THE HIGH Court has clarified that barristers have the right of audience in District Court cases where instructed but not attended by a solicitor.
The clarification was stated in a judgment of Mr Justice John Hedigan who held that a man remanded in custody had been unlawfully detained after District Court Judge Patricia McNamara refused to hear an application for bail because his barrister was not attended by a solicitor.
As a result of Judge McNamara’s decision, lawyers representing Andrea Heinullan, a Moldovan national with an address at Victoria Avenue, Bray, Co Wicklow, and Lithuanian man Leomous Jurijs, Putland Road, Bray, brought inquiries under Article 40 of the Constitution.
The lawyers claimed that their clients’ detention at Cloverhill Prison was unlawful.
They had been before Bray District Court earlier this month, on charges relating to an incident with a knife in Bray.
At the High Court, Colman Fitzgerald SC, for Mr Heinullan, argued that Judge McNamara’s refusal to hear counsel, on the sole basis that he was not attended, was unlawful and violated his client’s right to legal representation and his right to apply for bail.
The State had argued that Mr Heinullan’s detention was lawful on grounds including that he was at large from Midlands Prison.
Mr Jurijs’s Article 40 proceedings were not contested by the State.
The court heard that both men were arrested and detained at Bray Garda station.
They later spoke with their solicitor John Neville and were taken to Bray District Court, having been charged with several offences.
Mr Neville was unable to attend Bray District Court because another client was being brought to Dún Laoghaire District Court at the same time.
Mr Neville instructed a barrister to apply for bail and for legal aid.
When the matters came before Judge McNamara, she refused to hear their barrister, Eoin Gallagher. Judge McNamara said Mr Gallagher was not attended by his instructing solicitor and she remanded both men in custody for a week.
In his judgment, Mr Justice Hedigan said that there was some uncertainty concerning the right of a barrister to appear where instructed but not attended by a firm of solicitors.
However he was glad of the opportunity to clarify this matter for the benefit of District Court judges and for the legal profession.
The judge, who remarked that he was indebted to the chairman of the Bar Council, Michael Collins SC, for clarification in the matter, said that instructed but unattended barristers “have a right of audience in the District Court by virtue of their call to the bar by the Chief Justice of Ireland”.
Mr Justice Hedigan added: “It was by virtue of the failure to recognise this right to be heard that he was obliged to hold that the order to detain Mr Heinullan was unlawful and that he was unlawfully detained.”