Man whose solicitor refused to act for him in district court for lower fee than High Court loses bail bid

The judge said there was no criticism of the solicitor choosing not to act for the accused in the district court, where fees are low, and then opting to act for him the following day in the High Court where fees could run into thousands of euro

It appeared the solicitor was in court at the bail hearing where Mr Ennis was not represented and had chosen to act for him again, in the High Court the following day, as soon as he had been committed to prison.

A High Court judge has thrown out a bid by a Dublin man, accused of having possessed an automatic pistol and ammunition, to be released on bail from prison because a solicitor refused to represent him in the district court.

Mr Justice Michael Twomey said he could not ignore the fact that the alleged unlawful detention of Stephen Ennis, of Cashel Road, Crumlin, had come about because his solicitor chose not to represent him due to a dispute with the Department of Justice regarding legal aid fees.

The judge said there was no criticism of the solicitor choosing not to act for Ennis in the district court, where fees are low, and then opting to act for him the following day in the High Court where fees could run into thousands of euro.

Judge Twomey said Article 40 of the Constitution (habeas corpus) was the great bulwark of personal liberty but was not the appropriate remedy for an alleged unlawful detention which came about because of a solicitor picking and choosing when to act for an accused based on what he would be paid.

He said Article 40 was not designed for a situation where a solicitor could choose to refuse to act for an accused, which choice then caused the alleged unlawful detention, and then choose to act for the accused in the High Court the following day to challenge that alleged unlawful detention.

“The remedy of habeas corpus, as the stable bulwark of our liberties, should not be used in this manner,” Judge Twomey said.

He said it seemed to the court that the alleged unlawful detention of Mr Ennis arose from the deliberate choice of his solicitor not to act for him one day but to act for him the following day, as the High Court rate of pay was likely to be many multiples of the district court rate of pay.

Judge Twomey said the idea that a person, who is alleged to have possessed a semi-automatic pistol, should possibly be released under an Article 40 inquiry simply because his solicitor chose not to act for him one day for X euro but chose to act the following day for five or 10 times X euro, was very far removed from imprisonment without trial.

He said it was the solicitor’s prerogative to represent or not represent someone but an alleged unlawful detention because of a solicitor’s financial choice was not a basis for ordering an inquiry under Article 40. In the court’s view the remedy for Mr Ennis was not under Article 40 but to appeal the district court’s refusal of his bail.

The court would not order an inquiry which could lead to Mr Ennis’ release under Article 40 because the court did not believe that his alleged unlawful detention was the type of unlawful detention which Article 40 was designed to address.

Judge Twomey said the solicitor’s refusal to act for Mr Ennis was the very reason why Mr Ennis had not been represented in the district court. The solicitor had chosen not to represent Mr Ennis for financial reasons because he was not happy with the amount he would be paid under the new criminal legal aid scheme, and that was his prerogative.

It appeared the solicitor was in court at the bail hearing where Mr Ennis was not represented and had chosen to act for him again, in the High Court the following day, as soon as he had been committed to prison. There was no criticism for his declining to act and then agreeing to act in the habeas corpus hearing.

Judge Twomey said a hearing in the district court could attract hundreds of euro for payment and a similar hearing, if successful, in the High Court could attract thousands of euro.

He said it was not being suggested that the refusal to act in the District Court had been done by the solicitor in order to get paid more for acting for the same client. This was simply a natural consequence of his refusal to act because of a bona fide dispute which was affecting the district court.

The court refused to open an inquiry into Ennis’s alleged unlawful detention.