The High Court has rejected a challenge to the constitutionality of section 2A of the Bail Act 1997 and declared that McDonald was in lawful custody. Mr Justice Mac Eochaidh said he had not formed the view that the provision was unconstitutional and refused to refer questions to the Court of Appeal.
McDonald brought habeas corpus proceedings while detained after being charged with murder and refused bail. A trial date had been set for June 19, 2017. The constitutional challenge concerned a provision allowing evidence from a Garda chief superintendent that refusing bail was reasonably necessary to prevent a serious offence.
At the bail hearing, Garda evidence linked McDonald to the June 2015 killing of Keith Walker. The judgment described CCTV, witness and forensic evidence, including DNA on a wig and glove found with a firearm residue trace. A chief superintendent also gave evidence opposing bail, some of which was redacted in the judgment. The bail judge refused bail under section 2, including as amended by section 2A, citing evidence of a risk of further serious offences.
The High Court accepted that bail refusals are normally challenged by appeal. It said these proceedings were properly before it because the constitutional argument had not been raised at the bail hearing and could not have featured in an ordinary appeal from that decision.
McDonald argued that section 2A made otherwise inadmissible opinion evidence admissible and that reliance on privileged information could leave an accused unable to challenge its basis. The judge considered the Supreme Court’s analysis of a similar provision in Redmond v Ireland. He concluded that section 2A could be read constitutionally: it did not require a bail judge to accept a chief superintendent’s opinion or to refuse bail on that opinion alone.
On the evidence in this case, the judge said the chief superintendent’s view was supported by detailed evidence from him and other Garda witnesses about the alleged killing and the risk of a future killing. He noted that the evidence was not meaningfully challenged in cross-examination and that the claim of privilege was not contested at the bail hearing. He also ruled that a separate argument about the presumption of innocence could not be made in this case because the bail judge had made no such determination.
The court said the complaints were, for the most part, theoretical and that the alleged problem with section 2A had not occurred in the bail hearing under review. It refused to refer questions to the Court of Appeal and declared McDonald’s custody lawful. The judgment did not decide the murder charge.