A split has emerged in the High Court over whether accused people who faced bail hearings without solicitors during the recent legal aid row were detained unlawfully.
The issue centres on Article 40 of the Constitution, which allows the High Court to order a person’s immediate release if their detention is not in accordance with law. It is a fast and exceptional remedy, normally used only where there has been a fundamental denial of justice.
On 29 July, Ms Justice Mary Rose Gearty ruled that eleven applicants were unlawfully detained after they appeared unrepresented in the District Court. Solicitors had withdrawn services because of a dispute over the revised criminal legal aid payment scheme.
The judge examined transcripts from each case. Several accused were handed Garda bail objection packs moments before their hearing. One applicant could not read. Another was warned not to incriminate herself and was left unable to speak. Garda evidence went unchallenged. Judges tried to assist, but the hearings could not meet constitutional standards without legal representation.
She said the solicitor dispute did not matter. The only question was whether the hearings were fair. She found they were not and ordered release under Article 40. She said the right to liberty requires a fair bail process and that the remedy cannot be delayed or replaced by a later High Court bail application.
A week later, on 5 August, Mr Justice Twomey reached the opposite conclusion in a separate case involving an accused who also had no solicitor in the District Court.
He refused to open an Article 40 inquiry. He said the alleged unlawfulness arose because the solicitor chose not to act at the bail hearing due to dissatisfaction with the new legal aid scheme, but then chose to act the next day in the High Court. He described this as a financial choice, not a constitutional injustice.
He said Article 40 was designed to prevent arbitrary detention, not situations created by a solicitor withdrawing services. He held that the proper remedy was a High Court bail appeal, which is available daily during the court vacation.
The contradiction between the two rulings is now clear. One judge says the fairness of the hearing is what matters. The other says the cause of the unfairness is decisive. One judgment orders release. The other blocks the remedy entirely.
Several Article 40 applications are listed for hearing at 11 am Tuesday, 11 August 2026, when the court will be asked to address the split.
Pat Coyne