Thursday 20 October 2016

Decision to refuse Ivor Callely enhanced remission from sentence quashed - High Court

Ivor Callely
Ivor Callely PIC: COURTPIX

THE High Court has quashed a decision by the Minister for Justice to refuse to grant former politician Ivor Callely enhanced remission from a prison sentence he served for expenses fraud.

 Mr Justice Anthony Barr ruled today that Minister Frances Fitzgerald “fell into error” because she failed to fully take account of prison rules when refusing his application.

 However, he refused to interfere in the Minister’s decision not to grant Callely temporary release from the five-month sentence.

 Mr Justice Barr also ruled that Minister Fitzgerald had been entitled to delegate her decisions to officials in the Irish Prison Service.

 Callely could have been returned to prison today to serve the remaining six days of his sentence if all his judicial review proceedings had failed.

 He was sentenced to five months in prison in July 2104 after admitting he fraudulently claimed €4,207 in expenses from the Oireachtas on forged mobile phone invoices.

 The ex Fianna Fail Junior Minister launched judicial review proceedings against the Minister for Justice and the Governor of Wheatfield Prison, where he had been jailed.

 The State parties denied his claims and opposed the action.

 Callelly was present as Mr Justice Barr read out a summary of his decisions.

 The judge said the Minister had wide discretion on decisions regarding suitability for temporary release.

 To interfere with this, he said, it had to be shown that the decision was “capricious, arbitrary or unjust,” but the applicant had failed to show this.

“It seems to me it was reasonably open to the Minister to reach the decision that she did,” he said. “The court is satisfied that the Minister exercised her discretion in a reasonable manner.”

On the issue of enhanced remission, he said the Minister had to have regard to “all matters” in the prison rules.

 However, he said it appeared that she only took two matters into account when reaching her decision,

 He said it could be seen that she rejected the enhanced remission application because she was not satisfied that, as a result of his engagement with “some” authorised structured activities, he was less likely to re-offend and better able to re-integrate into the community.

 He noted that her decision then explained that the gravity of the offence and the breach of trust involved had been taken into account.

“I am of the opinion that the Minister’s decision falls into error in its assessment of the manner and extent to which the applicant engaged in authorised structured activities,” Mr Justice Barr said.

 He said the Minister failed to “properly assess the available evidence and the manner and extent to which the applicant had engaged with the authorised structured activities made available to him.”

 “This error is of material significance,” he said.

 He then quashed the Minister’s decision of November 7, 2014 saying it was ultra vires. He said the matter would be remitted for fresh consideration.

 Callely’s barrister, Kieran Kelly BL requested an adjournment to consider the ruling.

 Callely had been on bail on his own bond of €100 pending the outcome of the legal challenge.

 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 re-offend.

 He had argued the Minister’s refusal of temporary release or extra remission is unfair and claims he is 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.

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