The High Court arose following a Court Order preventing a school teacher, Enoch Burke from attending the school premises while on paid administrative leave. Mr. Burke continued to attend the school in violation of the Court Order. He was sent to prison to compel him to comply with the Court Order. The Court released Mr. Burke from prison as it was held that Mr. Burke's motivation for remaining in prison was "to obtain some greater benefit" and the Court refused to facilitate this advantage to Mr. Burke.

What happened?

Mr. Burke is a secondary school teacher in Wilson's Hospital school. He was suspended from work with pay pending a disciplinary process after refusing to refer to use gender neutral pronouns to refer to a transgender pupil. After his suspension Mr. Burke continued to attend the school. Wilson's Hospital school obtained an interlocutory injunction restraining Mr. Burke from attending the school's campus pending the outcome of the disciplinary process. In defiance of the Court order Mr. Burke continued to appear at the school. The school then sought to have Mr. Burke sent to prison for civil contempt of court. The application was granted and Mr. Burke was sent to prison on 5 September 2022. During his time in prison Mr. Burke repeatedly refused to purge his contempt and comply with Court order stating the he would remain in prison "for the next 100 years" before he would compromise his religious beliefs.

What did the High Court decide?

On 21 December 2022, O'Moore J ruled on the continued imprisonment of Mr. Burke. O'Moore J noted that complying with the Court order did not in any way compromise Mr. Burke's religious beliefs. The Court Orders did not require him to address any person in a specific style they simply prohibited him from entering the schools premises. The Court noted that Mr. Burke was continuing to oppose proper case management which would expedite the hearing of the proceedings. O'Moore J stated that the case may have been decided before now but Mr. Burke's actions frustrated the process and extended his stay in prison.   O'Moore J outlined the six factors to be considered in deciding whether or not to release Mr. Burke. They are as follows:

1. Mr. Burke's failure to obey a Court Order;
2. The school's attitude to his release;
3. The Christmas holidays; 
4. The use of public funds;
5. Alternative measures; and
6. Mr. Burke's motivation

O'Moore J acknowledged that Mr. Burke had consistently refused to obey the Courts Orders. The Court found that other considerations must also be taken into account. A refusal to comply with a Court Order does not automatically mean he is to stay in prison indefinitely. The Court noted that the school did not object to Mr. Burke's immediate release. O'Moore J also found that Mr. Burkes imprisonment over the Christmas period while the school was closed would be unnecessary.

In considering the use of public funds the Court noted that there was stand-off between the parties where the disciplinary process was paused and Mr. Burke insisted he remain in prison until he is "vindicated" by a higher court. During this impasse the taxpayers were paying for Mr. Burke's wages and the cost of his imprisonment. The Court held that this was an "intolerable" use of public finances. The Court also considered alternative measures to ensure compliance with a Court Order which include sequestration of Mr. Burke's assets. Finally the Court turned to Mr. Burke's motivation for his imprisonment, the Court found that Mr. Burke "is exploiting his imprisonment for his own ends". The Court noted that since his imprisonment Mr. Burke has become a "household name" and his views transgender people are now widely known.

The Court concluded that Mr Burke should be released from prison on the basis that the school is permitted to come back to Court to seek his attachment and committal, the sequestration of his assets, or any measure the Court deems fit.

Key takeaways

It is important to note that in the normal course of things imprisonment to coerce a person to comply with a Court Order will continue to be a powerful remedy used by the Courts. Mr Justice O’Moore noted that this was “one of the very rare cases where the coercive imprisonment should stop."