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.
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 that he be banned from attending the school premises.
The school suspended – and later dismissed – Burke over his conduct towards the then-principal Niamh McShane at a school religious event in June 2022.
The confrontation arose in circumstances where McShane had earlier directed teachers to address a student by a new name and with the pronouns “they” and “them”. Burke, an evangelical Christian, has maintained this request went against his religious beliefs.
Burke has repeatedly breached the judge’s order to stay away from the school. He is currently incarcerated over this contempt of court.
In normal course, litigants must file an appeal to a High Court decision 28 days after “perfection”, or formalisation, of the relevant order.
Appearing before a three-judge CoA on Wednesday, Burke argued he should be permitted to bring a late appeal, submitting that he had several strong grounds.
At the CoA hearing, Burke asserted that 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?” Burke submitted.
Burke submitted that the principal’s instruction had no standing in law. He cited a Department of Education statement issued to The Irish Times in January, stating there was “no legal obligation” on schools to use a pupil’s preferred name or pronouns.
Burke submitted that the instruction went against the law, citing constitutional guarantees on freedom of conscience and religion.
Burke’s appeal is also grounded in the assertion that the judge failed to conduct an analysis of the legitimacy of the principal’s instruction.
Asked by Judge Caroline Costello why he did not bring his appeal in time, 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. This was a result of 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, Burke claimed.
Burke submitted that his appeal raised issues of public importance, relevant to teachers and schools, and ought to be determined properly by the courts.
Barrister for the board of Wilson’s Hospital School, Rosemary Mallon, said the application for the appeal 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.
Mallon said the case brought by Wilson’s Hospital School asked the High Court to determine the lawfulness of the decision to suspend Burke and issues of his trespass at the school.
Owens was not asked to determine the lawfulness of the principal’s instruction to refer to a child by their preferred pronouns, Mallon submitted.
Burke issued a defence to the case and counterclaim, pleading that the instruction was unlawful and unconstitutional, counsel said.
However, Burke was disorderly and “in persistent contempt of court” during the hearings before Owens in May 2023 and refused to give an undertaking to comply with the rules of the court, Mallon said. In those circumstances, Burke was excluded from the hearings.
As a result, Burke’s claims about the unlawfulness of the instruction were not advanced before the court. “It was his decision not to prosecute his defence,” Mallon submitted.
[ A judge says Enoch Burke has ‘free will’. But is that true of any of us?Opens in new window ]
Mallon rejected the significance attached by Burke to the Department of Education statement issued to The Irish Times.
She said the view of the department that there is no obligation by a school to use a pupil’s preferred pronoun does not mean a direction to use a pronoun is unlawful or illegitimate.
She said statements to the media were not determinative and are not precedent to be followed by the courts.
Mallon also submitted that the school’s suspension procedure differed significantly from the dismissal procedure, when – via a disciplinary appeal panel hearing – a more thorough interrogation of the principal’s instruction could occur.
Costello, Judge Mary Faherty and Judge Teresa Pilkington said the court would give its judgment on Burke’s application at a later date.
After the CoA reserved judgment in the case, 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.
Burke 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 CoA case. The panel members were not present in court.
The judge gave permission to Burke to serve the proceedings on the panel members, and said the case could come back on Thursday.