THE GOVERNMENT IS to recommend two men for a posthumous presidential pardon more than 140 years after they were executed after being convicted of murder without direct evidence.

Sylvester Poff and James Barrett were convicted of the murder of Thomas Browne in October 1882. They were both executed in January 1883. 

However, an expert report found that there was no direct evidence against the two men and that the case rested on the circumstantial and contradictory evidence of one witness. 

Justice Minister Helen McEntee today said she had secured Government approval to recommend to President Michael D Higgins that he exercise his right to pardon on the grounds their convictions were unsafe. 

The Department of Justice said in a statement that the granting of a presidential pardon should be offered only in the most deserving of circumstances. 

“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,” McEntee said. 

“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,” the Justice Minister said. 

The case

In the 1880s, there was frequent agitation in Ireland for land reform, which often developed into agrarian violence, over landlords, evictions, rent strikes and boycotts. 

In May 1882, Lord Frederick Cavendish, the chief secretary, and his under secretary TH Burke were murdered in Dublin’s Phoenix Park. 

Their killings were the catalyst for the legislative response to the growing agrarian unrest. 

The Prevention of Crime (Ireland) Act 1882 (1882 Act) was a piece of coercive legislation passed in July 1882 in the aftermath of the Phoenix Park murders to clamp down on crimes such as “treason, murder, arson, attacks on dwelling-houses and crimes of aggravated violence”.

Co Kerry and the area around Castleisland in particular experienced a great deal of unrest and violence during this period.

On 3 October 1882, Thomas Browne was murdered while working in one of his fields in Dromulton, near Scartaglin in Co Kerry.

Two men in dark coats, seen from behind, shot him several times.

Sylvester Poff and James Barrett, who did not match the descriptions of the assailants, were known to be in the vicinity at the time.

The two men were arrested following a statement by a neighbour, that they had seen them enter the field where Browne was shot.

The prosecution case largely rested on the evidence of a neighbour, whose story changed as the case progressed and who could not be regarded as a reliable witness.

Poff and Barrett were tried twice before special juries in Cork for the murder of Browne after the jury in the first trial failed to reach agreement on a verdict.

The two men were convicted of the murder of Browne in December 1882 and, despite petitions for mercy to the Lord Lieutenant, they were hanged in Tralee Gaol in January 1883.

Expert review

Dr Niamh Howlin, an expert in 19th Century trial law and an associate professor in the Sutherland School of Law, UCD, was asked by the Department of Justice to undertake an independent external review of this case.

Her examination concluded that a number of factors, including in the investigation and procedures around the trial, led her to form the opinion that Poff’s and Barrett’s convictions were unsafe.

These factors included a “packed jury”, evidential deficiencies including conflicting witness testimony, no motive and that other lines of enquiry appear to have been neglected during the investigation and trial.

In addition, the report found that there was no direct evidence against Poff and Barrett, with the case resting on the circumstantial and contradictory evidence of one witness.

“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,” Dr Howlin said. 

“They were convicted on the basis of evidence which was both circumstantial and weak,” she said. 

“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.”