TWO Co Tyrone men who were each sentenced to six months in jail by a Donegal district judge earlier this month over the taking of a vehicle were released by the High Court yesterday.
Mr Justice Murphy ruled that the two men should be released and their convictions should not stand as the district judge gave them no advice about legal representation at their trial.
Mr Paul Anthony McSoiley (23), of Main Street, Fintona, and Mr Martin Mulholland (23), of Crossown Gardens, Clogher, had sought their release from Mountjoy Prison, claiming they were unlawfully detained. They took the case against the prison governor.
Mr McSorley was convicted of having a vehicle without the consent of its owner and sentenced to six months' imprisonment. Mr Mulholland was convicted of unlawfully taking a vehicle and received the same sentence.
They were arrested outside Donegal town and taken to the Garda station. Mr Justice Murphy said that in an affidavit Mr McSorley claimed that while he was informed of his rights to obtain legal advice, when he and Mr Mulholland asked to see a solicitor, they were told they did not deserve solicitors and, in any event, the solicitors were off playing golf or were ex directory.
On Sunday, February 4th, last they were brought before Judge Liam MacMenamin in the Donegal District Court. Both men pleaded guilty to the offences as charged.
Mr McSorley said neither he nor Mr Mulholland was ever asked by the district judge if he wished to seek the advice of a solicitor.
In affidavits sworn by two gardai, it was stated that Mr Mulholland did seek the services of a solicitor but, despite the best efforts of the gardai, none could be obtained on the Sunday afternoon.
However, what did not appear in the affidavits, but which counsel for the prison governor conceded, was that the gardai were not disputing the contention that the district judge had not asked either of the men if he wished to seek the services or advice of a solicitor.
Mr Justice Murphy said the main issue was whether the admitted failure, as admitted by the governor's counsel of the district judge to warn the applicants or advise them of their right to legal aid represented such a serious and undisputed injustice as to invalidate the order made by him.
He was worried at the apparent injustice in questioning the validity of the district judge's order without affording him or his registrar an opportunity of offering some comment on the matter.
However, he had concluded that as the governor's counsel had informed the court that no advice on legal representation was given by the district judge to either men, he believed the conviction could not stand and he should not delay providing an appropriate remedy.