Judge refuses inquiry into lack of legal representation for man who was remanded in custody

The alleged unlawful detention came about as a result of solicitors choosing, for financial reasons, when to act for an accused

This is the second case this week where the High Court has refused to order an inquiry into alleged unlawful detention linked to a lack of representation by a solicitor.

A bid by a man charged with theft offences to be released on bail from prison because he was not legally represented when he was remanded in custody has been thrown out by the High Court.

This is the second case this week where the High Court has refused to order an inquiry into alleged unlawful detention linked to a lack of representation by a solicitor.

Mr Justice Michael Twomey previously turned down a bid by a Dublin man, accused of having possessed an automatic pistol and ammunition, to be released on bail because a solicitor refused to represent him in the district court.

In the latest case, Mr Justice Twomey said the man who was charged with theft offences was not legally represented when he was granted bail on the condition that he provide an address acceptable to gardaí. As he did not satisfy this condition he was remanded in custody. 

He sought to have an inquiry into his detention under Article 40 of the Constitution opened before the High Court claiming his detention was allegedly unlawful as he was not legally represented at his bail hearing.

The judge said the court would not order an inquiry and it did not believe that this alleged unlawful detention, which comes about as a result of solicitors choosing, for financial reasons, when to act for an accused is the type of unlawful detention which Article 40 is designed to address.

Article 40, the judge said, was not designed for a situation where solicitors choose to refuse to act for an accused and where that choice then caused the alleged unlawful detention and then solicitors choose to act for the accused in the High Court to challenge that alleged unlawful detention.

“The remedy of habeas corpus as the great bulwark of personal liberty should not be used in this manner in this court’s view,” the judge stated.

Mr Justice Twomey added that the idea that a person should be entitled to an inquiry and then after that inquiry likely immediate release under Article 40 “simply because solicitors chose not to act for him one day (because they are only getting paid hundreds of euros) but chose to act for him the next day (because they are getting paid thousands of euros)” is very far removed from internment without trial or "other acts of dictatorial regimes” which the Supreme Court has previously stated was the purpose of Article 40.

Solicitors' pay dispute

It seemed, the judge said, that the man’s alleged unlawful detention arose from the deliberate choice of solicitors not to act for him in the District Court, but to act for him in the High Court as the High Court rate of pay was likely to be many multiples of the District Court rate of pay.

“To put it another way, this court does not regard the unavailability of solicitors in District Court bail hearings (for financial reasons) as a result of the current dispute over fees but their availability for High Court habeas corpus application for (for financial reasons) as amounting to arbitrary detention such as to order an inquiry under Article 40.” 

The judge said it is the solicitors’ prerogative to act or not to act because of a dispute over pay and they cannot be criticised for doing so.

However, Mr Justice Twomey said an alleged unlawful detention that came about because of a solicitor's financial choices is not a basis for ordering an inquiry under Article 40.

The accused man, he said, could appeal the refusal of his bail and such appeals or re-hearings are available practically every day during the vacation sittings of the High Court.