Enoch Burke’s Pyrrhic Stand: All Sacrifice, No Strategy — Part 2
Protest or Prosecute
When Enoch Burke realised that he was not going to change principal Niamh McShane’s mind in private regarding her decision to direct teachers to refer to a pupil by ‘they/them’ pronouns, he decided to confront her in public instead. This public confrontation occurred during a Church of Ireland sermon on 21st June 2022, which was held to commemorate the 260th anniversary of the school’s founding.
As the sermon concluded, Burke stood up in front of the congregation and accused McShane of forcing others to accept “transgenderism”. McShane did not respond to this confrontation, but Burke confronted her again afterwards during a school dinner to ask if she would drop her pronoun “demand”, and she again refused to engage.
In response to Burke’s confrontation, McShane compiled a report of adverse findings against him, which she then sent to the school’s board of management and to Burke on 15th August 2022. Upon receiving the report, the school board suspended Burke on full-pay for “harmful and disruptive conduct”, and scheduled a disciplinary hearing to decide on the future of his employment.
Immediately after being put on administrative leave, Burke returned to the school in an act of defiance against his suspension. Burke claimed that his being put on leave was an “attempt to persecute [him] publicly for [his] opposition to transgenderism”. He justified his decision to return by claiming that “to sit at home would be to admit that [he] had erred or transgressed”. However, he has not explained why appealing his suspension in court, while also complying with it, would be an admission of error or transgression, or not.
By choosing to physically defy his suspension, Burke forfeited his opportunity to appeal it in court under due process. Due process, as a legal doctrine, requires compliance with legal impositions, like suspensions, until they are legally overturned. It is not for a lay litigant like Burke to decide what is and is not lawful and to act unilaterally upon such judgments. Instead of letting the courts decide the legality of his suspension, he took matters into his own hands and returned to the school as a form of protest. The fact that he chose to physically oppose his suspension in public, rather than compliantly appeal it in private, indicates that he cares more about being seen to do the right thing, rather than proving as much in a court of law.
If Burke had committed to an appeal rather than to a protest, he would not have set foot on the school grounds while suspended, and the school would not have been able to prosecute him for trespass. Court orders barring him from the school grounds would have also been either unnecessary or easily complied with.
If Burke had pursued the legal option, he could also have set out in his appeal application why the issue of “transgenderism” was at the heart of his dispute. The courts would have responded to him in turn, and we would all now have a better idea of where the judiciary lies on the issue. However, Burke instead pretended as if his suspension did not exist, and ostensibly ‘returned’ to resume his teaching duties. For a man who claims to stand on his constitutional rights, Burke was either ignorant of his right to appeal, or overly concerned with how he appeared to others to understand the implications of his actions.
Given the litigious history of the family, it is difficult to accept that Burke did not know that he had a right of appeal. He could easily have used this right to prosecute the school for wrongful suspension or breach of constitutional rights. However, he chose against it, and so he must instead be judged as a man who chose to demonstrate his rights in a classroom rather than in a courtroom. His decision to commit to a protest campaign rather than a judicial one in late August 2022 is why his legal arguments never saw the light of day in court.
Quicker than a Chicken Roll
In response to Burke’s defiance and his return to the school grounds, the school board seized the legal initiative and commenced legal proceedings against him. When Burke was summoned to court on 30th August 2022 to hear the board’s application, he decided not to avail of professional legal representation, but represented himself in court instead.
After the brief hearing, the courts granted the school board a temporary restraining order against Burke to bar him from the site of the dispute, namely the school grounds. This was done to prevent the deterioration of relations between the two disputing parties, and to allow the courts time to adjudicate the case.
Although the burden of the injunction fell upon Burke, it was not a finding of wrongdoing against him as it was issued without prejudice. Without prejudice means that the existence of the injunction would in no way affect Burke’s standing or rights at trial. Despite this assurance, Burke nonetheless chose to defy the injunction by returning to the school grounds, as he believed that the injunction violated his conscience and religious beliefs. Burke has not explained how the injunction, whose sole purpose was to keep him away from the site of the dispute before, has violated his conscience or religious belief.
Burke’s appeal against his injunction was heard in the Court of Appeal on 16th February 2022. During the appeal Burke appears to have changed tact somewhat, as he focused more on the brief length of time in which his injunction was issued, rather than its violation of his freedom of conscience. He claimed that the High Court had issued the restraining order against him “in five minutes”, which was “shorter than the time you would spend in the queue in Spar for a chicken roll”. He added:
“It’s as if [the High Court is] operating some kind of shop and the school can come in and say ‘injunction please’ and the court will say ‘OK’”.
Burke seems to suggest that the brief time the court took to issue his injunction indicates prejudice against him. In fact, the opposite is true: it was issued in five minutes precisely because it was issued without prejudice. The restraining order merely ensured he would keep his distance from the site of the dispute before trial; it was neither a validation of the school's suspension nor an imposition on his religious freedom.
Rather than accepting this routine procedural measure, Burke chose to publicly ridicule it. His “chicken roll” remark in the Court of Appeal gives the impression that he was trying to play the court of public opinion rather than the court of law. Comparing the High Court to Spar seems ill-advised when your case in that court is still ongoing.
If Burke had availed of professional legal representation, then his solicitor would have advised him against making such remarks. Such a solicitor would have been able to advise Burke to comply with his court orders, and to appeal them only if absolutely necessary. This would-be solicitor could also have told Burke that compliance with his restraining order would in no way jeopardise his case, whereas defiance certainly would.
Without legal representation, Burke failed to understand what the courts were asking of him, and he was unable to form a coherent legal strategy as a result. Instead, he resorted to playing to the public gallery by making sensationalist comments and through physical defiance, all while his case remained active. Burke needed to pick a lane: either hire a solicitor and play the legal game properly, or declare the courts corrupt and refuse to engage with them on a point of principle.
If Burke refused to engage with the legal system as a point of principle then he would have made a clearer moral argument for his cause. Complete non-compliance would have marked him as a genuine conscientious objector, as someone willing to reject the entire ideological system rather than simply its inconvenient rulings. However, the fact that he answered his court summons and filed various court submissions, while simultaneously defying the court orders, reveals that he selectively recognises court authority when it suits him. By seeking legal vindication while defying legal authority, he guaranteed failure on both fronts: he secured no judicial victory inside of court, and no moral victory outside of it.
A Family Affair
Some of Burke’s supporters will claim that he did not require professional legal representation because he was able to take legal advice from his solicitor sister, Ammi Burke. However, Ammi was the wrong person to advise her brother Enoch in his case, as she had lost her own unfair dismissal case against her own employer, Arthur Cox, right before Enoch’s own workplace dispute began.
Arthur Cox dismissed Ammi for gross misconduct in November 2019 and she lost her unfair dismissal case in April 2022. Ammi’s dismissal meant that she had not practiced as a solicitor for three years before Enoch’s case. The loss of her dismissal case suggests that she should not have been Burke’s sole qualified legal advisor, and that he should have instead hired a practising solicitor with experience in winning unfair dismissal cases, not losing them.
Ammi’s dispute with Arthur Cox bore many telltale similarities with Enoch’s dispute with Wilson’s Hospital School, as both involved hostile confrontations with management, unsubstantiated claims of religious discrimination, deliberate contempt of court, disruptions of court proceedings, multiple failed appeals, public protests, absence of legal representation, etc. Understanding Ammi’s precedent helps to explain why Enoch pursued such a self-destructive strategy in his own case: he was simply following what appears to be the family playbook.
Enoch, like Ammi, never gave a public statement for why he did not avail of legal representation during his case. We can only infer from the family’s history of litigation that they generally prefer to litigate alone. The highly religious and closed nature of the family is likely why they were either unwilling or unable to find adequate legal representation. Burke’s lack of representation meant that his only source of legal counsel was from his dismissed sister Ammi, whose case demonstrated the folly of that approach. Ammi, and the family members who endorsed her advisory role, deserve a large degree of blame for the loss of Enoch’s case.
Last-Ditch Offer
Burke’s decision to defy his restraining order resulted in the court’s decision to imprison him on 5th September 2022. He was subsequently released on 21st December 2022 without having to purge his contempt of court. What is remarkable is that even after this initial imprisonment for deliberate contempt of court, Burke still had a chance of winning his case.
On 17th January 2023, High Court Justice Conor Dignam told Burke during a preliminary hearing that he had “a strong case” against his suspension and that he “was likely to succeed at a full trial”. Judge Dignam was even prepared to offer Burke an injunction against the board to prevent them from dismissing him as a teacher. All Burke had to do was swear to abide by his restraining orders. With all of these promising signs on display one has to wonder; why did Burke not accept Dignam’s offer?
Burke response to the offer was as follows:
“Yet I understand that you have made the judgment conditional on me obeying the [restraining] orders of Judge Stack and Judge Barrett.”
“You are asking me to agree to something that is flawed, wrong and unconstitutional.”
“You make the whole outcome of the matter, having decided I deserve the injunction [against the board], dependent on me accepting what is to me an abomination”.
Burke is conflating here the court’s restraining orders with McShane’s direction to use ‘they/them’ pronouns. While the pronoun directive is plausibly “an abomination” to him as a Christian, he provided no coherent reason why the court order to stay away from the school warranted the same condemnation. His only reasons were that there was no fair issue to be tried or that his suspension was too serious a matter to be let continue. However, his defiance of his suspension supplied justification to the contrary, as it showed his disregard for the rules of the school and that there was a genuine dispute requiring adjudication.
By calling the orders an abomination, Burke revealed that he was unable to discern the difference between an injunction and a pronoun direction. Burke’s lack of legal representation caused him to confuse the two impositions as equivalent, and this led him to defying both as a matter of principle. By doing so, Burke declined Dignam’s offer of a “strong” chance to succeed at full trial. If Burke seriously wished to continue teaching in a manner consistent with his religious belief, then this refusal represented a strategic catastrophe.
In his judgement Dignam set out reasons why the school board’s disciplinary process against Burke was “irredeemably flawed”. For Dignam the issue was not Burke’s religious views on transgenderism, but how he had been denied his fair hearing rights before being suspended.
If Burke accepted, he would likely have had his suspension declared procedurally invalid, and the school board would have had to have given him a new disciplinary hearing to hear his argument against the pronoun direction. Even if the board disagreed with his argument, Burke would still have been able to mount a legal challenge against the board afterwards. If he did, he would have had a record of the school denying him his constitutional rights to fair procedures, giving him a strong foundation for his legal challenge. For Burke however, this strategic hypothetical was irrelevant as he rejected Dignam's offer outright and instead chose defiance over litigation. It appears that Burke preferred the certainty of martyrdom to the possibility of legal vindication.
After refusing Dignam’s offer, Burke complained to the media that “justice was withheld from me”. He was aggrieved by the fact that Dignam was not willing to centre the dispute on the issue of ‘transgenderism’, but rather fair hearing rights. Given that Burke had already deliberately defied court orders and his suspension, he should have realised that he only needed to win the case that was in front of him, and not the overall dispute. Dignam’s offer represented a very fair compromise to Burke, as it would have allowed him to have scored a substantial legal victory against Wilson’s Hospital School and to then continue his argument from that foundation.
After refusing Dignam's offer, Burke complained to the media that “justice was withheld from me”. He was aggrieved that Dignam’s judgment was centred on the issue of fair hearing rights rather than the issue of ‘transgenderism’. However, Dignam's offer represented a substantial opportunity for Burke: a legal victory against Wilson’s Hospital School that would have set him up for a full legal challenge. Given that Burke had already defied court orders and his suspension, he should have understood that winning the case in front of him was perhaps more important than trying to strong-arm the broader ideological battle through defiance. Whether it was due to a lack of legal counsel or due to a victim mentality, it is hard to say exactly why, but Burke ultimately refused Dignam’s offer and returned to his campaign of defiance on the school grounds.
Burke’s defiance campaign persisted with daily fines until the first day of his trial in March 2023 when the courts again gave him another opportunity to swear to abide by court orders. Burke again refused to swear that he would abide by them, and he was subsequently excluded from court during his own trial proceedings.
Burke’s exclusion meant the end of his case. The school board had a walkover at trial because Burke was not there to argue his own case. The High Court ultimately ruled in favour of the board, declaring that Burke’s suspension and dismissal were valid, that his presence at the school amounted to trespass, and that he owed the school damages and legal costs.
Burke’s absence at trial meant that all of the questions he had raised about the lawfulness and constitutionality of the pronoun direction were left unanswered. No-one is any the wiser as to how the right to freely profess one’s religious belief is compatible with a child’s right to change their gender. The loss of Burke’s case has been a loss to his cause, as it has left the public in ignorance as to how the authorities view these so-called rights. If anything the Burke case has had a chilling effect on the broader issue of transgender policy in Ireland, as there are very few litigants who would want to experience anything similar to a re-run of the Burke case for themselves.
CONCLUSION
Throughout the dispute with Wilson’s Hospital School, Burke and his family tried to frame the issue as that of a teacher being unjustly persecuted for his Christian belief. However, Burke’s choice to protest his rights in a classroom rather than prosecute them in a courtroom has meant that his case has not been about ‘transgenderism’ in any meaningful sense. By selectively disobeying court authority, Burke ensured that his case did not directly address questions concerning transgender children or compelled speech, but about what to do with an unruly teacher and a contemptor of court.
Over the past three years Burke has pursued a strategy which has failed to achieve what he set out to do: to resume his job teaching in a manner consistent with his religious belief. Rather than avail of the legal protections at his disposal, Burke pursued a fruitless campaign of defiance which has resulted in a judicial limbo of imprisonment and financial punishment.
Had Burke availed of a solicitor from the outset of his dispute, then his case would have gone very differently. He could have overturned his suspension without ever having had to defy its terms. His dispute could have been a test case for whether those who object to pronoun directions in the workplace have a right to such objection. If he had won, he could even have prompted a public debate on the validity of a child’s request for transgender pronouns. Or it could have shone a light on the deeper issues concerning transgender policy in Ireland, such as the use of hormonal drugs on children, or the use of surgical techniques to re-assign or ‘affirm’ a person’s gender.
If there is any anti-religious bias in the courts then Burke’s conduct has failed to make that evident. If anything the courts have shown good will towards Burke despite his defiance of their authority, as Dignam’s offer demonstrated.
If Burke understands that his legal strategy in his case was wholly misconceived, then he must accept that the only person who can end his current predicament is himself, and that it won’t end on any terms except those of the courts. Burke and his family would do well to finally swallow their pride and accept that Burke’s continued contempt will not do him nor his cause any good. The author can only recommend that Burke and his supporters accept that he has erred in his legal conduct, that he purge his contempt, and that he moves on with his life.