Killian Flood: What the Enoch Burke saga tells us about the legal system

Killian Flood: What the Enoch Burke saga tells us about the legal system

On 8 September, Mr Justice Mark Heslin committed Enoch Burke to prison for his failure to comply with a court order restraining him from trespassing at Wilson’s Hospital School. Although Mr Burke had been ordered to stay away from his former place of work since September 2022, a permanent injunction was granted in May 2023 by Mr Justice Alexander Owens.

The situation appeared to have slipped from public consciousness during the summer holidays as Mr Burke stopped attending school. Clearly, even he drew the line at pretending to be teaching during the summer. And yet, as the new school year began in late August, Mr Burke reappeared to defy the courts and stalk the grounds of the Westmeath school.

In arguing that he should not be imprisoned, Mr Burke repeated a familiar, tiresome tune. The injunction order was flawed, void, worthless and based on an unfair hearing, he said. The virtuous teacher was simply turning up for work to be with his students and to vindicate his constitutional rights.

To the surprise of absolutely no one, Mr Justice Heslin was not swayed by Mr Burke’s holier-than-thou rhetoric. The judge noted that court orders must be observed and that deliberate disobedience was “an extremely serious matter”. Since Mr Burke would not agree to purge his contempt and stay away from the school, the court re-committed Mr Burke to prison for an indefinite period.

A unique challenge

One would hope that we hear little more about Enoch Burke in the court system, save the announcement of his release from jail as he undertakes to comply with the injunction. His cases have been an unwelcome distraction in the courts for more than a year and have wasted so much time.

In truth, Mr Burke presents a unique challenge to the Irish courts. When an application does not go his way (as it often does), he disparages the court process and cries foul. Hearings regularly run over time as he refuses to move on from legal points or stop talking over others. The administration of justice slows to a glacial pace.

More concerningly, Mr Burke brazenly defies the authority and jurisdiction of the courts by refusing to comply with orders. This raises certain questions: how does the legal system deal with an individual who does not respect court orders? And what does it say about contempt of court more generally?

In most cases, the mere threat of jail is sufficient for an individual to conform with court orders. However, Mr Burke has already been jailed for contempt longer than anyone in the history of the State, standing at 108 days before his latest stint.

Imprisoned between September and December last year, Mr Burke was released on the basis that the teacher was obtaining some kind of benefit (perceived or otherwise) from his continuing incarceration. “The court will not enable someone found to be in contempt of court to garner some advantage from that defiance,” said Mr Justice Brian O’Moore.

Instead, a daily fine of €700 was imposed for each day that Mr Burke broke the injunction. By any measure, this has not worked. Fines now stand at well over €90,000. It does not seem that he has yet paid a single cent to the school, although it also is unclear whether the school has taken steps to enforce these fines. Separately, Mr Burke has also been ordered to pay the legal fees of the school and €15,000 for trespass.

Despite the mounting personal cost to Mr Burke, there is no sign that the fines have even caused him to reflect on his actions, let alone bring him into line. Given his ongoing and public defiance of the injunction, it could be said that he has gained a greater advantage after his release from prison.

Therefore, the only available remedy is to imprison Mr Burke indefinitely until he purges his contempt.

I understand that this is not the most palatable of solutions. It is not as if Mr Burke is engaging in the sort of obvious criminal behaviour that we normally associate with imprisonment, such as damage to property or physical violence against people at the school.

Allied to this is Mr Burke’s narrative that he has been mistreated because he refuses to use gender-affirming pronouns. Although it has repeatedly been pointed out that he was not imprisoned for his views, his stance appears to resonate with some people.

As such, it is possible to see the viewpoint that indefinite detention is a disproportionate response to Mr Burke’s defiance. This is particularly so if one aligns with Mr Burke’s religious or social views.

However, Mr Burke is not just innocently moping around the school. He has been dismissed as a teacher and does not have a right to be there. That his continued presence would cause disruption and stress is obvious. Moreover, as already stated, his particular views on gender are not at all relevant to a court order restraining him from trespassing on property.

A last resort

Civil contempt arises from failing to obey court orders, and the remedies are designed to ensure compliance rather than punish an individual. As such, Mr Burke’s imprisonment should not be confused for a criminal punishment by the courts. Instead, we must view it as a last resort to ensure that a permanent injunction is not broken. There is not a single judge in the country who wants to imprison someone unnecessarily.

As trite as it may be, the rule of law demands compliance with court orders. We would be in a persistent constitutional crisis if litigants (say, insurers or banks) chose to simply ignore court orders as Mr Burke had done. Compliance with orders is fundamental to the functioning of the State.

This is why Mr Burke should remain in prison for as long as he refuses to abide by the injunction. There can be no further tolerance of his disobedience. If this means he never leaves prison, then so be it. Every day in which he is allowed to flaunt a permanent injunction tarnishes the basic values of the legal system.

If this seems like an overreaction, it bears repeating that this particular scenario is skewed by the ease with which Mr Burke could be a free man. All he has to do is go about his day without trespassing on the school. The stakes are so low that it is nearly comical to say that it is a rule of law issue. And yet, Mr Burke has carried on for more than a year with scant regard for the authority of the High Court. At a certain point, enough is enough.

Practitioners know that abuse of process often becomes a game of copycat. Once one litigant successfully slows the administration of justice using some new tactic, many more follow. Mr Burke’s defiance cannot be allowed to become a template for other cases.

No other option

In the broader picture, the detention of Mr Burke provides a lesson on the limits of the law. It shows us that the civil court system relies heavily on individuals voluntarily submitting to the rulings of judges and that serious complications arise where they do not. It also reminds us that we can never take the authority of the judiciary for granted.

This is not just an issue for the Irish system. Other common law jurisdictions such as England or Canada have not identified some magic remedy to ensure compliance.

Ultimately, Enoch Burke has left the courts with no other option but to imprison him indefinitely. There is no doubt that his disobedience of the law has been “an extremely serious matter” for which there is no excuse.

We still do not know what the outcome of this case will be for Mr Burke, but anything short of full compliance with the law cannot be accepted. We should all hope that he sees the light soon.

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