Unlike Jordan Peterson, Piers Morgan or several so-called gender-critical feminists, I did not lose sleep over the jailing of Enoch Burke. The man’s misfortunes appear to be entirely of his own making. He is not in jail – despite what he tiresomely claimed again this week – because of his “religious objections to transgenderism” or because, as he has previously declared, “I would not call a boy a girl.”
He is in jail because he refused to comply with the terms of his suspension (on full pay) from the school where he taught, following an alleged public confrontation over the wishes of a 15-year-old pupil to be addressed as “they”. He subsequently refused to comply with a High Court interim injunction preventing him from turning up at the school until the disciplinary process was completed. As a result, he was sent to Mountjoy, where he remains until he agrees to purge his contempt, or until the case concerning his suspension is dealt with. On Friday, he told the High Court he was not interested in what he called a “Christmas gift” of being let out of prison for the holidays, while the school at the centre of the row is shut.
It is hard to muster any sympathy for someone who is not a victim of anything other than his own warped belief system.
But two things can be true at once. You can find Enoch Burke’s views utterly abhorrent. And you can be uneasy at his ongoing imprisonment; or at least by the notion that any individual can be indefinitely incarcerated over a matter of civil contempt.
Burke has now spent 103 days in Mountjoy – nine more days than the so-called Rossport Five, who were jailed in 2005 for civil contempt for defying a court order that they stop protesting at work being carried out by Shell in Co Mayo. The Castlebar schoolteacher looks likely to exceed that by a generous margin. During a hearing this week, at which he begged three times to be freed, Mr Justice Conor Dignam said he had “no alternative” but to send him back to Mountjoy.
Those guilty of criminal contempt are punishable by a fine or a finite term in prison. But since civil contempt is designed to be coercive rather than punitive, the term of imprisonment is indefinite
Those who are loudly celebrating the news that he will remain in jail over Christmas should consider what exactly it is they’re so thrilled about. Your personal views on Burke – or your views on his views on transgender people, gay people, women who have abortions – are not the point here. The notion that the courts can indefinitely imprison an individual for civil contempt should trouble us all.
There are several key distinctions between criminal contempt – when a person prejudices a trial, disrupts a court sitting, or makes false allegations against a judge – and the civil contempt of which Burke is guilty. Civil contempt arises when someone refuses comply with a court order, and states that he or she will continue to do so into the future.
Those guilty of criminal contempt are punishable by a fine or a finite term in prison. But since civil contempt is designed to be coercive rather than punitive, the term of imprisonment is indefinite. An individual is released “when and only when, he or she agrees with the court order,” as a 2016 paper on contempt of court by the Law Reform Commission put it.
‘Amorphous’ law
If you find it confusing that someone guilty of the more serious form of criminal contempt gets a finite term, while those refusing to comply with a civil order can be held indefinitely, you’re not alone. In a decision relating to the Irish Bank Resolution Corp and Seán Quinn, even the Supreme Court described the Irish law on contempt of court as “amorphous”.
There is a route home for Burke in time for Christmas if that’s what he really wants. In civil contempt cases, the individual is brought back on a regular basis and given the opportunity to purge their contempt. Burke has been given that chance now several times, and has always refused. It is clear that either because of his religious zeal, his personal principles, his imagined grievances with the legal system or some combination of all of these factors, he doesn’t see that route as open to him. He plainly does not believe he has any choice in the matter, which is how we have arrived at such a ridiculous – and costly – impasse.
The Rossport Five were released after the injunction was discharged, but they still refused to purge their contempt. However, the High Court was satisfied that the 94 days they had served was enough
The apparently immovable object of our legal system has met the unstoppable force of Burke’s conviction of his own righteousness.
But the law on civil contempt is not actually immovable. As the Law Reform Commission puts it, it is based in common law and “gives courts and judges a large amount of discretion”. This is an area “where almost no two lawyers or commentators can agree on many of the most fundamental aspects”, wrote Paul Anthony McDermott in a 2004 article on the subject.
So a judge could, presumably, decide that enough time has passed and no public good is served by holding him in jail.
The Rossport Five were released after the injunction was discharged, but they still refused to purge their contempt. However, the High Court was satisfied that the 94 days they had served was enough and didn’t send them back to jail. The judge in that case commented that the court was “not designed for PR stunts and protests”.
Enoch Burke’s appeal against the injunctions which resulted in the contempt-of-court proceedings is not due to be heard until February. If he is not released first, his incarceration will by then have cost the State around €40,000. More crucially, it will also have given him and his supporters further opportunities to turn the court into a platform for their protests and religious beliefs.
Enoch Burke wants to be a martyr of the culture wars. We shouldn’t be making it so easy for him.