A High Court judge has rejected Enoch Burke’s claim of being “unjustly barred” from the hearing of the dispute between himself and Wilson’s Hospital School.
Mr Justice Alexander Owens said on Friday: “You can’t hope to win a game of soccer by running away with the ball,” which, he said, was what Mr Burke had done.
“The ball is simply replaced and the game continues.”
The claim of being barred was made in a two-page letter emailed by Mr Burke to the court registrar on Friday, the fourth and final day of the case.
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The case, which centres on the validity of a disciplinary process initiated by the school against Mr Burke, concluded at about 3pm. Mr Justice Owens said he would reserve judgment but would give it on an early date.
Irrespective of whether there was procedural fairness, there was a “clear trespass” and he would probably decide the case on that basis, the judge said. Even if the school had acted incorrectly, Mr Burke was not entitled to go back on to the school premises, he said.
The core issue in the case is whether the invocation in August 2022 of a disciplinary process against Mr Burke, and the decision to place him on paid administrative leave pending that, was valid.
The process was initiated after Mr Burke publicly interrupted a school religious service in June 2022 to ask the then principal, Niamh McShane, to withdraw her request made via email to staff on May 8th to address a transitioning student by their preferred name and using the pronoun they.
Mr Burke was imprisoned for 108 days from September 2022 for contempt over failure to obey court orders not to attend at the school. Fines of €700 daily have been imposed on him since January 27th over his continued attendance.
A disciplinary hearing, originally scheduled for September 2022, proceeded last January and led to a notice of dismissal being served on Mr Burke, who has appealed it to an independent panel.
In opposing the school’s case, Mr Burke denied misconduct, disputed the school’s version of events in many respects, and claimed the disciplinary process was unlawful and unconstitutional.
He has provided legal submissions but not participated in the hearing since being found in “obvious” contempt on Tuesday over his conduct when making complaints about discovery issues.
‘Utterly unacceptable’
Accompanied by his mother Martina and sister Ammi, he turned up outside the Four Courts just before 1pm on Friday where he made allegations against solicitors and read his letter to the media before departing.
Mr Justice Owens was told Mr Burke was outside and reiterated what he had said on each day of the hearing, that Mr Burke was welcome to attend court once he obeys the court rules or participate via remote link.
On Friday, in response to Mr Burke’s letter, the judge said Mr Burke’s conduct on Tuesday was “completely and utterly unacceptable”. He rejected Mr Burke’s complaints about the judge’s response and said it is sometimes necessary for a judge to “to call a spade a spade”.
The discovery complaints had been addressed by the school to the court’s satisfaction, he said.
The email was obviously a preliminary letter “for some other onslaught against me” so Mr Burke could litigate the matter by correspondence when he should have turned up in court in a civilised way to have the matter dealt with in the same way as other litigants, the judge said.
In his email Mr Burke reiterated his claims concerning discovery and said he had been “laughed at” and “ridiculed” on Tuesday by the judge who refused to make the orders he sought.
Mr Burke said he was “unjustly barred” from the hearing, the discovery issues remained “unchanged” and it was “unconscionable” the case was allowed to proceed in the circumstances.
Mr Burke said he had made several attempts to serve a subpoena on John Rogers, the chairman of the school board of management, and alleged Mr Rogers had “evaded” service.
Mark Connaughton SC, for the school, said he had told the court on Tuesday Mr Rogers was in hospital and the school would call another member of the BOM to give evidence.
Mr Burke, counsel added, had given no credit to the school’s detailed response to his discovery complaints.
Earlier on Friday the judge said three senior Church of Ireland clerics, who had been subpoenaed by Mr Burke to testify but were not called by him, were free to go.
In legal submissions Mr Connaughton submitted the stage four disciplinary process, which concerns alleged serious misconduct and is governed by a Department of Education circular, was validly invoked. Mr Burke could have engaged at various stages but did not do so, he said.
The court could conclude from the school’s evidence that Mr Burke had not satisfactorily addressed or alleviated its concerns about how he would deal with the transitioning student and the decision to put him on paid administrative leave was valid, he submitted.
Alex White SC, also for the school, said it had not breached Mr Burke’s constitutional rights, including to freedom of expression. Constitutional rights do not exist in a vacuum and others, including the pupils, have constitutional rights, he said.
The school rejected Mr Burke’s claims he was subject to a disciplinary process because of his views on “transgenderism”, counsel said. Mr Burke’s Christian beliefs were never challenged but his right to hold religious views did not allow him to order matters in the school around him as he wished, counsel said.
