In his decision yesterday, sending Mammy Burke and Ammi Burke to prison for two weeks, presiding Judge Brian Cregan said that his decision was “long overdue”.
As Fatima reported, the Judge said:
“They continue to shout and disrupt court proceedings on almost every occasion. There comes a time when the court must then move to consider contempt of court proceedings against them. That time is long overdue.”
He is right, of course, that some resolution to this matter is long overdue. However, the Judge himself – and several of his colleagues – must take a share of the blame for the situation that now afflicts, from one point of view, the Burke ladies, and from another point of view afflicts everyone who has had to sit through this sorry saga.
First, a statement of a very important fact: Mammy and Ammi Burke are not litigants before the courts. They are not involved legally in any matter concerning their son and brother, Enoch Burke. Though Ammi Burke is a solicitor, she is not in court to represent her brother, who has chosen to be his own legal representative. Neither Mammy nor Ammi is a legal party to any of the cases involving Enoch Burke. They are, simply, his mother and sister who are there as members of the public to observe the judicial process.
They have no “right of audience” before the Judge, any more than any other member of the public viewing gallery has a right to stand up and interrupt proceedings. This would not be controversial in any other situation. Imagine, if you will, if a random member of the public decided next year, or whenever the matter comes to trial, to persistently interrupt and shout “shame” from the public gallery during the trial of the man accused of murdering Mike Gaine. Neither the Judge nor the public would tolerate it.
Why, then, has this been tolerated for so long in the case of Mammy and Ammi? And why is imprisonment – the harshest possible sanction – been the last resort and enforced at the latest possible point?
A barrister I spoke to yesterday (not, for the avoidance of doubt, my podcast co-host) expressed similar bafflement. In his judgment yesterday, this person noted, Mr. Justice Cregan declared his intention, in addition to imprisoning the Burke ladies, to make an order barring them from attendance at any future legal proceeding involving Enoch Burke. When they are released from prison, they simply will not be re-admitted to the courtroom.
But why is that order being made only now? It is an order that could have been made on any of the countless occasions after which the Burke ladies have been physically ejected from a courtroom. Making that order months ago might have saved the courts time and money, saved the state the cost, and saved the Burke ladies the misery of their impending incarceration.
A possible explanation is that the courts felt that barring members of the Burke family from the courtroom would generate accusations of bias – but this stretches credulity. In the first instance, those accusations of bias from hardcore supporters of Enoch Burke are already baked in, and almost no action the court can take would ever reverse them.
In the second instance, Ireland being a free country, the Burke family would have been free to protest the Judge’s decision to exclude them from the courtroom outside the courts. A scenario which will, you’d expect, now play out anyway once Ammi and Mammy have been released from prison in a few weeks.
Judge Cregan did make other comments yesterday, unrelated to the case, which I also think were unnecessary. Is it necessary to say, for example, that Ireland is not a theocracy under Burke family rule? I do not believe it is: Rather, the Judge could simply confine himself to the facts: That the people he sent to prison have repeatedly interrupted the court’s proceedings and he was treating them as he would any other person in their position.
Finally, the whole saga still has one over-arching problem: That is that Enoch Burke, as a litigant, is before the court seeking court orders to be made against other persons, while not once having accepted the courts authority in regard to himself. This position is shared by other members of the Burke family, vocally: That the courts must resolve the matter, but that they will accept no resolution from the courts other than the one they themselves would agree to abide by. It is this double standard that is the entire root of the Burke family’s troubles, as they relate to spending time in prison.
The courts have been, in my view, much too slow to deal with this. Which is why yesterday, they sent to prison two women whose incarceration would never have been unnecessary had they been dealt with more firmly at an earlier date.