Enoch Burke and the problem of 'potentially indefinite incarceration'

• Published date: 19 December 2022

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.

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