A High Court judge has criticised a colleague’s stance on an attempt by a Dublin man to be released on bail from Cloverhill Prison because a solicitor refused to represent him in the District Court.Earlier this month, Judge Michael Twomey said he could not ignore the fact that the alleged unlawful detention of Stephen Ennis – accused of having possessed an automatic pistol and ammunition – arose because his solicitor chose not to represent him due to a dispute with the Department of Justice regarding criminal legal aid fees.If a person believes they are being unlawfully detained, they can make an application to the High Court under article 40.4 of the Constitution.However, on August 5th, Twomey said this article – known as habeas corpus – was not the appropriate remedy for an alleged unlawful detention that came about because of a solicitor picking and choosing when to act for an accused based on what they would be paid. Twomey threw out the application.In a written judgment relating to it and similar cases published on Tuesday, High Court Judge Garrett Simons disagreed with Twomey’s analysis, saying it involved a “misreading” of earlier jurisprudence.“With respect, this is to mischaracterise the legal position,” Simons said of Twomey’s view.“No solicitor has the power to cause the detention of another person. “Even if one were to assume that the existence of the ongoing dispute in relation to legal fees might have contributed indirectly to circumstances in which an individual accused person was being detained unlawfully, responsibility for those circumstances could not be visited upon that individual. “The fact, if it be a fact, that the conduct of a third party may have indirectly contributed to the circumstances in which an unlawful detention occurred cannot authorise the State to continue to detain that individual.”Simons said the absence of legal representation “does not, of itself, render a bail hearing fundamentally flawed”.“An unrepresented accused person may, depending upon the circumstances, be afforded a meaningful opportunity to understand, test and answer the case for detention,” he wrote.Simons said it was “only in rare and exceptional cases that an accused person who has been remanded in custody pursuant to a District Court order will be entitled to an order for immediate release under Article 40.4.2 of the Constitution”.He said immediate release was “only available where there has been a default of fundamental requirements, or some kind of fundamental denial of justice or a fundamental flaw in the decision-making process”. “In the context of a bail hearing, the defect must involve the denial of a fundamental requirement, such that the proceedings could not properly be regarded as a bail hearing at all,” Simons wrote.He said Ennis “was afforded a meaningful opportunity to understand, test and answer the objection to bail” and, as such, was not detained unlawfully.[ Three youths appear in court following alleged ramming of Garda car by stolen BMWOpens in new window ]In the same judgment, Simons dealt with two other cases taken by men who believed they were unlawfully detained at Cloverhill Prison.In the case of Shane Irwin – who appeared before the District Court on August 4th on several public order charges – Simons found that he had not been unlawfully detained.The judge said Irwin had also been “afforded a meaningful opportunity to understand, test and answer the objection to bail”.Simons last week granted the release of Sean O’Hanlon, who was taking his own habeas corpus case. O’Hanlon was charged with the theft of two cans of Coca Cola in the absence of legal representation.The judge expanded on his decision on Tuesday, saying O’Hanlon “was not afforded a meaningful opportunity to answer the case for the withdrawal of his liberty before the relevant decisions were made”. “The fundamental requirements identified in this judgment were wholly or effectively denied, such that the proceedings could not properly be regarded as a bail hearing at all. His detention was therefore not in accordance with law,” Simons wrote.