Wilson's Hospital School v Burke - Contempt of Court

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  The Board of Management of Wilson's Hospital School v Burke [No. 5] (Approved) [2026] IEHC 171 (18 March 2026)

URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC171.html
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THE HIGH COURT

[2026] IEHC 171

[Record No. 2022/4507 P]

BETWEEN

---

THE BOARD OF MANAGEMENT OF WILSON'S HOSPITAL SCHOOL

PLAINTIFF

AND

---

ENOCH BURKE

DEFENDANT

AND

GOVERNOR OF MOUNTJOY PRISON

AND GOVERNOR OF CASTLEREA PRISON

NOTICE PARTIES

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JUDGMENT (No. 5) of Mr. Justice Cregan delivered on 18 th March 2026

Introduction?

1. This is my fifth judgment delivered in these proceedings. ? They all relate to the motions for attachment and committal brought by the plaintiff against Mr. Burke.? Mr. Burke has been repeatedly committed to prison for repeated and flagrant breaches of a High Court Order not to trespass on the plaintiff's property.?

2. On 14 th January 2026, I released Mr. Burke to enable him to prepare his case against Mr. O'Longain and other members of the Disciplinary Appeal Panel but I indicated to him that if he trespassed on the school grounds he would be immediately returned to prison. Mr. Burke decided, in an entirely contumacious manner, to return to work the next day.  The school brought another application for attachment and committal. I found Mr. Burke to be in contempt of court again and I made an order for his committal to Mountjoy Prison on 19 th?January 2026. I then gave a written decision explaining my reasons on 20 th January 2026.

Mr Burke's current complaint

3. Mr. Burke was moved from Mountjoy Prison to Castlerea Prison on Sunday, 1 st March 2026. His brother, Dr. Isaac Burke, brought this matter to the attention of the Court on Monday 2 nd March 2026, when he appeared remotely. I indicated to Dr. Burke that if he wished to bring an ex parte application he could do so the next day but the court would need some form of ex parte docket or notice of motion to bring matters to the court's attention. No such application was brought.

4. The matter came before the Court again on Tuesday, 3 rd March 2026. Mr. Burke appeared on-line from Castlerea Prison and his brother, Dr. Burke, handed in a letter to the Court. I will treat this letter as Mr. Burke's application to the Court. This is a letter dated 3 rd March 2026 from Dr. Isaac Burke, for and on behalf of Mr. Enoch Burke, addressed to the Governor of Mountjoy Prison and the Governor of Castlerea Prison. It states:

"Dear Governors,

In or around 9:30 AM on 1 March 2026, Enoch Burke was moved without warning or notice from Mountjoy Prison to Castlerea Prison.? He is currently detained in Castlerea Prison. No reason was given to Enoch Burke for this transfer.

On behalf of Enoch Burke, I raised this matter before the High Court (Mr. Justice Cregan) yesterday and I was advised by the court to write you in respect of this matter.

The sole authority for Enoch Burke's detention is contained in the Order of the High Court dated 19 January 2026 which orders the following with respect to detention:

'And it is ordered that the defendant be conveyed by the Commissioner and members of an Garda Sioch?na to Mountjoy Prison and that he thereupon be lodged in Mountjoy Prison to be detained therein until he purges his contempt and is discharged pursuant to further order of this Court.

And it is ordered that the within Order on its face be sufficient warrant for the Governor of Mountjoy Prison to detain the said Enoch Burke as aforesaid without the requirement for a separate warrant or order to issue out of the Central Office of the High Court.'

I enclose herewith a copy of the said Order.? It is apparent from the above-mentioned terms of the Order that Enoch Burke's removal from Mountjoy Prison and his committal to and ongoing detention in Castlerea Prison are in breach of the Order and without warrant.

I am advised that when Enoch Burke yesterday requested from the prison authorities in Castlerea Prison the legal basis for his detention in that prison he was simply provided with the said Order of the High Court dated 19 January 2026.

I am advised that Enoch Burke spoke this morning at circa 9:55AM to Assistant Chief Officer (ACO) Duffy in Castlerea Prison regarding this matter.? ACO Duffy refused to acknowledge that Enoch Burke's detention was a civil matter and insisted that it was 'a criminal matter.'  He eventually said he didn't care which it was.

I am further advised that Enoch Burke later spoke this morning at circa 10:15 AM to Governor Higgins in Castlerea Prison.? Enoch Burke showed Governor Higgins the Order of the High Court dated 19 January 2026. Governor Higgins eventually accepted that Enoch Burke's detention is a civil matter.? However he refused to accept that he had no legal right to detain Enoch Burke in Castlerea Prison.? When he was asked by Enoch Burke to explain the detention in light of the express terms of the Order, Governor Higgins said that he would 'look for clarity with the legal team in the Irish Prison Service.'

Deprivation of liberty is a serious matter.? Enoch Burke should not be detained in Castlerea Prison.? His transfer from Mountjoy Prison Castlerea Prison has no basis in law.

You are asked to please respond to this letter is a matter of urgency.

Yours sincerely"

5. This letter was acknowledged by a replying email on Wednesday, 4 th March 2026.

The issue raised

6.?The question raised therefore is whether Mr. Burke's transfer from Mountjoy Prison to Castlerea Prison by the Governor of Mountjoy Prison is lawful or not.?

7. The question specifically raised by Mr Burke is whether the Governor of Mountjoy Prison is allowed to transfer a person who is in prison for civil contempt - as opposed to a person who has been convicted of a criminal offence or is on remand awaiting a criminal trial.

8. When this matter was raised by Mr. Burke on Tuesday, 3 rd March 2026, I made an Order that the Governor of Mountjoy Prison would be made a notice party.? On Tuesday 10 th March, I made an Order that the Governor of Castlerea Prison would also be made a notice party to these proceedings, so that he could address the Court in this matter.

9. I also requested the Governor of Mountjoy Prison to file an affidavit and legal submissions by Thursday, 12 th March 2026.

10. This matter then came back before the Court on Thursday 12 th March 2026. The hearing lasted from approximately 12:15 until 1pm and then from 2pm until approximately 3:45pm.

Rules of the Superior Courts

11. Order 44 of the Rules of the Superior Courts sets out the rules governing attachment and committal.

12. Order 44 rule 2 provides that:

"An order for committal shall direct that upon his arrest the person against whom the order is directed shall be lodged in prison until he purges contempt and is discharged pursuant to further order of the court and shall be in the form number 12 in Appendix F Part 2."

13. Order 44 rule 4 provides:

"When the person against whom an order of attachment is directed is brought before the court on his arrest, the court may either discharge him on such terms and conditions as to costs or otherwise as he thinks fit or commit him to prison for his contempt either for a definite period to be specified in the order or until he shall purge contempt and be discharged by further order of the court."

14. Form no. 12 in Appendix F, Part 2 provides in the relevant section:

"Whereas lately in the High Court it was adjudged that CD was guilty of contempt in the High Court and do stand committed to prison for the said contempt.

**

You are hereby commanded to arrest the said CD and thereupon to lodge him in... prison, there to be detained until he purges said contempt and is discharged pursuant to further order of the High Court.

15. It is clear therefore, that the Rules of the Superior Courts require that the court order for committal must identify a specific prison.

The affidavit evidence

16. Mr Don Culliton, Director of Operations with the Irish Prison Service swore an affidavit on behalf of the Governor of Mountjoy Prison. In this affidavit he states that he is the Director of Operations of the Irish Prison Service and that while the Minister for Justice, Home Affairs and Migration (the Minister ) "has overall executive responsibility for the prison system, the Irish Prison Service operates as an office of the Department of Justice, Home Affairs and Migration and takes day-to-day responsibility for the management of the Prison Estate". He also states that personnel within the Irish Prison Service have "lawful authority to make various decisions relating to the management of prisons - such as decisions on transfers .... -in the name of the Minister in accordance with the Carltona doctrine."

17. He also states, at paragraph 4 of his affidavit, that the "Minister has the power to transfer prisoners from one prison to another under section 17 of the Criminal Justice Administration Act 1914" and that "personnel within the Irish Prison Service have lawful authority to make decisions on transfers in the name of the Minister in accordance with the Carltona doctrine". He states that "This is a function which [he] exercises on occasion in his capacity as Director of Operations".

18. He also states at paragraph 5 of his affidavit that

"I wish to clarify that transfer decisions are not made by the individual governors of prisons, but instead are typically made by personnel within the Irish Prison Service in the name of the Minister. In the present case I made the decision to transfer the defendant in this way, rather than the fourth notice party. I make this affidavit for the purposes of outlining the circumstances in which I made that decision."

19. He states at paragraph 6 that " Transfers of prisoners are a regular occurrence within the Irish prison system" and that transfers are "used daily in order to ensure the safety of vulnerable or at risk prisoners or for other operational reasons".

20. He states at paragraph 7 of his affidavit that the "the Irish Prison Service has in the past directed the transfer of prisoners who are in custody for contempt of court, and for civil matters such as non-payment of child maintenance, as well as persons who are on remand awaiting trial or sentences or who are serving custodial sentences"

21. At paragraph 12 (onwards) of his affidavit, Mr Culleton describes how the Irish Prison Service operates an incentivised regime policy whereby a prisoner is deemed to hold a particular status - basic, standard or enhanced - depending on their compliance with certain criteria. He states "This is a measure to promote positive behaviour and engagement within the prison. The Irish Prison Service is of the view that reward and deferral programs are an important feature of maintaining safety within a prison environment and for preparing persons for positive reintegration on return to society".

22. He then sets out how prisoners are assessed for a particular status. He states at paragraph 15 that "Following his committal to Mountjoy Prison the defendant was initially placed in the reception area on the committal area and C base. On 20 January 2026 the defendant was allocated a cell on the C1 west wing of Mountjoy West".

23. He states that at paragraph 16:

"From 19th January 2026 to 29th January 2026 the defendant was a standard regime prisoner. On 29th January 2026 the defendant was advanced to the enhanced regime. He continued to be accommodated in Mountjoy West for a period thereafter.

24. He states, at paragraph 17, that from 20 th February 2026 to 1 st March 2026 the defendant was housed in C base of Mountjoy prison and states: "This is the committal area of Mountjoy Prison that is used for the purposes of receiving prisoners in the initial committal phase. No safety issues arose in this area. However this area is ordinarily used for committal prisoners only while being assessed for their cell allocation and it is not suitable for the long-term placement of prisoners."

25. He states, at paragraph 18, that on 26th February 2026 "there was a privilege level review in respect of the defendant. In accordance with the process set out at paragraph 14 above it was decided that the defendant was failing to meet the required standards and criteria which are necessary under the incentivised regime's policy to remain as an enhanced status prisoner."

26. At paragraph 19, he states:

"In particular, the review found that behaviour exhibited by the defendant on escort to court failed to meet the required standard of behaviour and therefore criteria for the enhanced regime level. Standards of behaviour for enhanced regime level include (a) compliance with the prison rules and all reasonable instructions and (b) cooperation with staff in the performance of their duties."

27. He states at paragraph 20: " Accordingly on 27 th February 2026, the defendant's regime level was changed from enhanced to standard. In circumstances where he no longer enjoyed the accommodation privileges given to enhanced prisoners, it was necessary to decide whether the defendant could be safely housed within the general population in Mountjoy Prison. For the reasons set out above it was not practical to house the defendant in C base on a long-term basis."

28. At paragraph 21-28, he states as follows:

?"21. At this stage, an individualised risk assessment, considering all facts relevant to the defendant's safety in the prison estate, was carried out by the relevant prison authorities. It was deemed that the defendant was not suitable for accommodation in the general population in Mountjoy Prison as he would face risks to his own safety if he were housed there. It was considered that, for the defendant's personal safety and the overall security of the prison, it was necessary to assign him to a single occupancy cell. However, this was impractical in Mountjoy Prison because of the overcrowding which was then (and still remains) in existence in the facility, which meant that safe spaces to address individual safety provisions were scarce. For example, as of 6th March 2026, there were 1,124 persons detained in Mountjoy Prison, versus a bed capacity of 831. It was therefore operating at 135% capacity, with 84 persons required to sleep on the floor in a multi-occupancy cell.

22. By contrast, a risk assessment determined that the defendant could be accommodated safely in Castlerea Prison. As of 6th March 2026, Castlerea Prison was holding 467 persons versus a bed capacity of 381, meaning that it was operating at 123% capacity. This lesser degree of overcrowding meant that, at the relevant time, there was scope to assign the defendant to a single occupancy cell in that facility.

23. Owing to those circumstances, I made a decision on 27th February 2026 to transfer the defendant from Mountjoy Prison to Castlerea Prison. This transfer was necessary in the interests of the defendant's own safety and protection and for prisoner numbers management reasons, in circumstances where the defendant was no longer suitable for accommodation on Mountjoy West. I beg to refer to an extract from the Prisoner Information Management System ("PIMS") recording this transfer decision upon which, marked with the letters " *DC3** ", I have signed my name prior to the swearing hereof.*

24. For the avoidance of doubt, I note that I considered all relevant factors in reaching my decision on the transfer of the defendant, including safety and security concerns, available accommodation across the prison estate, and risk and protective factors.

25. Further, for the sake of completeness, I note that the defendant was also subject to two P. 19 disciplinary hearings during his time in Mountjoy Prison, on foot of reports of breaches of prison discipline. However, the P. 19 disciplinary process - which considers breaches of prison discipline and addresses an incident at a point in time and applies sanctions available to the Governor - operates independently of the Incentivised Regimes Policy. The transfer of the defendant was precipitated by his move onto standard regime and the consideration as to where the most appropriate accommodation for him could then be provided. I beg to refer to a copy of the two P. 19 reports upon which, marked with the letters " *DC4** ", I have signed my name prior to the swearing hereof.*

26. On 1st March 2026, acting in accordance with the Carltona doctrine, I signed an order directing the transfer of the defendant to Castlerea Prison in accordance with section 17(3) of the Criminal Justice Administration Act 1914, as amended. I beg to refer to a copy of the signed transfer order upon which, marked with the letters " *DC5** ", I have signed my name prior to the swearing hereof.*

27. On that same date, the defendant was transferred to Castlerea Prison. On arrival, he was informed by the Governor of Castlerea Prison that he had been transferred for operational reasons. The defendant has been detained in Castlerea Prison since 1st March 2026. On arrival, the defendant was placed in the reception area. He was then assigned a cell on the B2 Wing on 2nd March 2026. The defendant is currently on a standard regime and is currently accommodated in a single cell on B2 of Castlerea Prison. This area is predominantly used for prisoners on protection regimes.

28. It is open to the defendant to request a transfer to whatever prison within the prison estate he would like. All such requests for transfers receive proper consideration. No such request has been received from the defendant to date." (Emphasis added).

29. Mr Culleton, in exhibit DC3 to his affidavit, sets out a prisoner information management system dealing with this transfer. The summary description of the reasons of the transfer states as follows:

"Approved for numbers MGT reasons. Currently being held on committal unit in main prison. No longer suitable for MJW owing to disciplinary matters. Transfer approved in interest of his own safety plus protection. Also prisoner from County Mayo."

30. He also included, at exhibit DC4, a form P19 report to the Governor by a prison officer, who reported a misconduct action against Mr Burke of " obstructing an officer in performing his duties ".

31. This P19 report to the Governor report date is dated 20th of February 2026. It states as follows: " Governor I respectfully wish to report the above-named prisoner for being non-compliant on an escort. On the above date and time while escorting this prisoner from the Four Courts, he became non-compliant by refusing to move forward as we were attempting to exit the building. As we were attempting to exit the building, a man who I believe to be his brother attempted to obstruct us. A female member of the public who was waiting outside the building also attempted to obstruct us in placing the prisoner in the van."

32. A second P19, dated 23 rd February 2026, states that Mr Burke engaged in misconduct the summary of which is " offends against good order and discipline ".

33. The narrative states:

"On the above date while whilst escorting the above-named prisoner to attend a court appearance at the Four Courts I wish to report the following. During the proceedings with Judge Cregan, prisoner Enoch Burke disrupted the court hearing on a number of occasions by shouting at the judge and failing to follow the judge's instructions which led to the judge adjourning proceedings and instructing prison staff to return the above named to Mountjoy Prison. "

34. Mr Burke did not file a replying affidavit but in his oral submissions to the court he took issue with both of these allegations of misconduct. He submitted that he had always been well-behaved whilst in prison.

35. It is not necessary for me to make any adjudication on these conflicting accounts. It is a matter for the management of the prisons as to how they manage the prisons and how they deal with transfers from one prison to another. It is a matter for the prison authorities as to whether, and if so why, they decided to reduce Mr Burke's regime from enhanced to standard. Once they had done so however, he no longer enjoyed the privileges given to enhanced prisoners and it was necessary to consider whether he could be safely housed within the general population in Mountjoy Prison. As Mr Culleton states, at that point, a risk assessment was carried out which considered all the facts relevant to the defendant's safety in the prison and it was deemed that the defendant was not suitable for accommodation in the general population in Mountjoy Prison as he would face risks to his own safety if he were housed there. Mr Culleton stated that for the defendant's personal safety, and the overall security of the prison, it was necessary to assign him to a single occupancy cell but this was impractical in Mountjoy Prison because of the overcrowding. Castlerea by contrast had a lesser degree of overcrowding which meant that there was scope to assign the defendant to a single occupancy cell in that facility.

Legal principles applicable to this issue

High Court order of 19 th January, 2026

36. Mr Burke's case, that his transfer is unlawful, is based solely on the argument that my order of 19 th January 2026 provides that he is in contempt of court and that he is to be committed to " Mountjoy Prison ". His argument is that because the court order provides that he is to be committed to Mountjoy Prison, he cannot be moved to another prison.

The meaning of "prisoner"

37. However, Mr Burke's argument is not correct, as a matter of law (i) because once he has been committed to prison - even for contempt of court - he is then " a prisoner " as that term is defined in law; and (ii) therefore the Prison Acts apply to him.

38. The fact that Mr Burke is a " prisoner " is clear for a number of reasons. First, section 2 of the Prisons Act, 2007 (as amended) defines a prisoner as "a person who is ordered by a court to be detained in a prison...."

39. It is clear that Mr Burke has been ordered by a court to be detained in a prison. Therefore he is a " prisoner " as a matter of law.

40. Secondly, section 2 of the Prison Rules 2007 (as amended) [S.I. 252 of 2007] defines a prisoner as a "a person who is lawfully detained in prison and includes a person detained ....for contempt of court."

41. Thirdly, Mr Burke himself accepts that he is a "prisoner" and did not seek to argue otherwise.

42. There is no doubt therefore that even though Mr Burke has been committed to prison for a civil contempt of a High Court order, he is nevertheless a "prisoner" as that term has been defined in the legislation.

The Prison Acts

43. Given that Mr. Burke is a "prisoner", the Prison Acts apply to him. The Prison Acts are a series of acts dealing with the manner in which prisoners are to be treated and/or dealt with and/or managed whilst they are prisoners.

44. The Prison Act, 1877 was amended in 1914 by the substitution of three existing sections of that Act (s.24, s.25 and s.26) by three new sections.

45. The amendment to the Prison Act was, in fact, contained in the Criminal Justice (Administration) Act, 1914. Two of these new sections are relevant to this case. These are s.17(2) and (3) of the Criminal Justice (Administration) Act, 1914.

46. Section 17 provides as follows:

" Commitment and removal of prisoners

There shall be substituted for sections 24, 25, and 26, and 27 of the Prison Act, 1877, the following provisions:?

....

(2) A prisoner sentenced to imprisonment or committed to prison on remand, or pending trial, or otherwise, may be lawfully confined in any prison to which the Prison Acts, 1865 to 1902, apply."

47. Section 17(3), as subsequently amended, and/or modified by section 43 of that Act and, as adapted by s.11 of the Adaptation of Enactments Act, 1922, provides as follows:

"Prisoners shall be committed to such prisons as the Minister for Justice may from time to time direct; and may on the like direction be removed therefrom during the term of their imprisonment to any other prison."

48. It is clear that the phrase "committed to prison on remand.... Or otherwise" in s.17(2) includes, and must be interpreted to include, all persons such as Mr Burke who are committed to prison for contempt of court.

49. Therefore under s.17(2) of the 1914 Act, Mr Burke may be "lawfully confined in any prison to which the Prison Acts apply."

50. Likewise, under s.17(3) of the 1914 Act, Mr Burke, as a prisoner, "shall be committed to such prisons as the Minister for Justice may from time to time direct", and Mr Burke "may, on the like direction be removed therefrom during the term of their imprisonment to any other prison".

51. It is clear that the word "prisoners" in s.17(3) of the 1914 Act must have the same meaning as "prisoners" in s.17(2) of the 1914 Act. This would therefore include Mr Burke, who is in prison for civil contempt of court.

52. Therefore under s.17(3) of the 1914 Act, Mr Burke, as a prisoner, may be moved from one prison to another.

53. Mr Burke makes a number of counter-arguments. First, he argues that as he is committed to prison for a civil contempt rather than having been convicted of a crime or awaiting trial on a criminal offence, the 1914 Act does not apply to him because that Act is entitled "The Criminal Justice (Administration) Act, 1914 and he is not in the criminal justice system. This argument is without merit. As the 1914 Act itself provides, s.17 of the 1914 Act is actually amending the Prison Act 1877. As Mr Burke is a "prisoner", then the Prison Acts apply to him including any amendments to those Acts.

54. Mr Burke's second argument is that the phrase "or otherwise", in s.17(2) of the 1914 Act, does not apply to him because he is a civil contemnor. Again this is an argument without merit. It is clear, in my view, that the phrase "or otherwise" includes, and should be interpreted to include, persons who are committed to prison for such matters as civil contempt of court.

55. Thirdly, Mr Burke argues that he does not fall within s.17(3) of the 1914 Act because the phrase "during the term of their imprisonment" does not apply to him. Again, in my view, this is an argument of no merit. Mr Burke has been committed to prison from 19 th January 2026 which is the start date - "to be detained therein until he purges his contempt and is discharged pursuant to further order of this court" - which is the end date or end event. This order specifies a start date and an end event. As such, it sets out the "term of imprisonment".

56. It is clear therefore, as a matter of law, that the transfer of Mr Burke by the Governor of Mountjoy Prison is not in breach of the High Court order of 19 th January 2026 and that the High Court order must be read in conjunction with the Prison Acts (as amended).

57. Mr Burke sought to argue that in his case there had been no crime, no trial and no sentence, that the order in his case was coercive and not punitive and therefore that his case fell outside the penal code. That argument is misconceived as a matter of law. First, there was an application for his attachment and committal, there was a hearing and there was a court finding that he was in contempt of court. Secondly, there was a court order for his committal to prison. Thirdly, he is therefore now a "prisoner" as that term has been defined in the legislation and therefore, he does fall within the Prison Acts and the penal code.

Review of case law

58. The question which Mr Burke has raised (i.e. whether a prisoner who has been directed to be committed to one prison under a court order can, as a matter of law, be lawfully transferred to a prison other than that specified in the court order) is a question that has already been answered in a number of decisions of the High Court.

59. In Campion v. Governor of Cork Prison 2011 [IEHC 398] the applicant had been transferred from Portlaoise Prison to Cork Prison. He maintained that Cork Prison had no warrant to arrest him and that his detention there was unlawful. Irvine J. however stated as follows:

"The legislative provisions relevant to the applicant's complaints are those provided for in section 17 of the Criminal Justice Administration Act 1914. In particular section 17(3) provides that prisoners shall be committed to such prisons as Lord-Lieutenant (now the Minister for Justice Equality and Law Reform) may from time to time direct, and may in like direction be removed therefrom during the term of their imprisonment to any other prison".

By reason of the aforementioned section, it is not necessary for a prison governor who wishes to move a prisoner from one prison to another to obtain or produce a warrant for such transfer as it is contended for by the applicant. An order of transfer under section 17 is the authority by which the governor of the prison to which the transferee is assigned becomes his new custodian"

60. In Brady v. Governor of Midlands Prison [2011] IEHC 295, Irvine J. considered a prisoner's argument that his detention in the Midlands Prison was unlawful as the warrant of conviction only permitted him to be detained in Mountjoy Prison. As Irvine J stated at paragraph 12 of her judgment:

"In this regard I am satisfied that these facts do not give the applicant any legal basis to support his present application for an inquiry into the lawfulness of his detention. The transfer of prisoners from one prison to another is a matter for the executive and not for the courts. Any such transfer may be exercised by the Minister for Justice Equality and Law Reform pursuant to section 17 of the Criminal Justice Administration Act 1914 and in such circumstances the governor of the prison to which the transfer is made becomes his new custodian".

61. In Walsh v. Governor of Wheatfield Place of Detention 2017 [IEHC 680], the applicant had been committed to Mountjoy Prison on foot of the committal warrant addressed to the governor of Mountjoy but he was subsequently transferred to Wheatfield Prison. The applicant argued that he was not properly detained in Wheatfield Prison. However Humphreys J. stated as follows, at paragraph 37 of his judgment:

"Section 17 (2) of the Criminal Justice Administration Act 1914 provides that 'a prisoner sentenced to imprisonment or committed to prison on remand or pending trial, or otherwise, may be lawfully confined in any prison to which the Prison Acts 1865 to 1902 apply'. Thus committal to one prison is committal to any provided that the Prison Act apply."

62. Likewise, in Ward (application for habeas corpus) [2018 IEHC 333 ] the applicant was committed to Mountjoy Prison on foot of a warrant addressed to the Governor of Mountjoy Prison. He was then transferred to the Midlands Prison and he applied for an enquiry into the lawfulness of his detention arguing that he had been unlawfully detained from the date of his transfer. Barniville J. (as he then was) stated at paragraph 11 of his decision:

"In my view, the complaint has no basis whatsoever. There is a clear statutory power on the part of the Minister to transfer a prisoner from one prison to another during the term of his or her imprisonment. This statutory power is contained in section 17(3) of the Criminal Justice Administration Act 1914."

63. It is clear therefore, that there is a consistent line of authority on this question and that a prisoner can be transferred from one prison to another. The fact that Mr Burke is in prison for civil contempt, rather than on a criminal charge, does not change the analysis because he is a "prisoner", as that term has been defined in the legislation.

The standard of review

64. As counsel for the Governor of Mountjoy Prison states in his written submissions:

"The defendant does not seek to challenge the decision to transfer him beyond making the argument based on the wording of the committal order. However for completeness, it is noted that a heightened standard of review applies in relation to a decision to transfer a prisoner pursuant to section 17 of the 1914 Act. The case law establishes that the courts should refrain from intervention in the exercise of the executive power to transfer unless it is established that the discretion available was exercised in a "capricious arbitrary and unjust way": see for example Nash v. The Minister for Justice [2015 IEHC 504 ]. As Kearns J. stated in that case:

'The courts should therefore intervene with the exercise of this particular power in only the gravest of cases. Any suggestion that prisoners can or should be detained in the prison of their own choosing, or avail of hunger strike or suicide threats to secure their own objectives, would create chaos in prisons and fatally compromise the proper administration of our prison system." See also Lyons v. The Governor of Shelton Abbey Prison 2019 IEHC 426 and O'Beirne v. Minister for Justice 2025 IEHC 671.'"

65. I am satisfied based on the evidence on the affidavit of Mr Culleton that there are no grounds on which Mr Burke could argue that the decision to transfer him was capricious, arbitrary or unjust. In any event, Mr Burke has never made this argument and has never sought to challenge the decision of the Minister for Justice and/or the delegation of that power from the Minister to the Governor of Mountjoy Prison. His argument was solely based on the fact that the wording of the High Court order committing him to Mountjoy Prison meant that he could not be transferred to any other prison.

Conclusion

66. I would therefore conclude as follows:

1. Mr Burke has been committed to prison for civil contempt of court;

2. The court order of 19 th January, 2026 directed that he was to be committed to Mountjoy Prison (i.e. a specified prison), in accordance with the Rules of the Superior Courts;

3. However, once he has been committed to prison, he is "a prisoner" as that term has been defined by the Prisons Act, 2007 (as amended);

4. As he is a prisoner, he comes within the provisions of the Prisons Acts, 2007 (as amended).

5. Section 17(2) of the Criminal Justice (Administration) Act, 1914, which amended the Prison Acts, ?provides that a prisoner " committed to prison on remand or pending trial or otherwise may be lawfully confined in any prison to which the Prison Acts apply";

6. The meaning of the phrase "or otherwise", in s.17(2) of the 1914 Act, includes, and must be interpreted to include, persons who are committed to prison for civil contempt of a court such as Mr Burke;

7. Therefore Mr Burke may be lawfully confined in any prison;

8. Section 17(3) of the 1914 Act provides that " prisoners shall be committed to such prisons as the Minister for Justice may from time to time direct; and may on the like direction be removed therefrom during the term of their imprisonment to any other prison ";

9. Mr Burke may therefore be lawfully moved from one prison to another, at the direction of the Minister for Justice;

10. The Minister for Justice has clearly delegated this day to day administration of the prisons to the Governor of each prison;

11. There is no issue taken by Mr Burke about this delegation in this case.

12. The Governor of Mountjoy Prison, through Mr Culleton, has directed that Mr Burke be transferred from Mountjoy Prison to Castlerea Prison for a number of reasons including maintaining prison discipline, the safety of Mr Burke and reasons of overcrowding. These reasons given are, in the light of the affidavit evidence, reasonable and not arbitrary;

13. I am satisfied that Mr Burke has been lawfully transferred from Mountjoy Prison to Castlerea Prison;

67. I would also remark that Mr Burke comes to this court and argues that court orders are sacrosanct and must be obeyed by everyone, including the Governor of Mountjoy Prison. Yet, he makes this argument whilst simultaneously being in prison for over 600 days for refusing to obey a lawful order of the High Court not to trespass on school property. As far as he is concerned, everyone must obey court orders - except him. He believes that the court order which restrains him from trespassing is unlawful. It is not. It is a lawful order of the High Court and has been so found by three High Court Judges. It is not up to Mr Burke to decide if a court order is unlawful. That is a matter for the High Court and, on appeal, the Court of Appeal and/or the Supreme Court. He may not like it, or agree with it, but he has to obey it.

68. As I have stated in every judgment I have given in this case, Mr Burke is not in prison because of his religious beliefs which he is perfectly entitled to have. However, he must obey the order of the court not to trespass on the plaintiff's property.  If he gives such an undertaking, then he will be free to leave prison.

69. This has been explained in terms which are crystal clear to Mr Burke. I am satisfied that Mr Burke knows full well the reason why he is in prison but, nevertheless, persists in putting forward false reasons as to why he is there.  No doubt it suits his political campaign against transgenderism to pretend to the outside world and to his followers that he has been imprisoned because of his religious beliefs, but nothing could be further from the truth.

70. Mr. Burke does not have to " bend the knee to transgender ideology " as he repeatedly puts it. The court order does not require that he do so. It simply requires him not to trespass on school grounds.

71. Mr Burke can be produced on-line for court hearings as easily in Castlerea Prison as he can be from Mountjoy Prison, as has already been demonstrated.

72. Mr Burke is free to request the Governor of Castlerea Prison that he be brought before this Court to purge his contempt just as much as he had that ability with the Governor of Mountjoy Prison.

73. Mr Burke has the keys to his own prison cell in Castlerea Prison, just as he has in Mountjoy Prison.

74. I am satisfied that the transfer of Mr Burke from Mountjoy to Castlerea Prison was lawful and that his current detention in prison in Castlerea Prison for contempt of court is also lawful. His application is dismissed.

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URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC171.html