Judge Brett’s decision to hear the Article 40 inquiries comes amid competing judgments from the High Court on the matter in the last few weeks.

High Court judge, Michael Twomey refused an Article 40 inquiry for a man charged with theft offences who had not been represented at his bail hearing. Judge Twomey stated that: “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 manner that Judge Twomey was referring to is where “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).”

While Judge Twomey acknowledged that it was the solicitors’ prerogative to act or not act for an accused in a dispute over pay it was not a basis for ordering an inquiry under Article 40.

High Court judge, Mary Rose Gearty, however, ordered the immediate release of 11 accused in July whom she stated had suffered a “fundamental denial of justice” when they were remanded in custody after appearing before the District Court without legal representation.

Judge Brett adjourned the hearing of the Article 40 applications until today when counsel on behalf of the State authorities will present their case.