Jailed teacher Enoch Burke should be released from Mountjoy Prison a High Court judge has ruled.
Mr Justice Brian O'Moore said this was one of those rare cases where a coercive imprisonment should stop, for the moment, even though Mr Burke has not purged his contempt.
Similar orders had been made in other cases where persons had spent a period in prison over their failure to obey court were released without purging their contempt.
The judge delivered his ruling on the matter on Wednesday evening after he had earlier considered brief submissions regarding a proposal that the teacher be released from prison.
The submissions were made to the court on Wednesday morning from both Mr Burke and from lawyers on behalf of his employer, Wilson's Hospital School in Co Westmeath.
In his ruling the judge said the school could come back to court and seek Mr Burke's attachment and if he does not comply with the order to stay away from the school.
Mr Burke was to remain at liberty until any further court order is made imprisoning him.
The only threat to his continued freedom the judge said will arise again if he breaches any existing order of the court.
The Judge said that the court 'would not enable somebody found to be in contempt of court to garner some advantage from that defiance'.
The judge said that Mr Burke has spent the last three and a half months in Mountjoy Prison due to his contempt, which he claims has arisen over his opposition to transgenderism.
Exploiting imprisonment
Mr Justice O'Moore said in his ruling, which was delivered electronically that "it was difficult to avoid the conclusion that Mr Burke was exploiting his imprisonment for his own ends."
This, the judge said, was a reason why Mr Burke had taken such "an unreal view of what orders from the High Court actually mean."
It would explain why he resisted an early trial which could have seen him free now, or in the cusp of freedom, the judge said.
It would also explain why after 100 days in prison Mr Burke had rejected a proposal made to him earlier this week by Mr Justice Conor Dignam that could have led to his immediate release, Mr Justice O'Moore said.
The purpose of jailing somebody for contempt is to coerce an individual to obey a court order. This while unattractive, is true, the judge said.
"This purpose was turned on its head when the person concerned is prepared to endure the undoubted discomforts of being imprisoned to obtain some greater benefit, as they see it." he said.
"The only plausible interpretation of Mr Burke's actions is that he sees some advantage in his continuing imprisonment, otherwise he would have either avoided his jailing or taken the opportunity to bring it to an end."
In those circumstances, Mr Burke's continued jailing would only facilitate whatever he feels he is currently achieving by being in prison, he said.
Advantage from defiance
The Judge said that the court would "not enable somebody found to be in contempt of court to garner some advantage from that defiance".
Therefore, he directed that Mr Burke's release "be open-ended and not just for the Christmas period."
The judge added that obeying a court order was not inconsistent with Christian principles, adding that "it was strange that Mr Burke would behave as if this was so."
The judge also described positions taken by Mr Burke at various stages of the proceedings as "illogical," and had the effect of "prolonging his incarceration."
The Judge also said that "Mr Burke's views about transgender people" are much better known now than before he was sent to Mountjoy.
Earlier this year the Judge said that he was an "ordinary History and German teacher in a Westmeath school".
Now he is "a household name, and his imprisonment has played a central part in that role," the judge added.
Representing himself before the Court on Wednesday morning Mr Burke told Mr Justice O'Moore what he had said previously stated that he was not interested in being released for the festive period which he described as being a "Christmas gift" and that he wanted to leave the court "vindicated".
Transgenderism
In his submissions Mr Burke said that would not agree to his temporary release, as he said that would amount to accepting that he had been lawfully incarcerated.
He again said that he has been jailed over his religious objections to transgenderism following the school's request last May that he refer to a male student as a 'they.'
Mr Burke also said that he suspected that lawyers for the school and the court were "working hand in hand."
Rosemary Mallon Bl for the school's board of management told the court that it was ultimately a matter for the court if Mr Burke should be released for Christmas.
The school, counsel said, had sought the order committing Mr Burke to prison as a coercive measure, over his failure to comply with the terms of his paid suspension.
Potential disruption
Counsel in reply to the judge said that the school was concerned about potential disruption being caused by Mr Burke after the school re-opens on January 5th if he were to be released.
Counsel said that a mechanism was required to ensure that its concerns would be addressed.
Counsel added that in light of the ongoing court action it had not progressed the disciplinary action it commenced against Mr Burke prior to the brining of the High Court proceedings.
Counsel confirmed that Mr Burke remains in receipt of full pay from the Department of Education.
In his ruling Mr Justice O'Moore said that he had to take several factors into consideration before arriving at his decision, including the attitude of the school, which did not oppose his release, the Christmas holidays and the use of public funds
Mr O'Moore said that last week Mr Burke's case came for review before Mr Justice Dignam.
Mr Burke again refused to purge his contempt or agree to comply with the terms of the injunction against him.
Financial cost to taxpayers
Mr Justice O'Moore said that Burke had also voiced his opposition to Mr Justice Dignam's suggestion that he be released temporarily over the Christmas Holidays.
The Judge said that while the impasse continued the taxpayers would be burdened with paying Mr Burke's salary as well as paying for his upkeep at Mountjoy.
It was difficult to know which was more costly, the judge said.
Whatever the figures involved the judge said that it was intolerable that the public would be paying until some indefinite date Mr Burke's wages and for his incarceration.
This double draw on public finances was another reason why the court was going to release him from prison.
