Sherlock v The Governor of Cloverhill Prison and Anor

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Twomey
• Judgment Date: 19 August 2026
• Neutral Citation: [2026] IEHC 593
• Docket Number: RECORD NUMBER H.SS.2026/1250

In the Matter of Applications Under Article 40.4.2 of the Constitution

Between

Michael Sherlock

Applicant

and

The Governor of Cloverhill Prison and The Director of Public Prosecutions

Respondents

[2026] IEHC 593

RECORD NUMBER H.SS.2026/1250

THE HIGH COURT

Detention – Habeas corpus enquiry – Reserved costs – Applicant asking for the costs of an unsuccessful habeas corpus application to be reserved – Whether the costs should be reserved

Facts: The High Court, on 5 August 2026, refused to open a habeas corpus enquiry into the detention of the applicant, Mr Sherlock. Counsel for Mr Sherlock asked for the costs of the unsuccessful application to be reserved. It was necessary for the Court to outline why it did not believe that costs should be reserved because, in the particular circumstances of the hearing on 5 August 2026, the Court did, after some discussion with Counsel, agree to order that the costs be reserved, albeit with a caveat in the wording of the court order stating that the Court did not believe that the costs should be reserved. Those circumstances were: firstly that, although the Court disagreed with Counsel, he was adamant that a judge, at a future hearing, could award his client the costs of the unsuccessful habeas corpus application, if those costs were reserved by the Court; secondly, this was an ex-parte application, and so there was no State representative to contradict Counsel's submissions; and thirdly, as this was a vacation sitting, with other urgent applications to be heard, the quickest and most convenient way for the Court to deal with this issue, was to reserve the costs, with a caveat (to the effect that the Court did not believe those costs should be reserved, and if reserved, that it did not believe that they should be awarded to the applicant by a judge at a future hearing).

Held by the Court that the first reason why it concluded that the costs of the unsuccessful application should not be paid for by the State/taxpayer was that challenges to a refusal of bail such as this one, arising from a refusal of solicitors to act for an accused in the District Court, should not be taken as a habeas corpus application under Article 40 of the Constitution, save in exceptional cases. In the Court's view, habeas corpus was not the appropriate remedy, whether the solicitor, who refused to act in the District Court, was acting for the accused in the habeas corpus application, or if a different solicitor was acting for the accused in the habeas corpus application. The other reason why the Court thought that the costs of an unsuccessful habeas corpus application should not be reserved is because of the nature of habeas corpus applications. The Court held that successive habeas corpus applications by the one applicant (and indeed different applications by different applicants which arise from similar facts) must each be considered on their own facts as then presented to that judge, and on the basis of arguments then raised/considered by that judge. The Court held that as each application is distinct, there can be no basis for costs in relation to one unsuccessful application before one judge, being reserved, so as to be potentially allocated (to be paid for by the State) in a later successful application before another judge.

The Court concluded that even if Mr Sherlock were to be successful, before another judge, in having an enquiry into his detention ordered, and then being released, that judge did not have the power to award Mr Sherlock the costs of this first, and unsuccessful, application to have an enquiry ordered.

Costs reserved.

JUDGMENT of Mr. Justice Twomey delivered on the 19 ^th day of August, 2026

INTRODUCTION

1 On Wednesday 5th August 2026, this Court refused to open a habeas corpus enquiry into the detention of the applicant (“Mr. Sherlock”) in this case.

2 After this Court's refusal, Counsel for Mr. Sherlock asked for the costs of the unsuccessful application to be reserved.

3 The intention behind the application for costs to be reserved is clearly that the lawyers, who acted in this unsuccessful application, might have those costs paid for by the State/taxpayer at some future date (if the applicant was to be successful in a future habeas corpus application).

4 For the reasons set out in detail below, this Court does not believe that the costs of this unsuccessful habeas corpus application should be reserved. To summarise however:

An urgency created by solicitors, not by the State

5 The first reason costs should not be reserved is because this Court believes that the habeas corpus application should not have been made in the first place. This is firstly because this Court believes that the urgent remedy of habeas corpus is designed primarily to protect the liberty of citizens from unlawful detention by the State. In this Court's view, it is not designed for an urgency caused by a refusal of some solicitors to act in the District Court, because of a dispute with the Department of Justice over legal aid remuneration (which for short, and not as an accurate description, is called the current “industrial dispute”).

6 In particular, the remedy of habeas corpus is not designed for an urgency, which is created by (i) certain solicitors choosing not to act for an accused in the District Court (when an accused is refused bail) and then (ii) when other solicitors agree to act, those solicitors choosing not to appeal the refusal of bail (even though an appeal is the appropriate remedy 1), and (iii) instead of appealing, those solicitors choose to make a habeas corpus application, and so claim, in effect, that it is urgent that the accused be immediately released from his unlawful detention.

7 Crucially however, the ‘urgency’ which has arisen (the loss of liberty by an accused) would not have arisen if the solicitors had represented the accused in the District Court. While not a perfect analogy, solicitors refusing to act in the District Court is akin to some firemen standing by and refusing to put out a few sparks because of a dispute over pay, yet if those sparks catch hold and a house catches fire (which could be said to be akin to the loss of a person's liberty), other firemen demand the highest level of State emergency response, even though there is an alternative and more appropriate solution (an appeal).

An appeal, unlike habeas corpus, does not lead to release of persons accused of serious offences

8 The second reason why this Court believes that a habeas corpus application was not the appropriate remedy for Mr. Sherlock's alleged unlawful detention (or indeed most alleged unlawful detentions arising from the current industrial dispute), is because the appropriate remedy, for accused persons who were allegedly wrongfully refused bail, is an appeal of the refusal of bail.

9 In particular, this is because if a habeas corpus application is successful, in relation to an accused who is refused bail, it leads to the automatic release of that accused, irrespective of the seriousness of the offences, with which he has been charged. This is because once their detention is held to be unlawful, there is no basis for their further detention and they must be immediately released. Thus, a person charged with, say, a serious sexual offence could be automatically set free (because he was unrepresented when he was refused bail), even though, if he had been represented at that bail hearing, it is most unlikely that he would have been granted bail.

10 Contrast this with what happens with the other, and more appropriate remedy, for applicants like Mr. Sherlock, i.e. an appeal of the refusal of bail. Firstly, those persons who should not have been refused bail (when unrepresented) will inevitably be granted bail on appeal (and so justice can be achieved for these accused persons). Secondly, and crucially, those accused persons, charged with serious offences, who were correctly refused bail (when unrepresented) will not be automatically released, as they are likely to be refused bail on appeal (and therefore justice can be achieved for society).

11 To put it another way, if, as a matter of principle, a habeas corpus application was the appropriate remedy for the issues arising from the current industrial dispute, this would mean that a person charged with a serious offence, who could be a danger to the public, would be

entitled to seek his automatic release simply because solicitors chose not to act for him because of the current industrial dispute. This is not the purpose of habeas corpus applications, in this Court's view and it is why this Court believes, as a matter of principle, that habeas corpus is not, save in exceptional cases, the appropriate remedy for persons who were denied bail, when not legally represented

12 As this Court can see no basis for the solicitors, who are now representing applicants, bringing habeas corpus applications (rather than an appeal), save in exceptional circumstances, this is the first reason why this Court believes that the costs of Mr. Sherlock's unsuccessful habeas corpus application, before this Court, should not be reserved.

A second habeas corpus application is not an appeal

13 A further reason why costs should not be reserved is of more general application, as it relates to the very nature of a habeas corpus application, i.e. the fact that each habeas corpus application is a discrete application. Thus, even if Mr. Sherlock was to be successful before another judge in the future in having an enquiry opened, and then in being released, that is a completely separate application...