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Enoch Burke and the problem of ‘potentially indefinite incarceration’

With schoolteacher Enoch Burke now 105 days in jail for contempt of court, the seemingly intractable case has shone a light on civil contempt laws

Enoch Burke has been in Mountjoy Prison since early September for contempt of court. Photograph: RTÉ

Enoch Burke remains adamant he will not purge his contempt-of-court orders in a case that has shone a light on civil contempt laws and the difficulties that arise when people, for whatever reason, refuse to purge their contempt and thereby face indefinite imprisonment.

While the courts have in some cases fashioned alternatives to the blunt weapon of imprisonment for civil contempt, it remains to be seen whether that can be done in Burke’s seemingly intractable case.

Civil contempt, the means by which the courts punish those who disobey court orders, generally works well as a short, sharp shock, because most people, when faced with the prospect of going to jail, purge their contempt after a few hours or days in a prison cell. Where it runs into difficulties is when contemnors, for whatever reason, refuse to purge their contempt.

Burke, in Mountjoy Prison since early September with no indication of a release date, is the latest example of such a case. His employer, Wilson’s Hospital School in Multyfarnham, Co Westmeath, initiated a disciplinary process against him in August after Burke publicly voiced objections at a school event to an earlier request made to teachers by the school principal to call a transitioning pupil by a chosen name and use the “they” pronoun when referring to the pupil.


Burke was placed on administrative leave with full pay pending the process and was asked not to attend at the school. When he continued to attend, the school obtained High Court orders restraining him doing so and on September 5th obtained his committal to prison for contempt of those orders.

In several court appearances since, Burke has repeatedly said his religious beliefs prevent him from purging his contempt by complying with the orders. Compliance, he maintains, would amount to his accepting “transgenderism”, which he says would amount to breach of his Christian beliefs and his duty to God.

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He has appealed against the orders restraining his attendance at the school but that appeal will not be heard until February 16th. He contends the main proceedings between the school and himself, yet to be heard, concern his constitutional rights to freedom of expression and of religious belief but those issues have not been addressed. He wants his appeal, including his claims of breach of constitutional rights, to be determined before the main action.

All of this suggests he could be in prison for some time. While some view that as a problem he can end at any time by purging his contempt, others have expressed disquiet about his predicament. His case has attracted considerable attention here and overseas, including in the UK, the United States and Canada.

Solicitor Simon McGarr is very familiar with the law on civil contempt. His family firm represented five people, known as the Rossport Five, who spent 94 days in prison after being jailed in June 2005 over contempt of an injunction not to interfere with surveying works on lands in Co Mayo for the construction of the Corrib gas pipeline. They were released in September 2005 after Shell E&P Ireland applied for the injunction to be discharged. While the five had not purged their contempt, the High Court decided against any further action against them, saying the 94 days in jail, although coercive in intent, also contained a sufficient punitive element.

“The courts,” says McGarr, “have an obligation to ensure their orders are complied with and they should have powers to ensure that compliance is enforced. What is problematic in relation to the current civil contempt procedure is the element of potentially indefinite incarceration.”

That, he says, creates a powerful incentive for a breach of orders “in order to create political martyrdom or to push a particular point of view”.

The courts have shown they can be creative in terms of alternative means of enforcing compliance, including by imposing accruing fines, which has none of the problematic elements of indefinite incarceration, he notes. “The courts are legitimate and are entitled to enforce their orders. They must have a means of doing that and finding the correct means for every occasion.”

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Contempt of court remains a common-law offence here, meaning it is not enshrined in legislation.

The Supreme Court has, over many years, lamented the absence of legislation on contempt. In a 2012 judgment upholding the jailing of businessman Seán Quinn and his son Seán jnr for contempt of orders restraining dissipation of assets, it described the law of contempt as “amorphous” and extremely difficult for the layperson to understand. It was “most unfortunate”, it said, that, some 20 years after the Law Reform Commission had called for reform, no positive steps had been taken for reform.

A Private Member’s Contempt of Court Bill, sponsored by Fine Gael TD Josepha Madigan, was introduced in 2017, seeking to put contempt of court on a statutory footing. It lapsed with the dissolution of the Dáil and Seanad but its proposals are included in the programme for government.

Some guidance concerning appropriate orders for civil contempt has been set out in a number of judgments, including a High Court judgment of 2020, Meath County Council v Hendy, concerning an unauthorised waste-disposal facility. The court said, where a person is found guilty of civil contempt, appropriate orders can include custodial orders and financial orders. If there is no capacity, or limited capacity, to comply, the court may have to confine itself to non-custodial options, such as orders addressed to assets, it said.

Judgments on contempt applications, including in several cases where receivers appointed by financial institutions encounter opposition to their efforts to seize or sell assets, make clear the courts will take firm action over contempt. However, case law also underlines that judges are concerned about the imprisonment of contemnors for long periods and are prepared, in certain circumstances, to fashion solutions of their own to address seemingly intractable situations.

Just last year, Mr Justice Senan Allen considered the law on contempt in the case of Fergal Deery, who had spent a total 115 days in custody for contempt since December 2nd, 2020. That arose from a long-running dispute between Mr Deery and a company, WardGlade Ltd, after it acquired properties from a receiver appointed over properties in Monaghan town previously controlled by members of his family.

Mr Deery had not sought to purge his contempt of orders not to trespass on the properties but the judge listed the case of his own motion to consider whether Mr Deery should stay in prison. Wardglade had said it had no interest in seeing Mr Deery jailed, indefinitely or at all, and had gone to court to enforce its legal right to ownership and peaceful enjoyment of the property at issue.

Mr Justice Allen noted, in a 2012 Supreme Court judgment, McFeely v Dublin City Council, the Supreme Court described committal for contempt of court as an “indispensable procedural remedy” without which “defiant and recalcitrant litigants might be able to defy the courts and the law and deprive Opposition parties of their just rights”.

The law provides that imprisonment is “the remedy of last resort” and “it seems to me to follow that it should not endure beyond the time that is absolutely necessary,” he said.

In considering whether Mr Derry’s continued imprisonment was necessary, he took into account Mr Deery was “stubborn” and “refusing to budge” and noted his actions were fuelled by encouragement of a “motley crew of fantasists”. Other factors were the company’s stance on the imprisonment of Mr Deery and the “probably irrecoverable” costs of the various contempt appearances.

The judge concluded, “not without misgivings”, that Mr Deery’s continued imprisonment was not necessary to ensure the court’s authority was vindicated and he released him.

The Wardglade decision is an example of the High Court, of its own volition, finding a way to end a difficult case of civil contempt. Legal sources suggest there may be some parallels with the Burke case and the latest developments in the case indicate the court is trying to find a solution to the stalemate.

Last Friday, Mr Justice Conor Dignam, having invited Mr Burke and lawyers for the school to attend before him, said he would hear submissions on Wednesday over whether Mr Burke should be released from prison during the school holidays, when the school will be closed. The school’s barrister, Rosemary Mallon, said it had no objections to the court’s suggestion but Mr Burke said he was not interested in a “Christmas gift” from the court and wanted to leave prison with full vindication of his claims that the orders at issue breach his rights. The court will have to be particularly creative if it is to end this standoff.