Teacher Enoch Burke will only get an injunction preventing a school going ahead with a disciplinary hearing against him on Thursday if he agrees to stay away from the school in compliance with court orders, a High Court judge has ruled.
Mr Justice Conor Dignam has listed the matter before him on Wednesday morning to see if Mr Burke will comply.*
The judge ruled on Tuesday that Mr Burke had made out a strong case for injunctions likely to succeed at trial arising from aspects of the conduct of Wilson’s Hospital School in the disciplinary process to date.
However, while Mr Burke satisfied the first test for an injunction, in that he had made out a strong case, the balance of justice was tipped in favour of refusing the injunction by his stated intention to continue to breach the orders to stay away from the school, the judge said.
If he persists in that intention, the court would not grant the injunctions, he said.
Rather than simply refusing the injunction, he said it would be more appropriate to allow Mr Burke time to consider whether he will comply with the orders. He listed the matter for Wednesday.
[ Move for sequestration of Enoch Burke’s assets for contempt may be a legal first ]
Earlier, the judge held that Mr Burke had met the standard for an injunction on two grounds – that an August 2022 report by the then school principal grounding the disciplinary process contained findings and conclusions without giving him an opportunity to respond, thereby depriving him of natural justice and fair procedures.
He also had a strong case that the report was read and discussed at a board of management meeting on August 15th last, attended by the principal but to which Mr Burke was not invited, thereby depriving him of natural justice and fair procedures. The judge said he was satisfied Mr Burke had shown a strong case that the principal’s report is flawed.
He was not satisfied Mr Burke had made out a strong case that the disciplinary process has gone “irremediably wrong” in light of those issues. Mr Burke had made out a case that there was a risk the process had gone irremediably wrong but whether or not that was actually the case would be decided at the full trial, he said.
He rejected the school’s arguments the process had not gone irremediably wrong because the board could deal with all the issues at the disciplinary meeting and because Mr Burke can appeal and has remedies in law. Nor was his injunctions application premature, he held.
The judge went on to find that Mr Burke’s conduct to date amounted to him coming to the court “with unclean hands” and his stated intention to continue attending the school amounts to him “not doing equity”.
[ Enoch Burke returns to Wilson’s Hospital School ]
Mr Burke’s explanation that he is not complying with the orders because he considers them manifestly unconstitutional and wrong has no merit as an explanation for refusing to comply with orders in a system based on the rule of law, he said.
It is long established that if a court finds a person has acted contrary to equity, it has discretion to refuse relief even if the applicant might otherwise be entitled to it, he said.
The judge also rejected Mr Burke’s arguments that the court orders breach his religious rights under the Constitution. He agreed with a finding of his colleague, Mr Justice Brian O’Moore, that the orders did not compromise Mr Burke’s religious beliefs or do anything in violation of the beliefs as the orders essentially prohibited him entering the school. The system provided that he must comply with orders pending the determination of his appeal against them.
Mr Burke wanted injunctions halting any further steps in the disciplinary process pending a full hearing of the legal dispute between him and the school. He remains suspended on paid administrative leave pending the disciplinary process, initiated on foot of the report prepared by then school principal Niamh McShane.
It concerned Mr Burke’s emailed objection to the principal’s direction last May for teachers to address a transitioning student by their chosen name and use the pronouns “they/them” and his publicly voiced opposition to that direction at a school event last June.
After Mr Burke continued to attend at the school in September despite High Court orders restraining him doing so, he was jailed for contempt. He was released on an open-ended basis on December 21st last, after 108 days, without having purged his contempt.
Because he again attended the school on January 5th last as pupils returned after the Christmas holidays, the school asked Mr Justice Brian O’Moore on Tuesday morning to fine him or sequester – temporarily detain – his assets.
[ Enoch Burke and the problem of ‘potentially indefinite incarceration’ ]
Barrister Rosemary Mallon said the school has a genuine concern about interactions and disruptions that could occur as a result of Mr Burke’s continued attendance.
The school wanted sequestration of his assets or to have him fined in whatever amount the court considered appropriate, she said. It did not favour him being again committed to prison as it was undesirable to commit a person who had no intention of obeying a court order, she said.
Mr Burke’s teacher’s salary is some €48,000 and he has also delivered grinds, the court heard.
Mr Burke strongly opposed the application, describing it as a “nefarious proposition”. The orders restraining his attendance at the school were manifestly unlawful and unconstitutional and breached his right to freedom of religious belief, he argued.
The school, via the direction to teachers concerning how to address the transitioning pupil, had sought to compel or coerce him into disavowing his Christian beliefs, he said.
He said he had never been in trouble with the law but had been “dragged in here as a criminal because I expressed my religious belief on transgenderism”.
Mr Justice O’Moore will deliver his decision on the sequestration/fine application next week.
* This article was amended to clarify that the ruling over whether to grant an injunction against the school’s disciplinary hearing will be made on Wednesday morning.