Huge rise in claims of unlawful detention linked to withdrawal of solicitors’ services

Article 40 challenges are applications under Article 40 of Ireland’s Constitution. They allow the High Court to examine a person’s detention and decide whether it is lawful. This matters because detention can be challenged when an accused person cannot properly access legal representation.

The dispute produced a clear example. At the end of July, Judge Mary Rose Gearty ordered the immediate release of 11 people who had been remanded in custody. The court found that they had been deprived of access to a solicitor, making their detention illegal and unable to stand.

An Article 40 application does not guarantee release. A High Court judge may convert it into a bail hearing, where the accused’s release is considered directly. Bail was refused in some converted cases, showing that the challenge tests detention lawfulness rather than automatically ending custody.

The increase has been substantial since the District Court payment model began on July 1st. Courts Service data recorded 116 Article 40 challenges up to the reported Friday, compared with 30 alleged-unlawful-detention challenges in the same period of 2025. That represents a sharp rise during the legal aid dispute.

Most of the new cases were connected to people being unable to obtain representation. Of the 116 challenges, 87 arose for that reason. The monthly figures show the pattern clearly: 52 challenges came in July, 45 linked to the scheme, while August recorded 38, including 33 linked to it.

The increase continued afterwards. September had 13 challenges, seven related to the scheme, and the month had 13 by the 16th, including two linked to it. The figures show how a payment dispute became a detention problem in the courts.

Criminal defence solicitors withdrew services because they say the new legal aid payment model does not pay fairly for the work required. The scheme began in District Courts on July 1st and offers one flat fee rather than payment that reflects a case’s complexity or workload. Solicitors say this leaves important work unpaid.

The €520 fee covers a case irrespective of the number of charges or appearances. That means the same payment applies even when a matter involves repeated court attendances or demanding preparation. Solicitors highlighted cases involving children and vulnerable clients with addiction and mental health issues as particularly difficult.

The withdrawal has already adjourned thousands of criminal cases across court divisions and added to existing backlogs. It is set to expand to virtually all cases, including people in custody. Minister Jim O’Callaghan says the reform is necessary, will save money, and serves the public interest.

A lack of legal representation can make detention unlawful when it prevents an accused person from properly addressing the case for keeping them in custody. The High Court found that people deprived of access to a solicitor had been detained illegally. Legal representation can therefore be central to whether detention meets constitutional requirements.

The strongest example came in July, when Judge Mary Rose Gearty ordered 11 people released. They had been remanded in custody without access to a solicitor. One was a woman facing a robbery charge who feared losing her home and access to her daughter if she remained imprisoned.

The position is not automatic in every case. Judge Garrett Simons said an unrepresented accused may still receive a meaningful opportunity to understand, test, and answer the detention case. Therefore, the court must examine the circumstances of each bail hearing rather than treat the absence of a solicitor as conclusive.

At the end of July, Judge Mary Rose Gearty ordered the immediate release of 11 people who had been remanded in custody. The High Court found that they had been deprived of access to a solicitor. Without legal representation, their detention was illegal and could not stand.

One of those released was a woman facing a robbery charge. She told the District Court judge that she feared losing her home and access to her daughter if she was not released from prison. Her case illustrated the personal consequences of being held while unable to obtain legal assistance.

Gearty’s ruling set a precedent for later cases. Legal sources suggested that some people released in the lower courts would not normally have received bail. Judges became aware of the precedent, and some people were released. However, later High Court judges also converted challenges into bail hearings and refused bail in several cases.

When an Article 40 detention challenge reaches the High Court, the judge can examine the alleged unlawfulness of custody. In some applications, judges instead converted the proceedings into bail hearings. That gives the court a direct route to consider whether the accused should be released or remain detained.

The mechanism matters because an Article 40 challenge and a bail decision address related but different questions. The challenge concerns whether the existing detention is lawful. A bail hearing considers release. By converting the case, the High Court can assess the accused’s position and the case for continued detention in that setting.

This response also prevents every successful challenge from producing automatic release. Bail was refused in a number of converted applications. Judge Garrett Simons said an unrepresented accused may still have a meaningful opportunity to understand, test, and answer the detention case, depending on the circumstances.

Access to representation matters especially before trial because an accused person may be held in custody while the case is still unresolved. A solicitor helps the person understand the detention case, test it, and answer it. Without that opportunity, the fairness and legality of continued custody can be questioned.

The article records the practical effect. The High Court ordered 11 people released after finding that they had been deprived of access to a solicitor. One woman facing a robbery charge said continued imprisonment could cost her home and access to her daughter. These consequences can arise before guilt has been decided.

The law does not treat every unrepresented hearing identically. Judge Garrett Simons said the absence of a solicitor does not itself make a bail hearing fundamentally flawed. The key issue is whether the accused still had a meaningful opportunity to engage with the detention case, while courts manage the wider legal aid dispute.