A man charged in the absence of legal representation with the theft of two cans of Coca Cola has been released from prison by the High Court on grounds he had not been given a fair hearing by a District Court judge.
Judge Garrett Simons directed that Sean O’Hanlon be set free on bail following hours of legal argument on his behalf by barrister Michael O’Higgins
O’Higgins, appearing with barrister Alexander Langan MacDonnell and Mariah Donnelly of Michael Kelleher Solicitors, had earlier been granted an inquiry under Article 40 of the Constitution into the lawfulness of O’Hanlon’s detention.
He told Simons that O’Hanlon, who did not have a permanent address, had his bail revoked at Dundalk District Court in the absence of fair procedures; he had no legal representation at the time because of the ongoing solicitors’ strike in connection with legal aid issues.
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O’Higgins said that following the opening of the inquiry by Judge Denise Brett in the District Court almost two weeks ago, the court had wished to address a concern that had arisen out of an apparent conflict between decisions of fellow judges Mary Rose Gearty and Michael Twomey.
Gearty, in eight test cases, had directed the release of the applicants to bail in what she had deemed a “suite of fair trial rights” having been denied them.
Less than a fortnight later, Twomey had refused habeas corpus applications in four similar cases and in direct opposition to his colleague Gearty’s judgment.
O’Higgins had submitted there were such fundamental flaws in the District Court hearing towards the end of July that it could not be considered as having been conducted in accordance with law.
He submitted that O’Hanlon had been denied legal representation, the right to have been given notice of Garda objections to his bail, the right to cross-examine a garda witness and the privilege of avoiding self-incrimination.
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O’Hanlon’s solicitor Mariah Donnelly, in written evidence, told the court he had been refused bail on the “cans of coke” charge and had existing bail revoked by the District Court judge.
She said it ought to have been evident to the District Court judge that O’Hanlon was unable to properly conduct his case in the absence of another legal firm which had been on leave at the time. He had been unable to obtain other legal representation due to the solicitors’ strike.
Simons ordered the immediate release of O’Hanlon from Cloverhill Prison in circumstances where the bail hearing that had taken place on July 22nd before Dundalk District Court had been fundamentally unfair.
He said the reasons for this denial of justice were due to the minor offence of the theft of two cans of Coca Cola valued at less than €4 and that O’Hanlon had not been afforded the right to cross-examine the garda.
The judge said the District Court hearing had not met the criteria of a bail hearing and the revocation of his bail relating to other charges had been considered without any notice or response. He said O’Hanlon’s application had fallen within the category of an exceptional case.
