IT’S AN 11 minute drive from Mountjoy Prison to the High Court in Dublin – a trip that Enoch Burke has made many times this week, as he sought to argue that the Sunday Independent defamed him.
Burke has acted as his own legal representative, meaning he got the chance to cross examine the editor of the paper, the journalist who wrote the article he’s complained about, his own mother, and has given evidence himself.
After all of that, his trip back to his prison cell in Mountjoy in the back of the Garda van today is bound to have felt anti-climactic, after Judge Rory Mulcahy told the court he will issue an electronic judgement on the case in due course.
And so it remains to be seen if Burke will be successful in his action, and if he will be awarded any damages.
But the “elephant in the room”, as Ronan Lupton SC for the defence put it, is that Burke will continue to reside in prison either way, unless he purges his contempt before the High Court – the very same court he has argued his case in this week.
More of Burke’s siblings came to the High Court to support him for the last day of proceedings, but now their contact will once again consist of short daily phone calls and prison visits.
It’s Burke’s predicament that has made this situation “highly unusual” – as the defence said – but the defamation case at hand is actually quite simple.
Burke says that an article published by the Sunday Independent on October 9 2022 (and its owner Mediahuis ltd by extension), authored by senior reporter Ali Bracken, defamed him by claiming that he was moved from the general population section of the prison back to its progression unit for his “own safety”, as he had been “annoying” other inmates.
Mediahuis has acknowledged that there were “errors” in the information that two sources within the prison services gave to Bracken, which led to “inaccuracies” being published in the article.
Chief among them the claim that Burke was moved from the general population section of the prison, which its accepted he was never in.
The Sunday Independent later issued a clarification and apology related to these inaccuracies, and removed the online version of the article within 48 hours of its publication.
The publisher denies that it defamed Burke, however, by claiming he annoyed other prisoners, and it has not accepted that that claim was “false”, though Burke maintains it was.
Burke is arguing that the claims in the article portrayed him as an “unbearable” person, who is “unfit to be a teacher”.
Journalist cross-examined by Burke
Bracken, the author of the article, was cross-examined by Burke today. She said that nowhere in the article was it claimed that he was unfit to teach, and that a reasonable person would not infer this from what was claimed either.
She also claimed that in his evidence Burke has tried to “besmirch” her personally, “besmirch journalism” and that he made “offensive” comments when he labelled another article she wrote about people’s view of him in his hometown of Castlebar as “tinkerish”.
When asked by Lupton about the article being complained about, Bracken said that she realised it contained inaccuracies after the newspaper received a complaint from the Burkes, and she double-checked the information with her sources.
She said she was “surprised” that details in the article turned out to be incorrect, as she had “huge faith” in the sources who supplied the information.
Bracken said that she regretted those inaccuracies, but that she felt that she had performed her “due diligence” as a professional journalist, and maintained her integrity.
She also said that other claims made in the article were not false, and would not accept that it was not the case that Burke had annoyed other prisoners, when pushed to do so by the plaintiff.
In his cross-examination, Burke focused on a previous article written by Bracken, which was titled “They are not liked here”, and detailed the views of people in Castlebar three days after his imprisonment as a result of failing to comply with a court order to stay away from the school he used to teach in.
Burke told Bracken she had been “trying to stir up contempt” for his family – she said this wasn’t the case, and that she had spoken to his father and brother for the article to reflect their views.
Burke asked Bracken if she accepted that the headline of the article about which he has complained about (“Enoch Burke moved to new jail cell as he is annoying other prisoners”) was false.
She said she accepted that it was inaccurate in terms of “the logistics of where you were moved”.
“It was incorrect to state you were ever in general population”, Bracken added.
Judge Rory Mulcahy told Lupton that it may be “problematic” if his witnesses did not acknowledge that Mediahuis has accepted that Burke was only moved cells due to operational reasons, which the publisher has accepted in its submitted defence.
Burke pushed Bracken to accept that it was false for the article to claim he was moved for his own safety, she said: “It is hard for me to accept that it is false”.
Bracken said she did not accept that it was false for the article to claim that Burke had repeatedly expressed his religious views to other prisoners.
The senior reporter also told Burke that she believes he is “intolerant” of other people’s views.
Burke put to Bracken that in the article about his time in prison she had not addressed “transgenderism”, which he said was the “real issue at hand”.
He said that by making him seem like someone who couldn’t keep his “mouth shut” in prison, she had “went to bat” for Wilson’s Hospital School, and led people to believe that if the prison had to “get rid” of him, surely “the school did too”.
Bracken rejected the assertion.
Closing submissions
Burke has argued that the article left him open to “ridicule” and “mockery”. He said that in the article there was no distinction between suspicions, allegations and facts.
Burke said that the article was “read by millions”, and that in giving their defence, Mediahuis ltd has “aggravated” the alleged injury to his reputation, by telling him that he seems capable of “annoying” other prisoners.
He said that the defendants had exemplified a “haughty and humiliating” disregard for his rights.
Burke said that while Lupton has put forth that Burke’s campaigning activities have made him a public figure going back as far as 2010, both Bracken and her editor Alan English gave evidence that they became aware of him in August 2022, when his difficulties with his former employer hit the headlines.
When arguing that the article has damaged his reputation, Burke has relied on tweets from accounts on the internet, posted during the two days that it remained online.
The judge in the case allowed these to be read in on the basis that they were evidence of the tweets having existed only.
Ronan Lupton SC, in his closing submissions today, argued that the tweets were not evidence of Burke being “shunned”.
Further, Lupton has argued that Burke’s reputation was already damaged due to his own conduct, by his continued refusal to comply with a court order barring him from attending Wilson’s Hospital School in County Westmeath.
Lupton said that the case is a “highly unusual” one, as the defendant is travelling from prison to argue in court that his good name has been damaged when he is a contemnor – someone who has failed to comply with the courts, though he acknowledged Burke’s right to do so.
The judge told Lupton that he isn’t able, in the last hour of the case being heard, to make an application that a contemnor isn’t entitled to bring a defamation action, after Burke made an objection and several members of his family started to make remarks in Lupton’s direction.
Lupton said that the words printed in the article do not infer that Burke is unfit to be a teacher, as the plaintiff has tried to argue.
Judge Mulcahy said that it was of note that the newspaper’s position in its defence is that “it does not matter if [the article] is true or not”. He said that while that position might be “justifiable”, it is “nevertheless striking”.
A judgement is expected to be issued in the case in the coming weeks.
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