User:Jnestorius/Pardon, clemency and amnesty in the Republic of Ireland

The Constitution of Ireland provides that pardon for crime can be given only by the President, on the advice of the Government, whereas power of clemency and commutation of sentence may be granted to others by law. The difference between pardon and clemency is not defined; in practice, a pardon, sometimes called a "free pardon", is granted only as an acknowledgement of miscarriage of justice. Since the Constitution was enacted in 1937, six pardons have been granted, the three latest posthumously.

The Criminal Justice Act 1951 granted the power of clemency and remission to the Government itself and authorised it to delegate the power to the Minister for Justice. Use of the power was restricted by a 1995 judicial decision, prior to which media alleged that remission was routinely granted as political favour.

Various amnesties have been implemented, in relation to tax evasion, welfare fraud, and the Northern Ireland peace process.

Pardons since 1937

Pardons have been granted since the Constitution came into force in 1937

Dates		Pardoned	President	Crime	Details	Ref
Pardon	Conviction
23 December 1940	29 February 1940	Thomas Quinn	Douglas Hyde	November 1939 armed robbery of £194 10s. in Dublin	Released from Portlaoise Prison by order of the Minister for Justice in September 1940 after 91⁄2 months of a 5 year sentence. Suspicion of innocence confirmed by November 1940 confession of true culprit. AG Philip O'Donoghue was worried that a pardon could not be issued for a crime which had not been committed, so to pardon wording was added "as if he had not been so charged or convicted". Original pardon retained by President; a duplicate was signed in January 1941 and sent to Quinn's solicitor.
15 February 1943	10 June 1940	Walter J. Brady	Douglas Hyde	2 December 1939 robbery of £469 in Fairview, Dublin	Department of Justice in January 1942 asked District Judge Henry A. McCarthy to examine new alibi evidence exonerating Brady, who was released from Mountjoy Prison on 31 January. He received £200 compensation.
1992		Nicky Kelly	Mary Robinson	1978 Sallins Train Robbery
2015	1941	Harry Gleeson	Michael D. Higgins	1940 Murder of Moll McCarthy	Posthumous pardon; executed for crime. Review instigated by the Innocence Project at Griffith College Dublin.
2018	1882	Maolra Seoighe (Myles Joyce)	Michael D. Higgins	1882 Maamtrasna murders	Posthumous pardon; executed for crime. First pardon for a crime predating the Constitution.
16 December 2021	1895	John Twiss	Michael D. Higgins	1895 murder of James Donovan, a caretaker on a farm near Newmarket, County Cork	Posthumous pardon; executed for crime.
TBD 2024	December 1882	Sylvester Poff and James Barrett	Michael D. Higgins	3 October 1882 murder of Thomas Browne on his farm near Scartaglin	Posthumous pardons; executed for crime in January 1883.

History

Tim Healy sought more powers of pardon for the Governor General, whereas W. T. Cosgrave wanted them kept for the Executive Council.

1944, Ceann Comhairle rejects motion to recommend exercise of the prerogative [note, not question to discuss previous exercise of prerogative]:

The matter which the Deputy seeks permission to raise is obviously bound up with the exercise of the prerogative of mercy. Permission has never been given to raise in the Dáil, by question or otherwise, the exercise of that prerogative. The reasons for such refusal are obvious. As far as I have been able to discover, in no country is the exercise of the prerogative of mercy raised in the legislature. The President and the exercise of his prerogative cannot be brought into the political arena. True, he exercises that function at the request of the Government. The power is, by the Constitution, explicitly placed in the Government of deciding whether or not the President be asked to exercise the prerogative. It is obvious that if permission were granted, questions of judicial decisions and possibly of a trial and the conduct thereof would arise. In any case, the question of that prerogative cannot be raised in the Legislature, and the Chair does not accept the Deputy's proposal to raise it.

1951, Seán MacBride:

Up to the present, the prerogative of mercy has been exercised in two respects. Under the Adaptation of Enactments Act, 1922, the Governor-General was substituted for the Lord Lieutenant in certain circumstances and for the Secretary of State for Home Affairs in others. So long as we had a Governor-General here, a certain practice was built up under which the Minister for Justice exercised the very power which I am now taking, no more and no less. When the position of Governor-General was abolished in 1936, it was necessary to transfer the power of forgiving and the prerogative of mercy to some other authority and it was transferred to the Executive Council by the Executive Powers (Remission of Sentences) Order, 1937. That power was then vested in the Executive Council and it is the power under which my predecessor and I have acted since then.

It is argued that it does not fully meet the requirements of the Constitution, that there should be a positive law authorising us to exercise that power. I was perfectly satisfied that in the Dáil I had made a case that would meet the requirements of any reasonably-minded man on the question of the publication of the remission of penalties. I said I would examine it, and I did so. The Government may not vest these powers in the Minister at all, and my predecessor in office said he thought I was the person in whom the Government should be compelled to vest it. In a casual way, I said that if he put down an amendment to that effect, I would accept it. He did so, and while I was then taking away power from the Government which it should exercise and making it a mandatory matter, after some pressure, I accepted it. That is what is in the Bill now. If the Government delegate the power to anybody, it must be to the Minister for Justice. They cannot delegate it to Senator Quirke, to the [437] Revenue Commissioners, to the Land Commission or any other body of persons.

1966 debate on whether to exercise prerogative in a particular case; CC did not rule out-of-order.

1990 Martin report recommended that potential miscarriages of justice should be handled by an independent body with the powers of a tribunal of inquiry, but the Criminal Procedure Act 1993 instead provided a court-based review process. Willie O'Dea said:

There were three main recommendations in the report of the Martin committee. First, it recommendated the setting up of a statutory inquiry body to examine cases of alleged miscarriage of justice. The Government has accepted that recommendation, but not that it should be a tribunal of first and only resort, as recommended by the committee, but rather that it be a tribunal of alternative resort when recourse to the courts it impossible.

The 1990 government had accepted the Martin report, but senior judges viewed the its proposals as executive interference in judicial process, violating separation of powers.

Dáil questions

Dáil questions minister on exercise of prerogative:

1929 (soldier accessory to kidnapping):Patrick Clerkin was convicted on the 17th February, 1928, of aiding and abetting persons to have possession of firearms and of conspiracy and was sentenced to three years' penal servitude. He was released on licence on the 7th August, 1929, under the prerogative of mercy in response to a petition. It is not usual to state the reasons for which the prerogative of mercy is exercised and I think it would be undesirable to depart from that practice, but in this particular case to avoid misunderstanding I may say that the following were the considerations which moved me to advise that mercy should be shown to Patrick Clerkin: I was amply satisfied that Clerkin had no personal interest in the enterprise and that he was not aware that firearms were to be used. He lent his car to the other conspirators. I have no reason to believe that he knew anything about the firearms and he was not in the car with the others when the firearms were found by the police. He had served 18 months in prison and having regard to all the circumstances of the case I came to the conclusion that he had been sufficiently punished. In the case of the other 3 prisoners mentioned in whose possession or under whose control the firearms were found I do not propose to take any action.

1934 (personation at election): It is not the practice to publish the grounds on which the prerogative of mercy is exercised or the nature of the advice given by any judge or justice whom the Minister consults. I may say however that in the present case the justice was obliged by the Statute to inflict a minimum sentence of two months' imprisonment, and that sentence cannot therefore be taken as necessarily representing the punishment which would in the justice's view have been proper, in all the circumstances of the case, if he had been allowed a discretion.

1950 (attack on a widow's house):In the case referred to, the Circuit Court judge imposed a sentence of two months' imprisonment with hard labour on each of the convicted men. On a petition being made to him, the Minister for Justice in exercise of the prerogative of mercy remitted the sentence of imprisonment, on each of the convicted men paying a fine of £5 and entering into a recognisance in the sum of £25 to keep the peace for a period of 12 months. The Minister for Justice has always taken the view that it would be undesirable to state the grounds for the exercise of the prerogative in particular cases. For this reason, I am not prepared to say what representations were made to the Minister in support of the petition in this case.

Dáil debate

Select Committee on Legislation and Security on the Criminal Procedure Bill, 1993 Committee Stage discussed whether pardon expunged guilt. Also referred to Martin committee

junior minister Willie O'Dea:

Much has been said about the reasons given by the Martin committee for recommending a statutory inquiry body, and in so far as they go they are justified. The report gave some hypothetical examples of cases which could not be dealt with in our court structures and which therefore would justify the establishment of the inquiry body. Having read the examples, I fully agree that such cases, rare as they may be, would in all probability be unsuitable and perhaps impossible to refer back to the court and would be better dealt with by some alternative system. That is why provision is made in section 7 for petitions for the grant of a pardon.

:

There will be cases which are unsuitable to go back to the Court of Criminal Appeal. ... I regard a pardon from the President as an important and crucial entitlement for persons who for whatever reason cannot go back to the Court of Criminal Appeal. For that reason it is vital to have such a provision. It is to an extent a second best solution as the conviction will not be set aside. However, in the circumstances I have outlined it as a good second best way of dealing with such a case. Any person who receives a presidential pardon will also be eligible for compensation.

:

It is in recognition of the difficulties created by inadmissible evidence that the Bill proposes a comprehensive statutory scheme for the consideration of pardons in such cases, including where necessary the establishment of a committee to report its opinion on whether the Government ought to advise the President to grant a pardon.

Liz O'Donnell:

The thinking in the Department — the Minister did not respond to this — is that a presidential pardon is not as good because it cannot quash a conviction. The Minister said only a court can quash a conviction. There are only two presidential pardons of which we have a record. One was in the 1940s and the other was the recent pardon of Nicky Kelly. It is clear from the case in the 1940s, and there is a clear body of jurisprudence which supports this, that such a pardon not only commutes a sentence or shows forgiveness or clemency but reaches back to the conviction. The Minister has lost the opportunity to look at the legal effect of a pardon. This Bill could have provided the opportunity to provide that pardons granted by the President could remove all blame and say the person was wrongly convicted.

In the United States a pardon affects the conviction as well as the punishment. Article 2 (2) of the US constitution provides for this. In New Zealand, section 4 (7) of the Crime Act deems a person who is pardoned to have been wrongly convicted. The situation in England is different. Their pardon law comes from the royal prerogative of clemency which is about forgiveness but not quashing the conviction or putting the party who has been convicted in the situation as if he had never committed the crime. In Canada a pardon removes the guilt.

This is fundamental to the reasoning of the Minister in opting for the dual system. He and the Department do not think a Presidential pardon can remove the guilt. Otherwise there would be no need for the dual route. The Minister should reconsider this and his officials should examine the legal effect. The Martin committee looked at the issues of pardons and was firmly of the view that:

It would appear, therefore, that Presidential Pardons in our jurisdiction can negative guilt and blame. It seems to us that the effect of a pardon in such terms is to clear the person from all infamy.

If that is the case the route proposed in sections 7 and 8 should be sufficient to deal with all miscarriage of justice cases. There is no need for a referral to the court.

Jim O'Keeffe:

They will apply to the Minister, under section 7, for a pardon. The granting of a pardon to a person who is innocent will not clear his or her name. That person should be entitled to have the conviction quashed. The Minister and the Government are making it easier for somebody who is applying for a pardon rather than somebody who is applying to have a conviction quashed. ... If a person is innocent they are entitled to have their name cleared, which merely getting a pardon does not do.

:

Could the ludicrous situation emerge that they may have gone through the committee of inquiry system, where evidence and other information which would not be admissible in a court of law resulted in them getting a pardon and compensation, yet because the kind of evidence which came before the committee of inquiry was not admissible in a court of law they could go back to the Court of Criminal Appeal and find that the conviction still stands?

Eamon Gilmore:

By definition a presidential pardon is clearing somebody of all guilt and blame. The term “all infamy” was the term used in the report.

:

We now have an acknowledgment that the reference back to the court cannot deal with all problems and, if all fruit fails, one can use the presidential pardon. That is an abuse of the presidential pardon and demeans the concept of it. It is a worrying development and the presidential pardon was never intended for use in this way.

O'Dea:

We are of the view that a presidential pardon cannot set aside a conviction. ... The terms of the pardons given in those cases [1940 and 1943] would not suggest that to me and if we are talking about jurisprudence, we are talking about a decision of the courts to the effect that somebody other than the courts can set aside a conviction. ... My interpretation is that Article 34 of the Constitution keeps this matter exclusively within the preserve of the courts

O'Donnell:

No, it does not, it specifically allows for that.

O'Dea:

My interpretation of the Article and the cases that have been decided under the Article, lead me to the conclusion that the courts have exclusive rights in this regard, but I certainly will look at the suggestion the Deputy has made and I will look at the jurisprudence referred to

Laws

Power

Did the royal prerogative, in particular the prerogative of mercy, survive the Irish Free State? 1932 decisions suggest yes; later Supreme Court suggests no.

Cahillane IJLS:

Kelly argued that the Crown and its Prerogative were understood to have survived the enactment of the Irish Free State Constitution and that this much is clear from the practice of the time [fn>] Kelly instances the right to pardon, the existence of King‟s Counsel and the issuing of passports as examples of prerogative powers in practice. However, the second example is hardly a prerogative and the granting of passports could be argued to be implicit in the powers of the State. Furthermore the power to grant pardon was exercisable by the Governor General and as such, could come under the category of prerogative powers provided for in the 1922 Constitution. Ibid. at 15. For discussion on this point see infra p 12. [>] inclusion of prerogative provisions in the 1922 Constitution was not an explicit recognition of the continuing power of Crown Prerogative in Ireland but rather a recognition that the Royal Prerogative had been, for the most part, discontinued but that certain aspects could be retained by the State. [>] In speaking on the provision regarding the right to grant titles of honour, the Minister for Home Affairs, Kevin O‟Higgins, acknowledged that this was “one of the few remaining prerogatives of the Crown.” Unfortunately, he did not elaborate on this. However, during the controversy regarding appeals to the Judicial Committee of the Privy Council, O‟Higgins declared in the Dáil: “[a]s a Government, we are opposed to this remnant of the Sovereign‟s Prerogative. We think it ought to be allowed lapse by non-user, just as other prerogatives have lapsed

Juries (Protection) Act, 1929

Section 5(2):Whenever a jury finds a person to be guilty of a crime for which the penalty provided by law is death, the Judge shall inquire of the foreman of the jury, and the foreman of the jury shall notify to the Judge privately in writing, whether the verdict was or was not unanimous and the number of the dissentients (if any), and the judge shall report to the Minister for Justice the information so obtained.

Introduced to facilitatesubsequent decision on exercise of prerogative of mercy.

1922 Constitution amended by Constitution (Amendment No. 17) Act, 1931

Article 2(A), section 12:

(1) The Executive Council may, at their absolute discretion, at any time freely pardon any person convicted by the Tribunal for any offence and wholly remit the punishment imposed by the Tribunal on such person.

(2) The Executive Council may, at their absolute discretion, at any time remit in whole or in part or modify (by way of mitigation only) or defer (conditionally or unconditionally) any punishment imposed by the Tribunal

S.I. No. 224/1937 — Executive Powers (Remission of Sentences) Order, 1937.

Section 3: Every power of commuting or remitting any sentence or punishment pronounced or imposed by a Court exercising criminal jurisdiction (save and except any power to grant a free pardon and any power to commute a sentence of death) which by virtue of the Executive Powers (Consequential Provisions) Act, 1937 (No. 20 of 1937), was transferred to and vested in the Executive Council is hereby transferred from the Executive Council to the Minister for Justice as from the date of the passing of the Constitution (Amendment No. 27) Act, 1936 (No. 57 of 1936).

1937 Constitution

Article 13.6 The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may [,except in capital cases,] also be conferred by law on other authorities.

Constitution (Consequential Provisions) Act, 1937

Section 13 (1): Except in capital cases, the Government may, in their absolute discretion, at any time remit in whole or in part or modify (by way of mitigation only) or defer (conditionally or unconditionally) any punishment imposed by the Constitution (Special Powers) Tribunal.

Offences Against the State Act, 1939

Section 33:

(1) Except in capital cases, the Government may, at their absolute discretion, at any time remit in whole or in part or modify (by way of mitigation only) or defer any punishment imposed by a Special Criminal Court.

(2) Whenever the Government remits in whole or in part or defers a punishment imposed by a Special Criminal Court, the Government may attach to such remittal or deferment such conditions (if any) as they may think proper.

(3) Whenever the Government defers under the next preceding sub-section of this section the whole or any part of a sentence of imprisonment, the person on whom such sentence was imposed shall be bound to serve such deferred sentence, or part of a sentence, of imprisonment when the same comes into operation and may for that purpose be arrested without warrant.

Criminal Justice Act 1951

Section 23:

(1) Except in capital cases, the Government may commute or remit, in whole or in part, any punishment imposed by a Court exercising criminal jurisdiction, subject to such conditions as they may think proper.

[1990 amendment to remove "except in capital cases"]

(2) The Government may remit, in whole or in part, any forfeiture or disqualification imposed by a Court exercising criminal jurisdiction and restore or revive, in whole or in part, the subject of the forfeiture.

(3) The Government may delegate to the Minister for Justice any power conferred by this section and may revoke any such delegation.

[1997 amendment requires delegation/revocation to be by order]

(4) This section shall not affect any power conferred by law on other authorities.

(5) Where a disqualification for holding a driving licence under the Road Traffic Act, 1933 (No. 11 of 1933), is remitted, in whole or in part, under this section, notice of the remission shall be published as soon as may be in Iris Oifigiúil.

[section 5 added in Seanad -- see MacBride ref]

Road Traffic Act, 1961

Section 124: A disqualification under this Act for holding a driving licence shall not be capable of being remitted under section 23 of the Criminal Justice Act, 1951.

S.I. No. 331/1972 — European Communities (Enforcement of Community Judgments) Regulations, 1972

Reg.8: Section 23 of the Criminal Justice Act, 1951 (No. 2 of 1951), shall not apply to a Community judgment.

Criminal Justice Act, 1990

Section 5 (1): The power conferred by section 23 of the Criminal Justice Act, 1951 , to commute or remit a punishment shall not, in the case of a person serving a sentence passed on him on conviction of treason or of murder to which section 3 applies or an attempt to commit such a murder, be exercisable before the expiration of the minimum period specified by the court under section 4 less any reduction of that period under subsection (2) of this section.

Schedule 2: [Extent of Repeal] In subsection (1) of section 23, the words “Except in capital cases,”.

Criminal Justice Act 2006 amendment to Firearms Act 1925

Section 25A:

(1) The Minister may by order appoint a specified period during which a person may surrender at any Garda station or at any other place approved for the purpose by a superintendent of the Garda Síochána any of the following weapons:

(a) a firearm;

(b) a flick-knife;

(c) a weapon of offence.

(2) When surrendering a weapon during the specified period, the person—

(a) shall give his or her name, address and proof of identity to a member of the Garda Síochána at the Garda Síochána station or place concerned, and

(b) shall be informed by the member that the weapon and any thing in which it was surrendered may be forensically examined or tested.

(3) Proceedings for an offence shall not be instituted against any person who surrenders a weapon under this section if—

(a) in the case of a firearm, the offence consists only in the possession, carrying and use (other than in the commission of another offence) of the firearm without being the holder of a firearm certificate, in contravention of section 2 of this Act, or

(b) in the case of a flick-knife or other weapon of offence, the offence is an offence under section 9(4) or 10(1)(b) of the Firearms and Offensive Weapons Act 1990 .

(4) Any surrendered weapon or any substance or thing found on or in it or on or in any thing in which it was surrendered may be subjected to forensic examination or testing for the purpose of—

(a) determining whether any such weapon, substance or thing is in a safe and stable condition, or

(b) discovering information concerning an offence other than an offence referred to in subsection (3) of this section.

(5) In any proceedings, a surrendered weapon and any substance or thing referred to in subsection (4) of this section is admissible in evidence.

(6) A surrendered weapon may be disposed of in a manner deemed appropriate by the Commissioner.

(7) In this section—

“ firearm ” includes ammunition;

“ flick-knife ” has the meaning given to it in section 9(9) of the Firearms and Offensive Weapons Act 1990 ;

“ weapon of offence ” has the meaning given to it in section 10(2) of the said Act of 1990.”.

Criminal Justice (Miscellaneous Provisions) Act, 1997

Section 17: The Act of 1951 is hereby amended by—

(a) the deletion of subsection (3) of section 23, and

(b) the insertion of the following section:

“23A

(1) The Government, may by order, delegate to the Minister for Justice any power of the Government under section 23 of this Act.

(2) The Government may, by order, revoke an order under this section.”.

Criminal Justice Act, 1999 amendment to Misuse of Drugs Act, 1977

Section 3D: The power conferred by section 23 of the Criminal Justice Act, 1951, to commute or remit a punishment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised before the expiry of the minimum period specified by the court under subsection (3B) of this section less any reduction of that period under subsection (3E) of this section

S.I. No. 121/2007 — European Communities (Enforcement of Community Judgments, Orders and Decisions) Regulations 2007

Reg.8: Section 23 of the Criminal Justice Act 1951 (No.2 of 1951) shall not apply to or in relation to a person to the extent that any punishment imposed on the person relates to a Community judgment, order or decision which has been entered.

Criminal Justice Act 2007

Section 25 (13): The power conferred by section 23 of the Criminal Justice Act 1951 to commute or remit a punishment shall not, in the case of a person serving a sentence of imprisonment imposed in accordance with subsection (1) in respect of the subsequent offence, be exercised before the expiry of the minimum term of imprisonment specified by the court in accordance with that subsection less any reduction of that term arising under subsection (14). [this applies to serious crimes: murder, drug trafficking, etc.]

Effect

In general, acts which say "IF convicted AND NOT (annulled or pardoned)" seem to be earlier; was a simpler formula used later, or a general act covering all future acts?

Public Safety Act, 1927

Section 19 (4): Whenever a conviction which occasions by virtue of this section any forfeiture or disqualification is quashed or annulled or the convicted person is granted a free pardon such forfeiture or disqualification shall be annulled, in the case of a quashing or annulment, as from the date of the conviction and, in the case of a free pardon, as from the date of such pardon. [Forfeitures and disqualifications on certain convictions]

Juries Act, 1927

Section 4: Any person who has been or shall be convicted of treason or treason felony or of any felony or of perjury shall, unless he has or shall have obtained a free pardon therefor, be absolutely disqualified from serving as a juror. [repealed 1976]

Galway Harbour Act, 1935

Section 22:

(1) A person shall be disqualified from being a Commissioner if he— [...]

(e) is convicted either summarily or on indictment of any crime and sentenced without the option of a fine to imprisonment with hard labour or any greater punishment and has not received a free pardon; or

Constitution (Consequential Provisions) Act, 1937

Section 13 (2): Whenever a free pardon has been granted by the President to a person convicted by the Constitution (Special Powers) Tribunal, any forfeiture or disqualification occasioned by such conviction shall, as from the date of such pardon, be annulled.

Offences Against the State Act, 1939

Section 34(4): Whenever a conviction which occasions by virtue of this section any forfeiture or disqualification is quashed or annulled or the convicted person is granted a free pardon such forfeiture or disqualification shall be annulled, in the case of a quashing or annulment, as from the date of the conviction and, in the case of a free pardon, as from the date of such pardon. [Forfeitures and disqualifications on certain convictions by a Special Criminal Court.]

Harbours Act, 1946

Section 19(1): A person shall be disqualified for being appointed, elected or nominated or being a member of a harbour authority if— [...]

(e) he has, within five years before his appointment, election or nomination, or since his appointment, election or nomination, been convicted on indictment or summarily of any crime, and sentenced to imprisonment with hard labour without the option of a fine or to any greater punishment, and has not received a free pardon, or

Local Government (Superannuation) Act, 1948

Section 68(2): Where a conviction which results in the cancellation under this section of an allowance is quashed or annulled or the convicted person is granted a free pardon, the cancellation shall be annulled, in the case of a quashing or annulment, as from the date of the conviction and, in the case of a free pardon, as from the date of the pardon. [identical provision in 1956 Act; both repealed 1980, replaced by SIs with identical provision: Nos 391/1986, 316/1987, and finally 455/1998]

Extradition (European Union Conventions) Act, 2001 amendment to Extradition Act, 1965

Section 18A:

(1) Extradition shall not be granted where the person claimed has been granted a pardon under Article 13.6 of the Constitution in respect of an offence consisting of an act that constitutes in whole or in part the offence under the law of the requesting country in respect of which extradition is sought.

(2) Extradition shall not be granted where the person claimed has, in accordance with the law of the requesting country, become immune, by virtue of any amnesty or pardon, from prosecution or punishment for the offence concerned.

(3) Extradition shall not be granted where the person claimed has, by virtue of any Act of the Oireachtas, become immune from prosecution or punishment for any offence consisting of an act that constitutes in whole or in part the offence under the law of the requesting country in respect of which extradition is sought.

Road Traffic Act, 2002

Section 9 (6) : An order shall not be made under subsection (2) [...]

(b) if the person concerned would have benefited from a general pardon or amnesty if the conduct aforesaid has occurred in the State,

[Disqualification pursuant to European Convention on Driving Disqualifications.] Provision is in the convention, Article 6(1)c.

European Arrest Warrant Act 2003

Section 39:

(1) A person shall not be surrendered under this Act where he or she has been granted a pardon, under Article 13.6 of the Constitution, in respect of an offence consisting of an act or omission that constitutes in whole or in part the offence specified in the European arrest warrant issued in respect of him or her.

(2) A person shall not be surrendered under this Act where he or she has, in accordance with the law of the issuing state, become immune, by virtue of any amnesty or pardon, from prosecution or punishment in the issuing state for the offence specified in the European arrest warrant issued in respect of him or her.

(3) A person shall not be surrendered under this Act where he or she has, by virtue of any Act of the Oireachtas, become immune from prosecution or punishment for an offence consisting of an act or omission that constitutes in whole or in part the offence specified in the European arrest warrant issued in respect of him or her.

Procedure

Defence Forces (Temporary Provisions) Act, 1923

Section 96: In addition to a plea of “Not Guilty” an accused may enter any of the following special pleas in bar of trial:— [...]

(2) Pardon of the offence by the Minister.

Criminal Procedure Act, 1993

Section 7:

(1) If a person—

(a) who has been convicted of an offence,

(b) who after appeal against the conviction stands convicted of an offence, and

(c) who alleges that a new or newly-discovered fact shows that a miscarriage of justice has occurred in relation to the conviction,

petitions the Minister for Justice with a view to the Government advising the President to grant a pardon under Article 13.6 of the Constitution and no further proceedings are pending in relation to the appeal, the following provisions of this section shall apply.

(2) The Minister for Justice shall make or cause to be made such inquiries as he considers necessary and—

(a) if he is of opinion either—

(i) that the matters dealt with in the petition could appropriately be dealt with by way of an application to the Court pursuant to section 2 , or

(ii) that a case has not been made out that a miscarriage of justice has occurred and that no useful purpose would be served by further investigation,

shall inform the petitioner accordingly and take no further action, and

(b) in any other case, shall recommend to the Government either—

(i) that it should advise the President to grant a pardon in respect of the offence of which the applicant was convicted, or

(ii) that it should appoint a committee pursuant to section 8 to inquire into and report on the case.

(3) In subsection (1) (c) the reference to a new fact is to a fact known to the convicted person at the time of the trial or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a reasonable explanation for his failure to adduce evidence of that fact.

(4) The reference in subsection (1) (c) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings.

(5) References in subsections (1) and (2) to the Minister for Justice shall, in relation to a conviction by court-martial, be construed as references to the Minister for Defence.

(6) Nothing in this section shall affect any functions of the Minister for Justice in relation to a petition to him from a person other than a person mentioned in subsection (1) with a view to the Government advising the President to grant a pardon under Article 13.6 of the Constitution.

Section 8:

(1) The Government, for the purpose of enabling it to decide whether or not to advise the President to exercise the right of pardon conferred by Article 13.6 of the Constitution, may establish a committee to inquire into any or all of the matters dealt with in a petition for the grant of a pardon by the President and to report whether, in the opinion of the committee, the President should be so advised.

(2) The committee shall be a tribunal within the meaning of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979.

(3) Where a committee consists of more than one member, the Government shall designate one of the members to be its chairman.

(4) The person constituting the committee (or, where the committee consists of more than one member, its chairman) shall be either a judge or former judge or a practising barrister or solicitor of not less than ten years standing.

(5) A committee may receive such evidence and other information as it sees fit, whether or not that evidence or information is or would be admissible in a court of law.

A form for petitioning the minister is available from the Department of Justice.

The 1995 High Court Judgement on petitions states that the Minister’s power must be used sparingly and only for special reasons. Therefore, a petition will not normally be opened if:

(a) the petition does not disclose any grounds which might justify mitigation;

(b) the defendant ignored the court proceedings;

(c) the defendant has not, without good reason, attempted to exercise his/her right of appeal to a higher court (including failure to apply for an extension of time in which to lodge a notice of appeal or seek legal aid for appeal);

(d) the matter was the subject of a previous petition.

1993 s.7 procedure had never been exercised as of 2013.

Criminal Justice (Release of Prisoners) Act, 1998

Related to peace process; established Release of Prisoners Commission to advise minister in exercise of existing powers. Judicial review:

There are various statutory powers pursuant to which the Minister may consider releasing prisoners. These are the Offences against the State Act 1939 (section 33), the Criminal Justice Act 1951 (section 23) and the Prisoners (Temporary Release) Rules 1960 made pursuant to Section 2 of the Criminal Justice Act 1960. (SI 67 of 1960).

By reason of the first of the two aforementioned Acts powers have been conferred or delegated to the Minister to release prisoners and the third of those Acts relates to a regime of temporary release of prisoners for a specified period, with an obligation to return to prison at its termination, which is implemented by the Governor or person in charge of a prison subject to the directions of the Minister. The powers of release given or delegated to the Minister pursuant to these enactments confer on him a wide discretion as to how he shall exercise those powers.

Instances

By proclamation published the 3rd day of October, 1922, the Government announced and proclaimed as follows:

Every person who is engaged in such insurrection and rebellion against the State as aforesaid, or in such armed opposition to the National Forces as aforesaid, or who has been guilty of any offence against the State, directly arising out of such insurrection, rebellion and armed opposition as aforesaid, and who, on or before the 15th day of October, 1922, voluntarily delivers into the possession of the National Forces all firearms, arms, weapons, bombs, ammunition and explosives, and all public and private property now unlawfully in his possession, and quits all lands or buildings unlawfully occupied by him, and who, on or before the 15th day of October, 1922, voluntarily ceases to take any part in, or aid or abet such insurrection, rebellion or armed opposition, shall be permitted to return unmolested to his home; and to every such person we hereby offer, assure and proclaim a full amnesty and pardon for all such insurrection, riot, rebellion, and opposition and offences as aforesaid.

Interest Amnesty Scheme under which interest charges and penalties in respect of arrears of tax, PRSI, health contributions, employment and training levy and income levy which were due and payable on or before 31 December, 1987 are waived, provided that such arrears are paid on or before 30 September, 1988.

Waiver of Certain Tax, Interest and Penalties Act, 1993 Raised £200m under 15% amnesty and £61m under general amnesty.

Peter Pringle case "the mere fact of the appellant‟s conviction having been quashed as being unsafe and unsatisfactory, could not on its own entitle the appellant to a certificate that there has been a miscarriage of justice".

The period commencing on 1 September 2006 and ending on 31 October 2006 was an amnesty period during which firearms, flick-knives and weapons of offence may be surrendered to the Garda Síochana.

Criminal Justice (Location of Victims' Remains) Act, 1999; relating to Independent Commission for the Location of Victims' Remains.

Defence Forces (Second World War Amnesty and Immunity) Bill 2012. Alan Shatter introducing:

At its peak during the Second World War, the Defence Forces had approximately 42,000 serving personnel. Over the course of the war, it is estimated that over 7,000 members of the Defence Forces deserted, many to join with the Allied forces. Of these, some 2,500 personnel returned to their units or were apprehended and were tried by military tribunal. The remaining personnel, numbering some 5,000, were the subject of dismissal under the Emergency Powers (No. 362) Order 1945 and the Defence Forces (Temporary Provisions) Act 1946.

The Emergency Powers (No. 362) Order 1945, which was signed by the then Taoiseach on 8 August 1945, provided for automatic dismissal from the Defence Forces of certain deserters and absentees without leave. The order also provided for forfeiture of pay and allowances and a condition that every person to whom the order applied should be disqualified for seven years from holding any office or employment remunerated from the Central Fund. This was subsequently enacted by the Oireachtas in the Defence Forces (Temporary Provisions) Act 1946.

[...]

Senators will note that the Bill provides for an amnesty for those convicted of desertion or being absent without leave rather than a pardon, as was originally envisaged by Government. This change has been made for technical reasons and is in line with legal advice provided to me during the drafting process by the Attorney General to the effect that a pardon would require that each case be individually processed, a situation that clearly is not possible in practical terms today.

Convictions for Certain Sexual Offences (Apology and Exoneration) Bill 2016 introduced in the 25th Seanad by Labour Party in relation to those convicted of buggery or gross indecency for consensual sexual activity. In 2018, Leo Varadkar promised a cross-party motion "to recognise the wrongs that were done" but cautioned that "it is not necessarily possible in all cases to distinguish whether the offence involved a minor", which makes a blanket exoneration difficult to implement.

References

Sources

• Committee to Enquire Into Certain Aspects of Criminal Procedure; Martin, Frank (March 1990). Report. Dublin: Stationery Office. ISBN 9780707601007.
• Langwallner, David (2011). "Miscarriages of Justice in Ireland: A Survey of the Jurisprudence with Suggestions for the Future" (PDF). Irish Journal of Legal Studies. 2 (1): 22–39. Retrieved 6 December 2016.

For review

• Morgan, David Gwynn (1997). The separation of powers in the Irish constitution. Dublin: Round Hall Sweet and Maxwell. pp. 190–191. ISBN 978-1-899738-21-2.

Citations

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