Former TD and minister Ivor Callely will not have to return to prison following the State's decision to allow him enhanced remission on the sentence he received for fraudulently claiming Oireachtas expenses on forged mobile phone invoices.
Callely’s solicitors confirmed on Tuesday his application to Minister for Justice Frances Fitzgerald for enhanced remission had been successful. As a result of the Minister’s decision he will not now have to return to Wheatfield Prison for six days to serve out the remainder of his five month sentence.
The High Court in July quashed a refusal by the Minister to grant him remission of sentence. His application was then remitted to the Prison Services for re-consideration.
Pádraig O'Donovan & Company Solicitors, who represent Callely, confirmed to the media that the former Fianna Fáil TD had received a letter from the Operations Directorate of the Irish Prison Service informing him of the Minister's change of mind.
The decision, which was notified to Callely on August 20th, follows the ruling of Mr Justice Anthony Barr quashing the initial decision of the Minister. Mr Justice Barr found the Minister had failed to take all relevant matters into account, which she is obliged to do, when arriving at her decision.
The State is not appealing the High Court’s decision.
Barrister Kieran Kelly had initially brought the application towards the end of last year on behalf of Callely challenging the Ministerial decision not to grant him enhanced remission and seeking his temporary release from prison.
He claimed he was entitled to one third remission of his sentence, as opposed to the normal one quarter, because he had demonstrated good behaviour by participating in structured prison activities, and that he was unlikely to re-offend.
Mr Kelly had argued the Minister’s decisions were unfair and that Callely was not being treated the same as other prisoners who had committed more serious crimes.
Callely claimed he had been told by staff at Wheatfield Prison that he should have been released early and was only being kept there because of his high profile and the fact he was “a hot potato”. He claimed he was punished twice.
In his judgment, Mr Justice Barr said an error of material significance was made when the decision maker had failed to properly assess the available evidence as to the manner and the extent to which Mr Callely had engaged with the authorised structured activities made available to him.
These factors included reports from an assistant prison governor that there was very little chance of Callely reoffending, that he was a first time offender and that he had engaged fully with all the services and structured activities available to him in Wheatfield Prison.
Callely’s conduct in the prison was described to the court by the authorities as “impeccable”. The judge said other factors that ought to have been considered included the manner and extent the prisoner had taken to address his offending behaviour.
Callely’s application for enhanced remission was recommended by the assistant governor, and two retired members of the An Garda Siochána, the judge also noted.
Callely was unsuccessful in his challenge against the Minister’s refusal to grant him temporary release. The judge found the Minister had, in a reasonable manner, exercised her discretion when refusing to grant Callely temporary release such as she was entitled to do.
In a subsequent ruling Mr Justice Barr also ruled Callely was entitled to have legal costs paid for by the State.