A HIGH COURT judge has said that solicitors refusing to act for defendants in the district court due to their criminal legal aid dispute “is akin to some firemen standing by and refusing to put out a few sparks because of a dispute over pay”.

Judge Michael Twomey made the comment when refusing an application by counsel for a Michael Sherlock to reserve the costs of an unsuccessful application to open an Article 40 habeas corpus enquiry into the detention of Sherlock.

Twomey said that “there is no basis for the costs of the unsuccessful application being reserved” in Sherlock’s action against governor of Cloverhill Prison and the Director of Public Prosecutions (DPP).

The judge refused to open a habeas corpus application on 5 August, and in a written 13-page judgment concerning the issue of costs, he said that the intention behind Sherlock’s counsel’s application is clearly that the lawyers, who acted in the unsuccessful application, might have those costs paid for by the state or taxpayer at some future date if they were to be successful. 

The judge said that the alleged unlawful detention and urgent habeas corpus application arose in Sherlock’s case – and in all the other cases heard by this court during the vacation – not because of state oppression of a citizen.

Rather, he said it was due to solicitors’ choice to refuse to act in the District Court, and their choice to not appeal a bail refusal, but instead to demand the urgent immediate release of the accused via a habeas corpus application.

Twomey said that the first reason costs should not be reserved is because the habeas corpus application should not have been made in the first place.

He said: “This is firstly because this Court believes that the urgent remedy of habeas corpus is designed primarily to protect the liberty of citizens from unlawful detention by the State.

He said: “In this Court’s view, it is not designed for an urgency caused by a refusal of some solicitors to act in the District Court, because of a dispute with the Department of Justice over legal aid remuneration.”

He said that “while not a perfect analogy, solicitors refusing to act in the District Court is akin to some firemen standing by and refusing to put out a few sparks because of a dispute over pay”.

Continuing the analogy, Twomey said that yet if those sparks catch hold and a house catches fire (which could be said to be akin to the loss of a person’s liberty), other firemen demand the highest level of state emergency response, even though there is an alternative and more appropriate solution (an appeal).

Twomey said that this analogy seeks to highlight that the urgency or emergency around Sherlock’s loss of liberty – and the emergencies arising in many other cases arising from the current industrial dispute – is caused by solicitors refusing to act in the District Court, and was not created by the State.

He said: “For this reason, the appropriate remedy is, save in exceptional cases, not the urgent remedy of habeas corpus.”

Twomey concluded that even if Sherlock were to be successful before another judge in having an enquiry into his detention ordered, and then being released, that judge does not have the power to award Sherlock the costs of this first, unsuccessful application to have an enquiry ordered.

The judge said that it is crucial to point out that “this court is not criticising solicitors for how they wish to pursue pay grievances. How they do so is their prerogative”.

He said that it was also important to point out that if solicitors choose not to act for an accused one day, and other solicitors choose to act for that accused the next day, that is not the issue for this court.

He said that the issue is the effect of those choices, and whether it is appropriate for solicitors to pursue the “urgent” remedy of habeas corpus, rather than an appeal, when one bears in mind that it was solicitors’ choices and not the state’s actions which led to the current emergency habeas corpus applications requiring the urgent release of those allegedly unlawfully detained.