Anyone who professed themselves astonished to see Enoch Burke leave his warm bed in Castlebar and trek across the country in sub-zero temperatures to take up his lonely vigil outside a school in Westmeath as the new term resumed can’t have been following his story too closely.
Burke was released from jail before Christmas, having spent 500 days there because he refused to comply with the terms of his suspension from the school where he taught, and from which he remains on full pay pending the conclusion of a disciplinary process. This followed an alleged public confrontation over the wishes of a 15-year-old pupil to be referred to as “they/them” and his subsequent refusal to comply with a High Court interim injunction preventing him from attending the school.
In the High Court in December, Justice David Nolan described this as one of those very rare cases where imprisonment should stop, at least for the moment, but added that the school could return to court to seek his return to prison “or any other appropriate measure” if he refused to stay away.
It now seems inevitable that, for as long as he is not incarcerated, Burke will keep turning up at the school gate as he did all week. The more impediments he faces – ice, snow, orders of the court, the threat of being returned to Mountjoy, public opprobrium, the despair of parents and school authorities – the more his religious zeal seems to harden, and the more his conviction that he is a righteous martyr crystallises.
Enoch Burke’s lonely vigil at the school gate has not been entirely pointless
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So what is to be done? The threat of imprisonment has not deterred him. Nor have the rapidly mounting fines, now hovering around the €200,000 mark, and recently doubled to €1,400 for every day he attends the school property.
As I wrote here two years ago, my personal views on Burke – or anyone’s views on his views on transgender people, LGBTQ+ people, women’s reproductive rights or what he calls the “depraved” school curriculum – are not the point. The notion that the courts can send someone to jail indefinitely for civil contempt – refusal to obey an order of the court – is one that should make us baulk, particularly when imprisonment for the more serious matter of criminal contempt – behaviour calculated to prejudice the due course of justice – has a clear end date. The reason for this is that civil contempt is primarily designed to be coercive, whereas criminal contempt is meant as a punishment. But the line between the two has become increasingly blurred.
In practice, coercion only works if the threat of jail is actually a deterrent. As Chief Justice Donal O’Donnell noted in 2016, there are two basic problems with civil contempt – the first is how to get the individual involved to jail and keep them there, and the second is how to get them out, so that they don’t end up incarcerated “for an unconscionable amount of time ... creating [a] stalemate which is often more awkward and embarrassing for the court than for the individual”.
Burke presumably doesn’t relish being in Mountjoy, but in his mind the stakes are far greater than any earthly punishment can deliver. He answers to a higher power. Short of the Lord himself ordering Burke away from the school – and perhaps not even then – he’s going nowhere. This is why the effort to coerce him to behave has been an abject failure.
All of which means there are now more serious issues at stake for the school, for the courts and for society generally. The first are the rights of the children in the Westmeath school. He may not be directly interfering with their ability to come and go from school in peace. But his presence at the gate isn’t benign either – otherwise he wouldn’t bother being there. He is there because he wants to keep his row over the rights of transgender pupils and what he calls “bowing to every form of sexual perversion” in the spotlight. As long as he continues turning up, so too will the photographers and journalists and occasional bands of sign-wielding wellwishers. Over time, he may become a magnet for international far-right activists.
So while little good may be served by returning Burke to jail, beyond increasing the chances of consolidating his position as a martyr for the culture wars, the courts appear to be left without much choice. There are risks to the integrity of the judicial system if an individual persistently refuses to comply with an order. Unfortunately, our law of civil contempt, which has evolved in a fashion Supreme Court judge Peter Charleton recently described as the “a thicket of contradictory and uncertain rules” leaves little scope for more imaginative solutions. Rather, as he points out, “in practice, judicial experience has been underscored by an increasing number of courtroom disruptions, abusive attacks on the judiciary going unanswered, and in civil cases, instances of those who refuse to purge their contempt of court orders ... There may be circumstances where no form of coercion, no matter how long a stay in prison it may be, is going to induce a civil contemnor to change his or her mind.”
Twenty years ago, the late barrister Paul Anthony McDermott wrote about the need for more “creative remedies” than prison in cases where “litigants may pursue their imagined grievances” with “obsessive zeal”. There has been no move since to reform the laws of contempt. And so now, short of the courts being able to come up with a more inventive remedy – an order to make deductions from the wages that he continues to receive from the school, for a start – Burke might end up back in jail.
His lonely vigil at the school gate has not been entirely pointless – it has at least served the purpose of underlining the urgent need for reform of the law of contempt of court.