Nevin v Governor of Castlerea Prison and Anor, Kelly v Governor of Limerick Prison and Anor, McDonagh v Governor of Cloverhill Prison and Anor

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 26 August 2026
• Neutral Citation: [2026] IEHC 601
• Docket Number: 2026 1277 SS 2026 1315 SS

In the Matter of Article 40.4.2° of the Constitution

Between

David Nevin

Jonathan Kelly

Martin McDonagh

Applicants

and

Governor of Castlerea Prison

Governor of Limerick Prison

Governor of Cloverhill Prison

Director of Public Prosecutions

Respondents

Minister for Justice, Home Affairs and Migration

Notice Party

[2026] IEHC 601

2026 1277 SS

2026 1287 SS

2026 1315 SS

THE HIGH COURT

Appearances

Barry Ward SC and Eoghan Weldon for Mr Nevin instructed by McGarry Law

Barry Ward SC and Amy Nix for Mr Kelly instructed by Herbert & Company Solicitors

Eoin Lawlor SC and Luke O'Higgins for Mr McDonagh instructed by Ferrys Solicitors LLP

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

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

JUDGMENT of Mr. Justice Garrett Simons delivered on 26 August 2026

INTRODUCTION

1 This judgment is delivered in respect of three inquiries under Article 40.4.2° of the Constitution. The inquiries were heard before me on 19 August 2026.

2 The inquiries arise against a backdrop where there is a dispute between the Minister and a large number of solicitors about the rates of remuneration payable in relation to the defence of criminal proceedings before the District Court.

3 One unfortunate consequence of this dispute is that, in many District Court cases, there are no readily identifiable solicitors who are willing to accept assignments 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 individuals accused of criminal offences are now regularly appearing at bail hearings unrepresented.

4 For the reasons indicated in an ex tempore judgment, I directed the immediate release of one of the applicants, Mr McDonagh, on 19 August 2026. An approved note of that judgment has since been published: McDonagh v. Governor of Cloverhill Prison [2026] IEHC 595. I explained at the time that I would deliver an omnibus judgment addressing the position of all three applicants.

TITLE OF THE PROCEEDINGS

5 In each case, the proceedings were commenced with the relevant prison governor named as sole respondent. The Director of Public Prosecutions nevertheless participated in the inquiries as a respondent and was separately represented throughout the hearing. It does not appear that any formal order was made joining the Director to the proceedings. To ensure that the title of the proceedings reflects the role actually played by the Director, and to preserve her right of appeal, I will make an order formally joining the Director as a respondent and amending the title to the proceedings accordingly. The amended title is reflected in this judgment.

6 I dispense with any requirement to re-serve the proceedings by reason of the amendment of the title. The Director of Public Prosecutions is to be joined as a respondent pursuant to the court's jurisdiction under Article 40.4.2° of the Constitution, and not pursuant to Order 15 of the Rules of the Superior Courts. The procedure under Article 40.4.2° is self-contained and is not governed by the Rules of the Superior Courts: State (Ahearne) v. Cotter [1982] I.R. 188 (at p. 200). The court may regulate the inquiry flexibly, consistently with the constitutional requirement that it be conducted forthwith.

7 Ordinarily, the person detaining the applicant is the appropriate respondent to an inquiry under Article 40.4.2°. It is for the detainer to certify the legality of the detention. The present inquiries are unusual, however, in that the applicants invite the High Court to “ look through” the remand orders and to assess the conduct of contested bail hearings before the District Court. The objections to bail were advanced on behalf of the Director through members of An Garda Síochána. The resolution of the Article 40.4.2° inquiries requires the High Court to ascertain the grounds upon which bail had been opposed, the evidence adduced in support of those grounds, the opportunities afforded to each applicant to test that evidence and the reasons for which bail had ultimately been refused. The Director of Public Prosecutions has a direct interest in those issues and is the party best placed to address them.

8 The Director's participation also assisted in the expeditious determination of the inquiries. It enabled the prosecution position on the individual bail hearings to be addressed directly, without requiring the Governors or the Minister to speak to matters properly falling within the remit of the prosecution.

9 The joinder is consistent with the course adopted in McCormack v. Governor of Mountjoy Women's Prison [2026] IEHC 554. In those proceedings, the Director of Public Prosecutions was named as a respondent alongside the respective prison governors, while the Minister was separately named as notice party. The Director participated in the substantive hearing as a respondent. The same course is appropriate in the present proceedings.

APPLICABLE LEGAL PRINCIPLES

10 An accused person who has been refused bail by the District Court and remanded in custody is entitled to apply to the High Court for bail. This will be the proper procedure to pursue in most cases. The High Court has a full and original jurisdiction in bail matters. The application is heard de novo and determined afresh. The High Court does not sit on appeal from the District Court, and it is not necessary for the accused person to establish that the decision of the District Court was erroneous. The High Court may receive evidence, consider proposed sureties, and assess whether appropriate conditions can address the risks underlying the objections to bail. Where the accused person lacks the financial means to obtain legal representation, legal assistance may be available under the Legal Aid – Custody Issues Scheme administered by the Legal Aid Board.

11 It is only in rare and exceptional cases that an accused person who has been remanded in custody pursuant to a District Court order will be entitled to an order for immediate release under Article 40.4.2° of the Constitution. This is because detention pursuant to a court order which is valid on its face and made by a court of competent jurisdiction will normally be regarded as being detention in accordance with law. An immediate release pursuant to Article 40.4.2° is only available where there has been a default of fundamental requirements, or some kind of fundamental denial of justice or a fundamental flaw in the decision-making process.

12 In the context of a bail hearing, the defect must involve the denial of a fundamental requirement, such that the proceedings could not properly be regarded as a bail hearing at all.

13 In Ennis v. Governor of Cloverhill Prison [2026] IEHC 599, I set out my understanding of the division between those cases which come within Article 40.4.2° and those which do not. I turn now to apply those principles to the circumstances of the three cases before me.

DAVID NEVIN

Overview

14 Mr Nevin appeared before the District Court (Judge Tom MacSharry) on 17 July 2026 in relation to charges of affray, assault causing harm and theft. The prosecution opposed bail under both the O'Callaghan principles and section 2 of the Bail Act 1997. The prosecution also sought the revocation of Mr Nevin's existing bail in relation to other charges.

15 Mr Nevin was already subject to a number of bail conditions. One of those conditions required him to stay off Main Street, Longford, save for the purpose of collecting social welfare on a Wednesday. He was also prohibited from having direct or indirect contact with a named co-accused. The prosecution alleged that he had breached both conditions: first, by being on Main Street at approximately 8.30 p.m. on a Wednesday; and, secondly, by being in the company of the named co-accused. Mr Nevin's position was that he had understood the exception concerning Wednesday as permitting him to be on Main Street throughout that day.

Opportunity to seek legal representation

16 Mr Nevin's usual solicitor was present in court when the case was called. The solicitor informed the District Court that, regrettably, he was not in a position to act and then left the courtroom. The judge acknowledged the position. Mr Nevin did not request an adjournment to seek to obtain alternative legal representation.

17 The absence of legal representation did not, of itself, establish the denial of a fundamental requirement. The question is whether Mr Nevin was afforded a meaningful opportunity to understand, test and answer the objections to bail and revocation notwithstanding that he was unrepresented.

Notice of the objection and opportunity to prepare

18 The District Court judge asked Mr Nevin whether he had seen the bail pack. Mr Nevin confirmed that he had. When asked whether he had read and understood it, his answer appears to have been that he understood most of it. The judge offered him a pen and indicated a willingness to go through the document with him. Mr Nevin replied that this was not necessary.

19 The judge explained that the prosecution was objecting to bail under section 2 of the Bail Act 1997 and the O'Callaghan principles. The Garda witness was directed to speak slowly. Mr Nevin was told that, if anything said by the Garda was not understood or required explanation, he should raise his hand.

20 The transcript does not establish that Mr Nevin was afforded a distinct period in which to study the bail pack. It does establish, however, that he had seen the document, that the grounds of objection were identified, and that the judge offered to go through the document with him. Mr Nevin declined that assistance. He was also invited to seek clarification as the Garda evidence was presented.

Opportunity to cross-examine

21 The...