Execution of anti-Treaty IRA leaders by Free State was illegal, says leading judge

Justice Gerard Hogan says there was no basis in law for killings of Rory O’Connor, Liam Mellows, Joe McKelvey and Dick Barrett

The execution of republican leaders Rory O’Connor, Liam Mellows, Joe McKelvey and Dick Barrett 100 years ago had no basis in law and the only possible defence for the execution was that the Free State Government feared the state was in imminent danger, a Supreme Court judge has said.

Mr Justice Gerard Hogan said the decision to execute the four leading anti-Treaty IRA men on December 8th 1922, in response to the shooting dead of pro-Treaty TD Sean Hales a day earlier, was unprecedented as all four were shot without the benefit of a trial before a military tribunal.

“All four prisoners had been part of the Four Courts executive and had been held in Mountjoy Prison since surrendering on June 30th 1922. There was never any suggestion that these executions had any legal basis,” said Mr Justice Hogan.

“They had not been charged with any offences and there was no trial - military or otherwise. All that can possibly be said by way of defence was that it was an extreme measure taken by a government which believed that democracy and the State itself were in imminent danger.”


Speaking at a symposium in West Cork organised by the Dick Barrett Commemoration Committee in conjunction with the School of History at UCC to mark the centenary of Barrett’s death, Mr Justice Hogan said these executions differed from that of Erskine Childers, executed two weeks earlier.

Childers had been arrested by the National Army on November 10th 1922 in Wicklow and put on trial by a Military Tribunal for possession of a revolver, given to him by Michael Collins, in contravention of the Emergency Powers Resolution and sentenced to death on November 20th.

Childers lodged an appeal on the basis the prohibition on carrying arms could only have been imposed by an Act of Parliament and not by simple resolution but by the time that Childers’ appeal came to be heard, the Four Courts had been destroyed and courts were scattered around Dublin.

Mr Justice Hogan said the Master of the Rolls, Sir Charles O’Connor, ruled on the appeal by candlelight in a Kings Inn guarded by the National Army after four days of hearing and “his bristling sense of indignation as he rejected the application still rings through the decades 100 years later”.

In his judgement, O’Connor noted that he was now sitting in a temporary Court of Justice because the Four Courts was “a mass of crumbling ruins, the work of revolutionaries, who proclaim themselves soldiers of an Irish Republic”, said Mr Justice Hogan.

“If this is not a state of war, I don’t know what is,” said O’Connor, as he ruled that “the Provisional Government is now de jure as well as de facto the ruling authority bound to administer, to preserve the peace and to repress by force, if necessary, all persons who seek by violence to overthrow it.”

Mr Justice Hogan said that while Childers had disputed the legality of the military tribunals, O’Connor observed that “he comes to this court for protection but its answer must be that its jurisdiction is ousted by the state of war which he himself as helped to produce”.

Childers’s lawyer appealed to the Supreme Court, but before it was ever accepted by the court and listed as an appealable case, he was executed 100 years ago this coming Thursday, on November 24th 1922 by a firing squad at Beggars Bush Barracks.

The execution of Dick Barrett and his three fellow leading anti-Treaty IRA men early on the morning of December 8th 1922 was as quick as it was unprecedented, affording them little recourse to law, unlike Childers who sought an order from the High Court preventing his execution.

“All of this happened within hours. Richard Barrett’s poignant letter to his family (where he writes) ‘I should love to see you all, but this is impossible’ is dated at 2am on the morning of the 8th December and the executions took place shortly after 8am Mass in the prison,” said Mr Justice Hogan.

“Unlike the Childers case - when there was at least a military trial and when no action had been taken pending an application to the High Court - there appears to have been no suggestion that Barrett and his fellow prisoners could or should have applied to the courts for a similar order.

“Perhaps they were so shocked having been woken from their cells in the middle of the night that this did not occur to them or that in the wake of the Childers case that they lacked confidence in the legal system,” he added.

Mr Justice Hogan said that “while aspects of the Free State response during the Civil War were undeniably harsh – even cruel – and verged into wholesale departure from legality”, it was the anti-Treaty IRA who had committed “the original sin” in refusing to recognise the authority of the Dail.

When the anti-Treaty IRA set up a Republican Executive in April 1922, it was effectively an army mutiny against a popularly elected government, similar to what happened over 20 years later when General Franco led an army revolt against the Popular Front government in Spain, he said.

He said there was “a strange silence on April 14th 2022 even though this was the 100th anniversary of another army mutiny …. when elements of the IRA led by Major General Rory O’Connor revolted against the Provisional Government by taking over the Four Courts and other public buildings”.

“By these actions the Anti-Treaty side openly repudiated the authority of Dáil Éireann, a body to which each of them had previously sworn allegiance,” he said. “I cannot help thinking the fundamentally anti-democratic character of the revolt by the Anti-Treaty side is insufficiently emphasised - even today - by those who comment on the Civil War. It was in essence an attempt at an army coup d’état.”

Barry Roche

Barry Roche

Barry Roche is Southern Correspondent of The Irish Times