LAST UPDATE | 28 Jun

A HIGH COURT judge has ordered the release former teacher Enoch Burke from Mountjoy Prison.

Justice Mark Sanfey directed that Burke be freed from the Dublin prison, where he has been incarcerated for contempt since September due to his refusal to stay away from Wilson’s Hospital School in Co Westmeath.

The judge said that following a review of the situation, and the fact state examinations are now completed and the school is on holidays, he was directing the teacher’s release.

The court did not require Burke to purge his contempt and his agreement to comply with the terms of an order made against him last year, the judge said.

In that decision Justice Alexander Owens granted Wilson’s Hospital a permanent injunction restraining Burke from attending at the school.

Burke was jailed for contempt, for a second time, last September due to his refusal to comply with that order.

Overall the former teacher has spent over 400 days in prison.

In his ruling Justice Sanfey expressed his hope that the teacher would use the time to reflect on the situation and warned the teacher that the injunction remains in place.

If there was any further breaches of the order the judge said he would have “no hesitation” in entertaining a fresh application by the school to have Mr Burke committed back to prison.

After the court made its order Burke left the Four Courts with members of his family.

Mr Burke had appeared before the Court on Friday as part of his bid to set aside what he claims is the “gravely flawed” and unconstitutional” order made by Mr Justice Owens.

That order was underpinning his incarceration.

The judge heard submissions from both the teacher and the school over whether the court has the jurisdiction to entertain an application by the teacher to have a judgement by Justice Owens set aside.

Following the conclusion of what were somethings heated interactions between the judge and Burke, Justice Sanfey reserved his judgement and said that he would give his decision in the coming weeks.

Burke has denied that he is in contempt of court. He has argued that he could not accept “transgenderism” due to his Christian beliefs, after teachers at the school were asked to address a student by “a new name and the ‘they’ pronoun”.

This was indicated in an email from the school principal sent in May 2022.

Burke argued that Justice Owens’ judgment disregarded the teacher’s constitutional rights of freedom of conscience and the free profession and practice of religion over his refusal to comply with the school’s direction.

This resulted in the proceedings against him, which Burke said had resulted in him losing two years of his life.

Burke further argued that having to call somebody “they”  no basis in Irish law.

Nowhere could it be found in Justice Owens’ judgement that Burke’s constitutional rights had been taken into consideration, which they ought to have been, the teacher added.

This was a serious matter, Burke said, who accepted that he did not appeal Justice Owens’ decision to the Court of Appeal.

In reply Alex White, SC for the school, said Burke’s application amounted to a “gross abuse of the court,” was “unsustainable,” and is “bound to fail”. As a general rule judges cannot set aside orders made by judges of the same divisions of the courts.

What the teacher was trying to do was in this application, counsel added, was to appeal a decision Burke does not like “by the back door”. Burke had not raised any exception points, which would allow the court to set aside the decision, counsel said.

Burke, he said, had the option of, but had declined to appeal Justice Owen’s decision. Counsel also said the school also “fully rejects” Burke’s claims that his constitutional rights were breached.

Counsel said when the Justice Owens was hearing the schools case against Burke, the teacher had raised issues about his constitutional rights.

White also argued that the school, its teachers and students also have constitutional rights, and the school was entitled to have some finality brought to the proceedings.

Following the conclusion of submissions Justice Sanfey reserved his decision and said he hoped to give his decision on this preliminary issue in the coming weeks.