Teacher Enoch Burke has argued that his transfer from a prison in Dublin to one in Co Roscommon has no legal basis, reports RTE.
Mr Burke was transferred from Mountjoy Prison to Castlerea Prison on 1 March, reports RTE.
He has been in custody since January after being found in contempt of court.
Mr Burke appeared before the High Court today via video link, arguing that his transfer should not have taken place because his detention arises from a civil matter rather than a criminal one, reports RTE.
He said his brother Isaac, who was present in the courtroom, had written and emailed the governors of Mountjoy Prison and Castlerea Prison stating that he had been “moved without warning or notice” to Castlerea Prison and had not been given a reason for the transfer.
Enoch Burke told the court that his transfer to Castlerea Prison was “in breach” of a High Court order committing him to prison, which referenced Mountjoy Prison, and therefore had no legal basis, reports RTE.
He said the email had been sent last Tuesday at 5pm and that a “token response” was received on Wednesday at 9.30am but there had been “no further response since that time”.
He added that the court “has power to do something about it” and that he should not be required to take additional action, reports RTE.
Mr Justice Brian Cregan asked Mr Burke whether he was seeking to be returned to Mountjoy Prison.
Mr Burke initially paused before saying that his application was based on the claim that his transfer to Castlerea Prison lacked a legal basis and that the move “was wrong and shouldn’t have happened and needs to be put right”, reports RTE.
He also said the application was being made without prejudice to his position that his overall detention is unlawful.
Aoife O’Leary, representing the governor of Mountjoy Prison, told the court that under the Criminal Justice (Administration) Act there is discretion to transfer a person from one prison covered by the legislation to another, reports RTE.
Mr Justice Cregan asked that an affidavit and legal submission be prepared outlining the facts.
Mr Burke interrupted to say that he believed it was “fully unnecessary” for the judge to request affidavits and legal submissions, reports RTE.
He said the Criminal Justice Act had “no application whatsoever” because he had not been convicted of any criminal offence.
“Why would a legal submission be prepared on the Criminal Justice Act when the dogs on the street know this isn’t a criminal matter?” he said, reports RTE.
“The court should deal with this matter today,” he said, adding that it should not be “kicking it down the road” when it is a “very simple point”.
Mr Justice Cregan said that on 19 January he had found Mr Burke in contempt of court and said he would be committed to Mountjoy Prison, but that in the written judgment he stated Mr Burke should be committed to prison without specifically referring to Mountjoy, reports RTE.
“It should be dealt with today,” Mr Burke said.
“It won’t be dealt with today,” the judge replied, reports RTE.
The case is due to come before Mr Justice Cregan again at 10.30am on Thursday.
The judge also requested an update on the appointment of a new Disciplinary Appeals Panel (DAP), which will review the decision of the board of management of Wilson’s Hospital School to dismiss Mr Burke, reports RTE.
Mr Burke had previously challenged the composition of the panel in court, and in February the court heard that two of the three members had resigned and that a new panel would need to be appointed.
Addressing the court, Mr Burke said it was not “appropriate” for the court to interfere in the DAP process, reports RTE.
He said the court “has no role” in the process of the DAP and that “any comments (or) remarks as to how or when the DAP should operate, I say, is unlawful interference”.
Mr Burke also said that an appeal he lodged against the judgment of Alexander Owens relating to the original dispute with Wilson’s Hospital School had been “granted an expedited appeal” which is due to be heard in April, reports RTE.
He argued that the appeal should be heard before the DAP process continues because if the appeal were successful it would “invalidate” the dismissal proceedings against him.
Mr Justice Cregan said he had noted Mr Burke’s submissions but did not agree with them, reports RTE.
He said his “sole concern” in asking for an update on the DAP appointment was in relation to Mr Burke’s imprisonment.
“This court has no interest in you remaining in prison one day longer than is necessary,” he said, reports RTE.
No update regarding the appointment of the DAP was provided in court.
The long-running legal dispute between the board of the Co Westmeath school and Mr Burke stems from incidents in 2022 following a request from the school’s then principal to address a student by a new name and pronoun, reports RTE.
Mr Burke, who taught German and history at the school, has consistently argued that the direction was unconstitutional and conflicted with his right to express his religious beliefs.
The school obtained injunctive relief preventing him from attending the school, but he continued to attend in breach of the order, arguing that it remained his workplace, reports RTE.
He has been fined €225,000 and has spent more than 550 days in prison for attending the school in breach of the court order.
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