The Government approved my policy paper on presidential pardons yesterday. Under article 13.6 of Bunreacht na hÉireann, the right of pardon and the power to commute or remit punishment imposed by any court are vested in the Office of the President. In accordance with article 13.9, this right is exercisable only on the advice of the Government.
A statutory scheme governing pardons is contained in the Criminal Procedure Act 1993. It provides for the right to petition the Minister for Justice for a pardon. If, having made necessary inquires, the Minister considers that a miscarriage of justice has occurred, he or she may make a recommendation to the Government to advise the President to grant a pardon in respect of the offence of which the applicant was convicted.
Historically, presidential pardons were granted sparingly. Between 1937 and 2014, only three were granted, none of which were granted posthumously and none related to cases pre-dating the foundation of the State.
Since then, the volume of requests for presidential pardons has increased and the nature of the pardons sought has changed. Between 2015 and 2024, five further pardons were granted, all posthumously, and all bar one in respect of individuals executed before the foundation of the State.
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The policy approved yesterday by the Government will mean that in future only sentences imposed since the foundation of the State will be considered for presidential pardon. There are sound historical and legal reasons for adopting this approach.
Before Irish independence, the laws of Ireland were made, the people of Ireland were governed and justice in Ireland was administered by the government of the United Kingdom in London. All such powers were carried out on behalf of the British monarch without the approval of the Irish people. Instead, the Irish nation was not permitted to have its own government, elect its own legislature or appoint its own judges.
In 1916, the Irish Republic was declared. Irish independence was a momentous event. It meant the Irish people could elect their own representatives to Dáil Éireann who, in turn, could establish their own government that could appoint judges to administer justice on behalf of the Irish people.
The independent Irish State has no responsibility or liability for how justice was administered here before independence. Consequently, there is no basis upon which this State should or could grant pardons for the administration of criminal justice that operated here before 1922.
To grant pardons, a State must acknowledge it has responsibility for miscarriages of justice administered by that State. It would be historically inaccurate, even dishonest, for the independent Irish State to assume responsibility for the administration of justice before 1922.
If this State did assume responsibility for the criminal justice system before 1922 then it should presumably have the authority and responsibility, for instance, to pardon the executed leaders of 1916 convicted by court martial, or Wolfe Tone and Robert Emmet, both convicted of high treason.
I believe it would be a distortion of Irish history for the independent Irish State to assume responsibility for these convictions by granting pardons. It would also be a distortion of legal liability since a pardon should only be granted by the State that imposed the sentence.
The use of the criminal justice system by the United Kingdom against Fenians, Irish nationalists and Irish republicans is an integral part of Ireland’s history. It would be historically perverse to suggest that, in fact, this was a criminal justice system for which the Irish people are liable and responsible.
The inappropriateness and contradiction at the heart of this State seeking to pardon people convicted by courts operated before 1922 is readily evident from the case of Roger Casement. The main reason no one would suggest that this State could seek to pardon Casement for his high treason conviction in 1916 is because he was convicted by a court in London. It was nonetheless one of the courts of what was then the United Kingdom of Great Britain and Ireland. The independent Irish State has as much responsibility for that conviction as it has for the convictions imposed by the other contemporaneous courts in the United Kingdom, ie none.
It is important to note that in March 2018, the government advised the president to pardon Myles Joyce, who was convicted of the Maamtrasna murders and executed in December 1882. His conviction was clearly unsafe. Another Joyce, James, wrote in 1906 that “public opinion at the time thought him innocent, and today considers him a martyr”.
He was an innocent martyr, and no pardon can alter or rectify the discredited criminal justice system under which he was convicted. His pardon and others remain unaffected by this new policy.
Regardless of the location of the court, as in the case of Casement, or the unsafeness of the conviction, as in the case of Joyce, sentences administered by the criminal justice system of the United Kingdom before Irish independence cannot by any logic be seen as the responsibility of the contemporary Irish State. To fail to clarify that point now could result in legal and historical absurdities.
It is for these reasons I proposed, and the Government agreed, that only convictions imposed after the foundation of the State in 1922 should be considered for presidential pardons pursuant to article 13.6 of Bunreacht na hÉireann.
Jim O’Callaghan is the Minister for Justice, Migration and Home Affairs
