The High Court refused Brian McGinley’s application for bail pending his judicial review challenge to the refusal of enhanced remission. The court said the challenge, even if successful, could at most result in the refusal being quashed and the Minister reconsidering the application; it could not itself grant enhanced remission or direct his release.
Mr Justice Richard Humphreys delivered the judgment on 28 September 2017. McGinley had been sentenced to ten years’ imprisonment after his 2010 conviction for aggravated burglary. He sought judicial review of a 2017 decision refusing enhanced remission, which would have reduced his time in custody. A judge had granted leave to challenge that decision on specified grounds, but the review had not yet been heard.
The judge found that the bail application was misconceived because the underlying judicial review could not result in the release McGinley sought. He said granting interim bail in those circumstances would create uncertainty about whether bail continued if the decision was quashed and sent back for reconsideration.
The court also considered the factors for post-conviction bail, assuming in McGinley’s favour that the test in earlier cases applied. It found no strong chance of success in the judicial review and no exceptional circumstances justifying bail. The judge said the Minister was entitled to give substantial weight to the seriousness of the offence when deciding whether to grant enhanced remission.
The judgment records that the Minister’s refusal cited the offence’s nature and gravity, public safety and a Garda view, and concluded that the Minister was not satisfied McGinley was less likely to reoffend and better able to reintegrate. The judge considered the challenge grounds but did not decide the judicial review itself. He said the seriousness of the offence could independently support refusal, making other factors surplus to the decision.
The judge also cited the need for continuity of custody and the interests of victims who had been given an expected release date. He acknowledged McGinley’s participation in rehabilitative activities, while stressing that such activity did not require the Minister to grant enhanced remission.
The court refused bail, directed that the matter be listed on 10 October 2017 to seek an early hearing date, and ordered opposition papers to be delivered by 9 October, subject to hearing counsel. It recommended that McGinley’s costs be paid under the Legal Aid (Custody Issues) Scheme, including solicitors and two junior counsel.