I move amendment No. 1:
In page 3, to delete lines 14 to 30, and substitute the following:
"1. —(1) Where in pursuance of Article 13.6, the President, on the advice of the Government, grants a pardon expressed to be a "free pardon", then unless a contrary intention is expressed in such pardon, the person to whom such pardon is granted shall be deemed thereafter never to have committed the offence in respect of which it was granted.
(2) The foregoing provisions of this section shall be without prejudice to the powers conferred on the President under Article 13.6 of the Constitution."
In this amendment the Progressive Democrats are attempting for the first time to enact into law the legal effect of a pardon, in particular a presidential pardon. During the Second and Committee Stages debates my party voiced vigorous opposition to the two routes which the Minister proposes to take to deal with alleged miscarriage of justice cases. Opposition to those routes is shared by Deputies from all sides of the House. In fact, it was difficult to find a Deputy on the Government side to support the routes the Minister has adopted.
We tried to tease out the reasons the Government opted for the dual route, referral of the case back to the Court of Criminal Appeal and the establishment by a Minister of a tribunal with inquisitorial powers as recommended by the Martin Commission leading to a presidential pardon. If one reads the Official Report of the debate on Committee Stage one will see that there was a lack of confidence on the part of the Minister of State at the Department of Justice. Deputy O'Dea, in the legal effect of a presidential pardon. We are moving this amendment in the hope that it will buttress the legal effect of the alternative route in sections 7 and 8 of the Bill.
To highlight the lack of confidence on the part of the Minister of State in a presidential pardon let me quote what he said on Committee Stage at column 829 of the Official Report of Wednesday, 10 November 1993:
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 is a good second best way of dealing with such a case. We should not include in legislation a second best solution for those who have been found by a tribunal to be the victims of a miscarriage of justice.
When I raised the matter of the legal effect of a pardon and asked the Minister of State if he thought a pardon cleared the conviction he replied at column 866: "My advice is that it does not". I then went on to raise the recent case of Nicky Kelly. Indeed, on the issue of a presidential pardon there are only three cases to be dealt with because there has not been a judicial decision as to the legal effect of a pardon. For that reason we need to clarify in this legislation what the ultimate remedy of a pardon will mean for the person who opts for this route. The Minister of State indicated he was of the opinion that the conviction in the Nicky Kelly case had not been set aside by the presidential pardon.
I would like to quote from the text of the presidential pardon granted to Nicky Kelly:
Now I, Mary Robinson, President of Ireland, do hereby, on the advice of the Government, pardon the said Edward Noel Kelly in respect of the said convictions and wholly remit the said punishments of twelve years' penal servitude to which the said Edward Noel Kelly was sentenced as aforesaid to the intent that he shall henceforth stand released and discharged from all penalties, forfeitures and disqualifications incident to or consequent on the said convictions as if he had not been so charged or convicted.
Given under my Official Seal this 29th day of April 1992.
Uachtarán na hÉireann.
In the exchanges between the Minister of State and me he indicated, as I said, that his advice from the Department of Justice was that the pardon did not clear the conviction. He went on to say at column 866 of the Official Report:
Whether Nicky Kelly is happy is not my problem. I am talking about the law. The Deputy asked me a legal question and the advice I have is that the conviction still stands and only a court of law can set aside a conviction.
On the question of presidential pardons in the United Kingdom the court decided in the case R.v. Foster that because the British law relating to pardons was founded on the royal prerogative of mercy a pardon did not reach the conviction. Needless to say they also refer cases back to the Court of Appeal. In the United States, Canada and New Zealand all the courts have held — this is laid down in statute — that a pardon reaches the conviction. Indeed, it removes the infamy and blots out the blame and guilt. When the Martin Commission examined the law relating to pardons in Ireland — there were two cases in the 1940s, the Quinn and Brady cases — it concluded that a presidential pardon removes infamy.
There is disagreement as to the legal effect of a pardon and because of this it is appropriate and timely to clarify the effect in this legislation. If we have to live with this dual system — referral of ordinary cases back to the Court of Criminal Appeal while in exceptional cases involving miscarrige of justice, similar to the Guildford Four and the Birmingham Six where there was conspiracy, lies, perjury and, perhaps, policy malpractice, the persons concerned may take the alternative route, the second best solution as described by the Minister of State — there has to be equality for those who opt for the alternative route. It would be unworthy to pass legislation under which the person who opts for the alternative route of a presidential pardon dealt with in sections 7 and 8 of the Bill would end up with a lesser remedy where the conviction would still stand.
We oppose the concept of a dual route because, if this House clarified the legal effect of a presidential pardon, there would be no need to refer a case back to the courts. For the first time in Irish law this amendment would clarify the legal effect of a pardon. I am interested in hearing the response of the Minister of State as it is important to get the legislation right. As I said, there was vocal and vigorous opposition on all sides of the House; Members were bewildered as to why the recommendations of the Martin Commission were not being followed. The reason is that the Minister of State believes that only a court can overturn or quash a conviction. That is the reason a second best solution is being offered in those cases involving a miscarriage of justice. If a person, by virtue of the circumstances of his case, has to opt for the alternative route of a pardon there must be a fair, generous and unequivocal remedy. What we would be saying to people like Nicky Kelly is that they are being pardoned but they are still guilty and we are giving them a certain amount in compensation. The infamy would not be removed and their guilt would not be blotted out. It is clear from the text of the presidential pardon granted to Nicky Kelly that the conviction was reached "as if he had not been so charged or convicted". In other words, it was as if he had never been arrested and no one had ever suspected him. However, this is not consistent with the views expressed by the Minister of State on Committee Stage. Therefore, the matter has to be clarified and the only way to remove the doubt is to clarify the legal effect of a pardon in this legislation.