Dáil Éireann - Volume 399 - 01 June, 1990
Criminal Justice (No. 2) Bill, 1990: Second Stage.
Minister for Justice (Mr. Burke) Raphael P. Burke
Minister for Justice (Mr. Burke): I  move: “That the Bill be now read a Second Time.”
The purpose of this Bill is to abolish the death penalty for those offences for which it remains a punishment. The Criminal Justice Act, 1964, abolished the death penalty for all but a very limited number of serious offences. These are treason, capital murder and certain offences by persons subject to military law under the Defence Acts, such as mutiny with violence.
Briefly, capital murder is defined in the 1964 Act as meaning the murder of a member of the Garda Síochána or the Prison Service acting in the course of his duty. It includes also murder done in the course or the furtherance of certain offences under the Offences against the State Act, 1939, or in the course or furtherance of the activities of an unlawful organisation, or the murder of a member of Government or diplomatic officer of a foreign State.
The last execution carried out in the State was in 1954. In the period since the enactment of the 1964 Act, 11 persons have been convicted of capital murder although, in the case of two of them, the convictions were quashed on appeal and convictions of “ordinary murder” substituted. In the case of the other nine persons who were sentenced to death for the murder of members of the Garda Síochána the sentence was commuted by the President to imprisonment for 40 years.
In effect, this debate is taking place against a background where the death penalty has, in practice, all but been abolished. It has remained on the Statute Book as the mandatory penalty for treason and capital murder since 1964 but has never since been carried out. It may well have had some deterrent effect as long as there was a belief that it might be carried out. However, I think at this remove from the passing of the 1964 Act we have reached the stage where nobody really believes that the death penalty is again likely to be carried out. Therefore, any deterrent effect it might have had is gone.
In any event, I do not believe that the death peanalty represents the unique  deterrent which some would argue. The overwhelming body of scientific evidence and studies available support my view on this. Indeed, in our own jurisdiction we have had the experience of abolishing the death penalty for what I might call “ordinary” murder in 1964 without any discernible effect on the murder rate. Furthermore, despite the retention of the death penalty for capital offences, the murder of gardaí in the execution of their duty has not been prevented.
Having said that, however, one has to take account of the rather unique security situation which has prevailed in this country for the last 20 years. We have, in addition to a growing number of armed criminals, armed subversive groups inimical to the very institutions of our State. In such circumstances my primary concern as Minister for Justice must be to ensure the maximum protection possible for those who have to defend our democratic institutions against such ruthless people. In the 1964 Act we retained the death penalty for a very limited number of crimes which we considered particularly heinous and dangerous to State security. In doing this we, as a society, signalled our particular concern and revulsion at such crimes.
I have to be concerned that a move now to abolish the death penalty for these crimes could give a wrong signal. It could be interpreted as a weakening of the Government's resolve to protect our gardaí and prison officers against those who would have no compunction in imposing a death penalty on them.
I think, however, that we can safely conclude that, after the experience of almost 40 years without the carrying out of a death sentence, formal abolition will have no adverse consequences provided — and this is important — it is replaced by the type of penalty which will signal the Government's continuing determination to protect our gardaí and our prison officers against those with murderous intent.
In finally abolishing the death penalty Ireland will be joining the vast bulk of western developed nations who have already done so. Within the European  Community of Twelve only one other member retains the death penalty on its Statute Book and I understand that in that case moves are afoot to abolish it. Both the Council of Europe and the United Nations organisation have adopted instruments calling for the complete abolition of capital punishment.
I am completely satisfied, as are the Government, that there is no longer a valid argument for retaining the death penalty. The time is now right to eliminate it from our Statute Book. In doing so, we will as a society signal our concern for the dignity and sanctity of human life and strengthen our standing internationally as a country concerned to promote human rights and civilised values.
Turning now to the details of the Bill, section 1 is a very clear and direct. It says simply that no person shall suffer death for any offence. The rest of the Bill is largely concerned with the alternative penalty which will be imposed on a person who commits treason or what is now termed “capital” murder.
Section 2 provides that such persons will be sentenced to imprisonment for life. This is the mandatory penalty which was provided for non-capital murder in place of the death penalty in the 1964 Act. Some will argue that that sentence should be sufficient. They will say that murder is murder and that the same penalty should apply irrespective of the status of the victim. In a sense that will be the case under the provisions of the Bill. Life imprisonment will be the mandatory penalty for all murders. It is the severest penalty that can be applied for any offence short of the death penalty. It is the penalty which will be applied under section 2 of the Bill to what are now capital offences.
However, the matter cannot simply be left at that. The fact is that sentences of life imprisonment rarely result in anything like a life term being served. In a great many cases a person on whom a life sentence is imposed is not required to serve more than, say, ten to 12 years. Indeed, with the recent establishment by me of the Sentence Review Group under the chairmanship of Dr. T.K. Whitaker,  formal provision is made for the review of all long-term sentences, except those imposed for capital offences, after seven years have been served.
A period of ten or 12 years imprisonment would simply not be enough to mark the particularly serious and heinous nature of the offences with which this Bill deals. Even more important than this, it would not be enough to offer protection to our gardaí and prison officers who, as we all well know, frequently have to put their lives on the line on society's behalf.
This is the essential difference between what I might term the murder of a civilian and the murder of a garda or prison officer in the execution of his duty. A civilian may become a murder victim for a myriad of different motives. He may be the victim of a crime motivated by passion, revenge, avarice, etc. all very reprehensible motives but the difference is, however, that the risk of any of us falling victim to such a crime is relatively remote. It is a matter of fate, a risk we all face more or less equally. The garda or the prison officer, on the other hand, is in a job where he is brought in frequent contact with criminal and violent people. It is their duty to protect the rest of us from such people. They cannot simply choose to avoid danger like perhaps we can.
Our gardaí and our prison officers deserve, therefore, the utmost protection we can give them. As we have a largely unarmed police force and an unarmed prison service, of both of which we are justifiably proud, we must rely heavily on deterrence to protect them. We must make it abundantly clear to any would-be killer that he will pay very dearly if he murders a garda or prison officer. This was the aim of the death penalty which we are now, with good reason, abolishing. We must be equally determined in applying the alternative penal measures available to us.
This is precisely what the Bill sets out to do. Section 4 provides that a person who is convicted of the murder of a garda or prison officer acting in the course of his duty or who is convicted of treason or  one of the other crimes referred to in section 3 shall be sentenced to life imprisonment with the added stipulation that he or she must serve a minimum term specified by the court which must be not less than 40 years. This may seem an unduly harsh sentence. It is indeed harsh and it gives me no joy to propose it. I would like to be able to say that a lesser sentence would be adequate but I cannot. My primary concern and my primary responsibility must be to provide the maximum protection for the lives of those who serve society and not for those who do it mischief.
We should remember that while this Bill will remove the threat of a death sentence for subversives and criminals it will not remove the threat of such “sentence” for gardaí and prison officers. They will continue to face that threat. Those who would murder in order to evade justice have scant regard for human life. All that is likely to deter such people is the sure and certain knowledge of severe punishment if caught.
Let me illustrate the matter by an example. Suppose an armed robber is confronted by an unarmed garda who is attempting to arrest him. If he allows himself to be arrested he faces a possible “ordinary” life sentence on conviction of armed robbery, which could leave him free again after say eight or ten years. If, on the other hand, he shoots the garda, there is the chance that he will escape capture and possibly evade detection altogether. Faced by such a choice, I would contend that one thing that is likely to induce him not to shoot is the realisation that if he murders the garda and is caught he will face a sentence very much greater than that which he would get for armed robbery.
Some may still argue that while they accept that a severe penalty is needed it should be less than 40 years, perhaps 20 or 30 years. They might argue that the court should be given discretion to impose a sentence within a given range depending on the nature and circumstances of each case. These may well be arguable positions. Perhaps the robber in the illustration I gave will be equally  deterred by the prospect of 20 years or 30 years imprisonment as he would be by 40 years. However, I am not prepared to take that risk. If I am to err in this matter I would prefer to err in favour of those who protect us rather than those who threaten us.
The fact is that since the passing of the 1964 Act the effective penalty for capital murder has been 40 years' imprisonment. I see no justification for changing this now simply because the death penalty is being formally abolished. It would not be safe, in my view and in the Government's view, to make any such change at this stage given, in particular, the security situation to which I earlier referred. Indeed, the very fact that we are proposing the abolition of the death penalty makes it all the more necessary that we make no other fundamental changes lest, as I said earlier, we give wrong and dangerous signals.
Section 3 also provides for a new offence of attempted murder of a garda, prison officer, etc. with a mandatory minimum sentence of 20 years' imprisonment for the commission of such an offence. This provision is in accordance with the thinking of the Garda Representative Association on this matter — it is a measure designed to enhance the statutory protection afforded to the persons concerned against murderous attack.
The Government are satisfied that this provision should be included in the Bill. An attempt to murder a garda or prison officer is morally every bit as culpable as murder itself. The aim of the perpetrator is murder. It may be purely fortuitous that he does not succeed.
Following on from sections 3 and 4, section 5 copperfastens the mandatory nature of the sentences by providing that the Government's and Minister's power to commute or remit sentences under section 23 of the Criminal Justice Act, 1951, will not apply to such sentences. Also it limits the Minister's power to grant temporary release under the Criminal Justice Act, 1960, to release for grave reasons of a humanitarian nature and  then only for such limited period as is justified.
This provision is necessary to make it abundantly clear that the penalties set out in section 4 will not be watered down. No subversive or other criminal should be under any illusion if they decide to murder a garda or prison officer or commit one of the other offences set out in section 3 of the Bill as to what their punishment will be.
As I said earlier I know that some will criticise the length of these sentences and the lack of a review clause. While I appreciate the genuine nature of their concern and while I wish that I could take a more lenient approach, I am afraid I cannot. I cannot do so because I would thereby leave our gardaí and prison officers open to increased dangers. This I will not do.
The Bill, however, will enable prisoners serving sentences for the offences in question to earn the normal remission for industry and good conduct applicable under prison rules to prisoners generally — this will be deductible from the period specified by the court. This remission should not be confused with the Government's and Minister's power to remit punishment which, as I have already explained, is being restricted. At the moment, remission for good conduct amounts to one-quarter of the sentence so that a person, in respect of whom the court had recommended 40 years, would be eligible to earn ten years remission bringing the minimum period that he would have to serve down to 30 years.
The remaining provisions of the Bill largely relate to technical or procedural matters which I think might be left to discussion on Committee Stage. There are, however, one or two other matters to which I would like to refer.
We are making it clear by virtue of section 3 (2) of the Bill that murder to which section 3 of the Bill refers — formerly known as “capital” murder — or attempt at such murder will be distinct offences from “ordinary” murder and attempt and that it will be necessary, in order to convict a person of such offences to prove mens rea, i.e. necessary guilty  mind, in respect of all the ingredients of the offence. In this respect we are following the judgment of the Supreme Court in the Murray case in 1976 — reported in the 1977 Irish Reports.
What this provision means is that a person charged with, for example, the murder of a member of the Garda Síochána acting in the course of his duty will not be convicted of the offence unless it is proved that he knew that the victim was a member of the Garda Síochána acting in the course of his duty or he was reckless as to whether the victim was or was not such a member. Paragraph (b) of section 3 (2) will, except to the extent that the Bill provides otherwise, ensure that the law and procedure generally relating to murder will apply to murder to which section 3 of the Bill applies. This will preserve, for example, all the usual defences to murder which the law allows and will also ensure that there will be a power of arrest without warrant for the offence.
Deputies will see that quite a substantial number of consequential amendments are proposed to the Defence Acts. Those Acts, which contain the code of military law, have quite a number of provisions dealing with the trial of offences against military law by courts martial and it is necessary to amend some of these to bring those Acts into line with the provisions of this Bill. This is because a person subject to military law who commits an offence against the ordinary criminal law of the State is thereby also guilty of an offence against military law. This rule has the result that the provisions of the Defence Acts relating to ordinary murder and purely military offences, and to penalties, are necessarily complicated: hence the detailed consequential provisions of the Bill.
The main thing to note is that the sentence of life imprisonment is being substituted for the death penalty for the purely military offences. I should point out that at present the death penalty is not a mandatory sentence for these offences. A court martial may award a lesser punishment. It is not necessary  therefore — indeed it would be totally inappropriate — to impose a mandatory minimum period of imprisonment in substitution for the death penalty in these cases. Where, however, a person subject to military law is tried by court martial for treason or murder to which section 3 of the Bill applies, such as murder of a member of the Garda — as he could when on active service — he will be liable to exactly the same penalties as he would be if tried by civil court and the same provisions relating to the restriction of the powers of commutation or remission of sentence as well as of parole will apply.
A Cheann Comhairle, on a personal note I would like to express to this House my pleasure in being the Minister for Justice who will strike the sanction of the death penalty from the Irish Statute Book. Throughout my career in this House, I have always hoped that I would be a participant in securing the abolition of this penalty from Irish law. I know many Members of this House join with me in welcoming this historic legislation which exchanges tools of dubious value for tools of true protection and defence against those who would threaten the lives of gardaí and prison officers.
I commend this Bill to the House.
Mr. Flanagan Mr. Flanagan
Mr. Flanagan: On behalf of the Fine Gael Party I would like to welcome this legislation and to congratulate the Minister for Justice for bringing forward this very important legislation from a human rights point of view. There has been a public debate on the matter over the past number of years. It is significant that we should at this time join with other member states of the European Community and add the name of the State of Ireland to the long list of those countries that have formally abolished the death penalty for serious crimes. There are now only two States in the EC that have the death penalty formally on the Statute Books, however, lacking in practice that penalty might be. It is a reformist measure in line with many of the conventions and international treaties to which we have been a signatory or a participant over the years.
 In 1964 capital punishment was abolished for all crimes with the exception of those listed in section 3 of the Bill. Since that time we have joined the European Community, we have taken our place in the Council of Europe and we have, on a number of occasions, ratified and participated in various conventions. In 1978 and 1980 the Conference of the European Ministers for Justice — Ireland being represented by the present Minister for Foreign Affairs — unanimously affirmed their support for the abolition of capital punishment. In April 1980 the Council of Europe recommended for all member states the abolition of the death penalty for all but war time offences. In November 1980, and on a number of occasions since then, the European Parliament requested member countries to suspend capital punishment. Since then a number of countries have formally moved towards the abolition of capital punishment. It is an honour for us to join that list in 1990. We can only look to the United Nations Declaration on Human Rights which states, and it puts the matter quite succinctly, that nobody shall be subjected to torture or to cruel inhuman or degrading treatment or punishment. It goes on to state that killing is the ultimate violence.
If one is serious about ratifying, signing and participating in these debates at international level, then it is hypocritical for us to attend these conferences and ratify these treaties and conventions while still having capital punishment on our Statute Book, albeit purely technical.
I am somewhat disappointed that the Minister did not introduce this Bill with an accompanying package of reform or at least with a signpost of the type of reform and measures that he hopes to bring forward in the course of his Ministry for Justice to deal with the ever increasing rate of serious crime. From looking at these statistics a certain amount of confusion arises as one can see a minor falloff in the number of crimes committed in the urban areas while there has been an increase in rural areas. There can be no doubt that there is a very significant increase in crime of a particularly serious  nature. I would have thought that, while proceeding to abolish the ultimate penalty on our Statute Book the Minister would have addressed himself to other reforms and a package that would combat the serious crime rate.
It has been stated that the death penalty is the ultimate deterrent, but it is the ultimate deterrent only if one is prepared to accept that we should have a level of crime in our society. There would be no need for deterrents, ultimate or otherwise, if the necessary resources were made available and the necessary preventive measures were taken to allay the very genuine fears on the part of the public as to the crime rate at the moment. I would have thought the Minister would have reaffirmed certain commitments made in the past by making available to the Garda Síochána every resource that body might need to combat crime. I would have thought we would have some indication as to when this House would discuss the Martin report. This would have been an ideal opportunity for the Minister to make a major statement on his function as Minister for Justice in the battle against crime.
The existing argument on the abolition of capital punishment must be considered in the context that in effect in this country capital punishment has been abolished by successive Governments over the past quarter of a century in that no Government were going to go down the road of effecting capital punishment for whatever crime. In the past 40 years each Government of the State have seen capital punishment for murder commuted to a sentence of 40 years' imprisonment. The present penalty is not capital punishment by hanging but 40 years' imprisonment. Really we are bringing the situation into line in our legislation. Anyway, if we are to accept that capital punishment is alive on our Statute Book, we do not have a hangman. It is significant that the only countries of the world that are now in possession, so to speak, of a hangman are South Africa and Malaysia, so it is fair to say that we  have in effect abolished capital punishment many years ago and the real issue is merely to give statutory effect to what already exists. The Minister's assurance that the penalty that will be prescribed is not and cannot be less than that which the law prescribes at present is very important and that is what we see in this legislation.
Killing should never be justified under any circumstances. If the State justifies a killing as lawful, how can terrorists be deterred or prevented from presenting their own misguided reasons to society for justifying their killings? The advocates of capital punishment — it is unfortunate that we still have a few of those — put their case from two planks, retribution and deterrence. The retribution argument has been whittled away down through the centuries. Unfortunately, retribution has been part and parcel of our criminal system as it has been in other criminal systems throughout the world, and there has been considerable focus on “an eye for an eye” and gaining revenge. This theory is totally unconcerned about the convicted party as a human being or with that person's need of treatment or rehabilitation. It makes no claim at all to being corrective and merely compensates for the damage society has suffered by inflicting a similar fate on the offender. It amounts to an appropriation by the State of the code of private revenge. The theory of retribution is now somewhat outdated. It has no legitimate place in the penal system of a civilised society. Contemporary policy rightly lays stress first and foremost on the prevention of crime by social and educational measures and then on the treatment of offenders by measures, the purpose of which is no longer revenge but rehabilitation, resettlement and reintegration.
Further, one has to look at the theory of retribution as far as Irish society is concerned, and we live in what can be described as a Christian society. Consider the references to Christianity within our Constitution, having regard to the right to life enshrined therein and the recent amendment that ensured the right to life  of the unborn. Surely if we amended our Constitution to protect the life of the unborn, judicial execution for motives of retribution must go against the grain of our tradition of seeking human treatment for everybody. That element of retribution or revenge or “an eye for an eye” has no place in the Irish society of the nineties.
The second argument put forward by those in favour of hanging is that it is the ultimate deterrent, that it will be offputting to such an extent that crime will not be committed if the penalty is one of ultimate sanction. There are a number of ways of looking at that. Let us consider for a moment the mind of the terrorist. It is fair to say that in many cases down through the years terrorism has thrived on publicity. On going back over our history and our fight for freedom, one can see the manner in which the death penalty was used by our freedom fighters to build the code of martyrdom, the concept of heroism. The ultimate deterrent of capital punishment was used to highlight the cause of the freedom fighter.
The question of the deterrent has been somewhat baffling in that no official statistics have ever been produced to prove the success of the deterrent factor. Experience in other countries has not borne out the claim that the existence of capital punishment on their Statute Books is a sufficient deterrent to keep crime rates at a lower level than would otherwise be the case. The Minister stated, rightly, that since we abolished capital punishment for, so to speak, ordinary murder in 1964 there has been no appreciable increase in the crime rate. Other European countries can say the same. Countries that have the death penalty on the Statute Books really do not have a crime rate lower than that in western societies who have proceeded to abolish the death penalty.
Let us compare our State to Turkey where killings take place almost daily and the punishment of statutory execution or termination of life does not act as a deterrent to crime in that society. I do not believe it would act as a deterrent in this society. People arguing in favour of  the death penalty have pointed to the deterrent factor but can say no more than that. The deterrent argument is no more than a statement. Without the evidence to back it up or to prove that there is a major deterrent in existence, that argument is unsustainable. A Council of Europe study of its member states some years ago showed that after the abolition of the death penalty in many of the member states there was no appreciable increase in homicides or other crimes for which the death penalty used to be imposed. Similar conclusions were reached in Canada. A prison survey was undertaken in Europe in the late fifties which again indicated that there was no correlation to any great extent between the murder of policemen and the existence of the death penalty. The argument in favour of the death penalty as a deterrent is unsustainable.
Another matter of fundamental importance is the possibility of error. This is a matter which has been in the news during the past 12 months more than ever before. Our judicial system is human and human justice is fallible. We must take that as the fundamental premise and the possibility of a mistake, however remote, must always be taken into consideration. Society must have the opportunity to make good any mistake that may have been made.
Let us consider the people who have been hanged in this country in this century. I am not saying that any one of those people met his end due to some mistake but I would point to the diaries of Mr. Pierpoint, our last active hangman, who has some salient points to make on the possibility of error. Two risks must always be borne in mind when a penal sentence is being imposed; a miscarriage of justice can never be made good and, secondly, the influence of public indignation and the element of irrationality where there is a public outcry following the charging of a person with a very serious crime which can give rise to a short sharp shock in order to allay the fears of the public.
An example of this type of reaction  occurred following an atrocity in Birmingham in the mid-seventies. One shudders to think what would have happened if capital punishment had been available as a punishment for that crime.
The last time the ultimate deterrent was used in this country was in 1954. Prior to that in my constituency in 1943 there was a case which attracted considerable publicity. I refer to it because one has to take into account the human element involved in capital punishment. In 1943 a small farmer from County Offaly was convicted of murdering his brother following a family dispute. On 5 February 1943 he was sentenced to hang and remanded in Mountjoy until 2 June 1943 when he was executed. The very fact that this person was lying for four months under sentence of death is an indication of the cruelty and torture that a sentence of capital punishment can impose. It was a time of far less communication than we have today but nevertheless a petition was signed by over 15,000 people and presented to the President, seeking to have the sentence commuted.
The evidence in the case was purely circumstantial and the body was never found. In the course of the trial, very significantly, evidence of a previous conviction was tendered to the court. The sitting judge, after considerable deliberation, refused to discharge the jury and ruled that the evidence of a previous conviction was admissible. It was therefore no surprise that the jury convicted and on 2 June, 1943 at 8 a.m. Bernard Kirwan was hanged.
Some few hours prior to that he happened to write a letter to my father who was, at that time, a young member of Laois County Council and I am sure the House will permit me to quote briefly from the letter. It is dated 2 June 1943 at Mountjoy Jail and states:
Just this hurried scrawl to bid you adieu and to say how grateful I am going into my grave for all you have done to save my life.
Seeing that this letter is not in my  usual old backhand style, you may think somebody else is writing it; no, I write this letter in haste.
I've just a few hours left now to write several letters and to get a little sleep.
From Heaven I shall watch your own career and tell me your sorrow and I shall be near you to hear.
God Bless You,
Bernard L. Kirwan.
The letter was posted at Baile Átha Cliath on 2 June 1943 and went into the post box some hours after that man hanged.
This is the result of having hanging on our Statute Book. The fact that we lawfully terminate the life of somebody in whatever circumstances is totally unacceptable. Mr. Kirwan believed in his innocence to the moment the noose was placed around his neck, but no consideration at all was given to the possibility that there may have been a miscarriage of justice or to any possibility of commuting the sentence. If a convicted person is given a rather lengthy prison sentence there is always an opportunity of resettlement, reintegration and rehabilitation. In this case, the man was taking a few hours sleep before being brought to his death. The human element is extremely important. The letter I have quoted must indicate that the argument in favour of removing the death penalty from our Statute Book is compelling.
Since 1964, the categories have been somewhat restricted. They are mentioned in section 3 and the Minister referred to them. If capital punishment is all that those in favour of it claim it to be, the great deterrent, the ultimate sanction and the measure that will keep society in line for the common good, why over the years have we not heard of a campaign towards broadening the arena? Why have we such a restricted category for which capital punishment is the sanction? If the argument in favour of capital punishment is as compelling as those who make it state it to be, why do we not have capital punishment for kidnapping,  serious armed robbery, drug smuggling or hijacking? I believe those in favour of capital punishment have not been able to sustain a case for its use. This can be underlined by the restrictive nature or narrowing of capital punishment in most civilised states.
The campaign for the abolition of the death penalty in Ireland would not have been as successful or accredited with such a broad level of support were it not for the very fine work undertaken by some of our human rights groups. I should like to pay a special tribute to Amnesty International and the Irish branch of that organisation who have been very much to the fore in campaigning for the abolition of the death penalty over the past 20 years and who have constantly highlighted its barbarity. This worldwide, independent body who have absolutely no vested interest in the removal of this sanction, from a political, ideological, economic or religious point of view, but who are interested solely in human rights and advocating fair play for all, can feel proud today that their long campaign has at last borne fruit and that we are now proceeding to remove the death penalty from our Statute Books.
Even if we do remove the death penalty from our Statute Book — I have no doubt that this Bill will receive all-party support — we will still need to address the central point, that is, the need to improve our remedies for the increasing crime rate. While the abolition of the death penalty is eminently laudable from a human rights point of view, we must address ourselves to the reality that we are living in a society with an ever-increasing crime rate, particularly crime of a vicious and reprehensible nature. Emphasis must be placed on preventative measures in the areas of social reform and education. It is not acceptable for capital punishment to be seen as an act of self-defence on the part of the State; it should be a means available to protect society from the criminal.
We have a system of criminal justice in place which, if the proper resources were made available, could act as a vehicle to rid society of serious crime.  We must continue at all times to give precedence to prosecution and conviction and embark on a public programme of crime prevention by way of education in our schools and the rehabilitation of offenders. Rather than take life, a court has the prison system always available as a last resort to remove a serious offender from society. It is timely to underline the need for a public debate and a debate in this House on our business. In this respect I would again refer to the Whitaker report of some years ago. It is extraordinary that we have not had an opportunity to discuss that very fine document in this House. I again urge the Minister for Justice to give due consideration to such a debate in the near future.
Fears have been expressed by the Garda bodies and the Prison Officers' Association that the abolition of the death penalty will play into the hands of criminals. That argument is unsustainable, but only if the necessary resources and back-up facilities are made available to those engaged in combating crime. The Minister has introduced this Bill not to indulge in an academic discussion on the pros and cons of capital punishment and the death penalty but because of our basic concern about human rights.
There can be no doubting the fact that Irish society as a whole has expressed serious concern about crime. The present level of violent crime in our society is intolerable. There are constant demands by the public for the authorities to do more to discharge effectively their primary duty of maintaining law and order within society. Against this background it is often difficult to sustain the movement of public opinion along a compassionate and humane course. Nevertheless the sanctity of human life must be preserved.
In the context of capital punishment, it is worth bearing in mind the degrees of severity with which society has dealt with the offender in the past. The death penalty in Ireland was commonly applied for murder, and more barbarous sanctions such as beheading, hanging followed by drawing and quartering, mutilation and  extreme forms of physical torture, have been applied from time to time. Indeed, the notorious sanction of transportation for life for stealing a sheep was commonplace in our history not too long ago. We have made great strides in the human rights field down through the years, and by removing the death penalty from our Statute Book we are embarking on a final chapter. Many of these ferocious sanctions have been abandoned not only in this country but in most societies as a move towards becoming far more civilised. The barbaric mentality has given way to a more civilised approach, signifying a deeper sense of humanity and compassion. This is reflected in the fact that the death sentence, although still a statutory penalty for capital murder in this country, has not been used for decades.
The right to life is the most fundamental of our human rights. Capital punishment in the form of the death penalty is not compatible with any serious concern for that human right. Accordingly, Fine Gael welcome this legislation. There may be a few minor details worthy of consideration on Committee Stage. The Minister stated that he was unprepared to allow the courts any form of discretion and that there would be a mandatory sentence of 40 years for capital murder. There can be no doubt that mandatory sentencing makes bad law and perhaps we can tease out this matter further on Committee Stage. The bottom line has got to be the protection of members of society from those who do not abide by the rules.
I will leave any further comments I have on that aspect until the Committee Stage debate. I thank the Minister for introducing this legislation which has been promised for a long time. This Bill underlines our approach to human rights and our reaffirmation that the right to life is the most fundamental right we have in society. Accordingly, Fine Gael will support the Bill on Second Stage.
Mr. O'Shea Mr. O'Shea
Mr. O'Shea: In many ways the introduction of this Bill is a milestone in our history. The campaign to abolish the  death penalty in Ireland has been growing for many years and the Bill we are discussing today marks the successful culmination of that campaign. Now at least Amnesty International can cross Ireland off the list of countries to which they need to issue regular reminders to Governments, legislators and the media.
The Labour Party welcome this Bill and will support it on every stage. I assume that with no more than the usual exceptions, the Bill will receive the support of almost every Member of the House. For that reason I do not believe it ought to be necessary for this Bill to take up the time of the House unduly and I will be brief in my remarks.
At their national conference in Limerick in 1976, the Labour Party unanimously adopted a resolution calling for the complete and immediate abolition of capital punishment on the grounds that it was a most violent response by society to those who commit violent crime, had neither a reformative nor a deterrent effect, and could not be justified on moral grounds. The first opportunity the Labour Party had of putting that resolution into effect was when Deputy Dick Spring, as junior Minister at the Department of Justice in 1981, drafted a Bill to abolish capital punishment. The Bill was not radically different in essence from the Bill we are debating today. To say the least, it is a pity it has taken so long for this legislation to see the light of day. It is perhaps worth reflecting that when the Labour Party were passing that resolution the Guildford Four were starting the second year of what was to become 15 years of unjustified incarceration. It has been said many times that the Guildford Four were fortunate that capital punishment had been abandoned in Britain some years prior to their conviction. If there had been capital punishment in Britain at the time of their conviction, the miscarriage of justice of which they were victims would have been impossible to rectify.
It was, of course, said in Ireland when the Guildford Four were released that our system of justice was incapable of  ever perpetrating a travesty of the kind they were subjected to. Nevertheless, as a direct result of pressure from the Labour Party, the committee chaired by Judge Frank Martin was established to recommend essential changes in our laws and procedures to ensure that nobody in Ireland would be convicted on the basis of uncorroborated confessions when there was no material evidence otherwise available. That committee has now reported and it has made a sufficient number of recommendations to justify our original contention that we could not afford to be complacent about the possibility of innocent people being wrongly convicted of serious crimes in this country.
The main opposition to this Bill comes from the Garda Síochána. Their view is perhaps well summed up in the views of Paddy O'Brien, the President of the Association of Garda Sergeants and Inspectors. In a recent speech he said:
Capital punishment has not been used since 1954, even though since 1970 11 members of the Garda Síochána have been murdered. I think it speaks wonders for the restraint of our members of the Force that although these 11 good men were brutally done to death there was no great outcry from their colleagues to have their killers executed, so that there can be no suggestion that we are merely out for the blood of those who seek to do us the ultimate harm. We seek only to retain the final penalty as a deterrent to be used only in the most extreme circumstances but nonetheless to remain as a protection to unarmed gardaí and prison officers.
Paddy O'Brien is an elected representative of the people we pay to protect our streets and our people from the ravages of crime, and his views must be listened to and treated with the utmost seriousness. The Garda Síochána and prison officers are, and always have been, a credit to this country and society owes a considerable debt to the men and women who place themselves at risk on our behalf every day both on the beat and manning our prisons.
 If I thought that the death penalty would protect the life of a single garda or prison officer or would inhibit dangerous criminals from carrying guns I would have a totally different view of this legislation. I am absolutely convinced, however, that the death penalty has no effective use as a deterrent. I am equally convinced that no member of the Garda Síochána wants to see capital punishment used as revenge. The members of the Garda Síochána with whom I am in regular contact are totally committed to the concepts of law and justice which underpin our society; and capital punishment has nothing to do with justice. Anyone who is committed to the notion of justice and who believes that capital punishment can somehow be fitted into that framework must ask themselves if they would be willing personally to carry out an execution in cold blood of one of their fellow citizens. Frankly, I do not believe that there is any Member of this House who would be willing to put a man or woman to death with their own hands. I believe it is an obscenity in that context for anyone in this House to suggest that we should keep a hangman on contract.
In regard to the details of the Bill, I would like to ask the Minister if he would spell out in some detail what the Bill means when it refers to “grave reasons of a humanitarian nature”. The Bill limits the power of the State to commute a sentence to 40 years except where such reasons exist. I am not objecting to this in principle but I believe it should be spelt out for us. I would also like to ask the Minister to explain the situation that applies to persons already convicted of capital murder and at present serving life sentences because the death penalty has already been commuted in their case. There are a number of such people in our prisons and it is not clear, from my reading of the legislation, how the Bill applies to them.
We should, as a mature society, seek justice and not vengeance, we should seek to punish, not take revenge. There are 80 young gardaí graduating from Templemore today and we in this House should make it absolutely clear to them  that we are not, by introducing this legislation, undermining their position. As this legislation is before the House we should take this opportunity to say to the gardaí, the prison officers and our Defence Forces that we support them totally.
The death penalty remains in only one of the 11 countries of the Community and has not been used here since 1954. It is no deterrent. Keeping it on our Statute Book has the effect of brutalising us all. We will be a better society for abolishing the death penalty. In conclusion, I and the Labour Party welcome this Bill as an overdue measure which reflects the maturity of our society.
Mr. McCartan Mr. McCartan
Mr. McCartan: I begin with a quotation:
The time has come to abolish the death penalty worldwide. The case for abolition becomes more compelling with each passing year. Everywhere experience shows that executions brutalise those involved in the process. Nowhere has it been shown that the death penalty has any special power to reduce crime or political violence. In country after country, it is used disproportionately against the poor or against racial or ethnic minorities. It is often used as a tool of political repression. It is imposed and inflicted arbitrarily. It is an irrevocable punishment, resulting inevitably in the execution of people innocent of any crime. It is a violation of fundamental human rights.
That, a Leas-Cheann Comhairle, is the opening paragraph of an excellent publication brought out by Amnesty International entitled “When the State Kills ... The death penalty v. human rights”. I do not believe any other statement on this matter is more succinct and to the point than this and the following few paragraphs which I also intend to read into the record of this House.
Over the past decade an average of at least one country a year has abolished the death penalty, affirming respect for human life and dignity. Yet  too many Governments still believe that they can solve urgent social and political problems by executing a few or even hundreds of their prisoners. Too many citizens in too many countries are still unaware that the death penalty offers society not further protection but further brutalization. Abolition is gaining ground, but not fast enough.
The death penalty, carried out in the name of a nation's entire population, involves everyone. Everyone should be aware of what the death penalty is, how it is used, how it effects them, how it violates fundamental rights.
The death penalty is the premeditated and cold-blooded killing of a human being by the state. The state can exercise no greater power over a person than that of deliberately depriving him or her of life. At the heart of the case for abolition, therefore, is the question of whether it has the right to do so.
The Workers' Party say that no State, in particular this State, has ever or ever should have the right to take life for whatever reason. By opening my contribution with the quotation from that book I am having regard to the campaign of Amnesty International in their unrelenting efforts to have the death penalty as a barbarous and inhuman act abolished worldwide. It is opportune to pay credit to the role of the Irish Council for Civil Liberties who campaigned since their inception against the continued use or presence of the death penalty. They campaigned for the removal of the death penalty from our Statute Book at a time when it was not popular to do so and they stayed with their argument down the years.
It is little or no credit to the House that at the close of the 20th century we are only taking this fundamental and important decision to remove the death penalty from our Statute Book. Credit must be given where it is deserved. Those who consider themselves to be constitutional crusaders, justico lawyers who have been  Government Ministers, indeed, Ministers for Justice, over the years and those who claim to have some concept of social crusade on their shoulders, were in Government and were unable to bring this legislation before the House. I would like to hear some explanation from other Members as to what was the ultimate act that resulted in the Government bringing forward the Bill because, clearly, it was only a recent one. It is worth noting that the Child Care Bill, published and circulated on 20 May 1988 by the Minister for Health, indicates that the Government at that time were not committed to the concept of abolishing the death penalty. Section 57 of that Bill proposed that the death penalty should be abolished for those aged 18 years or under. At that stage the Government had not decided to abolish the death penalty absolutely. I presume the Child Care Bill will be amended, if that has not been done, before it passes through both Houses because, thankfully, that section is redundant.
The Bill before us is only a beginning. It is incumbent on the Government to join the worldwide campaign of those enlightened Governments who challenge the Governments who retain the death penalty and use it. Bearing in mind our special relationship with America — and the US Government — when we pass the Bill, we should, take our role seriously in the international movement for the respect of human rights by bringing pressure to bear on them to abolish the death penalty. I single out America because there is a trend in some States to revert to the use of the death penalty. In the words of Amnesty, it has been proved that the black minority community there invariably are victims of that brutal and inhuman punishment.
The introduction of the Bill is only a beginning because the removal of that punishment from the Statute Book is part of a wider process. It is incumbent on the Government to address the conditions in our society that produce murders or heinous crimes of death visited not just on police, prison officers and Government Ministers but also on others. That view  was advanced in the House of Commons by no less a person than Edward Heath. He made the point very well when he said that the constant emphasis on capital punishment was preventing Britain from giving real attention and providing real resources to solve the problems of crime in a modern democracy. He said that Britain must recognise that if they are to tackle the penal problems of the country they must turn their attention to that, instead of automatically saying that the answer was hanging and flogging. His argument must be taken on board by the Minister. He was suggesting that we should turn our attention to the social problems that lead people into the dock to face the charge of murder resulting in them being punished by life denial.
The Workers' Party regret that it has taken the country so long to remove all elements of capital punishment from the Statute Book. While capital punishment for most offences was ended almost 30 years ago, and while it was not used in the number of cases where persons were sentenced to death for the murder of gardaí, it reflected no credit on Irish society that we were one of the few European countries to retain on our Statute Book the right to judically kill for certain offences. Of all human rights life itself surely is the most fundamental. Capital punishment is the ultimate denial of human rights, the ultimate in cruel and unusual punishment. The fact that a criminal may have taken another person's life in the course of crime, even the life of a garda or a prison officer, is not a justification for taking the offender's life in return.
As signatories to the United Nations Charter on fundamental rights we should recognise that we should never visit cruel or inhuman treatment on offenders. It is a proposition of international law that torture should be outlawed but is not death, and the visiting of death on a person, the ultimate torture? I cannot understand how a Government, or people who advocate the retention of the death penalty, can argue that we should be a leading country in respect of human rights and, at the same time suggest that  there is room for the taking of the life of another in our penal code. We oppose inhuman and degrading treatment, we oppose torture, we oppose the visiting of inhuman conditions on those we imprison. How then can we argue that we can nonetheless kill in the name of people? It is an inconsistent argument and I hope that in the course of the debate on the Bill, we will not hear a suggestion from any quarter that the death penalty should be retained for whatever offence.
It is a principle of international law that inhuman and degrading treatment should be banned and if we are to pay due regard to that international principle we must abolish the death penalty. The argument for its retention is still made. I do not single out the Garda Síochána unduly in this regard but they are, perhaps, the most organised voice and the people who make the most consistent demand for its retention. It was referred to by the new president of the Association of Garda Sergeants and Inspectors who, in his address to the annual conference in Killarney this year, made a very strong plea for the retention of the death penalty. We must examine more closely his reasons for advocating its retention. The Garda News, the journal of the association in its April issue gave a verbatim account of the new president's remarks at the conference. I quote:
It is important to remember that even though capital punishment remains officially in force there have been no executions since 1954 and I think that we have no great objection to that fact. Our feeling is that execution should remain available to society for those extremely rare cases where its use is entirely justified.
While we must obviously listen carefully and have due regard to the views of the Garda Síochána — who do an excellent job on our behalf — the view must be clearly stated to the president of the Association that this House, as the elected assembly of the people, disagrees that there is ever justification for the death penalty. The president went on to say that there was a number of instances  in the last decade where he thought the death penalty might have been used. Who makes the decision? At what stage do we decide who deserves to be murdered by us? It is an impossible decision and there is no half-way stage. The only proper and consistent way to address this issue is to abolish the death penalty and take it out of our penal code.
Mr. O'Brien suggested that it is a deterrent. The death penalty has not been carried out in this country for over 30 years. Can it be argued that any of the crimes might not have taken place if we had executed people over the last number of decades? I do not think that can be seriously argued.
It has also been suggested that our people are in favour of the retention of the death penalty. Mr. O'Brien referred to an Irish marketing survey in 1982. Surely the climate has changed since then? We have moved on and are much more enlightened now. In 1989 that great broadcaster, Gay Byrne, carried out a survey which showed that 57 per cent of people were in favour of the retention of the death penalty. I do not accept that anyone who seriously argues that we should retain the act of judicial murder should base it on the workings of a telepoll carried out by Gay Byrne or anybody else. We have no idea how many people took part in the poll and in many polls of this kind the questions are often loaded in favour of giving a certain result. If we make arguments for or against the death penalty they should be better constructed than carrying out a shabby telepoll on our national airwaves.
The Minister talked about the possibility of erring in the context of sentencing. He said that if he erred it would be in favour of a mandatory sentence. There is no room for error in the issue of judicial murder. Consequently, I do not believe we can ever envisage a situation in this country where someone might be put to death because if there was an error it could never be redressed.
Britain's official hangman for more than 25 years — and who performed a  similar role in this country — Albert Pierpoint, admitted in his autobiography:
I do not now believe that any one of the hundreds of executions I carried out has in any way acted as a deterrent against future murder. Capital punishment, in my view, achieved nothing except revenge.
I must also put on the record what happens to someone who is convicted and sentenced to death. They are told by the judge that they will be brought to a prison cell and kept there until an appointed day when their life will be taken from them. I understand that the practice under law is that three Sundays must elapse before the brutal act is carried out. In reality, months pass because inevitably appeals are taken. The prisoner is held in a triple cell in the constant company of the prison officer or officers who eat and sleep with that person throughout the time. It is very well described in the writings of Brendan Behan who watched a man wither in prison as he approached the eventual day of death. It was briefly recounted in an article written in one of the national newspapers last Sunday by another person who spent time in prison beside a person waiting to be executed. He described the terror, the withdrawal, the loss of weight and the hell which the person must go through. He also described the ultimate act.
Many people think that putting the noose around the neck is an act of suffocation by taking the breath away. It is not, it is an act designed to break the neck. The drop and the rope do not suffocate or choke, the ball breaks the neck, the brain ceases to function and the person is supposed to die. However, it does not always work. Many people survived the drop through the trapdoor and had to go through it again. It is horrible to read debates about trying to find a more humane way of doing it. Ingenious devices have been developed. In America in some States they strap the prisoner to the chair and a person behind a wall prepares a syringe with a lethal dose of poison. No one has to look at it being  administered. They devised the gas chamber and the electric chair and you can read a description in the journals about what happens. People's eyes pop out, they fry and have to be checked two and three times and given extra doses of electricity until, eventually, they expire. The point I am making is that there is no humane way of doing it. This point must be brought home to people because when they argue for or against it they do not give any thought to the brutal act itself and how it is carried out.
Albert Pierpoint carried out our executions since the foundation of the State because we could not find anyone with the guts or the attitude of mind in this country to kill on our behalf. It says a lot for us. If we cannot find anyone within our community to do it we should not retain it.
In the context of the argument put forward and in looking through some of the journals it is interesting to read the views of the Garda Síochána and of the Prison Officers' Association. I came across a remarkable article written by Sergeant Gerard Lovett of Kevin Street Garda Station which appeared in the February issue of Garda News. Yesterday Deputy Michael Higgins tabled a question to the Minister for Justice asking him whether he would take action to address a vicious article, apparently written by somebody in a national newspaper in England which was in circulation here. When I first saw the question I immediately thought it must be Sergeant Lovett's article — that Deputy Michael D. Higgins had read it — but it was not, it was an article about the late Cardinal Tomás Ó Fiaich. The Minister for Justice should read Sergeant Lovett's article and take whatever action is appropriate. It is a sad day — in the context of this debate — that the Garda News published that article or that Sergeant Lovett himself expressed the views that he did in that article under the caption: “The Death Penalty — Time to Abolish?”
An Leas-Cheann Comhairle Jim Tunney
An Leas-Cheann Comhairle: I think Deputy McCartan will know that, as far as possible he should refrain from making  any criticism of any person outside the House who is not here to defend his position. In equity and justice that is a fair approach which we should maintain.
Mr. McCartan Mr. McCartan
Mr. McCartan: I take the point, a Leas-Cheann Comhairle. To quote from that article it is said:
It's not as if there hasn't been a few deserving cases since then.
——referring to 1954 when we last executed somebody in this country. The article continues:
I can think of a minimum of four or five cases over the past 20 years or so.
——arguing or advancing occasions when people should have been executed. That takes me back to the question: how can anybody presume to decide who among us who has committed an offence or otherwise, should be put to death? I find that view remarkable. The article then says:
It strikes me as being a sort of national immaturity — like a fashion conscious teenager wanting to have the same clothes/hairstyle as his peers — no matter how daft he looks.
That is what is suggested of us as legislators, that we are immature, that we have no national sense of maturity because we want to abolish the death penalty.
The most objectionable remarks contained in that article — in arguing that we should retain the death penalty — are as follows:
We have to accept that in every society there lives a small percentage of human vermin, incurably evil and sadistic thugs for whom prison is not a deterrent. Justice demands that the ultimate deterrent must be kept at the ready to deal with them when they snuff out an innocent life in a cruel, calculating and premeditated manner. They are a cancer in our society and like a cancer feeding off the human body which must be removed, they too must be removed from the body  politic. The reality of the present situation is that no matter how heinous or cold-blooded the murder, they know quite well that if caught they will not suffer the death penalty regardless of what the law says on paper, and even I would prefer it to be totally abolished rather than continue with the present pretence.
It is Sergeant Lovett's view that there are in our society human vermin, incurably evil that I find most objectionable. There is then the suggestion in that article that, again, we can decide that there are people among us who cannot be reformed, who are sadistic, vermin, incurably evil, that we must put them to death; that is the argument being advanced. I hope this House will be absolutely unified in condemning that kind of attitude and opinion as being one that is simply not shared anywhere in this House, in fact that reflects a fascist view of life I had believed would not emanate from any quarter and, specifically, not from a member of the Garda Síochána.
The argument is advanced that the death penalty is a deterrent. There can be no statistical evidence produced, no model or example anywhere in the world to show that it has worked as a deterrent; it simply does not. It is suggested, furthermore, that it will prevent heinous crimes being committed whereas if anything facts indicate the opposite. Wherever the death penalty has been abolished — and let us remember that most of Europe has abolished the use of the death penalty — crimes have not increased, there has not been an upsurge in the numbers of police, diplomats or important people being murdered. Here the reality is — even if we did not pass this Bill — that probably never again would we put somebody to death for capital murder. We do not in fact use the death penalty and the fact that we do not has not led to any upsurge in the crime of murder of police or prison officers.
On the other hand, there is the problem that — were we to use the death penalty — we must bear in mind what it  would do for those involved in campaigns of murder at present. Despite all the appalling atrocities perpetrated in Northern Ireland over the past 20 years most people would recognise that the position could have been rendered even worse had the death penalty been retained and used there and indeed here in the Republic. Those engaged in terrorism in Northern Ireland would not be deterred by the death penalty. We have seen members of the Provisional IRA go out to almost certain death on virtual suicide missions. At the beginning of the last decade we saw ten of them starve themselves to death on hunger strikes. At the same time we observed the way in which the leadership of that despicible organisation were able to exploit those deaths, the emotions created by them, to stir up further death and destruction within the community. I have no doubt but that the leadership of the Provos would secretly welcome the execution of some of their members here in the Republic or in Northern Ireland because it would give them the martyrs to feed the emotions on which their campaign of hatred is dependent.
I would say to any Member of this House who might think that we should retain the death penalty — and use it; I would say also to members of the Garda Síochána and prison officers — think much more carefully about what they could be doing in terms of giving a cause célèbre to those harbingers of hatred, the Provisionals, by its retention or use, if ever it was to be used. Of the four or five cases to which Sergeant Lovett referred, he should realise that he would be creating four or five heroes for the cause of these people.
Apart from the moral unacceptability of capital punishment the greatest argument to be advanced against it is that the stakes cannot be repaired; it is irreversible. The case of Timothy Evans — the young man hanged in Britain in the fifties for murders committed by Christie — has been well documented. I am sure that the pardon granted posthumously was some comfort to his relatives but was not much good to the unfortunate  Timothy Evans. There have been many other cases of innocent people having been executed. In many cases doubts about the validity of the convictions did not emerge until long after the cases had been heard and sentence passed. It is not a sobering thought that, had the death penalty remained on the Statute Book in Britain, the Guilford Four and the Birmingham Six would very likely have been put to death; there is no doubt about that.
Certainly we must be the only European country where it has been possible, to date, for a citizen to be sentenced to death by a special court comprised entirely of Army officers with no legal training or background. This has been possible under existing legislation. For example, under the Offences Against the State Act, at any time, the Government can re-establish special courts such as those that operated as recently as the sixties. As long as capital punishment remains on our Statute Book such a court would have the right to impose the death penalty.
It is important to remember that those people who have been sentenced to death for the murder of gardaí in the past two decades have been dealt with by the non-jury Special Criminal Court, I understand, a factor which led to the reintroduction of the Special Criminal Court in the early seventies. It would be my hope that we would now be in a position to begin phasing out the use of this court and a return to jury trials for all. Whatever argument there may be for retention of the present Special Criminal Court — made up of eminent members of the Judiciary — there is no justification whatsoever for retaining on our Statute Book the power to establish special military courts or try citizens before them. That is a judicial process more appropriate to a South American dictatorship than a member of the European Community in the final decade of the 20th century. I hope the removal of the death penalty will be followed rapidly by the ending of the power of any Government to establish special military courts.
I hope also that once this legislation  has passed through the Oireachtas, the Government will exert all possible influence on all other countries to follow suit. While many countries have abolished the death penalty, far too many countries of all social systems — capitalist and socialist — retain it. The resurgence of the use of capital punishment in the United States is particularly appalling, and nothing symbolises the sick aspect of that society more than the spectacle of politicians running for re-election to office and boasting about the number of people they have sentenced to death. As I have said, the death penalty is barbaric.
An aspect of the Bill that I am not at all happy with is the mandatory sentence. I believe that the mandatory sentence of 40 years without remission is as barbaric as the penalty of death. It is far too severe. I believe the best formula for sentencing, for all murders, is to impose life imprisonment, and then it is a matter for those in charge of the penal system, and ultimately the Minister himself, to decide how long that sentence should be. The Minister argues that life imprisonment is not enough because at present it means a sentence of between eight and ten years' imprisonment. However, we must remember that life imprisonment means life and if it is not imprisonment it is life on licence. Every person who is released from life imprisonment is released on the ultimate sanction of the Minister for Justice of the day, who is advised and counselled by the review body that is sitting and in particular by all of those involved in the administration of the prison system, the governor, the staff, the welfare officers, the psychiatrists, the medics.
Everyone who attends upon the prisoner makes a report and ultimately recommends to the Minister whether the prisoner should be released from life imprisonment. That is the way the system operates. Some prisoners who have been sentenced to life imprisonment spend only a year in prison and have been released by the Minister for Justice because it was appropriate in the particular case. I do not believe that we should say that a person who murders in  the four instances that the Bill allows for, should mandatorily be put in prison and left there for 40 years. That is what we are being asked to do in this Bill. Indeed, somebody who attempts to commit one of those crimes will be imprisoned mandatorily for 20 years, without remission or without commutation except in cases where to use the phrase “grave humanitarian grounds” apply. I believe the principle is wrong.
The person who is ultimately released is released on licence so that if anything goes wrong and the person shows a propensity to drift back into crime or cannot cope with life outside prison, the Minister has the power to revoke the release and reimpose imprisonment.
That happens. For example, a prisoner who was sentenced to life imprisonment in the sixties is still in prison. He has been in and out of prison every odd year since 1972, because he cannot cope, or has got into further trouble and his licence is revoked. He is sent back to Mountjoy where he receives further rehabilitation. He is sedated and sorted out in his head and he is then let back out again. That is how life imprisonment works. That prisoner, like every other prisoner who is sentenced to life imprisonment, having completed their term inside, is released on the licence of the Minister for Justice of the day and can be sent back into prison at any stage. Is that not sufficient power? Why do we need a mandatory term of locking the person up so that there is no prospect of release?
If we go down that road we are concurring with what the garda sergeant said in the article, that they are vermin, incurably evil and must be locked up for 40 years and no longer. I believe that is not the correct approach. We should use imprisonment, if it is a deterrent — which I doubt — to rehabilitate the prisoner primarily and to address the wrong that the prisoner has done and seek to work to rehabilitate the person so that we help to address in the mind of that person the reason he or she committed the heinous crime of murder. Having arrived at the stage where the Minister and the prison  administration are convinced that it is now safe for the prisoner to be released, we should be in a position to do so. Otherwise we are denying them the possibility of rehabilitation and denying the possibility that people will and can commit crimes in error, unintentionally or by accident and are not in a position to present it as a satisfactory defence at the trial. Regardless of the circumstances in which the act occurred they are locked away mandatorily for a period of 40 years. I think that is savage and wrong in principle.
I ask the Minister to look again at the whole issue because we intend to pursue it on Committee Stage. There is a far more enlightened way of dealing with this issue. We are being extremely enlightened by abolishing the heinous penalty of judicial murder from our Statute Book. Surely we can be just as enlightened and ingenious in dealing with the issue of punishment in lieu of that sentence.
Thirty years after the great capital punishment debate swept Europe — a debate to which our own Brendan Behan contributed in his play, The Quare Fellow — we are finally acting to remove all vestiges of capital punishment in this country. Ireland will be a better and more civilised society when this Act is passed. The Workers' Party will support it but we have grave reservations about the penalties in lieu. We support this Bill because in the words of Amnesty International: “The death penalty is a symbol of terror and to that extent a confession of weakness. It is always a violation of the most fundamental human rights”.
Miss Quill Miss Quill
Miss Quill: The introduction of this Bill is a source of pride to me as a Member of this Dáil, but especially as Justice spokesperson for the Progressive Democrat Party. As a member of the Progressive Democrats I am very proud that this measure has been introduced to honour a commitment entered into last year in the Joint Programme for Government.
Since the foundation of the Progressive Democrats we have argued consistently against the retention of the death penalty  on the Statute Book. This has been a crucial plank in our wider programme of law reform. We have argued the case repeatedly and strongly and more particularly in our draft constitution of 1988 wherein we proposed that there should be a specific constitutional prohibition on the death penalty, thereby cutting off for all time the possibility of any future Dáil reintroducing the death penalty on the Statute Book.
It is particularly satisfying to our party that the Programme for Government, negotiated between ourselves and the Fianna Fáil Party last July, included a specific commitment on the abolition of the death penalty. The honouring of that commitment to this legislation which is before the House today is further evidence of the unique importance of that programme and the role it is playing in underpinning the policy approach of the present Government. For the seriousness with which the Minister for Justice, Deputy Ray Burke, has approached this matter and for the speed with which he has brought the legislation before the House today, I pay him due tribute. He deserves to be congratulated for proceeding as he has done and for having brought the legislation before the House within the first 12 months of the existence of this Government.
The fact that almost 40 years have passed since the death penalty has been used should not take from the importance of the issue that is being discussed here this morning. We are not dealing here with party views on what constitutes a punishment for a particular crime. We are not merely dealing with the issue of up-dating our criminal laws. What we are dealing with is the fundamental matter of human rights. Indeed we are talking about the most fundamental human right of all, the right to life, and, more specifically, about the attitude of this State to that matter.
In its laws a democratic State represents the collective views of its people on standards of public behaviour and also reflects the fundamental values and beliefs of its citizens. In this country thankfully the sanctity of human life is a  basic belief of the vast majority of our citizens. This has been repeatedly made clear in our condemnation of the violence that has beset this country in the last 20 years, but also in our enormous private generosity towards the suffering and the starvation of people in Third World countries and indeed in the position we have taken as a neutral country among other countries in Europe. Surely that view that is so widely held in the manner in which I have indicated must be reflected in our attitude to our domestic laws. We cannot condemn violence from any source on the one hand and condone it in our legislation. We cannot preach about respect for human rights while holding the right to life in contempt in any section of our Statute Book. The question has often been asked but never answered: how can a State stop killing by setting about killing killers itself? That is the essential question we have to face in the drawing up and implementation of this legislation.
In the past supporters of the death penalty have justified its retention on the Statute Book on the basis of two criteria: one being that in certain circumstances it is morally permissible for a State to use its authority to take life in dealing with the perpetrators of certain very serious crimes and secondly, that the threat of such punishment has acted as an effective deterrent to would-be serious criminals. On the evidence of history and in the light of contributions made by previous speakers this morning, it must be conclusively determined that the presence of the death penalty on our Statute Book has failed on both counts.
Fears about removing the penalty from our Statute Book have been expressed from a number of sources, particulary by representatives of the Garda Síochána and by the prison officers. Given the key role these two bodies play in our society, it would be foolish of us to ignore the fears expressed. Those fears can be, and already have been, well answered in the course of this debate here today. It is true indeed that an unarmed Garda force such as ours has stood bravely at the forefront  in protecting this country against increasing violence and crime in the last number of years. In particular they have been at the edge, fighting against the brutal terrorism and anarchy of the IRA and other terrorist groups that have hit this country so hard in the last 20 years. Only this week we have witnessed the contempt in which the IRA hold human life. Public opinion in this country and throughout the civilised world has been outraged by the atrocities committed in Holland this week when two happy holidaymakers were viciously gunned down by IRA thugs. The most contentious aspect of that horrific drama was the “grotesque regret” expressed by the IRA following the incident. It was a cynical regret at adverse media comment rather than at the loss of life. The horrible truth is that if the dead had been security personnel trying to protect the people of these islands, that regret would have been replaced by rejoicing.
It is in this context that our security forces have been called upon to operate daily. We as legislators have a duty to ensure that we reflect in our law the strongest possible measures to protect those who put their lives at risk daily. As has been already argued here today, the retention of the death penalty has done nothing to offer to our Garda the kind of protection they legitimately seek from us. There are other and better ways that must be explored and exploited fully, sooner rather than later.
What we are talking about here is the sanctity of human life and that is not conditional. If it is diminished for one, whether that person be a convicted criminal or otherwise, it is diminished for all. It is tragically clear that the existence of the death penalty as some form of ultimate sanction has failed to act as an effective deterrent. It has failed to do so in this country where capital murder has increased in recent years despite the retention of the death penalty on the Statute Book and it is failing to do so in other countries where it is still regularly used. Tragically, despite the retention of the death penalty, appalling crimes are  still being committed. For example, in the last 20 years 11 members of the Garda Síochána have been murdered in the course of carrying out their duties. That is an average of a little more than one murder every two years. The presence of the death penalty on our Statute Book has not prevented those murders. Nor did it prevent the brutal murders of Detective Frank Hand in Drumree, recruit Garda Sheehan in Ballinamore, County Leitrim, or Garda Sergeant Morrissey in County Louth.
More importantly, however, there is no hard evidence to suggest the theory that the penalty acts as a deterrent in any country outside our own. In 1953 a report by the United Kingdom Royal Commission on Capital Punishment, which examined statistics from States that abolished the death penalty, either actually or in effect concluded that there was no clear evidence that the abolition of the penalty led to an increase in the murder rate or that its reintroduction led to a decrease. In Canada figures published by Amnesty point out that the murder rate per thousand fell after abolition. In 1988 the United Nations Committee on Crime Prevention and Control reported that the evidence suggested that: “countries need not fear sudden and serious changes in the curve of crime if they reduce their reliance on the death penalty”. In fact many would argue that the legitimisation of the use of violence by the State only further brutalises society leading to greater violence. Even if it could be proven — and patently it cannot — that the penalty did act as a deterrent it would be unacceptable to all of us in this country because it violates the most fundamental of all human rights, the right to life. That is the essential argument that is being put forward by our party and by all the speakers who have spoken here this morning.
If the penalty does not fulfil the role of deterrent, what role does it fulfil? Is it the role of punishment, retribution or vengeance? Is it justifiable that we can take somebody's life to get our own back or to demonstrate our horror at some crime or to balance the books of guilt?  The death penalty is unique; it leaves nothing to chance; it permits no forgiveness; it allows for no change of heart, no recovery. It creates more widows, more orphans, more misery and more unanswered questions among young people. That is something that has been well illustrated in many of the contributions made here this morning. The horror of the death penalty is so absolutely awful, that for the most part we choose to close our eyes and ears because we cannot face up to it, but face up to it we must and I am glad we are doing that here today.
The aspect that has been addressed by a number of Deputies is the very real danger of mistaken conviction. An issue with which this country has become familiar in recent times, the abuse of any penalty, is something we cannot ignore when we are discussing this legislation.
I suppose there are tyrannies across the world and the basic assumption implicit in the death penalty is that the most basic right of all — the right to life — is expendable. I am happy to say that, by the legislation we are supporting here this morning we are dissociating ourselves from countries that hold that viewpoint, and that we are responding in an upright and speedy fashion to the many requests that have been made to us by Amnesty International. I would like to pay tribute to Amnesty for the persistent manner in which they have pursued this issue across boundaries throughout the years and to say that their inspiration has contributed to the introduction of this legislation.
Capital punishment is a barbaric penalty. While such legislation remains on our Statute Book and while it remains theoretically possible and legal to avail of its provisions, this country cannot claim to be one that is giving moral leadership to the world in these matters. Despite any reservations expressed by any other body it must be taken out of our Statute Book. It does not fulfil any obligation to point to the fact that it has not been invoked or used for the last 40 years. The fact that it is there and can be invoked at any time diminishes our moral stature among nations. I am glad to see that we  have asserted again our right, our moral stature among nations, by taking the first step to remove the death penalty finally from our Statute Book.
It would be wrong simply to abolish the death penalty and leave nothing in its place. This Bill with its stiff penalties and sentencing policy adequately fills any vacuum that would be seen to remain after this penalty is taken out of our Statute Book. Equally the severity of the proposed sentencing adequately testifies to the horror with which we, as a society, view capital murder and serious crime and to the enormous respect which we, as legislators, have for members of the Garda Síochána, and to our determination to afford to them the maximum protection at all times as they are repeatedly called upon to put their own lives at risk.
The essential point about today's legislation is quite simple. It is one single issue. It derives from the respect we hold for the right to life, the most fundamental of all rights. I am glad to see that so far this measure has got the full support of every Member of this House. It reflects well on our priorities as a Government that this legislation has been introduced in the first year of office. I would hope it is but one of a series of measures of law reform to be enacted during the course of this Government's lifetime. It is an essential first step, it sets a moral standing for us as a Dáil and it reflects well on all of us. I hope this measure will go through the Houses of the Oireachtas without any undue delay. I should like to say how particularly pleased the members of the Progressive Democrat Party are with the Minister for the speed with which he has brought this legislation before the House.
Mr. Durkan Mr. Durkan
Mr. Durkan: I welcome this Bill and compliment the Minister for its introduction. The last couple of speakers under-scored the need for this change in the legislation. I would not like that to be taken as an indication that I, or anybody in this House, would claim to be going soft on crime, and particularly the serious crime of murder. The first thing we should remember is that human life is  sacred and nobody has the right to take it either in cold blood or in the heat of the moment. I will say more about that later.
Like many other speakers, I should like to say that the present operation of the death penalty is not a deterrent, for the simple reason that criminals know quite well that it will not be enforced, that they will not pay the ultimate penalty for the crime they propose to commit if it is one of the crimes that have been outlined by the Minister. Over the past number of years there have been numerous cases where people have committed very heinous crimes and have received sentences in lieu of the death penalty. As Deputy McCartan has already pointed out, these sentences are subject to review after a certain period, and the Minister can, almost by licence, allow them out into the community again. That is true. In some cases the Minister and the Department have been slow to so respond, and probably for very good reason. Likewise, in a few cases I can remember from the top of my head, people were released who subsequently committed serious crimes. That is why, in the aftermath of this legislation, that review body which is being set up by the Minister will have to study very carefully the psychiatric and medical evidence and the opinions of prison authorities, probation officers or whatever other qualified people it is necessary to call on in those circumstances, to ensure society is protected thereafter.
We all recognise the Garda and prison officers are all concerned at the introduction of this legislation and I can understand why. They are the people in the front line who must protect all of us, Members of this House and the general public, from the worst excesses and atrocities of people who are prepared to take life in order to achieve an objective, political or otherwise. For that reason it is important that we indicate clearly in this House that this measure is in no way an attempt to take protection from the people who are paid to protect us, particularly as we live in a society that has  largely an unarmed police force. It is reasonable to understand the reticence with which the Garda, the prison officers and members of the Defence Forces can react to this progression in legislation, but let us look at the history of the legislation itself and what it has achieved.
The death penalty is on the Statute Book, but has not been used for several years, nor is it likely to be used, nor are we likely to have anybody who is willing to carry out the sentence. There is no reprieve from execution. Once executed the person cannot be brought back. There have been numerous instances, although not in recent years, of people innocent of the crime with which they were charged, being executed. Deputy McCartan referred to similar cases in the UK where the death sentence was carried out and it was subsequently found that the accused person was not guilty — certainly not guilty of that particular crime — but there was no redress at that stage. Human life once taken is over, it is finished, and our society then stands indicted by what I and, I am sure, most people would see as a very rash and very wrong decision.
Next we must consider with what we replace it. The Minister proposes, rightly, to replace it with a mandatory sentence. There are those who will argue about the morality of a mandatory sentence. I listened with interest to Deputy McCartan who is obviously very experienced and very successful in the legal profession and his view is that the mandatory sentence should not apply. I am not so sure. I think there is a need to impose some salutary, strict and strong deterrent which will be seen by both the criminal element and the rest of society as a stumbling block because if they decide, in the event of things going wrong, to take somebody's life they will have to pay a major price as a consequence. That is understandable and it is necessary first, to reassure the forces of law and order and, second, to reassure the public. If you talk to the general public, after any atrocity has been committed, you will find that as one, they condemn the perpetrators; generally they come down  hard and fast on the side of the forces of law and order. I know that is not 100 per cent true; there are those who equivocate and we have been always noted for our Irish solutions to Irish problems, and in that area we are no different. However if somebody was injured in the course of carrying out a crime and if you ask the opinion of the average man or woman on the street you will get your answer fairly quickly because the general public would see that as an attack against themselves. There, but for fortune, they could be and they could be paying the price for being in the wrong place at the wrong time just because some hooligan decided to take a gun or a bomb and terminate somebody's life to achieve what he — or she — set out to do on that day, whether it was to kill somebody or rob somebody and whether the killing was accidental in the course of the robbery is immaterial. Once people are armed and go into public places with intent to commit a felony the chances are ten to one that loss of life can follow.
There can be no softening of attitudes in relation to that and nobody should get the impression either inside or outside this House that this change in the legislation is meant to accommodate people who think this is not really very serious; crime is rampant at present, murder is now accepted, and so on. No exceptions can be made and nothing can make murder acceptable. We should place clearly on the record that we depend on the Garda, the force of law and order, to protect the institutions of the State and the public, and to ensure that the public can go freely about their business without fear of interruption. Any attempt to deviate from that course would lead to anarachy.
Over the years gardaí have given their lives in the course of their duty, and I think this occasion should not pass without recalling some of those instances. Let us ask ourselves at this stage just how often those instances are recalled. The last speaker drew attention to a couple of those cases. There were cases in Roscommon, Louth and Wexford of  gardaí, soemtimes in plain clothes, sometimes uniformed, losing their lives.
I want to deal with one aspect of security vis-à-vis this Bill. A question has been raised in the minds of some people as to whether the Garda have the moral right to use force or firearms against criminals. If persons are armed in a public place with a view to committing a felony, are the gardaí expected to ask them if they would please throw down their arms? If they are in the course of a bank robbery, breaking and entering or something like that, are the gardaí expected to plead with them to lay down their arms? When that procedure was followed in the past — sad to say this seems to be forgotten in recent times — the gardaí concerned in most cases paid with their lives. That should not be forgotten. When public discussion arose on this issue in the last few months I was sorry to see that a large number of politicians as well as the general public seemed to have forgotten that. They seemed to have forgotten Garda Morley and a number of other people to whom my colleague on the Government benches referred briefly.
We would do well to recall exactly what we expect the gardaí to do, when and how often we call upon them, and the redress they have when in the heat of the moment, they have to make snap decisions and do not have time to call a Press conference or to ask politicians how they would react and what they would do in that situation. It behoves us to remember those people when we step up to condemn the gardaí for acting harshly or rashly.
We should think about the occasions when the gardaí followed the other course, the textbook rules, and paid for it with their lives. There are countless cases to prove that. This should have been said several times in the past few years but has not been said. How often do we in public life refer to the sacrifices made by those gardaí and by their wives and families, the children who grow up without a parent? How often do we remember those sacrifices when we talk in placatory terms about the rights of the would-be criminal who is carrying arms  with a view to committing a felony and in protecting himself or herself will take somebody else's life in the process?
Once committed, the crime of murder has reached one stage. The act has been done. After that we have to ask what penalty society should impose. The 40-year mandatory sentence in specific cases contained in the Bill seems to be the best way to deal with the problem. Every potential criminal will know from the start that in the event of his or her taking the life of people in certain categories he or she is likely to pay by way of a 40-year mandatory sentence.
I listened with interest to the remarks by Deputy McCartan on this subject and I can understand that there will be difficulties in respect of various cases. The penalty may appear to be harsh in some cases. Those of us who are not members of the legal profession and members of the general public can point to numerous instances where there have been vast discrepancies in the sentences imposed by the courts for various crimes, some particularly heinous and violent. At least in this case the proposal is to lay it on the line and write it on to the Statute Book that in specific instances there will be a mandatory 40-year sentence. The prosecution or the defence may want to discuss this in the course of various cases. There may be circumstances which would raise some concerns.
It is not unknown to have a relatively stiff sentence imposed for what would appear to the general public to be a rather mundane offence, probably a serious crime against society, a robbery without violence or fraud. We have seen instances where people convicted of such crimes have been given very stiff sentences, sometimes concurrent and sometimes consecutive. There have been cases where people have taken life in cold blood and have admitted it, but they have seemingly been able to get through the system with a relatively light sentence. I am not reflecting on the courts, the judges, the prosecution or the defence but this is the end result.
 Whether we like it or not and regardless of the views of the legal profession, the Judiciary or any commentator, the general public have expressed considerable concern on numerous occasions and pointed out the discrepancies. This 40-year mandatory sentence in specific cases should at least have the effect of eliminating a certain amount of doubt and of the Russian roulette which has applied in certain criminal cases in recent years. The State and the courts must be fair but at the same time we have an equal duty to be fair to society. The job of the Houses of the Oireachtas is to ensure that society is protected.
I refer briefly to the system whereby life sentences can be reviewed after a number of years. We have seen and heard of cases where after a very short period reviews have taken place. Without going into the nuances of the defence put forward in some of these cases, there are two sides to be considered. We must consider how the offended party, the victim and his family, will react to the possibility of seeing the perpetrator of that crime getting off scot free, as they see it. That does not bode well for the confidence people are likely to have in the institutions of the State. The more times people can point the finger, the less confidence there must be in the institutions of the State. That is a serious matter. I am quite sure that everybody in this House and most people outside can readily recall many of the cases that come within the ambit I have outlined.
I would mention a particular case where a long sentence was served and a person was released on the recommendation of a Minister. He subsequently committed a series of serious crimes, culminating in a murder. If a proper procedure had been gone through and a proper evaluation of that prisoner had taken place, bearing in mind proper medical and psychiatric evidence, that person should not have been released into society. It is all very fine to say that the system broke down and that the person was released because of the possibility that after so long he has rehabilitated but if that person showed within a  short period that he or she had not been rehabilitated and had not changed, that shows a flaw in the system in the manner in which the person was observed and examined over a period of time, not the period immediately prior to release. I do not want to comment further on this point except to say that unless a review of the medical history of the person is available, particularly for psychiatric prisoners, such a concept could not be entertained. I have serious doubts about whether sufficient investigation has taken place in the past into a number of cases.
The one offence we are a little soft on when it comes to deciding the ultimate penalty is the political offence. I do not want to wander into the realm of another Bill except to say that this 40 year mandatory sentence will mean people attempting to carry out a crime under the guise of a political offence will first evaluate what their prospects will be if they are caught. If these criminals escape into another jurisdiction how will our proposals to bring them to justice be received? Will we be anxious to ensure that they are returned to this jurisdiction on the basis that they could have a 40 year life sentence hanging over their heads? I wonder what our reaction will be if they are not returned to this jurisdiction to serve a 40 year life sentence. I hope that we in our wisdom will see fit to look at cases coldly and realistically and not differentiate between one type of crime and another. If we do not do this the legislation will have no impact and all people will have to do is leave this jurisdiction and all we will be doing is removing one deterrent and replacing it with another whereby a convicted person can escape by moving to another jurisdiction.
Deputy McCartan referred to an article in the Garda Review. The person who wrote that article was probably giving his views, with which incidentally I do not agree. I can understand the reticence in some quarters of our law enforcement  agencies to the introduction of this legislation. This legislation will be better than the legislation which exists at present and will be proven to be better by virtue of the fact that it will be possible to effect an imposed sentence. That is important if this legislation is to act as a deterrent. If the legislation is not put into practice then those people who are into crime in a professional capacity, so to speak, will realise that they will never have to pay the ultimate price.
I compliment the Minister on introducing this humane Bill. We in this House should be glad to pass this Bill to ensure that our legislation is updated and is in keeping with the demands and requirements of the 20th century.
Dr. McDaid Dr. McDaid
Dr. McDaid: I congratulate the Minister on introducing this historic Bill. When this legislation is implemented it will place us once again among the civilised nations of the world. I am honoured to contribute to the debate on this Bill which will finally abolish the death penalty, a subject which was previously debated in this House in 1963 and 1981.
No subject has been so controversial over the years as the death penalty for capital offences. Those who seek to justify the death penalty have repeatedly urged that the punishment should fit the crime. As other Deputies have said, the main argument they have put forward is that it is the great deterrent. If this had proven to be the case and it could be shown that innocent lives had been spared accordingly, that argument would be understandable to some degree. However, there is no evidence whatsoever to show that it has acted as a deterrent anywhere. Many of the most hideous murders which have been committed have been in countries which have a particularly cruel form of execution.
I sympathise fully with those sections of the Garda Síochána and the Prison Officers' Association who believe that the retention of the death penalty would act as a protection for their members who  are the first line of defence against armed terrorists and other criminals. At the recent annual conference of the Prison Officers' Association the delegates were almost equally divided for and against the abolition of the death penalty. It was decided at the annual conference of Garda Sergeants and Inspectors to circulate letters to us pointing out why the Association believed it was an inappropriate time to abolish the death penalty.
As would be expected, this subject provoked an intense debate among the people whose work places them in daily contact with convicted criminals of every kind, including murderers. I particularly noted the remarks of one prison officer in regard to the section of the Bill which allows for a remission in certain cases. He said that in his experience he always found it easier to deal with the prisoner who had something to lose rather than with some one who felt he had nothing to lose. That something is freedom, and I agree entirely with that man's sentiments. By far the greatest deterrent to crime is the prospect of being deprived of liberty for the major part of one's life, a punishment which seems endless in comparison with execution which, however horrible at the time, is over and done with in a short time.
This Bill still gives some element of hope in that it allows for remission in certain circumstances. While this allows for the possibility of some form of rehabilitation the mandatory term of 40 years will act as a special protection for the Garda, prison officers, etc. I am convinced that the minds of armed criminals, as was illustrated in the example given by the Minister, will be wonderfully concentrated at the prospect of such a sentence when confronted by a garda or prison officer.
I am a member of a profession which is dedicated to the preservation of life and I would never be happy in a society which advocated the direct opposite. I  should like to remind the House that we are here to represent a society of which over 95 per cent proclaim to profess the Christian ethic “Thou shalt not kill”. This, in effect completely rules out the taking of life in any circumstances other than for strictly self-defence, although I wonder sometimes whether Christ himself would have included that qualification. For servants of the State to be employed otherwise — we must remember that they are acting on our behalf — would be to place us in the same category as killers, be they politically motivated or otherwise.
There appears to be admirable consensus in this country that the death penalty must be abolished but in doing so we have to address the question of an appropriate alternative. This subject probably demands a separate and detailed debate but there are one or two points I should like to make if we want to keep these people in prison. Some people suggest that we simply cannot afford to modernise the prison system to the extent that is patently necessary. I would claim that we cannot afford not to. The recent virtual destruction of Strangeways Prison in Britain pointed to the necessity to embark on the complete rebuilding of that institution. Experience has thought the relevant authorities that they must not again have a system which demands dehumanising and unhygienic practices such as slopping out, etc. We must aim for a prison system which confines offenders in a humanitarian manner and encourages and assists rehabilitation as far as possible. Of course, our prisons must not be designed as holiday resorts either.
Many criminals including murderers have, sooner or later, come to regret their actions bitterly and have completely changed their way of life. We must allow for and encourage this possibility but our prisons must also be designed in a way which prevents the minor offenders from being in direct contact with what could be described as hardened and habitual prisoners, including murderers, whose  callous attitude to life and society could easily rub off on others.
We are frequently told that despite the best efforts of the authorities large quantities of drugs are smuggled into our prisons on a regular basis. I have heard it said that it is easier to get drugs within prison than outside. I would be concerned about young people being introduced to drugs for the first time while serving a sentence for a relatively minor offence were they to be mixed up with these hardened criminals. It is obvious, therefore, that a modern prison should have facilities to completely segregate the various categories of offenders so that we do not have the institutions which help to spread serious crime instead of curbing and preventing it.
I believe that if the ultimate penalty were to be justified at all it should be the so-called drug barons who prosper from selling drugs to others, mainly youngsters, while being careful that they themselves and their families do not partake of them. If we are to have a segregation policy in our prisons these callous individuals could be confined where they belong, with the other murderers. Indeed my only regret about this Bill is that this crime is not included in the mandatory minimum term it contains.
I warmly welcome the Bill. We are taking a step which firmly places us among the civilised nations of the world. It is historic legislation and the Minister can be justifiably proud of bringing it to this House.
Mr. Callely Mr. Callely
Mr. Callely: I am happy to participate in the debate on this historic Bill. As we approach the 21st Century it is correct, from a human rights point of view, to abolish the death penalty from our Statute Book.
Having listened to the other speakers, I believe there is a consensus that the death penalty should be abolished and I have no doubt that this Bill will pass  through the Dáil and Seanad without difficulty. Public feeling in general is that this move is welcome.
In the last number of years many groups have campaigned for the removal of the death penalty from our Statute Book. In a recent statement the Irish Commission for Justice and Peace stated that a considered decision by the Government to abolish the death penalty would mean not the loss of a questionable deterrent but the affirmation of the fundamental value of human life and the clearest possible demonstration that our community says no to those who claim the right to take the life of others where ever and whenever they wish.
Most would endorse that statement. Throughout history, up to approximately the 18th century, capital punishment was the norm throughout the world for a variety of crimes. Since then countries have either removed the death penalty or made provision for an alternative life sentence on their Statute Books. This country is no different. Groups here have campaigned for the removal of the death penalty and there have been many debates and arguments in that regard.
Deputy McDaid referred to the debate in this House in 1963 and 1981. It is obvious that most people favour the abolition of the death penalty. When the Criminal Justice Act of 1964 was being debated in this House there was consensus on the issue and the Government of the day decided to make certain provisions which were enacted with the Bill. The death penalty was all but abolished with that Act. There was a number of provisions for executions in the case of very serious offences, and no execution has been carried out by this State since 1954.
The main argument in favour of retaining the death penalty is that it is a deterrent. There can be no doubt that a normal person would want to avoid the horrible and final result of the death penalty. There is, however, no evidence that the  death penalty really is a deterrent particularly when one bears in mind that since 1954 all of those convicted of murder and sentenced to execution had their sentences commuted.
One of the provisions of the 1964 Act defines capital murder as the murder of a member of the Garda Síochána or prison service acting in the course of his or her duty. The Garda Representative Authority have expressed their concern that this provision is being done away with because it may expose their members to greater risk of death. In May 1990 Michael McNamara stated in the Garda News that the Garda deserve and demand the full, unreserved support of the State and every Member of the Oireachtas to ensure the safety and wellbeing of unarmed guardians of the peace. I have no doubt but that the Garda Síochána have the support of every Member of the Oireachtas and of most members of the general public. I should like to put on record my admiration and support for the Garda Síochána. Their courage, dedication and approach in carrying out their duties to protect the citizens and institutions of the State are worthy of praise. I accept that the members of the Garda Síochána should be protected in every way, and the Minister referred to this in the course of his speech. It is important to point out that section 2 provides for life imprisonment and that section 3 provides a minimum period of sentence, 20 years in the case of attempted murder and 40 years for treason or murder. I have no doubt that those sections will be the subject of most of the debate in the coming weeks.
I would like to think that the Garda authorities, and Garda Michael McNamara, will respond to those sections and say if they meet their views. Previous speakers have referred to the countries that have abolished the death penalty and issues of human rights. I welcome the opportunity to participate in the debate and I am proud to be in the  House on this historic occasion. I should like to congratulate the Minister on bringing the Bill forward. He has shown great initiative and deserves our congratulations.
Mr. Roche Mr. Roche
Mr. Roche: Like the previous speaker, it is my belief that this is an important and historic occasion and we should all be proud to be Members on this occasion. In passing the Bill we will be making a declaration, to everybody about our civilisation. The death penalty is an uncivilised and indefensible anachronism. The Bill will bring to finality work which was commenced by the Taoiseach when he was Minister for Justice in 1963 in introducing the Criminal Justice Bill, 1963. At that time Deputy Haughey said he felt that the Bill which had been published some months previously, generally accorded with the views of the Irish people. There have not been many valid polls on this matter but it is my view that the same could be said today. Indeed, it would be as true today, probably more so, as it was in 1963. The Irish people are an inherently civilised race who are neither vindictive nor vengeful by their nature. I do not believe that the vast majority of people on this island would, were the question put to them individually, condone the putting to death of a man or woman by the State. Less so would the majority of people on this island condone the execution or murder by any person or any self-appointed group who considered that they have the right to determine who should live and who should die.
The debate on the Criminal Justice Bill, 1963, indicates that there was not then the unanimity that there is on the issue today. Fine Gael in 1963 could not reach internal consensus on the issue and they allowed their Members to take a free vote. Deputy Tully, who dealt with the matter for the Labour Party, moved in the same direction for that party when he indicated that his party had not yet had time to consider the Bill although it  had been published some four months previously. Vigorous opposition to the removal of the penalty in all but a few cases was mounted by Deputy Gerard Sweetman who saw capital punishment as a deterrent. I have no doubt that he was sincere about this. He saw it as a deterrent which was absolutely vital to the State. Deputy Cosgrave, from the same party, cautioned that the experience in Britain would suggest that the Bill could not be supported here. Deputy Dillon, another very distinguished member of that party, said:
I do not believe it is any unreasonable hardship to impose upon a person, who has been found guilty by a jury of the crime of murder, that he should endure the ordeal of coming under the threat of execution by the society to which he belongs and which, by his act, he has betrayed.
That speech was reported at column 110 of Volume 205 of the Official Report. The same Deputy advanced his argument at a somewhat methaphysical level when he suggested:
I believe human nature is predisposed to sin and without grace cannot control that predisposition.
Evidently, the noose in this case was the substitute for grace. What strange utterances and strange sentiments there were then and how strange they seem now. I have no doubt that the people who urged those views during that debate were sincere.
Mr. Flanagan Mr. Flanagan
Mr. Flanagan: Is this an attempt at political one-up-manship? It is typical of Deputy Roche.
Mr. Roche Mr. Roche
Mr. Roche: I am merely making the point that times have changed. Those sentiments were argued.
Mr. Flanagan Mr. Flanagan
Mr. Flanagan: On this historic occasion the only Member to introduce a  measure of politics was, as usual, Deputy Roche.
Mr. Roche Mr. Roche
Mr. Roche: With respect, the only Deputy to interrupt during the course of the debate was Deputy Flanagan.
Mr. Flanagan Mr. Flanagan
Mr. Flanagan: Deputy Roche was the only Deputy to invite interruptions and he succeeds in doing that on every occasion he comes into the Chamber.
Mr. Roche Mr. Roche
Mr. Roche: The Deputy should observe the request for good manners and permit me to make my point. It is tragic that Deputy Flanagan should feel so sensitive about this issue. The arguments I have referred to were put forward by very sincere Members. It was their view that it was absolutely vital that the death sentence be retained for its deterrent effect. I have no doubt that their views were sincerely held but they were wrong. The sentiments were out of date when they tripped off the lips of those Members.
I recall speaking to a member of the family of a person who was murdered while the death sentence existed here. A person was duly convicted for the murder and the family of the victim entreated the State not to carry out the sentence but their appeals were not heeded. The convicted person was duly hanged. The execution, far from giving any sense of solace or justice to the family of the victim, merely added to their despair. Not only does the death penalty not perform as a deterrent but it can also cause additional anxiety and grief when it is carried out, even on the families of those closest to the victim.
In the course of his speech last night the Minister dealt very effectively with the issue of the deterrent effect of the death sentence, the major issue in the debate in 1963. The case was argued that non-capital murder would increase if the sentence for such murders was not subject to the death penalty. Our experience since 1964 proves that this was not the  case. The abolition of the death sentence in those cases did not lead to a marked or discernible increase at the time in non-capital murders. As the Minister pointed out all too sadly, the existence of capital punishment has not prevented the murder of our gardaí going about their duties. The experience of removing the death penalty in one case did not lead to an increase in non-capital offences nor has the existence of the deterrent in the other case had the desired effect.
Today the Minister graphically illustrated the choice that will be open to an armed criminal faced by a member of the Garda. If the criminal shoots and wounds the garda under the Bill he faces the certainty of 20 years in prison. If he kills the garda he faces a certainty of 40 years in jail. At present if an armed criminal shoots the only real certainty is that, in effect, he will not hang. The Bill creates certainty where there was none previously. If the deterrent effect of capital punishment is questionable there can be no argument about its effect on the society in which it operates.
Deputy Callely referred to the Irish Commission for Justice and Peace. For a number of years, before I came into this House, it was my great honour and privilege to be their chairman. Over the last decade the commission have examined the death penalty and they have called on successive Governments to remove this obscenity from the Statute Book.
An earlier contributor spoke in graphic and disturbing detail about attempts to introduce what he referred to as humane forms of execution in other nations. They may range in terms of efficiency but, as the speaker said, they have one thing in common, their obscenity.
Mistakes arise in any judicial system. I remember some time ago when Deputy Andrews and I met Paddy Hill, one of the Birmingham Six. We spoke to him about spending 13 years in prison for an offence he had not committed. However, he said that things could be worse  because, if there had been capital punishment in 1974, they would not be there to complain. Indeed, Gerry Conlon made a very similar point when he came out of the Old Bailey last year. He said that he thanked God that the death sentence had not existed when they were convicted, otherwise the Secretary of State would have had to go to a graveyard to make his apology.
I should like to make a point about the symbolic effect of abolishing the death sentence which was not referred to by other contributors. By removing the death penalty from the Statute Book the legislators are saying that the State does not have the right to take a human life. Even when the due process of law is being observed we are binding the hands of the State. By binding the hands of the legitimate State — and the State institutions — we are saying something to the self-appointed persons and groups who, in our name, without asking us, from time to time commit murder.
The State does not have the right, even judicially, to murder an individual, nor does any other person. This Bill is long overdue and no harm would have been done if we had abolished the death sentence in its entirety in 1963. I am pleased that the Minister is now doing it. I note the Minister said at the end of the speech that throughout his career in this House he had hoped to be able to participate in securing the abolition of the death penalty. It is a great privilege to be in this House and to participate in the abolition of the death penalty.
Mr. Doyle Mr. Doyle
Mr. Doyle: Before the Minister replies I should like to say a few words. I am opposed to the death penalty and I could never understand the views of some churches in this regard. It always seemed like an eye for an eye and a tooth for a tooth.
As a young person during the late forties and early fifties I witnessed the death sentence being passed on people and it was a most horrifying experience. I never  believed that it was a deterrent. Mr. Pierpoint, who acted as executioner for the Crown — and in this country — stated that he had carried out 2,000 executions during his lifetime but that he did not believe the death penalty was a deterrent. I was delighted when it was removed from the Statute Book for ordinary murder and I am pleased that it is now being removed for capital murder.
Capital murder is a very serious offence but the death penalty has not been carried out since 1964. I accept the need for a mandatory sentence for all types of murder and it worries me that at present the crime of murder is reduced in most cases to one of manslaughter. Taking a human life is a very serious offence and should be treated as such by the courts. There should be substantial sentences.
Subversive organisations set up courts and pass the death sentence. This is frightening and the penalty for anyone engaged in such a court should be very severe. I would go as far as saying that people who commit crimes of that kind should be sent to prison for the rest of their natural lives, because that is the most severe sentence one can impose.
I very much welcome the measure before the House and I hope that the mandatory sentence of 40 years will act as a better deterrent than the death penalty.
Minister of State at the Department of Health (Mr. N. Treacy) Noel Treacy
Minister of State at the Department of Health (Mr. N. Treacy): In the absence of the Minister for Justice I should like to thank Deputies on all sides of the House for their contributions to the debate on this Bill. I assure the House that I will convey the views expressed to the Minister for Justice for further consideration between now and Committee Stage.
The Minister for Justice asked me to convey his regrets to the House for not being present for the entire debate. He is now attending the passing out parade of the first batch of the new Garda recruits to have undergone a two year  training course. They are the first to do this extended course.
Mr. Flanagan Mr. Flanagan
Mr. Flanagan: I thought the Minister was on 2FM.
Mr. N. Treacy Mr. N. Treacy
Mr. N. Treacy: He will be before the day is out. I am sure that all Members of the House join me in wishing these young men well in their future careers in the interests of security and the protection of our country.
This passing out parade is one manifestation of the crime fighting package to which our Government are wholeheartedly committed. We had, as expected, a very interesting debate and I should like to thank those who took the trouble to come into the House for it, especially those who made excellent contributions. It is no suprise that there has been a general welcome from the House for the proposals contained in this historic Bill.
There has been a total of 11 contributors to the debate and the fact that all parties in the House participated in a positive way is an expression of the depth of feeling and welcome that there is for the positive and progressive legislation we are debating. The pro rata involvement of Members from the various parties is an indication of the balanced view that exists within all parties on this very important and sensitive issue.
I should like in particular to refer to Deputy O'Shea's contribution. He was concerned about the meaning of the expression “grave reasons of a humanitarian nature” in section 5 (3) of the Bill. One reason would be that the Minister for Justice might temporarily release a prisoner but it will not apply to commutation or remission of sentence by the Minister. That power is specifically ruled out in the Bill for these crimes. An example of a grave reason of a humanitarian nature might be the funeral of a close relative of the prisoner but that is not to say that temporary release would  necessarily be granted in all such circumstances. That would be at the discretion of the Minister for Justice, on the recommendation of the officials in the prison service within his Department.
Deputy O'Shea also asked what would be the position of people at present in prison serving sentences of 40 years and in respect of whom death sentences have been commuted. There will be no change in their position: sentence will continue in force just as in the case of any sentence for any crime other than murder. I hope that clarifies the position.
The Child Care Bill, 1988 which concluded Committee Stage yesterday — in which I was very pleased to be involved since January last, since when there have been a total of 17 meetings, 65 sections debated and 202 amendments handled — meant that we concluded that Stage within target. A section of that Bill included the abolition of capital punishment for anybody under 18 years of age. This has now been superseded by the Bill before this House. Consequently, we will be in a position to synchronise the Child Care Bill and its provisions in line with those of the Criminal Justice (No. 2) Bill 1990 when the Child Care Bill is returned to the Dáil on Report Stage in the autumn session.
As the Minister for Justice said at the end of his introductory remarks, we are now nearing the end of the long history of capital punishment in this State. This gives me, and the Minister, total and unreserved satisfaction. I expect our satisfaction will be shared by all Members of this House and by the public at large.
The decline in capital punishment here and in Britain has been a gradual process and, until recently, a slow one. It is a remarkable fact that, early in the last century, writers were able to count some 200 capital offences which must seem barbarous to us nowadays. It is only fair to recall that 200 years ago there were hardly any penal establishments such as we now know. As a result, there was little  — short of capital punishment — that could be done to protect society from the worst criminals before transportation to the colonies became a possibility. We have made considerable progress since then. It has been said that, at that time, the prisons were mainly staging places on the way to the new world or, indeed, the next world.
As I have said, the decline in capital punishment has been a gradual one. With regard to the number of capital offences, in effect there have been two only retained — treason and murder — since about the middle of the last century. Twenty six years ago we made murder a non-capital offence except in the case of four particular kinds. Now we propose to take the final step of total abolition. In taking this step we are part of a growing international consensus against the imposition of death as a criminal sanction. As the Minister said in his introductory remarks, capital punishment has virtually disappeared from Western Europe. Both the Council of Europe and the United Nations have adopted instruments calling for its complete abolition. I am sure all Members of this House will be delighted that we are in a position to adhere to those instruments and requests.
We can now look forward to a Committee Stage debate when the points raised today can be discussed in greater detail. On behalf of the Government and the Minister for Justice I thank all 11 contributors for their warm and generous response to this Bill. The Minister looks forward to debating Committee Stage with Members shortly.
Question put and agreed to.
Acting Chairman (Mr. Jacob) Acting Chairman (Mr. Jacob)
Acting Chairman (Mr. Jacob): When is it proposed to take Committee Stage?
Mr. N. Treacy Mr. N. Treacy
Mr. N. Treacy: On Wednesday next, 6 June 1990, subject to agreement between the Whips.
 Committee Stage ordered for Wednesday, 6 June 1990.
Dáil Éireann 399 Criminal Justice (No. 2) Bill, 1990: Second Stage.