Written 1 month ago by Newsroom

---

A man jailed for 10 years for his role in an armed robbery where a family was held hostage is not entitled to be released on bail until his action aimed at securing his early release from prison has been decided, the High Court has ruled.

Brian McGinley (43) had sought to be released on bail until his legal challenge against the Minister for Justice’s refusal not to grant him additional or enhanced remission of up to 33 per cent off his prison sentence.

In a ruling on Thursday, Mr Justice Richard Humphreys said he was not granting McGinley bail for several reasons including that there were “no special or exceptional circumstances” that warranted granting the married father of six bail.

Factors including that McGinley’s family was prepared to lodge money to court, his previous compliance with bail conditions and that he was not a flight risk did come “remotely near” “the very high threshold at which post-conviction bail would be appropriate,” the Judge said.

While making predictions about the outcome of McGinley’s case was difficult the Judge said that the chances of success are not strong.

The Judge said he was also taking into account that the offence committed by McGinley was serious, and that McGinley had “come very late in the day to an expression of acknowledgement of guilt or remorse.”

His co-operation with the authorities in the investigation and prosecution of the offence, had been “non-existent.”

McGinley declined to identify others who took part in the robbery to the Gardaí, the Judge added.

The judge added it was good McGinley had engaged in rehabilitative activities.

These must have a value to McGinley himself and society “above and beyond” any value in advancing his application for enhanced remission, the Judge said.

“Otherwise what is happening is not rehabilitation but gaming the system” the Judge added.

McGinley had sought bail on the grounds his challenge against the Minister’s decision will become moot or pointless. The state had opposed the application.

It the Minister had granted him enhanced remission McGinley would have been released last July. With the standard 25 per cent remission off his sentence McGinley is due for release in May 2018.

In his action McGinley, currently incarcerated in Castlerea Prison, argues he is entitled to enhanced remission because he is a model prisoner, has engaged in a number of structured activities in the prison including gardening.

Prisoners are normally given 25 per cent remission off their sentences, and are entitled apply to the Minister for Justice for additional remission, of up to 33 per cent, for good behaviour.

His action aimed at quashing the Minister for Justice’s refusal to grant him enhanced remission has been brought on grounds including that the Minister considered an opinion about the offender from the Gardaí before the application for enhanced remission was refused.

McGinley claims his lawyers were not provided with the Garda opinion and the Minister is not entitled to rely on such evidence when considering an application for enhanced remission.

In 2010 McGinley was convicted by a Circuit Criminal Court jury of aggravated burglary committed at the home of businessman Damien Kilmartin in Glasson, Athlone on February 13th, 2005.

McGinley, formerly of Blackberry Lane, Athlone, had denied being part of a gang wielding a sledge hammer, a baseball bat and iron bars who burst through the back door of the Kilmartin’s family home.

Mr Kilmartin and his wife were tied-up, held for more than two hours and threatened in front of their three children and Mr Kilmartin’s niece.

During the raid Mr Kilmartin was threatened with buggery by one of the gang if he did not hand over the keys to a safe in the house.

A jeep valued at €92,000 was stolen by the gang and jewellery and cash of almost €120,000 were taken from the house.

The raiders carried the safe from the house to a car and at some stage one of the raiders suffered a blood injury.

DNA evidence from the blood found on the boot lid of a car at the scene matched that of McGinley’s.

His appeals against his sentence and conviction were dismissed in 2013.

The judicial review proceedings stand adjourned to October 10th next.