Man accused of stabbing released due to flaws in bail hearing caused by solicitor strike

A MAN ACCUSED of stabbing someone has been released from prison after a High Court judge found there were a number of “fundamental” flaws in the way his bail hearing was conducted at the District Court, some of which were the result of the ongoing row between the justice minister and legal aid solicitors. 

Justice Garrett Simons was scathing in his description of the flaws he saw in the conduct of judge Catherine Hayden, who presided over the man’s initial hearing on 11 August and denied him bail. 

Justice Simons also questioned some of the conduct of the garda involved, who had objected to bail being granted. 

Setting out four fundamental flaws in the proceedings as reasons why the hearing did not amount to a legal hearing at all, he ordered the man be released immediately. 

The first flaw the judge identified was that the accused was not given information about the garda’s reasons for objecting to bail in time.

The accused was only given the “bail pack” when the hearing began. This occurred “for reasons which have never been properly explained,” he said. 

“The District Court judge said that the bail pack would be given to the Applicant there and then and read aloud by the Garda,” he wrote.

“That was a fundamental flaw.

“The Applicant, who did not have the benefit of legal representation, was required to deal with a complex bail objection on the hoof.”

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The second flaw in the proceeding was that the man was not represented by a solicitor, a result of the dispute between justice minister Jim O’Callaghan and solicitors over reforms to payment for providing free legal aid. 

Justice Simons said the District Court judge never asked the man if he wanted a solicitor and never asked him if he wanted an adjournment to give him time to find one. 

“At the very least, the District Court judge should have offered him the opportunity of an adjournment,” he wrote. 

The judge also said that Judge Hayden failed to tell the man he had the opportunity to cross-examine the garda in court. 

“This was crucial because the garda was permitted to give hearsay evidence, which the judge later mischaracterised as opinion evidence,” he said.

He noted that counsel on behalf of the Director of Public Prosecutions (DPP) sought to argue that the judge had given the man a chance to cross-examine the garda when she asked him, “Is there anything you wish to say in response?” 

In response, Justice Simons wrote:

“With respect, as a matter of ordinary English usage and the plain meaning of the words employed, that statement cannot reasonably be interpreted as an invitation to cross-examine the garda witness.”

The last fundamental flaw described in the judgment related to the man’s privilege against self-incrimination during the proceedings. 

Justice Simons said that while the District Court judge informed the man that there was a risk of self-incrimination, she did not outline the choice available to him or the potential consequences of giving evidence during the hearing. 

During the hearing, Judge Hayden 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.”

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Justice Simons said he accepted that “a District Court judge is not required—indeed it would not be helpful—to give some highfalutin explanation of the kind one might find in a leading textbook”.

“The explanation must, however, convey the substance of the privilege and the choice available to the accused. What the judge said here simply did not achieve this.”

In conclusion, Justice Simons said:

“For all of those reasons, I am satisfied that the proceedings before the District Court on 11 August 2026 did not amount to a hearing cognisable under constitutional law.”

The person in this case was not the only person released from detention today by the same High Court judge. 

Another man, who is accused of stealing two cans of Coca-Cola, was set free for similar reasons. 

The work stoppage of the solicitors who would normally represent people under the free legal aid scheme has caused significant disruption to the functioning of the courts this summer. 

Today’s ruling comes after another High Court judge, Justice Denise Brett, opened inquiries on 7 August into the alleged unlawful detention of seven men who had been refused bail or allegedly had not received fair hearings in the District Court while unrepresented by solicitors.