Jailed former politican Ivor Callely has begun a High Court challenge aimed at overturning the Minister for Justice's refusal to grant him temporary release from prison.
Among Callely’s claims is that Frances FitzGerald had behaved unfairly in refusing his request for temporary release but granting temporary release to a former councillor who is a member of her own party, Fine Gael.
Callely (56) was jailed last July after it was found he fraudulently claimed €4,207.45 expenses from the Oireachtas on forged mobile phone invoices.
He pleaded guilty to the offences and was sentenced to five months in prison by Judge Mary Ellen Ring. He began his sentence in Mountjoy prison, before being transferred to Wheatfield prison.
Ms Justice Mary Faherty was told Callely is a model prisoner who had applied for, but was refused, temporary release by the Minister on October 28th.
In her decision, the Ms Fitzgerald said she was “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.”
Callely claims the decision is unfair and he is not being treated the same as other prisoners who have committed more serious crimes. The decision flies in the face of reason and common sense and is unfair in the circumstances, he alleges.
He also claims the Minister has been unfairly influenced by his high profile and by the prospect of the adverse public reaction of the early release of a former politician.
Ms Fitzgerald’s judgment has been clouded as she has afforded a special significance to the offences based solely on Callely’s profession, and the origins of the funds, it is alleged.
In an affidavit, Callely said he has been told by prison staff he should not be in prison and is only being kept there because of his high profile.
Kieran Kelly BL, for Callely, said his client met all the criteria for temporary release including that he was a first time offender for a non-violent crime. He was also sorry for what he did, had repaid the money, and did not pose a threat to society, counsel said.
Counsel added his client had received positive recommendation from the prison governor and was deemed to have enhanced prisoner status.
When imposing the sentence, Judge Ring said the fact a former member of the Oireachtas got a custodial sentence was more important than the length of the sentence and that should also have been taken into consideration by the Minister, counsel said.
Counsel added if his client, who on arrival to prison was placed in 23 hour lock up for his own protection, is granted a third remission, as compared to the normal one quarter, he would be entitled to immediate release from prison.
It seemed that his client’s profile as a former TD has been unfairly used against him, he said.
Ms Justice Faherty said she was satisfied to grant the ex parte application (one side only reprsented) for leave for judicial review and returned the matter to early next week.