Two men who were executed by hanging more than 140 years ago after being convicted of murder could soon receive a posthumous presidential pardon following Government approval.
In December 1882, Sylvester Poff and James Barrett were convicted of murdering Thomas Browne in Co Kerry, and were executed in Tralee Gaol in January 1883.
However, an external review of the case has led to the Government recommending to President Michael D Higgins that he exercise his right to pardon.
This is allowed in Article 13.6 of the Constitution because the convictions were unsafe.
Minister for Justice Helen McEntee described the decision as "a rare occurrence".
The case
On 3 October 1882, Mr Browne was murdered while he was working in one of his fields in Dromulton, near Scartaglin.
Two men dressed in dark coats were seen by a neighbour entering the field before Mr Browne was shot several times.
Mr Poff and Mr Barrett did not match the descriptions of the assailants, however they were known to be in the vicinity at the time of the murder and were arrested following a statement by the neighbour.
The prosecution relied heavily on evidence from the neighbour, whose story changed as the case progressed and could not be regarded as a reliable witness.
Mr Poff and Mr Barrett were tried twice before special juries in Co Cork over the murder after the jury in the first trial failed to reach a verdict.
They were convicted of murder following a second trial and despite pleas for mercy to the lord lieutenant, they were executed.
Tensions were high at the time of Mr Browne's death following the Phoenix Park murders of Lord Frederick Cavendish and Thomas Henry Burke on 6 May 1882.
Coercive legislation was passed in July 1882 to clamp down on crimes such as murder, treason, arson, attacks on dwelling-houses and crimes of aggravated violence.
Independent review
Dr Niamh Howlin, an expert in 19th century trial law and an associate professor at the Sutherland School of Law in UCD, was asked by the Department of Justice to undertake an independent external review of the case.
She found that a number of factors in the investigation and procedures around the trial led her to form the opinion that Mr Poff's and Mr Barrett's convictions were unsafe.
Some of these factors were evidential deficiencies, including conflicting witness testimony, no motive, other lines of enquiry appearing to have been neglected as well as a a 'packed’ jury - a jury which is brought together unfairly or corruptly.
Dr Howlin’s report also found that there was no direct evidence against Mr Poff and Mr Barrett, with the prosecution resting on circumstantial and contradictory evidence of one witness.
She said: "A 21st century criminal court would not convict Poff and Barrett on the basis of the evidence which was presented by the crown in 1882.
"The convictions were also inconsistent with the legal standards of the period.
"They were convicted on the basis of evidence which was both circumstantial and weak.
"The trials and conviction of Poff and Barrett included legal and procedural deficiencies which were so inconsistent with the legal standards of the period and so objectively unsatisfactory and unfair, that they render the conviction unsafe."
Dr Howlin said: "What I was asked to do was to see if there was anything in the way their trials had been conducted that made their convictions unsafe. What I found was that their convictions largely rested on evidence that was weak and circumstantial. The main witness in the case was an eyewitness who changed her story as the case progressed," she explains.
She said it was unclear what this woman's motives were. She said this and a few other issues led her to find that the trials were inconsistent with the standards of fairness in the 19th century.
"There was a presumption of innocence in the late 19th century but these cases didn't meet that standard."
She said it was hard to tell at this point in time if there were many other such unsafe convictions from that time period. "We're looking back 140 years. Undoubtedly there were other cases where the standards weren't met but it is quite difficult to be definitive about how many there may have been."
She said she believes the families of the men are now in touch with the Castleisland Heritage Centre, which she said had done excellent work in terms of bringing these cases forward.
'Very rare occurrence' - McEntee
Ms McEntee and her Government colleagues decided to recommend to President Higgins that he exercises his right to pardon on the grounds that the convictions were unsafe.
The Department of Justice said the a granting of a presidential pardon should be offered only in the most deserving of circumstances.
Ms McEntee said: "This is a very rare occurrence, and a very high bar must be reached for the Government to recommend to the President that he exercise this right.
"Having considered the findings in Dr Howlin’s report, the trial, conviction and execution of Mr Poff and Mr Barrett were unfair by the standards of the time.
"Both men were wrongfully convicted and suffered the harshest penalty under the law of the time in what can now be attributed to a miscarriage of justice."
Additional reporting: Mícheál Lehane, Eleanor Burnhill
