High Court due to rule on 11 prison detention challenges

The High Court will give its ruling next week in 11 cases where people have challenged their detention in prison because they did not have solicitors due to the current dispute over legal aid.

Criminal legal aid solicitors have been in dispute with the Department of Justice since last month over a new payment scheme.

The new scheme introduced on 1 July abolished payments per court appearance and introduced a flat fee of €520 per client.

Solicitors say this does not reflect the amount of work done for often vulnerable and chaotic clients.

They are also concerned that the payment of the fee at the end of the process means some solicitors may not get paid at all for the work they have done.

The Minister for Justice has said he is not going to change his mind on the flat fee payment.

Minister Jim O'Callaghan says the old scheme incentivised solicitors to seek multiple adjournments and to assign multiple solicitors in the same firm to represent the same person on different charges.

However, he has said he will meet the Law Society next week and has signalled that he may be willing to make some changes to the scheme.

Solicitors have been refusing to act in cases and withdrew their services completely on Wednesday and Thursday.Another three-day stoppage is planned for next week.

Twenty-one cases are now before the High Court where people were refused bail when they appeared in the district court, without a solicitor.

They have taken what are known as "Article 40" cases - alleging their detention is unlawful because the court hearing was unfair and unconstitutional.

'A fundamental denial of justice'

In the first of the eleven cases heard today, Senior Counsel, Michael Lynn said his client had told the district court that she needed a solicitor and could not understand what was going on.

The woman had been remanded in custody and the district judge who made "strenuous efforts" to help her, had told her that her rights had not been vindicated.

Mr Lynn said there had been a fundamental denial of justice. And he said the district court could not simply abdicate its duty to administer justice to the High Court.

He said they had to take this challenge to his client's detention as her liberty was being taken away from her, and other types of challenges would have taken too long.

His client has now been granted bail by the High Court.

Senior Counsel Colman Fitzgerald told the judge that most of the people involved in these cases were not in a position to represent themselves and were entitled to legal representation from the state.

He said any criminal proceedings which could result in a person’s liberty being deprived must attach an entitlement to have legal representation provided by the state to someone who could not afford it.

He said whatever was going on outside the courtroom did not mean that the Director of Public Prosecutions or the Minister could say that they were not in a position to vindicate people’s constitutional rights.

Senior Counsel Frank Crean said people were entitled to seek their release in these proceedings if they had been denied bail as a result of an unfair hearing.

He said many of these people were of limited education and of limited means.

Michael O’Higgins, representing another accused person, said the new legal aid scheme was unworkable for solicitors and that situation had been brought about by the state.

He said his client had been too intoxicated to engage in any meaningful way with the district court process.

Senior Counsel Sunniva McDonagh, representing the DPP, said it was not unlawful of itself to proceed with a bail hearing in which the accused was not legally represented.

And she said the DPP did not believe such a hearing was fundamentally flawed.

She said the DPP believed the district court judge could lawfully embark on a bail hearing without the necessity for a solicitor to be present, although she said this was not ideal.

Ms McDonagh said some of the cases before the High Court were very serious and included allegations of money laundering and possession of controlled substances as well as threats to kill.

She said the district court judges were dealing with a very difficult situation, and she said there was no gross unfairness to be seen in the transcripts of the individual cases.

Eoin Carolan SC, representing the state, said an Article 40 challenge to detention should only be used in particular types of case and was a narrow, limited remedy.

He said the kinds of systemic issues that needed to be teased out in these cases were not appropriate for such a procedure.

Mr O’Higgins said the state parties had ignored arguments made on behalf of his client and said they were dealing with criminal proceedings and not "an academic legal discussion in a void".

The court was told that if someone was released after an Article 40 challenge, there was nothing to stop them being immediately rearrested and brought back to the district court to face another bail hearing with a solicitor present.

Ms Justice Mary Rose Gearty said she hoped to have a judgment ready by Wednesday of next week.

She said she hoped to deal with the facts of all eleven cases within one overall ruling.