Enoch Burke has asked the High Court to set aside what he claims is the “gravely flawed” and “unsound” order underpinning his ongoing incarceration at Mountjoy Prison.
Mr Burke, who appeared before the High Court on Friday, remains in prison where he has spent 389 days over his refusal to abide by a court order for him to stay away from Wilson’s Hospital School in Co Westmeath.
The teacher appeared before Mr Justice Mark Sanfey for a review and to see if he was prepared to purge his contempt and agree to comply with the order.
The judge returned Mr Burke to prison, after he again indicated he was not prepared to stay away from the school.
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Mr Burke denies he is in contempt of court and says he has wrongfully been imprisoned because of his objections to what he describes as “transgenderism” following a direction by the school to call a then-student by different pronouns.
During Friday’s hearing, Mr Burke asked the court to set aside last year’s judgment by Mr Justice Alexander Owens, granting Wilson’s Hospital a permanent injunction restraining Mr Burke from attending at the school.
In his application, Mr Burke claims the order is flawed and should be set aside because Mr Justice Owens completely disregarded the teacher’s constitutional rights of freedom of conscience and the free profession and practice of religion.
Mr Burke argues the judge stated in his ruling that it was “unnecessary for this court to determine claims by Enoch Burke that the school board interfered with his constitutional rights”.
This, the teacher claims, is “a serious error of law” and “a breach by the court in its duty to uphold the Constitution and the laws”.
Rosemary Mallon BL, for the school, said her client had only been made aware of Mr Burke’s application shortly before the hearing on Friday. Her initial view was that the application is “misconceived” and was not properly before the court.
Counsel added that given that the school holidays have commenced, and state exams are due to finish in the coming weeks, the school would not object to any order releasing Mr Burke from prison without him purging his contempt.
Mr Burke was not imprisoned during last year’s summer holidays and stayed away from the school during that period. He was jailed again in September after attending once again.
Counsel said the matter could be reviewed again when the new school year commences in late August.
Mr Justice Sanfey said the court’s primary concern was whether Mr Burke intends to purge his contempt or remain in prison.
Mr Burke, he said, was once again clearly not prepared to give an undertaking to comply with the order to stay away from the school.
The judge said he was not going to shut out the teacher’s application to set aside Mr Justice Owens’s order, but normally a High Court decision would be appealed to the Court of Appeal.
He said it is generally not permissible for a judge to set aside a decision of another judge in the same division of the Irish courts.
He was not prepared to consider the application on Friday, as the school would need time to fully respond to such an application.
The judge added that he was only prepared to hear one specific, preliminary aspect of the application, which is whether the court can consider the application at all.
He adjourned the application to a date later this month.
Mr Burke said he could not understand why the court did not want to hear and determine his application, which raised serious and important constitutional issues straight away.
He was also critical of the court for not dealing with his application to set aside the judgment, which has put him in prison alongside “murderers”, “thieves” and “bank robbers.”
He also said that any question of him being released during the holidays was an insult. He had come to court for justice and not for a holiday, he added.
In reply, the judge said Mr Burke’s comments were typical of some of the “spurious nonsense” the court has heard since this case first came before it.
The judge noted the school’s position regarding the holidays but said the court’s position remains that orders need to be obeyed.
Throughout this legal battle Mr Burke has claimed that he has been imprisoned for his religious beliefs and his opposition to what he describes as “transgenderism.” He denies the school’s claims against him.
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