Ennis v The Governor of Cloverhill Prison, Irwin v The Governor of Cloverhill Prison, O'Hanlon v The Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 25 August 2026
• Neutral Citation: [2026] IEHC 599
• Docket Number: 2026 1274 SS 2026 1272 SS

In the Matter of Article 40.4.2° of the Constitution

Between

Stephen Ennis

Shane Irwin

Sean O'Hanlon

Applicants

and

Governor of Cloverhill Prison Director of Public Prosecutions

Respondents

Minister for Justice, Home Affairs and Migration

Notice Party

[2026] IEHC 599

2026 1274 SS

2026 1266 SS

2026 1272 SS

THE HIGH COURT

Appearances

Colman Fitzgerald SC and Kevin McCrave for Mr Ennis instructed by Niall O'Connor & Co. Solicitors

Michael O'Higgins SC and Orla Doolin for Mr Irwin instructed by Staines Law

Michael O'Higgins SC and Alexander Langan MacDonnell for Mr O'Hanlon instructed by Michael Kelleher & Company

Eoin McCullough SC and Davy Lalor for the Minister and the Governor instructed by the Chief State Solicitor's Office

Sunniva McDonagh SC and Kieran Kelly for the Director of Public Prosecutions, instructed by the Chief Prosecution Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 25 August 2026

INTRODUCTION

1 This judgment is delivered in respect of three inquiries under Article 40.4.2° of the Constitution. The inquiries were heard before me over two days commencing on 17 August 2026.

2 The inquiries arise against a backdrop where there is a dispute between the Minister and a large number of solicitors about the rates of remuneration in relation to the defence of criminal proceedings before the District Court. One unfortunate consequence is that, in many District Court cases, there are no readily identifiable solicitors who are willing to accept assignments under the fee arrangements introduced by the Criminal Justice (Legal Aid) (Amendment) Regulations 2026 (S.I. No. 303/2026). This has brought about a situation whereby persons accused of a criminal offence are now regularly appearing at bail hearings unrepresented.

3 For the reasons indicated in an ex tempore judgment, I directed the immediate release of one of the applicants, Mr O'Hanlon, on 18 August 2026. An approved note of that judgment has since been published: O'Hanlon v. Governor of Cloverhill Prison [2026] IEHC 592. I explained at the time that I would deliver an omnibus judgment addressing the position of all three applicants.

DETENTION IN ACCORDANCE WITH THE LAW

4 Article 40.4.2° mandates an inquiry into whether a person is being detained in accordance with law. The case law indicates that where a person is being detained pursuant to a court order which is valid on its face, the detention will normally be regarded as being in accordance with law. This is certainly the starting position where the court order is capable of being superseded—to use a deliberately neutral term—by a statutory appeal, by judicial review or by the exercise of the High Court's full and original jurisdiction to grant bail.

5 The High Court does not have jurisdiction under Article 40.4.2° to make any order other than to direct or to refuse the immediate release of the detained person. The High Court cannot set aside the court order pursuant to which the person is being detained. This would necessitate separate proceedings, whether by way of appeal or judicial review.

6 The modern statement of the general principle is to be found in Ryan v. Governor of Midlands Prison [2014] IESC 54 (at paragraph 18):

“Thus the general principle of law is that if an order of a Court does not show an invalidity on its face, in particular if it is an order in relation to post conviction detention, then the route of the constitutional and immediate remedy of habeas corpus is not appropriate. An appropriate remedy may be an appeal, or an application for leave to seek judicial review. In such circumstances the remedy of Article 40.4.2 arises only if there has been an absence of jurisdiction, a fundamental denial of justice, or a fundamental flaw.”

7 The rationale for this approach is, in part, that there are other legal structures in place which are intended to address errors made within jurisdiction. The fact that a first-instance court order may subsequently be held—on appeal or on judicial review—to have been erroneous does not necessarily mean that the period of detention pursuant to that order was not in accordance with law.

8 This rationale is illustrated by Roche (otherwise Dumbrell) v. Governor of Cloverhill Prison [2014] IESC 53. Charleton J., delivering the judgment of the court, stated as follows (at paragraph 21):

“There are many instances where, within jurisdiction, a court may fall into an error of interpretation or base its decision on a mistaken view of the law. This does not in consequence remove jurisdiction. There are legal structures in place to deal with such commonplace situations and these fall outside the obligation of the High Court to enquire into and to declare that a detained person is either lawfully detained or not. […]”

9 Charleton J. returned to this theme in E.R. v. Director of Public Prosecutions [2019] IESC 86 (at paragraph 20). The learned judge again described the scope of Article 40.4.2° by reference to the wider constitutional structure of courts and appeals:

“Articles 34–38 of The Constitution provide for both the institution of courts, the manner of their administration, the appointment of judges, the standards to which they must abide by way of solemn oath and the structure of appeals. While Article 40.4 guarantees that no citizen would be deprived of ‘personal liberty save in accordance with law’ and sets up a remedy whereby the High Court may supervise and make orders over any form of imprisonment to ensure that it is lawful, nonetheless that remedy is not available to bypass the avenue of appeal. The appropriate remedy is the structure of statutory and constitutional appeals where it is sought to be argued that an error of law has led to a court order; Roche (Dumbrell) v Governor of Cloverhill Prison [2014] IESC 53. […]”

10 The purpose of reiterating the proper limits of the Article 40.4.2° inquiry is to ensure its efficacy. There is a danger that if its field of application were to be extended beyond its proper limits, there would be a countervailing pressure to qualify the nature of the remedy available. An order for the immediate and unconditional release of the detained person might be entirely unsuitable in certain contexts. One obvious example is where vulnerable children have been taken into care pursuant to a court order. It might be disproportionate and harmful to the children themselves to direct their immediate and unconditional discharge from care. The children might be returned to the custody of the very adults from whom the court order had been intended to protect them.

11 Another example arises in the context of the subject-matter of the present proceedings, namely, remands in custody following the refusal or revocation of bail. It might be thought disproportionate to direct the immediate and unconditional release of a person—whose circumstances are such that they would inevitably have been refused High Court bail had that route been pursued—by reference to a technical defect in the proceedings at first instance.

12 The risk of the potential distorting effect of expanding the role of Article 40.4.2° has been expressly addressed by O'Donnell J. in S.McG. v. Child and Family Agency [2017] IESC 9, [2017] 1 I.R. 1.

13 O'Donnell J. emphasised that part of the strength of Article 40 lies in its “ clarity and simplicity”. The jurisdiction is ordinarily directed to one issue, namely the liberty of the individual, and the options available to the High Court are correspondingly limited: the court may order release or refuse to do so.

14 The remedy was described as follows (at paragraph 9 of the reported judgment):

“The remedy of an inquiry under Article 40 is the great constitutional remedy of the right to liberty. It carries with it its history in the common law as the vindication of the rule of law against arbitrary exercises of power. It is and remains the classic remedy when a person's liberty is detained without any legal justification, or where the justification offered is plainly lacking. However the right it protects is a right not to be deprived of liberty save in accordance with law. More difficult issues arise when it is sought to justify detention by the production of a valid order which is regular on its face, but which it is asserted is liable to be quashed because of some defect in procedure. The High Court on an Article 40.4 inquiry does not have jurisdiction to make any order other than release or to refuse release. It cannot for example quash an order or direct the performance of a legal duty. Given the importance of the remedy, and its power, I do not doubt that it is possible in a fundamental case for the High Court to, as it were, ‘look through’ an otherwise validly issued order, or at least an order which has not yet been quashed by a court with jurisdiction to do so, and direct the release of the applicant. […]”

15 At paragraph 9 of the judgment, O'Donnell J. reiterated that the High Court does not have jurisdiction to quash orders of inferior courts or administrative bodies in the context of an application under Article 40.4.2°. Nevertheless, in an exceptional case the court has the capacity to direct the release of the detained person notwithstanding the existence of such an order, in the same way in which in an exceptional case, post-conviction, it may proceed to direct the release of an individual notwithstanding the existence of an order convicting him or her which has not been set aside on appeal. Any such case is, however, exceptional and the breach must be so fundamental that the obligation of the administration of justice and the upholding of constitutional rights requires the court to proceed in that fashion.

16 O'Donnell J. concluded his judgment by cautioning against the distorting effect of extending the field of application and qualifying the remedy (at paragraph 16):

“[…] If the...