Refusal of early release for Ivor Callely wrong, court finds

The High Court has quashed and referred back for reconsideration a decision by the Minister for Justice not to grant former politician Ivor Callely enhanced remission from the prison sentence he received for fraudulently claiming Oireachtas expenses.

In a lengthy judgment Mr Justice Anthony Barr Callely held the Minister had fallen into error when refusing to grant Mr Callely enhanced remission as it appeared she had failed to take all of the relevant matters into account when arriving at her decision.

In the circumstances the judge quashed the Minister’s refusal to grant Mr Callely enhanced remission and ruled the application should go back to the Minister for reconsideration.

Had his challenge been dismissed, Mr Callely who was present in court on Tuesday, faced being returned to prison for six days to serve the remainder of his sentence.

Mr Callely had been on bail on his own bond of €100 pending the outcome of the legal challenge to the decision of the Minister for Justice and the Governor of Wheatfield Prison in Dublin not to grant him temporary release.

The State parties denied the claims and opposed the action.

The former Fianna Fail minister of state, TD and Senator brought proceedings over the refusal to grant him enhanced remission and temporary release from a five month sentence he received last July after admitting he fraudulently claimed €4,207.45 expenses from the Oireachtas on forged mobile phone invoices.

He had claimed he was entitled to one third remission of his sentence, as opposed to the normal one quarter, because he demonstrated good behaviour by participating in structured prison activities, and that he was unlikely to reoffend.

He argued the Minister’s refusal to grant temporary release or extra remission was unfair and claims he was not being treated the same as other prisoners who have committed more serious crimes.

The refusals fly in the face of reason and common sense, he claimed.

He sought orders quashing the refusal of temporary release or one third remission and claimed he was entitled to early release for good behaviour and engaging in structured activities within the prison.

He had fulfilled all the prescribed requirements for temporary release, it was argued.

Mr Callely also claimed he had been told by staff at Wheatfield Prison he should not be in prison and was only being kept there because of his high-profile.

Mr Callely had claimed he had been “punished twice” by the decision to refuse to treat him the same as other prisoners who are entitled to enhanced remission. This was because of his “high-profile”, he claimed.

His lawyers argued he made several applications for temporary release and enhanced remission but he was refused on each occasion.

He also claimed fear of adverse public reaction was at the heart of his judicial review case and behind the refusals to give him temporary release or enhanced remission.

It was intimated to him he might be out of prison in a few weeks, but if he got early release it might attract media attention and that would be “unpalatable” at a high level.

The judge adjourned the matter to next week to allow the sides consider his ruling.

Elaine Edwards adds: Speaking at the McGill Summer School in Glenties, Co Donegal, Minister for Justice Frances Fitzgerald said she had been speaking to the director of the Prison Service today "and we will have to analyse that judgment".

“ I’ve asked for a report on it. The judgment involves looking at a range of criteria, so I will have to have a further recommendation given to me, this is what the judge suggested, from the Prison Service,” she told reporters.

“Precisely what that might or might not be will be determined by our assessment of the court and our response to it. So I won’t comment in detail, obviously, but I will be examining that court report and making a further decision.”

Asked if she accepted that the judge deems that Mr Callely should have been released and that it was wrong not to grant him enhanced remission she added: “What the judge said was that there was a range of criteria that should have been taken into account and I now have to respond to what the judge said in that court judgment. I will be giving my view on that and responding when the Prison Service make, as he suggested, a further recommendation to me. But quite precisely what that will be, obviously I couldn’t say at this point.”