The High Court quashed the refusal of enhanced remission for former TD Ivor Callely and sent his application back for fresh consideration. It did not decide whether he qualified for that remission. The court also declined to overturn the separate refusal of temporary release and held that officials could make remission decisions on the Minister’s behalf.
Callely was serving a five-month prison sentence after pleading guilty to four counts of fraudulently submitting false invoices for a mobile phone expenses claim of €4,207.45. At sentencing, Judge Ring described the offence as a significant breach of trust and said Callely’s role as a public representative was a major factor. Callely had apologised and repaid the money.
He applied for temporary release and enhanced remission while in prison. The temporary release application was refused on 28 October 2014. The decision cited the seriousness of the breach of trust and misuse of public funds, and found him unsuitable for release at that stage of his sentence. Prison officials and two retired Garda officers had recommended or supported his application, according to the judgment.
The court found that the Minister had considered Callely’s temporary release application individually and was entitled to weigh the nature and gravity of his offence. It held that the refusal was reasonably open to the Minister and that Callely had not shown it was capricious, arbitrary or unjust. The court therefore refused to quash that decision.
The enhanced remission refusal, dated 7 November 2014, said Callely had engaged in “some” authorised structured activity but that the Minister was not satisfied this made him less likely to re-offend and better able to reintegrate. The court found the decision showed consideration of only two of the factors required by the Prison Rules: his engagement in activities and the offence’s nature and gravity.
The rules required consideration of all listed factors. The court said the decision gave no evidence that the Minister had considered, among other matters, Callely’s guilty plea, apology and repayment; his sentence and the sentencing judge’s remarks; his conduct in custody; or recommendations from the prison and Garda officers. It also found the description of “some” activity failed to reflect that he had engaged in all authorised activities made available to him, a point the respondents did not dispute.
The court quashed the enhanced remission refusal and remitted the application for fresh consideration. It stressed that deciding whether Callely met the criteria was for the Minister, not the court. It refused his request for a declaration about when such applications should be decided, finding his application had been processed within a reasonable time. It also rejected his challenge to the delegation of decision-making to senior officials in the Irish Prison Service Operations Directorate.