The High Court has refused an application by Mark Clarke for release from custody, ruling that the District Court had jurisdiction to revoke his bail and lawfully admitted hearsay evidence from a Garda about information supplied by a confidential informant.
Mr Justice Hogan delivered the judgment on 12 May 2011 in proceedings under Article 40.4.2 of the Constitution. Clarke argued that only the District Court judge who originally granted bail could hear the later application to revoke it. He also argued that the judge who revoked bail had failed to exercise independent judgment and should not have admitted the informant evidence.
Clarke had been charged with possessing significant quantities of diamorphine for sale or supply. He was initially granted bail on a €10,000 personal bond, with no lodgement, on conditions that he live at his own address and report twice daily to Leixlip Garda Station. The judgment records that he complied with those conditions.
In late April or early May 2011, a confidential source told Garda Lee that Clarke was to receive a passport and money to leave the State. Garda Lee passed the information to Garda Bracken, who applied for an arrest warrant. At a District Court hearing on 6 May, both Gardaí gave evidence that the new information raised a risk Clarke would leave the jurisdiction. Clarke denied that he would breach bail and told the court he relied on disability allowance, had a medical condition, had his passport held by Gardaí and had family ties in Ireland.
District Judge Zaidan revoked bail. Clarke’s Article 40.4 challenge questioned whether that judge had authority to hear the matter and whether he had independently assessed the evidence. Mr Justice Hogan rejected both arguments. He held that the relevant law required Clarke to be brought before the District Court, not necessarily the individual judge who had first granted bail. He also found little evidence that Judge Zaidan had simply deferred to Garda objections.
The High Court accepted that Garda Lee’s account of the informant’s tip was hearsay, because the source was not identified and could not be cross-examined. But Mr Justice Hogan concluded that informer privilege provided a recognised basis for admitting the evidence, and that identifying the source and requiring them to testify could not realistically be expected. He also noted that he did not rely on a separate, informal conversation in which Clarke was said to have acknowledged receiving an offer of a passport and money; that conversation had not been before the District Court.
Mr Justice Hogan concluded that the District Court had lawfully revoked bail and that Clarke remained in lawful custody. The application for an Article 40.4.2 release order therefore failed. The judgment does not determine the underlying drug charge.