entitled to seek such an inquiry. Once an inquiry was ordered, her brother could represent himself, this was “basic law” and it was “extraordinary” the registrar had told her the application could not be made by her as a third party, she said.

The judge said he was not entertaining her application and that there is a paper-based procedure for Article 40 applications.

Ms Burke said that was just one of several methods of bringing such an application, a third party could also bring one and she was “surprised to be fighting for the right” to pursue this “well-used method” of bringing an application.

The judge said he had made his decision, adding that he did not believe there was any prejudice to Simeon Burke’s rights or any lack of access to the courts.

‘Severe prejudice’

Ms Burke said there is “severe prejudice” to her brother as his trial is before the District Court on April 17th and is for mention before that court on Wednesday. The District Court lacks jurisdiction to hear the case for reasons including flaws in the warrants and the manner in which her brother was arrested and should not proceed with the trial, she said.

She said a paper-based Article 40 inquiry application would take days and she had been told there are no online consultations available to her brother until April 19th, so she cannot pass papers to him prior to the trial.

Mr Justice Heslin said the issues Ms Burke was raising under Article 40 concerned matters to be raised and decided at the District Court trial. Ms Burke disputed that and argued the judge was in essence determining a habeas corpus application. The judge disagreed and rose from the bench as Ms Burke continued speaking.

The Burkes remained in the Four Courts but were unable to pursue the matter before Mr Justice Heslin as he was hearing in camera wardship matters in another court. Three gardai stood outside that courtroom and about four others were nearby.

About 4pm on Tuesday, Ms Burke applied to Ms Justice Melanie Greally at the High Court’s bail list in Cloverhill court for an Article 40 inquiry. The grounds for the inquiry included the District Court lacking jurisdiction to try the case and a deliberate and conscious violation of her brother’s constitutional rights, she said.

Ms Burke said her side had learned there are CCTV cameras in the Four Courts and believed those would support her brother’s version of the events on March 7th. The prosecution had said it was not relying on CCTV evidence and there was no CCTV footage, she noted.

When the judge noted there was no refusal of bail and the sole condition of Simeon Burke’s bail was that he not attend at the Four Courts, Ms Burke said her brother was unable to take part in a compulsory debating competition at the Four Courts as part of his barrister course. He could not consent to bail because of his position that the entire process was contrary to law and his constitutional rights, she said

No legal standing

After hearing Ms Burke for some 30 minutes, the judge rose to consider her decision. At 4.45pm, the judge said she was dealing with the matter on the basis of her finding that Ms Burke had no legal standing to seek the Article 40 inquiry.

The judge referred to various legal authorities, including one stating it is a fundamental and important rule that those who do not choose to represent themselves must be represented by a qualified lawyer.

As the judge delivered her ruling, Ms Burke intervened, saying: “You’re misdirecting yourself.”

The judge continued to deliver her ruling. When she said the court had been misled as to the entitlement of third parties to represent others in an Article 40 inquiry, Ms Burke said this was not an Article 40 hearing, it was an ex parte application for an Article 40 inquiry.

After further exchanges, the judge said there is a procedure to seek an Article 40 inquiry and Ms Burke was not entitled to “go forum shopping”.

When Ms Burke continued to make arguments, the judge left the bench. Ms Burke remarked  the judge was “utterly disregarding the law” and her brother Isaac commented: “It’s a case of making it up as you go along.”

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times