The Supreme Court ordered the immediate release of Martin McDonagh and Patrick McDonagh after finding that procedural and other deficiencies in their bail hearing made their detention unlawful.
The two men were charged with assault causing harm under section 3 of the Non-Fatal Offences Against the Person Act 1997. On 6 January 2005, the District Court remanded them in custody after the prosecution opposed bail. The men applied under Article 40.4.2 of the Constitution for release from detention. The High Court refused their applications on 7 January, and they appealed.
The prosecution had cited the seriousness of the charge and a fear that witnesses could be intimidated. According to an affidavit from their solicitor, the prosecuting Garda described the alleged incident as a shooting at St Dominick’s halting site in Coolock on New Year’s Day, said the injured party had suffered a punctured lung and possibly lost an eye, and referred to an alleged ongoing feud between two Traveller families. The solicitor objected that the intimidation claim was hearsay. The Garda did not identify anyone feared to be at risk or call witnesses on that issue.
The Supreme Court said the District Court judge did not appear to address the prosecution’s stated grounds or the hearsay objection. Instead, the judge raised, on his own initiative, the prospect that an applicant might “go out and murder someone” or “assault someone again with a gun”. The Supreme Court said those remarks were improper and wrong in principle. The men were charged with assault causing harm, not a firearms offence, manslaughter or murder, and remained entitled to the presumption of innocence.
The court also considered section 2 of the Bail Act 1997, which permits refusal of bail in certain serious-offence cases where necessary to prevent another serious offence. It said the Act requires the court to consider specified matters, but the record did not indicate that evidence or submissions on those matters had been received or considered. While the law did not require advance formal notice of a section 2 objection, the Supreme Court said fairness required that an accused be told of such a serious objection and given a proper opportunity to challenge it. Neither occurred.
Allowing the appeal, the Supreme Court concluded that the hearing’s deficiencies invalidated essential steps leading to detention. It ordered the men’s immediate release. The judgment noted that their scheduled remand appearance in the District Court on 27 January was unaffected by their release; it did not determine the underlying charges.