McDonagh v The Governor of Cloverhill Prison and Anor

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 19 August 2026
• Neutral Citation: [2026] IEHC 595
• Docket Number: 2026 1315 SS

In the Matter of Article 40.4.2° of the Constitution

Between

Martin McDonagh

Applicant

and

Governor of Cloverhill Prison

Director of Public Prosecutions

Respondents

Minister for Justice, Home Affairs and Migration

Notice Party

[2026] IEHC 595

2026 1315 SS

THE HIGH COURT

Release from prison – Hearing – Article 40.4.2° of the Constitution – Applicant seeking his release from prison – Whether the applicant’s case came within the exceptional category in which relief is available under Article 40.4.2° of the Constitution

Facts: The applicant, Mr McDonagh, had been charged with one count of assault causing harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. The charge arose from an allegation that, on 10 August 2026, he had stabbed another man during an altercation. Bail was refused by the District Court on 11 August 2026. The judge concluded that the prosecution had established, as a matter of probability, that the applicant would attempt to evade justice. In reaching that conclusion, the judge relied upon the seriousness of the charge, the nature of the evidence, including CCTV evidence, the likely sentence in the event of conviction, the asserted risk of interference with witnesses, and the assessment that the applicant presented a flight risk. The applicant was remanded in custody for one week. This matter came before the High Court by way of an application pursuant to Article 40.4.2° of the Constitution. The application arose against a backdrop where there was a dispute between the notice party, the Minister for Justice (the Minister), and a number of solicitors about the fees to be paid in relation to District Court prosecutions. Mr Lalor, on behalf of the first respondent, the Governor of Cloverhill Prison, and the Minister, reminded the Court of the test set out by Donnelly J in A.B. v Chief International Protection Officer [2026] IESC 23.

Held by the Court that it was necessary to consider whether the process afforded to the applicant amounted to a hearing at all. The Court was satisfied that the proceedings before the District Court on 11 August 2026 did not amount to a hearing cognisable under constitutional law. The Court found that the first fundamental flaw was that the applicant was not given the bail pack in sufficient time to allow him an opportunity to prepare a response. The Court found that the second fundamental flaw was in relation to the availability of a solicitor. The Court noted that the District Court judge never asked the applicant whether he wanted a solicitor and never asked whether he wanted an adjournment to allow him to get a solicitor; when the applicant indicated that he wanted a solicitor, saying “If you give me a chance to see a solicitor”, the judge replied “Well, I can’t do that before I decide bail today”. The Court found that the next fundamental flaw was in relation to the failure to advise the applicant of his entitlement to cross-examine the Garda; this was crucial because the Garda was permitted to give hearsay evidence, which the judge later mischaracterised as opinion evidence. The Court found that the next fundamental flaw concerned the privilege against self-incrimination. The Court noted that the judge said: “I’m conscious that you may self-incriminate yourself with the road you’re going down, but you’re still free to talk. But I just want to let you know that”. The Court held that that warning identified the risk of self-incrimination but did not explain the nature of the choice available to Mr McDonagh or the possible consequences of giving evidence concerning the alleged offence.

The Court was duty bound under Article 40.4.2° to direct the immediate release of the applicant.

Application granted.

Appearances

Eoin Lawlor SC and Luke O'Higgins for the Applicant instructed by Ferrys Solicitors LLP

Kieran Kelly for the Director of Public Prosecutions instructed by the Chief Prosecution Solicitor

Davy Lalor for the Governor and the Minister instructed by the Chief State Solicitor's Office

Approved Note of Ex Tempore Judgment of Mr. Justice Garrett Simons delivered on 19 August 2026

1 This matter comes before the court by way of an application pursuant to Article 40.4.2° of the Constitution. I directed the inquiry to be opened on Monday (17 August 2026). I also made an order pursuant to Order 123 RSC directing the release of the audio recording of the District Court.

2 There was some discussion with counsel for the Applicant as to whether his client wanted to apply for interim release within the context of Article 40.4.2°, but I was able to offer the parties a full hearing this afternoon (19 August 2026). The inquiry, having been opened on Monday, has been heard and determined in full within 48 hours. That is the ideal we should strive for in this type of case.

3 The Applicant has been charged with one count of assault causing harm, contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997. The charge arose from an allegation that, on 10 August 2026, he had stabbed another man during an altercation. The Applicant is presumed to be innocent of this charge.

4 Bail was refused by the District Court (Judge Hayden) on 11 August 2026. The judge concluded that the prosecution had established, as a matter of probability, that the Applicant would attempt to evade justice. In reaching that conclusion, the judge relied upon the seriousness of the charge, the nature of the evidence, including CCTV evidence, the likely sentence in the event of conviction, the asserted risk of interference with witnesses, and the assessment that the Applicant presented a flight risk. The Applicant was remanded in custody for one week.

5 The application pursuant to Article 40.4.2° arises against a backdrop where there is a dispute between the Minister for Justice and a large number of solicitors about the fees to be paid in relation to District Court prosecutions. One unfortunate consequence is that, in many District Court cases, there are often no readily identifiable solicitors who are willing to participate under the fee arrangements introduced by the Criminal Justice (Legal Aid) (Amendment) Regulations 2026 (S.I. No. 303/2026). This has brought about a situation whereby people are now regularly appearing at bail applications unrepresented.

6 I discuss in my judgment in O'Hanlon v. Governor of Cloverhill Prison [2026] IEHC 592 the distinction between the types of error that will allow release by way of Article 40.4.2° and those errors which are instead answered by the availability of the High Court's full and original jurisdiction in a bail application. The issue in most of the cases is on which side of the line the particular circumstances fall.

7 Mr Lalor, on behalf of the Governor and Minister, has very helpfully reminded me of the test set out by Donnelly J. in A.B. v....