Enoch Burke seeks to appeal against judgment which found suspension lawful
Enoch Burke at Mountjoy Prison in Dublin. Picture: PA
Jailed teacher Enoch Burke has claimed his proposed late appeal of a High Court finding that he was validly suspended from his job at a Co Westmeath school raises issues of public importance and should be allowed to proceed.
Enoch Burke is asking the Court of Appeal (CoA) for permission to bring a late challenge to Judge Alexander Owens’s May 2023 ruling that Wilson’s Hospital School validly suspended him from his post, and a subsequent order barring him from attending the school premises.
The school suspended — and later dismissed — Mr Burke over his conduct towards then-principal Niamh McShane at a school religious event in June 2022.
The confrontation arose after Ms McShane directed teachers to address a student by a new name and with the pronouns “they” and “them”. Mr Burke, an evangelical Christian, has maintained that this request went against his religious beliefs.
Mr Burke has repeatedly breached the judge’s order to stay away from the school and is currently incarcerated for contempt of court.
In the normal course, litigants must file an appeal of a High Court decision within 28 days of the “perfection”, or formalisation, of the relevant order.
Appearing before a three-judge Court of Appeal on Wednesday, Mr Burke argued he should be permitted to bring a late appeal, submitting that he had several strong grounds.
He asserted that Judge Owens “had no right” to find the suspension “validly hinged” on his compliance with the instruction. “I would ask the court this morning, was that right? Was that just?” he submitted.
He argued that the principal’s instruction had no standing in law. He cited a department of education statement issued in January stating there was “no legal obligation” on schools to use a pupil’s preferred name or pronouns.
Mr Burke submitted that the instruction went against the law, citing constitutional guarantees on freedom of conscience and religion.
His appeal is also grounded in the assertion that Judge Owens failed to analyse the legitimacy of the principal’s instruction.
Asked by Judge Mary Faherty why he did not bring his appeal in time, Mr Burke cited his involvement in other litigation related to the dispute with Wilson’s Hospital School.
He also attributed the delay to “a loss of confidence” in the CoA, arising from what he described as an “erroneous” judgment that found there was “no evidence ... [Burke] was placed on administrative leave because of the views that he holds”.
A subsequent CoA judgment “decimated” that finding, Mr Burke claimed.
He submitted that his appeal raised issues of public importance relevant to teachers and schools and should be determined by the courts.
Rosemary Mallon, barrister for the board of Wilson’s Hospital School, said the application should be refused.
“I say that facts of the case are so unusual and so extraordinary that I respectfully submit there should be no extension of time some 2½ years after the order [was] perfected,” she said.
Counsel said the case brought by Wilson’s Hospital School asked the High Court to determine the lawfulness of the decision to suspend Mr Burke and issues relating to his trespass at the school.
Judge Owens was not asked to determine the lawfulness of the principal’s instruction to refer to a child by their preferred pronouns, counsel submitted.
Mr Burke issued a defence and counterclaim, arguing that the instruction was unlawful and unconstitutional, counsel said.
However, Mr Burke was disorderly and “in persistent contempt of court” during the hearings before Judge Owens in May 2023 and refused to give an undertaking to comply with court rules, counsel said. In those circumstances, he was excluded from the hearings.
As a result, his claims about the unlawfulness of the instruction were not advanced before the court. “It was his decision not to prosecute his defence,” counsel submitted.
Ms Mallon rejected the significance Mr Burke attached to the department of education statement issued to
She said the department’s view that there is no obligation on a school to use a pupil’s preferred pronoun does not mean a direction to do so is unlawful or illegitimate.
She added that statements to the media are not determinative and do not set legal precedent.
Counsel also submitted that the school’s suspension procedure differed significantly from the dismissal process, where — through a disciplinary appeal panel hearing — a more detailed examination of the principal’s instruction could take place.
Judge Caroline Costello, Judge Mary Faherty, and Judge Teresa Pilkington said the court will deliver its judgment at a later date.
After the Court of Appeal reserved judgment in the case, Mr Burke appeared before Judge David Nolan in the High Court seeking an emergency order relating to his challenge to his dismissal from Wilson’s Hospital School.
He told the judge he was seeking orders stopping a scheduled disciplinary appeals panel hearing on Friday, and restraining the panel from holding the hearing into his appeal until the outcome of the Court of Appeal case. The panel members were not present in court.
The judge gave permission to Mr Burke to serve the proceedings on the panel members, and said the case could come back before the court on Thursday.
CONNECT WITH US TODAY
Be the first to know the latest news and updates
