The High Court has directed that school teacher Enoch Burke be released from prison on an “open-ended” basis and not just for Christmas.
In a ruling on Wednesday evening, Mr Justice Brian O’Moore made clear that if Mr Burke breaches any existing court orders made against him, he may again be jailed.
Mr Burke, who walked free from Mountjoy Prison in Dublin on Wednesday evening, was jailed on September 5th for contempt of orders restraining him attending or teaching at Wilson’s Hospital School, Multyfarnham, Co Westmeath.
The school put him on paid administrative leave in September pending a disciplinary process arising from his behaviour at a school event last June where he publicly questioned the then principal over an earlier direction from her to teachers to address a transitioning pupil by their chosen name and using the pronoun “they”. Mr Burke claims that direction, and the court orders, breach his constitutional rights including to freedom of religious belief.
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In a ruling delivered electronically on day 107 of Mr Burke’s imprisonment, Mr Justice O’Moore said this was not a “unique” case but one of the “very rare” cases where the coercive imprisonment should stop, “at least for the moment”.
His decision balanced six factors – Mr Burke’s failure to obey a court order, the school’s attitude and lack of opposition to his Christmas release, the Christmas holidays, use of public funds, alternative measures and Mr Burke’s motivation.
The judge said Mr Burke had mischaracterised his possible release as a “Christmas gift” as it is always open to the court to review a coercive order at any time.
On motivation, he said Mr Burke’s continued jailing would only facilitate whatever he feels he is currently achieving in prison. He was an “ordinary teacher” in a Westmeath school before he was jailed, is now a “household name” and his imprisonment had played a central part in this.
‘Illogical’
Several key decisions by Mr Burke during the litigation were “illogical”, he found, including his view the court orders require him to act in a manner inconsistent with his religious belief.
He said Mr Burke had wrongly claimed he faces jail because of his religious convictions and was acting in a way likely to prolong his imprisonment. It was difficult to avoid the conclusion Mr Burke “is exploiting his imprisonment for his own ends,” the judge said. “The court will not enable someone found to be in contempt of court to garner some advantage from that defiance.”
There was no useful purpose to be served by having Mr Burke imprisoned now and certainly not over Christmas, he said.
There is a “complete stand-off” between the school and Mr Burke as the school disciplinary proceedings were paused, the judge said, adding that Mr Burke had delayed court proceedings, was refusing to purge his contempt and will not leave prison until vindicated “by some higher court”.
While the impasse persists, it is “intolerable” that the taxpayer continues to pay both his prison upkeep and his wages, especially where he refuses to countenance his immediate release “for reasons which make no sense”.
Mr Justice O’Moore said he was ordering the release of Mr Burke only on the basis his school can come back to the court to seek his attachment and committal to prison, the sequestration of his assets or any other appropriate measure in the event that he does not comply with any court order.
Mr Burke was to be released “as soon as that can practicably be done” and would remain at liberty unless and until any further court order is made imprisoning him.
The judge stressed complying with the court orders “does not in any way compromise Mr Burke’s religious belief or require him to do anything in violation of those beliefs”.
The orders did not oblige Mr Burke to address anyone in a particular way or to use a specific style or title and in essence prohibited Mr Burke entering the school’s premises or interfering with its educational activities.
Mr Justice O’Moore heard submissions earlier on Wednesday concerning the possibility of releasing Mr Burke in light of the school holidays.
Rosemary Mallon BL, for the school, said its application for committal was intended as coercive and its concern had always been to prevent disruption to pupils. There would be no disruption if Mr Burke was released for the school holidays but the school was concerned about what happened after the school returned on January 5th and, given Mr Burke’s stance, he should remain in prison, she said.
Mr Burke was in court as were his parents, Martina and Seán, and sister Ammi, a solicitor. Mr Burke said his suspension and the court orders are “manifestly unlawful” and he believed the court and the school’s lawyers were working “hand in hand” in relation to the matter of his possible release.
All the matters go back to the school principal “demanding” he address a student by their chosen name and the pronoun “they”, he said. He said “transgenderism” is against his conscience and religious belief and everything he has done since was in response to that “demand”.
“My only crime is that I had a religious belief and I would not sell it,” Mr Burke said, adding that what he wanted was a “just” upholding of his constitutional rights and he could not participate in the process before the court “in any form”.
