The High Court has heard that teacher Enoch Burke was transferred to Castlerea Prison because he could not be safely housed in the general population at Mountjoy after having his enhanced prisoner status removed from him due to his behaviour.
The court was told that Mr Burke had enjoyed certain privileges afforded to those with enhanced prisoner status such as being housed in an area with a more open regime known as "Mountjoy West".
However his enhanced status was withdrawn after prison authorities decided his behaviour on an escorted trip to court was no longer meeting the required standard to qualify for enhanced prisoner status.
Mr Burke is challenging his transfer and has argued that moving him from Mountjoy Prison to Castlerea on 1 March has no basis in law.
He has been imprisoned since January for contempt of court over his refusal to obey a court order to stay away from Wilson's Hospital School.
Mr Burke says his removal to Castlerea Prison was in breach of the order for his committal, which referred to Mountjoy Prison.
He also claims he was being punished by the prison authorities for speaking out in court.
Barrister David Perry told the court transfer of prisoners was a regular occurrence for safety or operational reasons.
He said the decision to transfer a prisoner is not made by the governor but by prison service staff acting under the authority of the Minister for Justice.
He said a decision was taken to move Mr Burke to Castlerea where he could be housed in a single cell unit.
The court was told prison authorities decided there would be a risk to his safety if he was housed in the general prison population at Mountjoy which has no single cell availability due to overcrowding.
Mr Perry said it was well established as a matter of law that a prisoner can be detained in any prison within the State and not just the one specified in the committal order.
He said the term prisoner in the relevant legislation applied to all prisoners, regardless of the reason for their detention.
Enoch Burke told the court that the legislation relied on by the Prison Service did not apply to him as his was not a criminal case and he was not serving a sentence.
He said there was a difference between something illegal and unlawful, and the circumstances of his imprisonment was civil and not criminal and related to his inability to comply with what he believes is a "manifestly unlawful order of the court".
He said the intent of the order in his case was coercive and not punitive and therefore falls outside the penal code. He said there had been "no crime, no trial and no sentence".
He said the reliance of counsel for the prison service on the legislation was unfounded and misconceived adding, "he is barking up the wrong tree". He said the text of the court order committing him to Mountjoy prison was clear and provided for his detention in that prison.
Mr Burke also said he had never misbehaved while in Mountjoy prison but was being punished by the prison service for speaking out in court.
He said two disciplinary inquiries were held relating to his behaviour while being escorted for a court hearing and the prison governor had ordered that he not be reprimanded.
He said the inquiries arose because he had tried to talk to his brother about papers he needed while being escorted back to the prison van.
A second inquiry was held over the way in which he spoke to the judge in court.
Mr Burke said he pointed out to the prison authorities that his conduct in court was not a matter for the prison authorities and this was agreed.
He said on that occasion he had in fact commended by the prison governor for his good behaviour in prison.
He said what was excluded from a report of the second disciplinary hearing was that the governor had told staff: "Enoch had never given me any trouble and I want you to give him everything he needs".
He said the sworn statement submitted by the prison service was "full of holes" as it suggested he was no longer good enough for Mountjoy West.
For the vast majority of his time in prison he had been housed in Mountjoy West, he said adding:"No part of prison is a paradise and, in this place, where I’m now not good enough for, there was regular fist fighting and drug use. I’m told someone got their jaw broken around Christmas".
He said there was an irony in a statement from the prison that this was a place for which he was not good enough.
"I have always conducted myself well in prison and I challenge any averment to the contrary", he said.
He said it was absurd that three days after being commended for good behaviour by the prison governor a decision had been taken to punish him by some "unspecified, unknown person".
Asked by Mr Justice Brian Cregan if the issue of behaviour was relevant if the prison authorities could decide to move him for reasons of overcrowding Mr Burke said it was his submission that any transfer from Mountjoy was unlawful.
He said he would also like the court to know that there were single occupancy cells lying empty in the Mountjoy West section of the prison.
The long-running legal dispute between the board of the Co Westmeath school and Mr Burke stems from incidents over a request in 2022 from the school's then-principal to address a student by a new name and pronoun.
Mr Burke, who taught German and history at the school, has repeatedly argued the direction was unconstitutional and went against his right to express his religious beliefs.
The school has been granted an injunction, restraining him from attending the school, but he has continued to attend in breach of the order, arguing that it was still his place of work.
He has been fined €225,000 and imprisoned for more than 600 days for attending the school.
Mr Justice Cregan again asked Mr Burke if he was willing to give an undertaking not to attend the school but Mr Burke said he could not give such an undertaking.
The judge said he will give his decision on the issue next Wednesday.
