THE ATTORNEY GENERAL has decided against bringing criminal contempt proceedings against Enoch, Ammi, Isaac and Martina Burke “at this time”.

Judge Brian Cregan asked the AG to prepare the proceedings against the four family members last month, following several ill-tempered interactions in hearings involving Enoch Burke and Wilson’s Hospital School.

The four had to be removed from the courtroom on separate occasions across several weeks, with the judge later describing the family’s behaviour as “the most deliberate, sustained and concerted attack [...] on the authority of the civil courts and the rule of law in this country in recent times”.

Unlike civil contempt, which is how the courts punish those who disobey court orders – like Enoch Burke when he continued to show up to Wilson’s – criminal contempt is used by their courts to protect their operations.

A person can be found in criminal contempt if, for example, they disrupt court proceedings, if they threaten a judge, or if they publish material that prejudices a trial.

However, Attorney General Rossa Fanning told the High Court today that he would not be bringing charges against the four Burkes for the time being.

He explained that in the case of Enoch Burke, there would be no practical benefit in bringing charges because the teacher is already in jail for civil contempt arising from his refusal to obey the court’s order not to trespass at Wilson’s Hospital School.

Fanning said criminal contempt proceedings against Enoch Burke would therefore have “a degree of futility attached to them” because they would, if successful, only replicate a punishment he is already serving.

He then outlined five separate reasons why he would not bring criminal contempt charges against Ammi, Isaac and Martina Burke at present.

Fanning explained that charges of criminal contempt need to be proven beyond a reasonable doubt, and that any case against the Burkes would involve figuring out whether they had crossed the line from “unruly” behaviour borne out of “heightened emotion” into criminality.

He said that other legislation could be relied upon to bring charges for disruption in court or the failure to comply with a direction to leave a courtroom.

He also said there were thousands of other litigants before the courts, and that Enoch and members of the Burke family had already consumed a “disproportionate amount” of scarce court time.

Fanning said that bringing criminal contempt proceedings against the Ammi, Martina and Isaac Burke would therefore only take up more of the court’s time at the expense of others who had sought access to justice.

He said he was mindful of the potential cost to the taxpayer of bringing proceedings and that he ultimately felt they would be too expensive, particularly because the cases may be complicated and subject to appeals.

He expressed further concerns that the charges, even if they were brought successfully, would “reinforce some unfound sense of martyrdom” among the Burkes and that they would be “unlikely to result in a Damascene conversion”.

However, Fanning added that the Attorney General’s decision could be revisited in the future if circumstances surrounding the Burkes’ case changed.

Judge Brian Cregan accepted the Attorney General’s decision, but said his initial reaction was one of “surprise and disappointment” and that he would have to reflect on it.

“Perhaps it may be that the arid pages of the [court] transcript do not accurately reflect the tone and tenor that went on week after week after week in respect of these matters,” he said.

He added that he would consider the recommendations over Christmas, and decide afterwards whether to send the matter to the President of the High Court on his own.

No members of the Burke family were physically present in court for the hearing, though Enoch Burke joined via video link from Mountjoy Prison.

Disciplinary hearing

The court separately heard an update on the Disciplinary Appeals Panel (DAP) hearing into Enoch Burke’s dismissal by Wilson’s Hospital School, which was heard in Athlone last Saturday.

Counsel for Wilson’s, Rosemary Mallon, told the court that the hearing was complete and that the school’s board of management was awaiting the DAP’s recommendation.

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She said that a decision by the board, based on the DAP’s recommendation, would be made within 10 school days of the hearing at most, but that because of the Christmas holidays, this could be as late as Friday 9 January.

Judge Cregan agreed that the court should be updated within two days of the board’s decision, because it would have likely implications for Enoch Burke’s imprisonment.

In a hearing last week, the judge said that the teacher could be released when the board makes its recommendation, because Burke will either be restored to his position as a teacher or have his dismissal confirmed, in which case the “legal fiction that he can turn up for work” will have come to an end.

Burke again refused to purge his contempt when he appeared via video link at the start of today’s hearing, claiming the issue was a matter of religious freedom for him.

“You cannot do something because you believe it to be wrong, that’s what conscience is,” he told the court. “You cannot do something because you know it’s wrong.”

He later said that last week’s DAP hearing was “very far from being a done deal” and claimed that the court was “guiding the DAP” in its decision-making.

“We can wish with all our hearts that this is going to go away and that what happened in August and September 2022 is going to be brushed under the carpet,” he said, referring to the circumstances around his dismissal.

Quoting US civil rights leader Martin Luther King Jr, he added: “The arc of the moral universe is long, but it bends towards justice. But justice will be done in this matter. It won’t be sufficient to try and rush through some DAP process now.”

Judge Cregan said that the DAP had the ability to decide its own course, and told Burke that the High Court was only dealing with his committal to prison for breaching its order for him to stay away from the school’s grounds.

He adjourned the case until 14 January, but said the next hearing could be brought forward or pushed back, depending on when the school’s board of management made its recommendation.