Contempt in the Face of the Court: Custodial Sanctions, No DPP Referral Without Trial Findings, and Remote-Attendance Controls for Persistent Disruption

Case: Burke v O'Longain and Ors [No. 2] (Approved) Citation: [2026] IEHC 132 (High Court, Cregan J, 4 March 2026)

1. Introduction

This is the High Court’s second judgment in proceedings brought by Mr. Enoch Burke against three members of a Disciplinary Appeal Panel (“DAP”)—Mr. Sean O’Longain, Ms. Geraldine O’Brien, and Mr. Jack Cleary—arising from Mr. Burke’s dismissal by Wilsons Hospital School for gross misconduct (January 2023) and the subsequent disciplinary appeal process.

The first judgment, delivered ex tempore on 20 February 2026 ([2026] IEHC 126), struck out the proceedings as moot after the resignation of the first and third defendants from the DAP and an effective undertaking that the second defendant would not sit on any reconstituted DAP. Judgment No. 2 addresses two residual matters:

• (A) Referral to the DPP: Mr. Burke’s complaint that the Court failed to address his request to send Mr. O’Longain’s affidavits to the Director of Public Prosecutions (“DPP”) for alleged perjury.
• (B) Contempt: Whether Mrs. Martina Burke and Ms. Ammi Burke committed contempt in the face of the court by disrupting the hearing on 20 February 2026.

The judgment also signals (without finally determining) a further procedural control: a potential direction that certain family members attend future Burke-related hearings remotely under s.11 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and/or the Court’s inherent jurisdiction.

2. Summary of the Judgment

3. Analysis

3.1 Precedents Cited

(a) Walsh v Minister for Justice [2019] IESC 15

This is the central authority relied upon to articulate the constitutional and common-law rationale for the contempt jurisdiction, particularly contempt in the face of the court. Cregan J. quoted O’Donnell J. (as he then was) at length to emphasise:

• Order as a precondition of adjudication: Maintaining order is “central” to a court’s capacity to administer justice; disruption undermines the ability to ventilate and adjudicate competing claims fairly.
• Disruption as intimidation/bullying: Persistent interruptions and offensive interjections may amount to menacing, intimidatory conduct that attacks the essence of a fair hearing.
• Need for immediacy: Enforcement must be immediate; separate later proceedings may be ineffective, and serial disruption can replicate across hearings if not met with an effective sanction.

On sanction, the Supreme Court’s discussion of a two-week sentence in Walsh was treated as a practical comparator (noting, as the judgment itself does, that Walsh was not an appeal against severity).

(b) Wilson's Hospital School v Burke (No. 4) [2026] IEHC 31.

This case is referenced to contextualise the Court’s earlier decision to release Mr. Burke from prison to prepare his DAP-related injunction application, while warning him he remained bound by a permanent injunction restraining trespass. The reference informs the Court’s assessment of credibility and context: the judgment characterises Mr. Burke’s continued imprisonment as flowing from deliberate breach of court orders rather than the ideological framing advanced by Mr. Burke.

(c) Hand v McGregor

Mr. Burke relied on this as an example of papers being referred to the DPP. Cregan J. declined to treat it as influential because no written judgment or materials were provided, leaving the Court unable to assess the factual basis or relevance. The treatment is instructive: it reflects a disciplined approach that a precedent’s persuasive force depends on accessible reasoning and comparable facts, not merely a claimed outcome.

(d) Burke v W.R.C. and Arthur Cox and “the judgment of Mr. Justice Noonan for the Court of Appeal in the same case.”

These were invoked not to decide the contempt question directly, but to justify a regulatory referral regarding Ms. Ammi Burke’s conduct as a solicitor. The Court used them as part of an asserted pattern of courtroom disruption and to underline the gravity of misconduct by an officer of the court.

(e) Other decisions mentioned (contextual rather than determinative)

• The Court of Appeal decision referenced as “Burke v. O'Longain in July 2025” (background to Mr. Burke’s attempted stay and the DAP’s hearing).
• References to prior orders by “Mr. Justice Owens” (permanent injunction) and refusals by “Mr. Justice Sanfey” and by Cregan J. to set aside another High Court judge’s order (illustrating appellate structure and reinforcing the Court’s account that Mr. Burke has had procedural opportunities).

3.2 Legal Reasoning

(A) Refusal to refer affidavits to the DPP (alleged perjury)

The reasoning is anchored in the function and limits of interlocutory proceedings and the evidential status of affidavits where facts are contested:

• No fact-finding on contested affidavits at interlocutory stage: Where each side swears to a different account, the Court “would never” determine truth/untruth in that setting; findings typically require a plenary trial and cross-examination.
• Mootness ends subsidiary issues: Because the proceedings had been struck out as moot, there would be no trial and no cross-examination. The request to refer for perjury was characterised as a subsidiary issue that fell away.
• Assessment of credibility and context: The Court gave multiple reasons for viewing the application as lacking merit, including Mr. Burke’s pattern of accusing many actors of lying and the Court’s negative credibility assessment of Mr. Burke’s characterisation of events.
• Alternative route remains open: The Court noted Mr. Burke could himself refer the matter to Gardaí and/or the DPP, undermining any allegation of a judicial “cover up.”

The practical principle is that alleged perjury referrals by a court are exceptional and typically contingent on clear findings made on tested evidence; they are not a collateral weapon to be deployed midstream (or after strike-out) to prolong or reframe proceedings.

(B) Contempt in the face of the court: finding of guilt

The Court identified the contempts as “paradigmatic” contempt in the face of the court: shouted interruptions, refusal to sit, refusal to comply with repeated directions, and conduct that prevented the Judge from being heard and forced proceedings to be abandoned while Gardaí removed the disruptors. Two aspects of the reasoning are particularly notable:

• Interference with administration of justice as the gravamen: The contempt is not framed as “disrespect” in the abstract, but as functional interference with the court’s ability to hear an application (here, the school’s motion to be joined as a notice party) and manage proceedings fairly.
• Concerted disruption as aggravating: The simultaneous shouting by multiple family members, drowning out the Court, and persistence despite warning strengthened the finding that the conduct was deliberate and obstructive.

(C) Sanction: two weeks’ imprisonment each

In calibrating sanction, the Court:

• Used Walsh v Minister for Justice [2019] IESC 15 as a comparator indicating that two weeks for contempt in the face of the court can be within the bounds of proportionality.
• Treated repeated prior warnings and repeated removals as evidence that lesser measures had failed and that escalation was required to protect court functioning.
• Considered Ms. Ammi Burke’s status as a solicitor as an aggravating factor, emphasising the heightened obligation of officers of the court to model compliance with courtroom norms.

(D) Prospective control: remote attendance under s.11 of the 2020 Act and/or inherent jurisdiction

Although not finally determined, the Court’s indication is significant: it proposes remote attendance as a proportionate means of reconciling (i) the principle of open justice with (ii) the need to prevent recurrent disruption by particular individuals. The Court explicitly states that open justice is not undermined if those individuals can still see and hear proceedings remotely, but cannot interrupt.

3.3 Impact

• Clarifies the threshold for judicial DPP referrals in affidavit disputes: The judgment reinforces that perjury allegations do not become a side-channel for interlocutory fact-finding; absent trial-based findings, courts will generally not “pick a winner” on affidavit and then refer for prosecution.
• Strengthens the operational use of contempt powers for courtroom control: The decision underscores that repeated warnings and removals are not indefinite substitutes for contempt findings and meaningful sanctions where disruption is persistent.
• Signals procedural innovation in managing repeat disruptors: The contemplated s.11/inherent-jurisdiction direction to require remote attendance may be influential as a pragmatic template for maintaining public access while preventing a courtroom from becoming ungovernable.
• Professional discipline consequences for solicitor misconduct in court: The referral to the Law Society highlights that contempt-like conduct by solicitors can have collateral regulatory consequences beyond the immediate criminal/civil sanction.

4. Complex Concepts Simplified

• Mootness: A case is “moot” when the practical dispute has disappeared, so there is no effective remedy left for the court to grant. Courts generally avoid deciding issues that would be purely academic or advisory.
• Contempt in the face of the court: Misconduct occurring in the courtroom (or so close to proceedings as to directly affect them) that interferes with the administration of justice—e.g., persistent interruption, refusal to obey directions, intimidation, or preventing a hearing from continuing.
• Summary jurisdiction (in contempt): The court’s power to deal with contempt immediately, without a separate, later trial, because delay can make courtroom control impossible and allow disruption to replicate across proceedings.
• Plenary trial vs. interlocutory hearing: A plenary trial is the full hearing of a case, typically with live evidence and cross-examination. Interlocutory hearings are preliminary and often decided on affidavit, usually without final findings on disputed facts.
• Open justice vs. remote attendance: Open justice requires public access to courts to prevent secrecy and enhance legitimacy. Remote viewing can satisfy public access while limiting the ability of specific persons to disrupt proceedings.

5. Conclusion

Burke v O'Longain and Ors [No. 2] is principally a courtroom-governance judgment. It (1) rejects the use of alleged perjury referrals as a collateral extension of moot proceedings absent trial-based findings on tested evidence; (2) applies the Supreme Court’s reasoning in Walsh v Minister for Justice [2019] IESC 15 to reaffirm that contempt in the face of the court is justified by the need for immediate, effective protection of the administration of justice; (3) imposes short custodial sentences as a proportionate response where warnings and removals have failed; and (4) foreshadows remote-attendance restrictions as a means of preserving open justice while preventing repeated disruption.