The High Court has ruled that Martin McDonagh was unlawfully detained after a fundamentally flawed District Court bail hearing, while rejecting similar applications for immediate release by David Nevin and Jonathan Kelly.
Mr Justice Garrett Simons directed McDonagh's release on August 19 and set out his full reasons in a judgment delivered on August 26. The three cases arose against the background of a dispute over criminal legal aid payments which has left some accused people appearing at bail hearings without solicitors.
McDonagh was charged with assault causing harm over an allegation that he stabbed another man during an altercation on August 10. When his bail application was heard the next day, he received the written Garda objections only when the case was called. He asked for a chance to see a solicitor but was not given an adjournment.
The High Court found further fundamental defects: McDonagh was not told that he could cross-examine the Garda witness and was not given an intelligible explanation of his privilege against self-incrimination. Taken together, the judge held that essential stages of a fair bail process had effectively been skipped.
A later weekly remand did not cure the problem because there had been no fresh bail hearing or independent reconsideration of the grounds for detention.
The applications by Nevin and Kelly were different. Although both had been unrepresented, the High Court found that each had received sufficient notice of the objections and meaningful opportunities to respond. Kelly had also been offered an adjournment to seek representation but chose to proceed.
The court stressed that Article 40 release remains exceptional in bail cases. Ordinary errors can instead be addressed through a fresh High Court bail application. Nevin and Kelly remain entitled to make such applications.
Costs have not been finally determined, although the judge's provisional view is that McDonagh should receive his costs.