Only post-1922 convictions to be eligible for pardon
Justice Minister Jim O’Callaghan has secured approval in principle for a shake-up in Presidential pardons.
The minister’s “strong view” is that pardon applications must be anchored to the foundation of the State when an Irish Government came into existence.
Threshold of proof
The power to pardon must not be devalued by overuse, especially where the threshold of proof is lowered due to the passage of time, a Department of Justice statement said this morning.
Article 13 of the Constitution provides that the right to pardon is vested in the President, which can be exercised only on the advice of the Government.
Historically, Presidential pardons have been granted sparingly in exceptional cases only.
Between 1937 and 2014, only three Presidential pardons were granted, none of which were granted posthumously and none related to cases pre-dating the founding of the State in 1922.
Since 2015, five further pardons have been granted.
Four of these relate to convictions that pre-date the foundation of the State.
High evidentiary bar
Minister O’Callaghan said this morning: “The Constitution provides the President with the power to issue a pardon, on the advice of the Government.
“There is a high evidentiary bar that must be met to recommend the granting of a pardon to the President, and this is reflected in the low number of pardons that have been granted since the foundation of the State.
“In recent years, the nature of applications for consideration of a pardon have changed to focus on historical cases that pre-date independence from British rule.
“These cases present several difficulties, not least of which is that the courts that tried these offences were established under the jurisdiction of the previous British administration in Ireland, and not the Irish State itself.
“The approach I’m proposing to the application for consideration of a pardon will be in line with the current statutory scheme under the Criminal Procedure Act 1993 and will reserve consideration of Presidential pardon applications to a miscarriage of justice since the foundation of the State,” he said.
To grant pardons a State must acknowledge that it has responsibility for miscarriages of justice administered by that State.
The minister said there are significant challenges associated with processing historical cases which predate the foundation of the State, including the likelihood that many of these cases may not be sufficiently documented.
Under this new approach, only convictions after the foundation of the State in 1922 will be eligible for consideration for Presidential pardons in future.
Significant powers
Minister O’Callaghan added: “The granting of a pardon is one of the most significant powers the President can exercise and allows the State to right a manifest wrong that has occurred in the administration of justice.
“However, Presidential pardons under the Constitution should be granted in those circumstances where a miscarriage of justice has occurred under the auspices of the State.
“Remedying historical miscarriages of justice, while admirable and desirable to many, poses significant challenges, including that convictions pre-dating independence in 1922 occurred under a different legal system, in the name of a different Government,” he said.