THE HIGH COURT today said that the Minister for Justice was wrong in refusing to grant former politician Ivor Callely enhanced remission from his prison sentence.
The former Fianna Fáil politician was given a five month sentence last July for fraudulently claiming over €4,207.45 in expenses with forged mobile phone invoices.
However, he was granted bail after serving four months in Wheatfield Prison pending this challenge to the refusal to grant him temporary release or remission.
His lawyers at the time argued that he has been a model prisoner and was being denied the opportunity to receive one-third remission because of his high profile in the media.
Callely claimed he was entitled to one-third remission of his sentence as opposed to one-quarter as he had demonstrated good behaviour and engaged with services.
He argued he had fulfilled all requirements set out for temporary release, yet his applications had been rejected.
Callely claimed he had been told by prison staff that he should not be in prison, but that he was regarded as a ‘high profile, hot potato’ and if he received early release it would attract media attention that might be unpalatable at a higher level and cause political disquiet.
In his judgement today, Mr Justice Anthony Barr observed that Callely was a first time offender, had apologised, repaid the money and had not come to the attention of the gardaí again.
Calleley said he had been suitable for the community support scheme and temporary release schemes but “nonetheless was placed on a system of 23-hour lock-up” which he found “difficult and mentally challenging”.
His behaviour was reported as “exemplary” and he worked on the grounds seven days a week.
The court heard that Callely applied for temporary release on a number of occasions.
A letter dated 21 October 2014, the decision-maker, Mr Tony Hickey, Operations Directorate of the Irish Prison Service received an email from Austin Stack, Assistant Governor of Wheatfield in which it stated:
He is a first time offender, there is little chance of him re-offending and he is not a risk to society. The prisoner is on an enhanced regime, his behaviour has been impeccable and he has engaged fully with all services and structured activities available to him here in Wheatfield… I highly recommend this application and ask that you give it your full consideration.
Letters with recommendations from gardaí for his release were also forwarded to the Prison Service, but the application for temporary release was refused.
Mr Hickey said in his explanation on the refusal that each application is taken on its own merits, with a number of considerations taken into account.
In considering Mr Callely’s case in the round, the Minister is of the view that the breach of trust and abuse of public funds by a member of the Oireachtas must be considered in the most serious terms and Mr Callely is not considered suitable for temporary release at this stage of his sentence…… There are in excess of 4,000 prisoners in the prison system at any time and you will appreciate that prisoners cannot be allowed to dictate how their sentence is managed.
Callely wrote a handwritten letter to the governor citing his good behaviour and activities. It included a reference from his prison chaplin, Sister Kathleen, who said in her 20 years in the prison service she could not understand how he was still here.
Justice Barr said the minister has a wide discretion in respect of decisions on temporary release, and that there is no right to temporary release on the part of any prisoner.
However, he said the court was satisfied that the decision of the minister dated 7 November 2014 refusing the Calleley’s application for enhanced remission was beyond the minister’s legal power or authority.
Accordingly, the decision will be quashed and remitted to the minister for fresh consideration. It is not for the court to determine whether the applicant has fulfilled the criteria for enhanced remission; that is properly a matter for the minister. The declaration sought in this regard is therefore refused.
The judge adjourned the matter to next week.
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