The Board of Management of Wilson's Hospital School v Burke

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 21 December 2022
• Neutral Citation: [2022] IEHC 719
• Court: High Court
• Docket Number: [2022 No. 4507 P]

Between

The Board of Management of Wilson's Hospital School

Plaintiff

and

Enoch Burke

Defendant

[2022] IEHC 719

[2022 No. 4507 P]

THE HIGH COURT

Coercive imprisonment – Use of public funds – Alternative measures – Defendant committed to prison to compel compliance with orders – Whether the defendant should be released from custody

Facts: The High Court (Quinn J), on the 5th of September 2022, made an order committing the defendant, Mr Burke, to prison. The purpose of his imprisonment had been to compel him to comply with orders made by Stack J (on an interim basis) and Barrett J (on an interlocutory basis). The order made by Stack J, on the ex parte application of the plaintiff, Wilson’s Hospital School, restrained Mr Burke from attending at the school premises, and from attempting to teach any classes or any students at the school. The order of Barrett J, which had bound Mr Burke since the 7th of September 2022, was in broadly similar terms. It restrained Mr Burke from attending the school premises, attempting to teach classes or students, interfering with a substitute teacher’s duties, failing to comply with the directions of the school board, and from trespassing on school property. As recently as the 13th of December, 2022, Mr Burke refused to secure his release, which he could have done by agreeing to comply with the order of Barrett J. That hearing was conducted by Dignam J. Later that week, the parties were asked by Dignam J to attend a hearing for the purpose of considering whether Mr Burke should be released from custody while the school was closed over the Christmas holidays. Mr Burke showed no interest in such a development. Counsel for the school stated that it was in the Court’s hands, that there was no concern or objection to the release of Mr Burke during the school holidays as the school would be closed, and that the only worry on the school’s part was what would happen when it reopened in early January.

Held by O’Moore J that it was intolerable that the public was paying, until some indefinite future date, the cost of Mr Burke's incarceration as well as his wages. O’Moore J held that this was especially so where Mr Burke appeared to be refusing to countenance his immediate release for reasons which made no sense. O’Moore J held that this double draw on the public finances, in the circumstances, was a factor supporting Mr Burke's release. O’Moore J held that the fact that the Court could deal flexibly with any future breach of the order was a modest consideration in favour of release; it may also ease the school’s concerns about what will happen when it reopens. O’Moore J held that the only plausible interpretation of Mr Burke's actions was that he saw some advantage in his continuing imprisonment, otherwise he would have either avoided his jailing or taken the opportunity to bring it to an end; in those circumstances, Mr Burke's continued jailing would only facilitate whatever he felt he was achieving by being in prison. O’Moore J held that the Court would not enable someone found to be in contempt of court to garner some advantage from that defiance. O’Moore J found that Mr Burke’s release should be open ended, and not just for the Christmas period.

O'Moore J held that the coercive imprisonment should stop, at least for the moment. He ordered the release of Mr Burke but only on the basis that the school could come back to Court to seek his attachment and committal, the sequestration of his assets, or any other appropriate measure in the event that he does not comply with any court order, including the order of Barrett J.

Defendant released.

RULING of Mr. Justice Brian O'Moore delivered on the 21 ^st day of December, 2022

1 This is my Ruling on the continued imprisonment of the Defendant, Enoch Burke. It follows a hearing this morning, which in turn arose from an earlier set of appearances before Dignam J. These form an essential part of the narrative, and will shortly be described.

2 On the 5 ^th of September 2022 this Court (Quinn J) made an Order committing Mr. Burke to prison. Mr. Burke has been incarcerated ever since. The purpose of his imprisonment has been to compel Mr. Burke to comply with Orders made by Stack J (on an interim basis) and Barrett J (on an interlocutory basis). It is important to note that the Order of Stack J only lasted for a limited period, namely until the hearing seeking an interlocutory injunction took place. The interlocutory injunction, ordered by Barrett J, is also for a temporary period and will expire when the trial of the action takes place and the underlying claim is decided.

3 The case is one brought by Mr. Burke's employer, a school in Westmeath. Mr. Burke is a teacher of History and German at the school. The action arises from a policy adopted by the school as to how transgender people are to be addressed. Unfortunately this policy, which in turn has resulted in a disciplinary process against Mr. Burke, has lead to these proceedings.

4 The Order made by Stack J, on the ex parte application of the school, restrains Mr. Burke from attending at the school premises, and from attempting to teach any classes or any students at the school.

5 The Order of Barrett J, which has bound Mr. Burke since the 7 ^th of September 2022, is in broadly similar terms. It restrains Mr. Burke from attending the school premises, attempting to teach classes or students, interfering with a substitute teacher's duties, failing to comply with the directions of the school board, and from trespassing on school property.

6 Mr. Burke has refused to purge his contempt, despite having had the opportunity to do so. Lest there be any doubt about it, complying with these Orders does not in any way compromise Mr. Burke's religious beliefs or require him to do anything in violation of those beliefs. These Orders did not and do not oblige Mr. Burke to address anyone in a particular way or to use a specific style or title. In essence, they prohibit him from entering the school's premises or interfering with the school's educational activities. As far as I am aware, no religious conviction is violated by having to stay at home; still less is any religious belief compromised by having to refrain from entering private school property.

7 The school's action is in the Chancery List of the High Court. The practice in this list for some time has been to case manage appropriate cases. Given this practice, the Chancery Registrar wrote to the parties on the 11 ^th of October 2022 in these terms;

“…in every case where a person is subject to ongoing committal to prison, fines or sequestration of assets consideration will be given to case managing the underlying action. This will allow the proceedings to move to a conclusion sooner rather than later.”

The parties were then told that they would be heard on whether case management directions should be made, and directed the school's solicitors to provide an electronic copy of the pleadings by noon the following day.

8 The reaction to this was surprising, and emerged at a hearing before this Court commencing at 8.30 am on the 14 ^th of October 2022, at which Mr. Burke strongly opposed any expedited trial of the action. Notwithstanding that opposition, on that date directions were made to enable a trial to take place either just before or just after Christmas. While the school complied with these directions, and expressed support for case management of the action, Mr. Burke did not. He later sought a stay on any further progress of the action before this Court, leading to a hearing on the 7 ^th of November 2022. The depth of Mr. Burke's feeling is conveyed by his description of an early trial in these terms; “The trial of the action is an abomination to our laws, to our Constitution and to the cornerstone of religious liberty” — Transcript of Hearing of the 7 ^th November 2022, at page 8.

The nature of Mr. Burke's resistance to case management and an early trial need not be set out in detail here. One example of the reasons relied upon by him will suffice. With regard to the requirement that the school promptly provide certain documents, Mr. Burke submitted;

“And I do point out that that email contained a deadline of less than 24 hours for the provision of certain documentation. And I have to say that this beggars belief. I mean it is extraordinary, in the High Court, and I won't read out the submissions here, but it's really extraordinary that such a deadline would be contained in any documentation from a registrar.” — ibid.

9 This argument, like so many of Mr. Burke's submissions on the stay motion, made no sense. Firstly, the direction that the school deliver documents was obeyed by it without comment, still less complaint. Secondly, such a direction is by no means unusual in either the Chancery List or the Commercial Court. Thirdly, and most piquantly, Mr. Burke's stay motion was initiated by an application made shortly after noon on the 24 ^th of October 2022. At that time, an Order was sought for the production of Mr. Burke before the Court that afternoon so that he might move the application for a stay. Accordingly, Mr. Burke feels that a direction from the Court that solicitors provide documents within 24 hours is “really extraordinary”, but sees nothing unusual about seeking his production to Court, escorted by prison officers, to commence a significant application on a few hours' notice to the school.

10 The gist of Mr. Burke's opposition to case management, and an early hearing date, was that he wanted the trial to take place after the Court of Appeal had heard his challenges to a selection of the Orders made by this Court.. In a Decision dated the 19 ^th of December 2022 I rejected his application, finding that no injustice would be caused by having the trial before the appeal hearing in mid-February 2023. However, the bringing of the stay motion and Mr. Burke's refusal...