Background

Mr. Enoch Burke was employed by Wilson’s Hospital School as a teacher of history and german. On 9 May 2022 the principal emailed all staff, including Mr Burke, informing them that a third-year student would be making a transition in their gender identity. Starting from the next day the student would be known by a different name and that ‘they’ should be used in the place of the pronoun previously used. The pronoun ‘they’ describes a person who identifies as neither male nor female.

In an exchange of emails with the principal Mr Burke outlined his objections to this requirement. These objections were grounded in his convictions as an evangelical Christian, the sincerity which no party has questioned. The principal, deputy principal and Mr Burke met to discuss the issue. Mr Burke was later informed that he was expected to communicate with the student in accordance with the wishes of the student and the parents.

From Mr Burke’s perspective to act as the school required was fundamentally at odds with his religious convictions and so unconscionable. Furthermore, compliance on his part might appear to countenance or affirm transgenderism.

For whatever reason, the school authorities chose not to consider or apply the principle of conscientious objection or freedom of conscience. This was a mistake as the issue involved Mr Burke’s rights under Article 44.2.1° of the 1937 Irish Constitution and Article 9 of the European Convention on Human Rights.

Subsequent events worked to shift the focus from a freedom of conscience issue to a disciplinary matter concerning Mr Burke’s behaviour. Possibly distressed by the school’s decision to effectively set aside his exercise of freedom of conscience he continued to protest This took the form of raising his grievance at teacher meetings, haranguing the principal at a school dinner, and speaking out at the conclusion of a church school service.

Disciplinary proceedings were instituted resulting in Mr Burke suspension on full pay. Nonetheless Mr Burke continued to attend at the school. Sometime in August 2022 the school instituted High Court proceedings seeking to restrain his attendance. An injunction was granted. In defiance of the court order Mr Burke continued to appear at the school gates. He was found in contempt of court and imprisoned. As of July 2026, Mr Burke had spent over 700 days in prison for an unwillingness to purge his contempt.

Defamation?

At the early stage of his incarnation two articles appeared in the Irish Independent and Sunday Independent newspapers.

The first titled ‘They’re not liked here’ was based on two anonymous sources and concluded that the Burke family were generally disliked by the citizens of Castlebar.

A second article titled ‘Burke moved to new jail cell as he is annoying other prisoners’ reported that his unceasing proselytising among his fellow prisoners, had caused great anger and annoyance. So much so he had endangered himself and had to be relocated within the prison for his own safety.

The response of the Burke family, the paper reported, was to stage a protest outside Mountjoy Prison. Mr Burkes’s parents informed the editor they considered the article defamatory as its report on their son’s behaviour in prison or the family supposed protest outside the prison were entirely false. Eventually the paper issued an apology and correction admitting that Mr Burke’s cell change was for operational reasons and not for the reasons stated in the article. Mr Burke instituted proceedings for defamation.

Trial of the Action

A preliminary issue considered by the judge was the status of the plaintiff as a contemnor, that is a person in continuing breach of a court order. The question was would this prevent the plaintiff prosecuting separate proceedings seeking to vindicate the constitutional right to a good name?

While the trial was allowed to proceed the judge noted that that the plaintiff’s status as a contemnor remained relevant in determining injury to his reputation. Cross examination of the editor established he had no evidence for the article’s veracity. Likewise, the reporter admitted to an ‘error’ in her report, but its nature remained unclear. The impugned section of the article was a complete fabrication.

Yet the tort of defamation and the Defamation Act 2009 do not provide a remedy simply because an untrue statement is made about a person. Rather, the plaintiff must establish that the untrue statement tended to injure his or her reputation in the eyes of reasonable members of society. Case law is clear that even a blemished reputation can be injured.

 The plaintiffs claim that the article was defamatory and injured his reputation was not upheld. Even if the article was defamatory, it was of no consequence because the plaintiff had no reputation to defend. His failure to comply with a court order, his imprisonment for contempt and a refusal to purge that contempt must in the eyes of a reasonable member of society diminish the plaintiff’s reputation.

In a democratic state operating within the rule of law, it is not open to anyone, the judge concluded, to decide with which court orders they will comply. Despite the many defects of the defendant’s modus operandi costs were awarded against the plaintiff.

It is this author’s contention that the plaintiff was defamed and, at the very least, retained a residual reputation to defend.

To view the plaintiff’s refusal to purge his contempt as an anarchic rejection of the rule of law is mistaken. Rather, it may be more correctly characterised as non-violent civil disobedience, a long tradition in western democracies.

Though Mr Burke’s entanglement with the courts served to obscure the freedom of conscience issue it remains central. Otherwise, it would be difficult to explain his refusal to purge his contempt. From his perspective opting for prison is the only way he can assert his right to exercise freedom of conscience.

Even within the easy urbanity of the reasonable person such principled action might elicit a grudging respect, thus mitigating reputational damage. Finally, despite the defect of his approach, Mr Burke may be rendering some service in challenging an apparently unquestionable contemporary orthodoxy. 

Daryl D’Art BL is a barrister practising in employment law

A longer version of this article appears in the Northern Ireland Legal Quarterly