Seanad Éireann - Volume 96 - 29 October, 1981
Criminal Justice Bill, 1981: Second Stage (Resumed).
Question again proposed: “That the Bill be now read a Second Time.”
Professor Hillery Professor Hillery
Professor Hillery: The principle of capital punishment is repugnant to most people, including myself. Compelling arguments can be made for either the retention or abolition of the death penalty in certain circumstances. I share the view that at this point in time it would be entirely inappropriate to abolish capital punishment for the murder of gardaí and prison officers in the course of their duty.
I accept the desirability of abolishing capital punishment, but only when the present levels of organised crime and subversive activity have been greatly reduced. It is true that capital punishment has been or is being removed from the Statute Books of most west European countries. The Minister in his opening address pointed out that France recently enacted legislation abolishing the death penalty. As we are all aware, the position in Ireland is that capital punishment has not been carried out since 1954. Could I, in turn, point out to the Minister that we are not now discussing the abolition of current practice, as was the case in France up to recently, but rather the question of removing from the Statute Book the most emphatic denunciation of the community at large of those who would murder gardaí and prison officers. It is a matter for the deepest regret that several unarmed gardaí have been murdered in the course of their duty over the past decade. It may prove relatively easy to  remove capital punishment from the Statute Book, but, even in the event of a further major deterioration in the levels of crime and subversive activity, it may prove very difficult to reverse the situation and to re-enact what it is now proposed to abolish.
Violent robbery and kidnapping are facts of life in Ireland today. Governments have a continuing obligation to tackle and to intensify their efforts against crime and lawlessness. Who can say that organised crime and subversive activity will not increase to a point where capital punishment will be needed to defend the community? If this Bill is passed by the Oireachtas, the option to exercise the most severe penalty which the community has at its disposal in its own defence will be gone. It is true that if we retain the death penalty we will be out of line with most west European democracies. It is also true that we have particular problems in Ireland, especially in relation to the North.
I now wish to refer briefly to the Garda Síochána, that splendid unarmed force of men and women. Indeed it seems to me that one of the most valuable features of our democracy is the fact that the police force are unarmed, and long may it remain so. Capital punishment constitutes the additional protection under law for our unarmed police force. There is the obvious danger that the abolition of capital punishment may lead to the eventual arming of the Garda. That would be a step backwards and a severe blow to our democratic practices. In effect it would give the police the right to execute people in the course of their duty. I believe this is a course which neither the police nor the community wish to see develop.
For my own part I have not detected a public demand for the abolition of capital punishment. With organised crime and subversive activity on the increase, there is no convincing case at this time for the Oireachtas to abolish the death penalty, especially since the record shows that it would be used only in the most exceptional circumstances.
Dr. Whitaker Dr. Whitaker
 Dr. Whitaker: It is a measure of the difficulty of the central issue of this Bill that even members of the Government, apparently, should be divided about it and that the major party in Government, should be under pressure to allow their members not to vote for it if this would violate their conscience or their good judgment. As an Independent Senator, I am entirely free to take either a positive or a negative attitude. I approach the consideration of this measure with a very strong commitment to law and order, with admiration for the efficiency and courage of the Garda Síochána, and with every disposition to support and protect them in their efforts to bring criminals to justice. I have considered carefully the arguments against the Bill advanced in a letter from the Association of Garda Sergeants and Inspectors and I have explained my position to them as I now propose to do to the House.
If the 1964 Act were in fact being rigorously applied, and those convicted of capital murder were without exception being executed, I would hesitate to change the law on the presumption that it was acting as a deterrent even though I could not prove this. I would feel it was too plausible a presumption to be lightly discarded. But when the Executive is evidently not disposed to apply the law — and that has been the case for nearly 30 years — even in the vicious and violent conditions of recent times, I cannot see that an empty threat of execution can really be a deterrent. A deterrent not exercised must cease to be a deterrent. I see, therefore, no point whatever in postponing the removal of such an empty deterrent from the Statute Book.
I must disagree with Senator Hillery's approach. I regard the Statute Book as something that contains laws intended to be enforced and not just a collection of warnings or desires of society. Frankly, I do not understand the viewpoint of those who oppose this Bill simply on the basis that this is not the right time to abolish the death penalty. Unless they are optimistic enough to believe that  there will be a withering away of organised crimes of violence within a few years — and certainly I am not optimistic on that score — surely the attitude “abolish, but not now” is no more than a euphemism for indecision and evasion, particularly if those who take this line are not determined to enforce the death penalty in the meantime.
Are they not also overlooking the pressure that would be exerted on Governments to exercise the prerogative of mercy, that is, to transform a sentence of death into one of life imprisonment? Whether it is today, or at some grimmer time in the future, I cannot see that Governments are likely to insist in all cases on the death penalty being enforced, and that would be the case even if there were some more expeditious and less grizzly manner than hanging. Would there not be heart-searching among members of any Government before sending a young woman, say, or, perhaps, an only son to death?
No criminal, therefore, could be convinced that execution would follow inevitably on his or her conviction for a cappital murder and I would go so far as to say that, even if there were an absolute certainty of capital punishment, one could not be sure that this would deter many of the callous and hardened criminal types now all too numerous in our society.
Apart from this, it seems that the reluctance of successive Governments to enforce the 1964 Act reflects a basic and widespread change of attitude on the part of our citizens towards capital punishment. There is, undoubtedly, general abhorrence and condemnation of the murder of gardaí in the execution of their duty. Paradoxically, however, and I think mercifully, the spread of detestable crimes of violence has in some way engendered greater sensitivity in many people towards even the judicial taking of life. If this can be seen as a reaction to the contempt for life shown by so many ruthless and mindless criminals today, it is a welcome sign that civilisation will survive. It is also consistent with Christian  principles that evil should be absorbed by non-violence rather than returned to its perpetrators. I suggest that the turning away from the death penalty among many of our citizens, which is reflected indeed in this Bill, should be seen in this light rather than in any sense as detracting from the support or protection our society wishes to give to the forces of law and order, including gardaí and prison officers particularly.
The argument has been made, and it was echoed in Senator Hillery's contribution, that, if the deterrent of the death penalty is removed, the Garda Síochána will have to become more of an armed force and that what has been, in my view, mistermed “summary execution” of criminals will then take place. Summary execution implies deliberate and unwarranted killing by security forces. This is not what happens if, in an exchange of fire, armed criminals or even innocent bystanders are killed. Senator Hillery spoke as if the Garda Síochána were entirely an unarmed force at present, which is not the case. I have been forced very reluctantly to the view that, in today's conditions, a police force can carry out its public duty only if it contains contingents which carry effective arms and are trained and allowed to use them, if necessary, against armed criminals, whatever the consequences.
I thought that the Minister — perhaps inadvertently but certainly incautiously — in his Second Reading speech used exaggerated language when he spoke of his intention to: “remove completely the right of the State to inflict death on any person for whatever reason in the future”. He was obviously overlooking contingencies, not only such as those I have just described, but of armed rebellion or war or any other serious threat to the existence of the State.
For the reasons I have given I cannot believe that the moth-balled 1964 provisions constitute a more effective deterrent to murder or a stronger protection for the Garda Síochána than a long term of imprisonment.
On one point in the Bill I would like  further explanation. While, obviously, the sentence substituted for the death penalty for section 3 convictions must be extremely severe, I am not convinced that the Government is right in so rigidly debarring itself from exercising any clemency, even in the most exceptional cases. In any case this rigidity is in marked contrast with the open-ended approach to the extent of the remission that may be granted under prison rules for good conduct. This remission, I gather, is one-third of the sentence at present. Presumably it could be less or more in the future. Is the Minister satisfied that provision need not be made for some oversight of these rules, at least in relation to the section 3 convictions, oversight by the Government and the Oireachtas? At the moment, I do not know who decides what the remission should be, who makes these prison rules or what oversight anybody has over them.
I have confined my remarks strictly to the content of the Bill but I would like to conclude by saying that, in the general area of criminal justice and protection of society, fresh thought needs to be given urgently to the means by which, if at all possible, the number of serious crimes committed may be reduced and, where they are committed, the likelihood of apprehension and conviction may be increased. The disproportion at present between the growing number of crimes committed and the small number of criminals brought to justice is much too great. The dice seem to be loaded in favour of the criminal. Law abiding citizens are entitled to live and go about their business and pleasure without being molested, intimidated or murdered, and we must see to it that this entitlement is preserved.
Mr. B. Ryan Mr. B. Ryan
Mr. B. Ryan: In many respects what I have to say will probably reflect, in the language of a younger generation, the same sentiments as Senator Whitaker expressed. There is a problem of violence in Irish society, both political and nonpolitical. Because of the continuing violence of the paramilitary organisations,  we now tend to tolerate on some occasions a level of violence from the security forces, both North and South, that would not have been tolerated in the past. I have never understood how the violence of a young deprived child in Seán McDermott Street is not understandable and the violence of a garda under severe provocation in Merrion Road is understandable. Violence is always wrong and anybody who overreacts and behaves violently ought to be criticised and condemned by society, irrespective of the provocation. I say that as one who has some experience of violence from the work I have been involved in and I will mention that later. There are various ways of responding to the problem of serious violence. It is regrettable that the tradition of non-violence is not a bigger part of our history and that the role of non-violence in the period of Daniel O'Connell in particular, when he resolutely refused to contemplate in any circumstances, the use of armed force to achieve his political ends, has been omitted from the analysis of our history and has not played a bigger role.
Gandhi managed to liberate 600 million people by the use of non-violence. Political leaders worry and are concerned implicitly, even if they do not realise it, with non-violence because the trouble with a society which is dedicated to non-violence is that you have to develop a high level of consciousness among people about the power and the worth of non-violence. It is not something you can whip up and exploit emotionally as can be done with slogans about nationalism and war. Politicians and political leaders are often afraid of violence and this is by way of an introduction to what I want to address to one of the problems of violence in society, which is, the apparent willingness of some societies at some times to use violence to protect that society.
Some day I hope to talk about this on the military level but today I want to talk about it on the individual level of the sort of penalties society chooses to use to deal with murder and violent crime. There has been some discussion on the deterrent value of capital punishment and some  people surprised me by saying that, if it could be proved to them that capital punishment had a deterrent value, they would revise their views on the abolition of capital punishment.
I would like to make my own position perfectly clear. Capital punishment is immoral and degrades a society which chooses to operate it. It is morally wrong for any society to take to itself the right to meet terror with terror. That is my position; other people are entitled to their opinions. I doubt its deterrent value but I will discuss that later. Capital punishment is wrong in itself.
I ought to make something clear because one of the emotional arguments, an understandable one, that has been used in this debate is the need to protect the police force. I have no desire to suggest that our police force should have to meet armed violence without proper protection from our society. I do not know how many Members of this House have had to deal with violence and, to an extent, with armed violence I am not claiming to be unique in this and I am not trying to make myself out to be anything like a saint in spite of kind words that are occasionaly said about me by well intentioned people in the media. I am a very ordinary person in my private life. Anybody who is involved with the Simon Community experiences violence on an individual level and sometimes on a collective level. I have had to deal with a person who had a carving knife stuck in his belt and who wanted to stab the person who stood behind me. I also had to deal with people armed with bicycle chains who were directing them at me, with people carrying knives and people who used violence, not for political reasons but because of their own disturbed and distorted natures. I do not believe that that would justify me in using excessive violence to deal with that person. Anybody in the organisation with which I am associated who overreacted to violence would cease to be a member of the organisation. I do not believe that the gardaí are the only people who sometimes have to deal with violence and that  they are the only ones who have to deal with people who are criminally dangerous. I believe, passionately, that there is another way to deal with most of the violence in our society and I will talk about the residual problem later on.
I want to talk, in that context, about the whole question of deterrents to crime. If the deterrent is out of proportion to the crime, in general that will deter people. I have no doubt that in relatively recent days when castration was often the penalty for rape in the United States, that was, to some extent, a deterrent because the penalty was out of proportion. In some of the Middle Eastern countries where amputation of a hand has been returned as a penalty for theft, that is a deterrent. Does the deterrent factor make those penalties conceivable in our society? If it does not, I fail to see how the concept of taking a life as a penalty for a life could ever be thought of as a deterrent. A deterrent can be wrong in itself and what is wrong in itself cannot be justified by its deterrent value.
A considerable amount of work done around the world would suggest that the locking up of people in prison has no real deterrent effect, other than the fact that some people who would otherwise commit crimes are locked up for six months, nine months, or a year. There is no real evidence to suggest that criminals of any category will be deterred by penalties. That is my experience and I know a fair number of people with criminal records. The deterrent that bothers people is the fact that they might be caught. If they think they will not be caught, they will not think about the possible penalty. Whether it is three, six, nine, 12 months, two years or life imprisonment, when people are contemplating murder these things do not deter most of them. I am not just talking about petty thievery, but about serious crimes, crimes of violence and, indeed, murder. The one person I know who has been convicted of murder could just as easily have murdered a policeman as the person he murdered. It was in a squabble, he was drunk, and he was convicted of murder. If the victim had been a uniformed policeman, then  we would be talking about capital punishment. It could just as easily still be a policeman or a prison officer, because this fellow is violently inclined. I fail to see why, if he happened to kill a policeman or a prison officer rather than an innocent bystander, we should distinguish between those two crimes.
There is another way to deal with crimes, prisoners and prison. Some of the experiences of the Simon Community with whom I work on a very local and individual level have suggested that many people who are condemned as habitual criminals are not really as dangerous or harmful to society as people would imagine. I would like to mention a man who is closely associated with Mother Teresa of Calcutta but who is rarely talked about to the same extent — a man called Jean Vanier. One of the reasons why Jean Vanier is not so popular is that a lot of the work he does, apart from working with mentally handicapped people, is done with prisoners, and usually not petty criminals but long-term murderers, rapists and such people. He describes those as the wounded of society.
It would help us if we were to try to develop the compassion in our society which sees people as wounded. Although I detest the activities of the Provisional IRA and other paramilitaries and what they stand for, I still believe that they are the product of one of the most wounded urban societies that western Europe has ever known. That needs to be said and reiterated. What they do is appalling and scandalous, but they are the wounded products of a wounded society. There is a great need, in the light of the appalling crimes that people like these commit, for a society which claims to be civilised, and motivated by Christian principles, to keep that value of compassion and understanding very much alive in any debate on how to deal with the problem. Otherwise, if we are talking purely about punitive methods, we are talking not about protecting society but about getting our own back. We are talking, effectively, about meeting terror with terror. That is immoral and wrong and it degrades our  society far more than the activities of those organisations.
I come now to the question of the two kinds of murder that I have already mentioned. I have no idea why this severe penalty was instituted, other than in answer to an effective garda lobby, as they are entitled to lobby on this issue. Life imprisonment technically means life imprisonment. The fact that the compassionate and perfectly justifiable practice has been to make life imprisonment mean roughly seven to ten years does not mean that anybody who is sentenced to life imprisonment is going to serve anything less than life, unless there is a good reason to believe that he will not commit a crime again. I do not understand why we should sentence somebody to a totally barbaric sentence of 40 years in prison.
The Minister, in one of the purple patches in his speech, quoted an Australian reference to the destroying of life. Are we to substitute a slow destroying of life for a speedy destroying of life? That is what we are doing if we lock somebody up for 40 years, irrespective of mitigating circumstances and the context in which the crime was committed. Just because certain crimes are committed, we lock them up for 40 years. That is, effectively, destroying a life. I am ashamed of a Government which substitutes a mandatory penalty like that, linked in with provisions to make it difficult for it to be repealed. That is slowly, instead of speedily, destroying life. It brings into question what Government see as the function of imprisonment. Are we locking up these criminals to deter other people, to prevent crime or to get our own back? I suspect, in a lot of the talk about the less pleasant crimes, particularly the politically motivated crimes and things that are done in the name of political attainment, and often, too, for criminal purposes, many people are motivated by the desire to get their own back. If there is any hint of vengeance in the proposal for a sentence of 40 years, then, again, it degrades us and humiliates our society. I do not understand the provisions for that.
Prison, I used to believe, had a rehabilitative  purpose. I do not know whether that is still the philosophy of the Department of Justice but I understood prison was primarily seen as an attempt to rehabilitate. How can you rehabilitate somebody if you are going to lock him up for 40 years? How are the two objectives reconcilable? I do not understand the restriction on repeal. Neither do I understand the extraordinary anomaly where, in Northern Ireland, a Government that many Members of this House would regard as hostile to the interests of the Irish people or as less than sympathetic, can allow 50 per cent remission for the sort of crimes that are specially listed in this Bill, whereas in our society the maximum remission we will allow is 25 per cent. For instance, some people who were sentenced for the Miami Showband murder who got 35 years will be out, at the very most, in 17½ years. We will lock up their counterparts for 30 years.
One of the interesting aspects of sex discrimination is that women get more remission than men. I wonder will the Leader of the House raise that form of discrimination in the appropriate areas. I do not understand what we are going to do with these long-term prisoners or where we will put them. Will we put them in the Curragh so that we will have another 40 years of visiting committee reports recommending that the Curragh be closed down? Are we going to put them in Portlaoise Prison where Playboy and Mayfair are acceptable reading material for the prisoners but Bunreacht na hÉireann is not, because it is a security risk? I would like to know where we will put them, what we will do with them, how we will occupy them. Is there any thought on this, or is it simply a bit of shadow-boxing, knowing full well that the Government will recommend, under the Constitution, that these people should be given special remission and have their sentences commuted in the future? Are we putting something in here which means nothing and is just there to satisfy the gardaí? I do not like that sort of legislation. If they mean it, it is scandalous and if they do not mean it, it is  equally scandalous and should have been left out. I will not support that section of the Bill on Committee Stage.
Life imprisonment is a satisfactory sentence, if there can be such a contradictory association of words. There is no such thing as a satisfactory sentence. I do not believe that the prison system works but if we must have a penalty which is proportionate to the crime, the present philosophy on life imprisonment is quite adequate. Capital punishment is fundamentally wrong and if we are going to talk about imprisonment we ought to talk at some future stage about what we propose to do with people who are in prison.
Mr. Ferris Mr. Ferris
Mr. Ferris: I would like to make a few comments on the Bill which is before us. This legislation has recently attracted more attention than when it was first initiated in this House. That is not because of an interest in whether or not this legislation is passed but owing to the involvement of the Garda Síochána in the matter and the question of whether or not one particular person in our ranks will vote in favour of it. This interest submerges the genuine underlying reasons for enacting progressive legislation like this and it is a pity that that was fundamentally what the Press were interested in. This Bill is to repeal the 1964 Act which has been referred to by previous speakers.
The enactment of the 1964 Bill has not in any way acted as a deterrent to violent crimes leading to murder or treason. In recent years the records show increasing numbers of violent crimes involving the tragic deaths of gardaí in the course of their duty. The Garda Representative Body have been in touch with me and, obviously, with all the other Senators. They have made their views known to us. They have expressed their reservations about the abolition of the death penalty. They admit that the idea of capital punishment is repugnant to most people, not least to members of the Garda Síochána. They say that many people are happy to rely on the humanitarian arguments in favour of its abolition.
 Senator B. Ryan in his contribution has given the most excellent reason on humanitarian grounds for the abolition of capital punishment. In spite of having a most excellent relationship with the Garda Síochána and an admiration for all they stand for and the work they do, I do not share their view that the 1964 Act which we are abolishing has in any way acted as a deterrent or as a protection for this unarmed law enforcement body of ours of which we all are so proud. I would say seriously to the Garda Síochána that if a law is not seen to be put into practice, as this law has not been, then that law becomes in my opinion a bad law. I cannot agree at this point in time that the removal of this legislation or its postponement will in any way increase the number of murders. I do not hold the view that keeping the Act on the Statute Book in case things worsen will act as a deterrent to the people who carry out these atrocious crimes.
I agree that there is an increasing number of robberies in towns and villages, unheard of happenings, totally alien to Irish people and their belief in fair play. There have been robberies, acts of violence and kidnappings of law abiding citizens, industrial and otherwise, which could have ended up as possible capital murders and still the existing legislation has not acted as the slightest deterrent.
The fact, as Senator B. Ryan says, that the death penalty is there has not stopped these people. Their own belief is that they may, in fact, be able to get away with these crimes unnoticed. When the public are subjected to this kind of violence, whether it be kidnapping or bank robbery, the public react to it. At times we over-react with total resentment of the conditions to which people are subjected in these situations. Our existing court procedures are capable of dealing with these thugs, if they can be brought to justice. I appeal to members of the public who over-react that they should in every way possible assist the gardaí to ensure that the people who commit these serious crimes are brought to justice.
Senator B. Ryan referred to section 4  of the Bill which lays down a very strict penalty for persons found guilty of treason or capital murder. I am open to debating whether it is too severe, or not severe enough, whether we, as a legislative body, should stipulate the number of years imprisonment, or whether this should be a matter for the judge in that court at that time, depending on the circumstances. Believing, as we do, that murder is murder is murder, in the words of a wellknown State person, surely if we have a procedure of court hearings, circumstances could possibly alter cases, so that a mandatory period of imprisonment might not be desirable. I will probably make a decision as to whether section 4 should be amended so as to leave the actual severity of the penalty to the judge.
Senator B. Ryan also dealt with the fundamental right to life, which he described as a moral right. I subscribe to that philosophy. Nobody, whether an individual or the State, has the right to take a life. Individuals do not have the right deliberately to take a life for any reason, whether the life is unborn or born. The State should not have the right to take a life for a life as a penalty. That is why present public opinion would not permit hanging, even though we have that legislation. We now have the situation when a judge passes sentence that the Government are faced with advising the President, because of public opinion, that a life sentence be substituted for hanging.
This is progressive legislation which, unlike others, requires very little monetary outlay and which accords with the removal of corporal punishment from our schools. We must realise, if we are serious, that for many years our children have been subjected to violent punishment in schools and to a violent society which, in turn, breeds further violence. Any move towards preventive legislation to remove these types of violence from the lives of our children and our people must be welcomed. It is fit and proper that we, as a progressive nation, should follow in the footsteps of other countries throughout the world and in Europe, of  whose Community we are a member. Ireland's name should be added to the long list of European countries which have abolished capital punishment. The Irish Council for Civil Liberties speaking for that Council, Amnesty International and the Prisoners' Rights Association, welcome this decision because it is progressive and in line with other countries. They welcomed the unanimous reaffirmation in 1978 and 1980 of the Conference of European Ministers of Justice, in which the previous Minister for Justice, Deputy Collins, represented this country, of its support for the abolition of capital punishment. The Council of Europe, likewise, have passed similar motions and also the United Nations. We are just following along the road of progressive legislation, which should be welcomed by all Members of the House. I do not accept the arguments that it is not opportune now but might be in the future, or that keeping the 1964 Act on the Statute Book may act as a deterrent, or that we may never be able to reintroduce it. I welcome this Bill which accords with the longstanding policy of my party. Voting for it creates no problems for us, of conscience, or the Whip or otherwise. The Minister, in presenting it, gives us on this side of the House an opportunity to subscribe totally to the views expressed by him in his introduction of the Bill. I hope for its speedy passage through this House and through the Dáil.
Mr. Mullooly Mr. Mullooly
Mr. Mullooly: The Criminal Justice Act——
Mr. Byrne Mr. Byrne
Mr. Byrne: The order would be for a member from our side of the House to speak now.
Acting Chairman (Mr. Reynolds) Acting Chairman (Mr. Reynolds)
Acting Chairman (Mr. Reynolds): No. The next speaker is from the Opposition side. That is the procedure usually adopted in the House.
Mr. Byrne Mr. Byrne
Mr. Byrne: I accept the ruling of the Chair.
Mr. Mullooly Mr. Mullooly
Mr. Mullooly: The Criminal Justice  Act, 1964 abolished capital punishment for all but the crimes listed in section 3 of the Bill. That move to reduce the number of offences to which the death penalty would apply was very welcome at the time because the vast majority of the people abhorred the very idea of capital punishment. However, in 1964 it was considered advisable to retain capital punishment for a small number of very serious crimes. These include the murder of gardaí and prison officers in the course of their duty. This Bill now proposes to abolish capital punishment completely. My view is that this is not the appropriate time to bring forward such a proposal. In 1964 it was considered advisable to retain capital punishment in the cases to which I have referred at a time when the country was not faced with many of the problems which face it today. Nobody can deny that there has been a considerable escalation of violent crimes and of subversive activity since 1964 and all the indications are that we will be faced with this situation for some time to come.
We have an unarmed police force whose members daily confront criminals who seem to be becoming more organised and more ruthless by the day. At the moment, capital punishment is the only additional protection afforded by the law to this unarmed force. It is the only deterrent to those who would murder members of the Garda. The degree to which it will deter murders of gardaí is a matter of opinion, but the members of the force themselves consider that it is an effective deterrent and that it gives them additional protection in the performance of their duties. We must recognise the legitimate claim of the gardaí to every additional protection the law can give them. To abolish capital punishment at this stage would have a serious demoralising effect on the gardaí at a time when the job they do never involved more risks. Consequently, I oppose the Bill.
Mr. Byrne Mr. Byrne
Mr. Byrne: Ba mhaith liomsa seasamh chun cúnamh leis an mBille seo um Cheartas Coiriúil. The more I listen to this debate, the more I wonder what the real opposition to it is. I would like to  thank Senator B. Ryan for, at least, putting forward some semblance of opposition to parts of the Bill because the general opposition to the Bill does not make sense. We are told, on the one hand, that the time is not right to introduce this Bill and are reminded of the lawless state of the country. Yet, it is not too long since members of that very same party were in power and had a wonderful opportunity of showing their belief in the death penalty by imposing it for crimes which were committed during their reign.
I am very concerned lest the custodians of the peace in this State, the gardaí, no longer find themselves in a safe and secure position and I speak as the son of a garda. As such, I had to examine this Bill very closely. I had to look for opposing points of view, which were very hard to find. The case put forward for the abolition of the death penalty made me secure in the knowledge that this Bill would make life for our gardaí better and more secure. This Bill originated from a belief in the sacredness of life and the growing opposition of responsible governments throughout the world to the taking of life, either by the State or by anyone else. I found it very hard to believe that we are the only country in western Europe where the death penalty survives. I also found it hard to believe, in reading through the case made in support of the Bill, that at a recent meeting of the European Parliament delegates from this country, from all political parties, agreed with a resolution expressing a strong desire that the death penalty be abolished throughout the Community. I found it hard to believe that the Council of Europe, which includes members of the Fianna Fáil Party, had adopted a recommendation that the European Convention on Human Rights should be amended to outlaw the use of the death penalty.
This Bill has come about 17 years after the 1964 Bill. At that time it was deemed proper to leave the death penalty in the Bill for certain acts because it was felt it might be a deterrent to would-be assassins. Looking back over the last 17 years,  and this case has been made by a number of people, there is absolutely no evidence to show that that inclusion in the 1964 Bill has done anything to deter criminals from taking on the police force as they saw fit. Over the last few years successive Governments did not see fit to implement this penalty for the simple reason that there was a growing awareness of the sacredness of life and a need to keep faith in real life and not to adopt the policy so prevalent in years gone by of an eye for an eye and a tooth for a tooth.
When this Government came to power last summer this was one of the problems they had to face up to. They did not cast it aside as was fashionable with other problems in other spheres of administration over the last few years. They brought forward this Bill with a determination to ensure that the security of the State would be strengthened and that the position in which gardaí found themselves in relation to the implementation of the 1964 Bill would be improved.
At present there is no desire on the part of the Government to implement the death penalty. Neither was there during the term of the last Government. A Bill was necessary to provide a proper guarantee for the security of this State. I looked at this Bill and saw provision for a term of 40 years minimum sentence with, of course, a remission of ten years which would leave a net 30 years imprisonment. This is a fitting penalty for a crime committed against a custodian of the peace. If Senator W. Ryan were present I would have to take issue with him for suggesting that the gardaí should not be put on a separate pedestal in relation to the problem we are dealing with. I would also have to take issue with him regarding his ideas about pampering criminals. Hardened criminals will not take pampering and they do not deserve it. The Government, in the interests of the common good, are entitled to protect society against violent acts.
This Bill has one other very good feature. It negatives the power of the Minister for Justice to grant parole under the 1916 Act and the power under section 31 of the Criminal Justice Act, 1951 to remit  fully the sentence. This Bill imposes very strict conditions on Ministers for Justice. This Bill is a severe one, more severe than the legislation which exists at present. It is indicative of the will of the Government to uphold the institutions of the State and to protect those who defend these institutions by providing severe punishment for those who would seek to undermine or overthrow them. The Bill recognises the special position of the police and prison officers who are at risk from violent criminals. It is sad to remark that while the Fianna Fáil stance may be a sincere one — I am not doubting it — it is becoming blatantly obvious that their opposition to the Bill has political connotations. They are obviously exploiting whatever little differences there are between Fine Gael and Labour in Government and between members of the Fine Gael Party. I assure them that this divide and conquer approach, which they inherited from of all people the English will not work.
It well suits the mentality of some Fianna Fáil devotees — present company excepted — who might find the terms of the Bill too repressive. I should like to take issue publicly with a remark which was made in Ennis at a recent ceremony when the name of Michael Collins was used to justify violence. I shudder to think of the possible effect utterances like that could have on an immature unstable youth. Mar fhocail scoir molaim an Bille agus iarraim oraibh é a ghlacadh.
Mrs. McGuinness Mrs. McGuinness
Mrs. McGuinness: I share the feeling the Minster expressed in his Second Stage speech that the death penalty is simply wrong and as such should be abolished. However, opposition to this Bill from such groups as the Association of Garda Sergeants and Inspectors should make us look a little more deeply into the reasons for and against retaining the death penalty. Those of us who like myself support the Bill and wish to see the death penalty removed from our Statute Book, should make sure that we are doing so for reasons which are both logical and humane. In general the main argument brought  forward both in public and in the debates in this House, is the deterrent element in the death penalty. In some sense, we can view the punishment of any crime for what might be described as the utilitarian point of view — does the punishment in fact act as a deterrent which will prevent the criminal from committing this crime? This is the way in which a lot of people speaking in this House have looked at the death penalty — is it important to have it because it will deter someone from murdering a member of the Garda Síochána or from committing the other crimes listed in the 1964 Act?
At a later stage I will try to deal with the question of whether the death penalty as it stands under the 1964 Act and under the present practice in Ireland in fact deters people. Before doing that we ought to look a little more deeply into the reasons for having a death penalty or for not having a death penalty and for the ways in which we punish crime. I would submit that these reasons are not quite so simple as might have been thought from the kind of deterrent effect element that is being bought into most of the speeches here. It seems to me that while most people in this country and indeed outside it in this sort of debate, and also in the kind of debates that went on in the British House of Commons and in the House of Lords at the time of the abolition of the death penalty there, talk in terms of the utilitarian deterrent effects of punishment, sometimes their real feelings, if they looked into them, are based far more in the area of retribution for crime or of revenge, to use the more emotionally-loaded word. We cannot see the deterrent argument in a pure form if we think about how crimes are committed or not committed. Can we say that our sole motive is to set a punishment which will deter the intending criminal? Senator Whitaker touched on this a little in this speech, too, but if we take this argument to its logical conclusion there is no reason why we should not use, say, torture as a punishment for parking offences. This would certainly deter the average person who leaves his car at a meter for too long. There would be no  logical reason why we should not punish the innocent to deter the guilty, why we should not, for instance, execute the family of the criminal rather than the criminal himself on the grounds that such an action might very well deter people from committing crime even more than a threat to themselves. This is the pure utilitarian deterrent argument.
Any Senator and any person in this country will say that to act in this way would not only be ludicrous but would be morally wrong. They would be right in saying this but the logic of this argument about whether it is morally wrong or not does not lie in deterrent but in the deeply-held feeling which most of us have that only the guilty person should be punished. We rightly insist that we should punish only a person who has broken the law and in serious cases that we should only punish them when they possess what is called mens rea or what Gladstone, the legal commentator, called the vicious will — in the old phrase where they had malice aforethought. We have undoubtedly on our Statute Book a number of offences which are called strict liability for which you are punished even if you have no evil intention, the type of offence for which they will punish you for, say, selling adulterated milk regardless of whether you realised or not that the milk was adulterated. We accept these provisions as being necessary for administration but I do not think we would accept them in any situation where a serious crime was involved. We insist that the person must be blameworthy before he is punished. Therefore, even the kind of argument that is made by people who rely on deterrents does contain an element of retribution and I would define retribution as trying to match the past evil of misconduct with the pain of suffering. We ought to be clear about this and ask ourselves when considering the death penalty if we are really justified as a society in exacting the ultimate in retribution, which is, a life for a life. We should face up the the fact that this is really one of the basic reasons why we are doing it, not just because we think it deters criminals.
 There is very often mentioned by people who write on the theory of punishment of criminals a third element in the idea of punishment and that is the public reprobation by society of the crime, the showing of public horror by the community as a whole at the crime that has been committed. Here I must say that attention is drawn to this factor in the letter which was sent to us all by the Association of Garda Sergeants and Inspectors and indeed in some ways I am more impressed by this argument than by the deterrent argument. If we think about it, why do we want to show our disapproval? Surely we want to show our disapproval because we want to stop the crime from happening or from happening again, and this brings us back into the deterrent area. Certainly any of us would wish to show tremendous disapproval of the kind of crimes that are envisaged in the 1964 Act and none of us wants to feel that the gardaí, in particular, are being threatened by the removal of the death penalty but I do not feel that we need to retain this penalty to show our disapproval of this kind of crime. At the time of fairly recent murders of members of the Garda it was very clear indeed that the public disapproved and regarded with loathing the crime of shooting these men. Nevertheless it was also clear when the culprits were brought to justice that there was not a widespread public demand that they should be executed. The previous Government were correct in not carrying out the sentence of execution at that time.
To go back to the deterrent element: if we do look at the death penalty as a deterrent we must commit ourselves to looking at the evidence as to whether it is a deterrent. This kind of evidence can be what I might describe as exterior evidence, that is, the evidence of statistics as to what has happened in other countries where they either abolished the death penalty or retained it or reintroduced it after it had been abolished. One of the major sources — now perhaps somewhat out of date but nevertheless a very comprehensive source of research — was the report of the Royal Commission  on Capital Punishment in Britain but that report and in common with it almost all research into the statistical evidence would show that, as the Minister said in his Second Stage speech, the research is somewhat inconclusive. The one thing that can be said is that there is no clear evidence in any of the figures that the abolition of capital punishment did lead to an increase in this type of crime or that the reintroduction of capital punishment in States which had abolished it and then reintroduced it ever led to a fall in that type of crime.
There are difficulties in comparing figures of one State with another because there are very big differences in societies as to what type of murders are committed. To compare the kind of murders that are committed in the United States with the kind of murders that are committed here or in Britain or in other western European countries is not a very helpful exercise and to compare the figures from the different countries does not really help us very much. However, one can see in certain areas where you take a number of States together, say, four States of the United States like North Dakota, South Dakota, Minnesota and Nebraska — these States are fairly alike in character — their crime rates and the type of crimes committed are fairly alike and yet where Nebraska retained capital punishment but did not use it very often, where North Dakota abolished it and South Dakota abolished it and then restored it later there was virtually no difference in any of these States as to the rate of murder. That is fairly valid evidence that very little difference is made in the deterrent effect, whether you have capital punishment of whether you have not.
On the other hand, there is a kind of interior evidence that all of us feel in ourselves. The fear of death is one of the greatest fears the human being can have. Therefore, we tend to argue from that that if we retain capital punishment it will undoubtedly deter people from committing a crime. In that context, with the permission of the Cathaoirleach, I will quote briefly from a very famous judge,  Mr. Justice James Fitzjames Stephen, who referred to this. He had great faith in capital punishment and said that no other punishment deterred men so effectually from committing crime as did the punishment of death. This proposition is difficult to prove simply because it is in itself more obvious than any proof can make it. It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction. The threat of instant death has always been resorted to when there was an absolute necessity for producing some results. No one goes to certain inevitable death except by compulsion. Put the matter the other way — was there ever yet a criminal who when sentenced to death and brought out to die would refuse the offer of a commutation of his sentence for the severest secondary punishment? Surely not, and why? It can only be because all that a man has he will give for his life. In any secondary punishment, however terrible, there is hope, but death is death and its terrors cannot be described more forcibly.
This sounds like an extremely forcible argument for the deterrent effect on the person of the death penalty. If we look at the reality, that is not what life is like. The judge here was thinking of a criminal who inevitably is going to be executed going out to his execution, whilst we are thinking in deterrent terms of a criminal who is contemplating a crime and who has quite a considerable chance of escaping detection or, at least, in the way in which many criminals' minds work, continually hopes that he will escape detection. Many criminals have very illogical ways of thinking in this. It appears to me that it is a completely different situation to say that it will deter somebody who has plenty of chances that he may get off and in the event of his being caught, also has a very good chance that he will not in fact be executed.
As Senator Whitaker has said, to have a deterrent effect this death penalty must be carried out in order to deter, and it has not been carried out. If we think that we are going to deter a criminal and above all perhaps someone who commits  a crime from what he thinks of as political motives, we surely must deter that person by our actions in our carrying out the death sentence rather than in simply having it in the Statute Book and not using it. It has been fairly well accepted over the years by both the public and Members of the Oireachtas that even where the death sentence is passed by the judge it will not in fact be used. The Leader of the Fianna Fáil Party, Deputy Haughey, said in September that the death penalty was to all intents and purposes gone, and he was quite right in saying so. How then can we argue that it continues to be a deterrent?
I am completely in favour of protecting the institutions of the State and above all the ordinary gardaí in any way we can, but I cannot see that we are protecting them by a theoretical penalty whose deterrent effect is in any case doubtful and which is not in fact used. As far as killings which are carried out from political motives are concerned, this sort of deterrent is quite irrelevant. Such people see themselves engaged in a war situation. They accept the risk of death, and even if executions are carried out, there is the risk that this will create an atmosphere of martyrdom about the person who is executed.
Senator Brendan Ryan referred at length to the 40 year penalty and this is a matter about which I feel fairly strongly but I would prefer to deal with it in greater detail on Committee Stage. Now, I can only say that, while I appreciate the need for heavy sentences, these mandatory sentences are so long that if they were carried out they could result only in the total destruction psychologically speaking of the person concerned. My information from sources close to prison officers is that it is the experience of prison officers that where criminals have been kept confined for very long periods of time they become psychologically disturbed and may become dangerous to prison officers. They may attack them suddenly out of sheer psychological disturbance. We should look into this a bit further before we decide to keep a man 40 or even 30 years in prison. Human  beings psychologically are not able to stand up to this length of imprisonment.
To return to the main point of the Bill — the abolition of capital punishment — one of the major questions is on whom is the onus of proof? Who has to prove whether it should be abolished? Do those seeking to abolish it have to prove that it is not useful or do those who are seeking to retain it have to prove that it is useful to retain it? On a continent or in groupings of countries where the death penalty is almost universally abolished and clearly disapproved of by international bodies, the onus of proof lies strictly on the shoulders of those who wish to retain the penalty.
I conclude by supporting the Bill in its general terms and supporting the abolition of the death penalty.
Mr. Magner Mr. Magner
Mr. Magner: It seems incredible that in 1981 we should be discussing the wisdom or otherwise of taking somebody who is at this stage defenceless out of a prison cell and propelling him with all the awesome power of the State into eternity. During this debate words like execution, capital punishment and so on have never brought home the real horror of that system of killing people. Right around the world there is ample evidence that this is one of the most barbaric acts that can be committed by any so-called civilised state. The evidence available is contained in a book by a man whom I would consider to be one of the foremost experts on capital punishment, the former official hangman, Albert Pierpoint and also in a report of a committee reporting to the House of Lords appointed by Lord Cross. In both the book and the report the full barbarity of hanging is revealed. There is no great change between the hanging system in the past and the hanging system now. It is still done by a man using a rope over a trap-door. What system are we asking other people to introduce? Whom are we to appoint as hangman? Who is going to get up on a scaffold and pinion a man's hands behind his back?
Mistakes that were made at various  hangings are detailed in Lord Cross's report. A convict hanged in Newgate caught his leg against the edge of the pit and the execution could not be completed until his legs had been secured. Since then it has been usual to pinion the legs as well as the arms. At a hanging in Durham the rope broke, the drop being too long, and it was half an hour before the convict was executed. The sheriff was warned to use more care in future. At a hanging in Leeds the rope broke and there was some little time before the execution could be carried out. The sheriff, reminded by the Secretary of State of his responsibility in the matter, attributed the action to over-testing by prison officials. The rope, however, was found to be weak, worn and quite unsuitable. Thereafter suitable ropes were stocked at Newgate and other prisons. In another case, the convict's toes touched the floor of the pit and the drop was not sufficient to cause his death. These are horrific examples and this is the system we want to retain. Robert Upton, hanged at Oxford, was nearly decapitated, the neck being unusually long. The coroner and the jury exonerated the executioner. This is the system that civilised men in a civilised State want to retain. It is absolutely incredible that people can argue for its retention.
I give credit to the present Leader of the Opposition because he introduced the Criminal Justice Act of 1963 and abolished capital punishment for 99.9 per cent of murder offences. In 1981 it is a shame than this barbaric Act has not been removed from the Statute Book. In the Official Report of 6 November 1963 Deputy Haughey, who was Minister for Justice at the time, said with regard to murder of members of the Garda, it must be borne in mind that the police are unarmed and have a special claim to whatever additional protection the law can give them by providing the deterrent of the death penalty against the violent criminals they have often to contend with. During that debate Deputy Haughey accepted the view that the death penalty was not a deterrent to the crime of murder yet he insisted on retaining  this section, perhaps because of the strong Garda lobby which, in many cases, is understandable. He went on to say he was sure the situation would evolve whereby we could remove that .1 per cent which is the subject of the Bill. It is now 14 years since then and we must have evolved very slowly if we can still pretend that hanging people by the neck, sometimes most inefficiently, is a deterrent. Somebody who is politically motivated is not deterred by anybody or anything. One of the mistakes the American Government made in their involvement in Vietnam was to believe that if they burnt enough Viet Cong the fighting would stop. There is no evidence to support the case that hanging would prevent political murders. What prevents political murders is the rate of detection. I cannot understand how arguments can be made in 1981 in favour of keeping this barbaric system in operation. I have no doubt that if any attempt was made to hang any person in this State for any reason we would have thousands and thousands of people out in the streets protesting. The general population are far more enlightened than their legislators.
Mrs. Honan Mrs. Honan
Mrs. Honan: This Bill seeks merely to give expression to the reality of the situation. Support the Bill and arm the guards. Is that the Minister's idea of reality? Who advised him that the death penalty was not a deterrent to the criminal? If we had no violence no person taking a gun in cold blood, putting a bullet in it to use on our guards or army, I would have no trouble in breaking party lines to support the Bill to abolish capital punishment. The last Senator on the Government side of the House went into details about the rope, the mistakes, the fellow's leg being caught and so on. I will not go into details of putting the bullet in the gun, and how long it takes for a guard to die when a bullet lodges in his brain. If capital punishment is taken off our Statute Book now and if we have a spate of murders in the immediate future, which is possible, how long will it take to get it back on the Statute Book again to  deal with these criminals and to stop murders?
With remission 40 years could be reduced to 20 or 15 years. Recently a prisoner convicted of murder was released after serving eight years. I cannot say who it was but the Minister can check on who I am speaking about or I will tell him. The training of a garda takes about 30 weeks. There are two short periods of maybe two days with a gun or revolver. An army man who has to use a gun has three months of concentrated training with that revolver or rifle before he is considered fit to use it.
What does the Minister mean by symbolic declaration inherited in this Bill? I appreciate that I do not understand all the terminology used in Bills so perhaps the Minister of State would clarify that for me. Why did the Government release the Littlejohns after serving between six to eight years instead of their 14 to 15 years? Who advised the Minister to bring in this Bill here and in the other House at this time? His idea of who the experts are differs dramatically from mine. He presumes the experts are in his Department, whereas I think they are the ordinary gardaí on the beat and the ordinary soldier. The Government did not take the advice of whom I deem to be the experts and whose advice should have been listened to. We should arm the Garda. It is no secret to any of us in public life that in small towns where three gardaí are armed and their colleagues are not, they do not like the idea of serving together, and they are their colleagues and friends. It is a very important and human point. Do we have to do away with capital punishment now because France has done it or because Belgium is going to do it or has done it. I am not sure which. Let us decide for ourselves when we should do away with it. I am not saying this, as some Government members said, because the boss told us to oppose it for political reasons or otherwise. I sincerely believe—and there are colleagues of mine who know that when I say something I mean it—that it is not the time to remove the death penalty.
 Senator McGuinness did not think it relevant to quote shoot-outs in other countries as against what happens here with a gun, but it is relevant. The New York police had 2,000 shoot-outs in the last two years and six people were shot dead by police in Denmark in the last 12 months. Let it be quite clear here tonight and whenever we vote, that voting for this Bill means letting down every guard on the beat and I am not saying that to get the guards' votes the next time. They will not have an opportunity to vote for me, because I intend to stay here.
I am putting it on the record that everyone should support the stand we are genuinely taking—not because my leader told me to say it here this evening, sometimes I do not listen to him anyway. I accuse the Government Senators of being guilty of letting down the man on the beat in every constituency and the man out in the city streets tonight. Two, three, four, seven or nine gardaí are shot dead and then there is all the crying and sympathy for the widows and the children and the State cars are bumper-to-bumper at the funerals. But when we are asked to bring in legislation for the protection of these men, what do we do? Are we protecting them? Not at all, let more of them be shot and let the State cars go to the next funeral and be bumper-to-bumper again. The same Ministers may not be in the next cars, but I will leave that for another time.
A Senator A Senator
A Senator: I know a funeral the Minister's predecessor was at.
Mrs. Honan Mrs. Honan
Mrs. Honan: “If ever there is a time to abandon the deterrent effect of capital punishment this is not it. We deserve this measure of protection which the State now affords to us.” This was stated by Jack Marrinan in the Garda Review.
I will finish quickly, and my friends on the other side would have preferred had I not stood up at all, but that is my style. In the case of army personnel being found guilty of treason, or of helping the enemy, or mutiny in a war situation, even after court-martial and even after being  subjected to military law, is a member let off after a few years' sentence? I do not quite understand that part of the Bill. The Army point of view should be mentioned because perhaps I am concentrating too much on the Garda. We have been told that capital punishment has been done away with by eight countries, but we have not been told that it has not been done away with by six nations. Everyone is clear on my stand with regard to the Bill.
Mr. O'Connell Mr. O'Connell
Mr. O'Connell: All of us would accept the sincerity of the last speaker's remarks. In many ways it helps to underline the fact that this is a subject which arouses very great emotion and touches upon some of our deepest feelings. Many people are now very concerned about what is called, in the cliché, the rising tide of violence. They are concerned that the streets in a city like this, unlike previously, seem to be no longer safe for people to go about their ordinary business. They are concerned about a situation in which violence seems to be tolerated by all of us to a large extent, as was not the case some time ago. There are certain classes of people who in particular feel very threatened by this violence. For example, elderly people, in many cases living alone, are vulnerable in the areas in which they happen to live. They find themselves surrounded by a society which seems to a large extent to be indifferent to their fears and to their basic insecurities.
In this island over the last ten years it is certainly a fact that respect for human life has diminished to a very substantial extent. When we look at the outside of the paper, almost every day — certainly every week — at some point on the front page we see an inch or two inches telling of the killing of some guardian of the peace in this island. Under these circumstances there are many people who feel that in some way this Bill and the thinking behind it threaten the security of not just society but in particular of the guardians of law and order, the guardians of peace. Certainly, most of us here must be sensitive  to and very conscious of the representations made to us by the properly constituted representative associations of those who are involved in this kind of work every day of their lives and who face a situation in which they may at any time be threatened with loss of life, loss of limb, or a permanent disability of some kind.
Consequently, I think it is a little unfair of Senator Honan to suggest that we on this side of the House are either indifferent to or ignorant of the dangers and difficulties which face the guardians of our society and of law and order. This is not so. I am very glad that she mentioned the case of the man who was released after eight years, the question of remission and the question of what is the situation of someone who commits what is now called a capital murder and will, I understand, be called a section 3 murder when this Bill is passed. As the law and the practice seem to stand, there is little doubt that somebody can go out and murder a garda or some of the people named under this section and that he can do this knowing he will be out within eight, nine or ten years. This seems to be the position at present. As I understand it, one of the purposes of the Bill is, in fact, to deal precisely and specifically with this problem. I can say definitely that had such a provision not been in the Bill I would have had some reservations about it.
In that respect too I should like to suggest to the Minister — possibly the debate on this Bill is the time to consider it — that he should consider some kind of amendment to the legal situation so that a person will know if he is setting about a course of action which will put him in a situation where he may commit murder, that he will not be released and walking the streets with a grin on his face after eight or nine years. The Minister should consider such an amendment. It may not be technically possible to do this in this Bill but people would welcome it if there was protection not just for the guardians of peace, who must get priority in this matter, but for anybody who is facing the possibility of  murder. As one speaker said, murder is murder is murder.
One point that is important is that in proceeding with the Bill at this time we are considering abolishing something which has not happened for some considerable time and is unlikely, thank God, to happen in the near future even if the law remains unchanged. One of the major arguments put forward for the retention of capital punishment is the deterrent effect. That is the kind of argument in which one could easily get involved in statistics from various countries or, as Senator McGuinness did very effectively, take certain States of the United States and carry out an elaborate statistical exercise to demonstrate whether capital punishment has a deterrent effect. We should ask ourselves who is likely to be deterred by the threat of capital punishment.
There are many categories in which murder or homicide has been placed. Penologists and others have argued about this and have split the categories into sub-categories but if we look at the question in a common sense way we will see that there are three basic types of murder. One is the kind of murder which takes place in what one might call a state of passion, a situation in which murder is not a deliberate target of the action undertaken but results from a situation of passion, stress or whatever it might be and in which there had not been a decision by the person concerned deliberately to choose a situation in which murder could take place or, alternatively, had deliberately planned a murder. The second category might be where a person has criminal intent, where a criminal, or a group of criminals, plan or conspire to commit what they know to be a crime and in the course of their preparations and arrangements take certain actions which they know could lead at the very least, to grevious bodily harm or to loss of life on the part of those they intend to interfere with.
The third category affects us and many countries at present and it is one that we are not likely to see an end to in the immediate future. I am talking about  murder committed with political intent or committed in circumstances where the objective is political. The point has been well made in cases like this. In the context of this country — Members opposite might note that when I say “this country” I mean this island — where there are people who as a result of a decision of their own, a decision of their will, set about a process which they know will lead to their own death, where they embark upon a course of actions which will lead directly to their own death and they choose such a course, it is ludicrous to suggest that people in such a frame of mind will be deterred by something which is a great deal less unpleasant, a great deal less uncomfortable and to which in their minds a great deal more kudos would attach, namely, execution by the forces of a State which they would regard as a mockery and a form of imposition.
When we talk about that situation we must remember what our history is. Our history is simply one in which for a long time the final accolade or honour which could be paid to any one of us was to be hanged. There is hardly any Member who has not in various circumstances, possibly connected with premises authorised by the Constitution, attempted to sing a certain song which involves a hanging. I refer to the hanging of Kevin Barry. We must be realistic about this. There are our traditions and what we have behind us. We have not eliminated from our young people, and many of those who are not so young, the concept that it is honourable to be hanged for one's country's sake. As long as we have people like that those people will not be deterred by hanging. They would welcome it, if they had the chance. Worse still, the godfathers, those who plan their activities, the people who lead and organise them, would be delighted with such a situation because they would be able to say that any person executed in those circumstances would take his place among the honourable martyrs of our past. Possibly many colleagues who made a tour of this country during last summer will have noticed in many of the small towns, which  have been referred to during the course of this debate, monuments and memorials where the ultimate date is not 1916 or 1921, where there is no ultimate date at all, there is just a hyphen. When we are talking about execution and capital punishment we are talking about some people who will not be deterred by that kind of thing.
We must remember the history of extreme violence. Those of us who had the privilege of growing up in this city will remember when we could walk the streets without fear of attack or mugging at quite a late hour. There is certainly a rising tide of violence not just in this city but in other cities and towns in other parts of the country. If we go back further in history to the nineteenth century we find that this country was then in a state of endemic violence. Some may bring forth political, social or economic reasons for this but we are part of a country where the whole history has been one of violence.
Reference has been made to the educational system and the fact that in many of our schools it has been the tradition that violence is inflicted by teachers upon pupils. There are many people, possibly some people here, who would argue that they were better for having had violence inflicted upon them at some stage by their pastors and masters. The point has been made that this tradition of violence in our schools and society has to a very large extent innured us to the whole concept of violence and the solution of problems by violence.
When we come to the concept of the solution of problems by violence we come again to something which is central to our purpose here, to a theme which we must at all times keep in our minds. We live in a world faced by massive problems of one kind or another; we live in a country faced by massive problems; but in such a situation, where there is such a complex of problems which seem to be intractable and not to respond to reason, research or technology, there is a massive pressure throughout the world and in this country too to reach a solution to those problems  by violence, to bring to those problems the concept that violence is the ultimate, the right and the desirable solution.
One of the reasons why we should support this Bill and why I ask Members on the other side and also people who may not be committed politically, to consider this situation as rationally as possible is that we have a duty, as representatives in an institution of constitutional democracy, to prove and support the concept that problems can be solved by men and women sitting around a table and trying to approach them with their intellects and their minds and not permitting their emotions to rule on all occasions. In this case we must try to give a headline to the young people of this country in particular who are confused and uncertain about the future. We must give a headline to those sections of the people who have been virtually brainwashed and conditioned into believing that violence is the only solution to their problems, that it is possible to solve problems by non-violent means.
One must be realistic about the possibility of rehabilitation. There have always been and must be people who are involved in crime of one kind or another whom it would be difficult to rehabilitate and convert from those courses. We know that is so but that does not absolve us from the responsibility of trying to grapple with this. Part of a process which is central to human history is the attempt by human beings to make their life more humane, to try to bring to their problems not the gut reaction of the cave man or woman but a philosophy that has progressed a little bit further.
Reference has been made to methods of execution. It is relevant that we should consider methods of execution coldly. Senator Toddy Byrne referred to the fact that his father was a garda. My father was a member of a police force in another country and as part of his responsibilities he had to witness executions. He was not a squeamish man or a man who was afraid of many things but his reaction was a very simple one. He said that if people who advocated capital punishment had  to witness a hanging, their attitude would be very different.
Senator Magner gave some graphic examples but his description of hanging was in fact a very bowdlerized version of what happens to the human body in those circumstances. I am sufficiently old fashioned and conservative to accept the idea that when ladies are present one does not talk about certain things. But I would advise Members to try to find out for themselves precisely what happens to the human body when that human body is hanged by the neck until it be dead. One of the least unpleasant things that happens is that if the weighing and the testing of the rope that goes on beforehand is not done in sufficiently accurate a fashion the guts fall out; they burst out of the body in the process. There are other things that happen further down the body which I do not intend to describe in detail here. Hanging is not a very civilised way of dealing with a problem.
Some may argue that hanging is a barbaric relic of medieval times. Reference has been made to torture. It is argued that we should have a different method of execution, some more scientific method, gas, for example. Maybe we might use cyclon B which was very efficient. It dealt with 6,000,000 Jews, gypsies, Poles and various other unwanted people. Maybe we will use electricity or something like that.
We should approach this matter in a rational way. I do not intend to go into emotional details about methods of execution. Purely from an intellectual point of view, purely from a point of view of reason, it is difficult for me to agrue logically that we have the right to take the life of another person in this way. It is not self-defence to plan in a cold-blooded, methodical way how we would deprive another human being of his or her life. I do not see how the final termination of a life can be justified by any Christian. Some Members may recollect the part of the play, Hamlet, by William Shakespeare in which Hamlet contemplates with some delight and with some pleasure the possibility of terminating the  life of Claudius — I think it was — prior to Claudius being in a state of grace or prepared for the next world so that he could plunge him into the eternal sufferings that that would involve. There is a certain finality about taking somebody's life. For us in this House, as upholders of what we hope one day will be a more civilised way of life, to support the termination of life in this way is bordering on the obscene.
Mr. Fallon Mr. Fallon
Mr. Fallon: This Bill, as we all realise, is in many ways an emotive, controversial Bill. It sets out to abolish capital punishment for the murder of gardaí and prison officers in the course of their duty. Let me say at the outset that the Minister and other Members and the Garda themselves are opposed to the taking of life whether it be by the State or by anybody else. Capital punishment is repugnant to most people. We have heard and we have read that many other states have abolished the death penalty and we are one of the last of the EEC countries not to abolish it.
But many people would like to ask if all the legislation from the EEC is to the liking and the betterment of the Irish people. That is a question many people would ask and I would ask it again here now. I do not know why this Bill is being introduced at this time. We know of the Coalition agreement, which is their business. We know that two very powerful Independent Members of the Dáil are very keen on this Bill. But I found in the recent general election campaign — and I canvassed extensively — that there was no popular demand for this Bill. We know that in April, 1980 the Assembly of the Council of Europe recommended the abolition of the death penalty for all but wartime offences. One could argue and debate this recommendation. Many would say that we are in a wartime situation. War is not declared but it is suggested that there is, in some way, a war going on.
The previous speaker referred to Kevin Barry. There is no comparison between the scene of Kevin Barry when he was hanged and what we are now talking about. That would be my view  and I think it would be the view of most people here. Many groups have welcomed this Bill — Amnesty International, The Irish Council for Civil Liberties — all very important groups. The most important group in this whole exercise is the Garda. We cannot ignore this fact. They are the men in the firing line; they are the men in the front line; they are the men who are protecting society against organised criminals. They must be listened to. Down the years successive Governments and successive Ministers for Justice have pleaded with us to help the Garda in every way we can. We must help to build their morale and must look after them in every possible way so that they will give the right service that a police force should give to the people of Ireland. Yet in this important issue we are ignoring them. We are not recognising their statement. This is not right. I do not think it is fair. The death penalty is a clear deterrent. We know that sentences were commuted in the past and it might happen again in the future if the death penalty were retained. We should leave the legislation as it is because retention of the death penalty means that the criminal does not know what will happen. For him it is an unknown quantity. Who knows but that maybe in a few years there would be committed a crime so atrocious that there would be a cry from the people for a hanging. The crime could be so terrible as to immediately warrant a more serious sentence than a jail sentence. That could happen. If for example, there had been a murder last week or this week similar to what happened in County Roscommon, the murder of Gardaí Morley and Byrne, or what happened in Wexford, would we be discussing this Bill today? I do not think we would because the mood of the people would be that we should not discuss it in that kind of scenario. In this country there are subversive criminals and the ordinary domestic and gangster-robber type, all of whom use the gun and, indeed, the use of the gun is a serious tragedy in Irish society. I would suggest that these people are not carrying guns to play cowboys and Indians. If they are challenged, they will  shoot the garda. They will shoot at anybody to get away.
By abolishing the death penalty we are making things much more difficult for the Garda. The fight against crime is extremely difficult. We should give the Garda all the support they require. If we pass this Bill it could well be argued that we could have a 75 per cent or 80 per cent armed force and that we could have summary executions. We could have shoot-outs in the streets in towns in Ireland. These things have been said and many people agree that they are a real possibility. People have asked who would do the hanging. Pierpoint has been mentioned as not being around now, which we all know. If we had a gruesome situation, if we had a killing, there might be many people who would do the job if they were offered it.
Talk about the gruesomeness of hanging, as outlined by two Senators, is terrible and is not nice to listen to. As Senator Honan rightly asked, what about the poor garda whose brains are blown out? What about the heartbreak to his family? What about his children? A young garda may be doing a great deal of work for youth, or to eliminate crime, or to help the community. What happens if his brains are blown out by some criminal? Is that not a gruesome situation too? We seem to be having all the sympathy for the poor devil who has committed the crime. We are getting very soft. Far too much emphasis has been placed on the criminal, on how nice a guy he really is and ignoring the fact that he has shot a first class member of our community. If we remove this legislation from the Statute Book it will never be put back. I say we should leave it alone and commute the death sentence if we have to. Every case should be examined carefully on its merits.
Unfortunately we have not got a perfect society. If we had, we would all be saying: “Take it away. We do not want it”. That is not the situation. We cannot ignore the strong views of the Garda. Their morale must be maintained at all times to enable them to do a good job, which they are doing for the people of Ireland.
Mrs. Bulbulia Mrs. Bulbulia
 Mrs. Bulbulia: I welcome the decision of the Government and the Minister for Justice, Deputy Jim Mitchell, to introduce this important reforming measure. It is encouraging, indeed, that at a time of grave economic and social problems, time has been found for discussion of the profound moral issues raised by the death penalty. In approaching this reforming measure it is necessary to examine the background to the abolition of capital punishment. In fact, the Irish Council for Civil Liberties kindly supplied all Senators with the most cogent briefing document. I know I echo the sentiments of many Senators when I express our gratitude to them for this.
It is important to examine the background to the abolition of capital punishment. The Criminal Justice Act, 1964, introduced by the then Minister for Justice, Deputy Charles Haughey, abolished capital punishment for all but the crimes listed in section 3 of this Bill. In 1978 and 1980, the Conference of European Ministers for Justice, Ireland being represented by Deputy Gerry Collins, unanimously affirmed its support for the abolition of capital punishment. In April 1980, the Parliamentary Assembly of the Council of Europe recommended the abolition of the death penalty for all but wartime offences. In November 1980, the European Parliament requested member countries to suspend capital punishment pending a debate in the Parliament. In May 1981, the European Parliament voted in favour of abolition, and recommended that member states amend their legislation accordingly. Since 1971, the General Assembly of the United Nations has supported the resolution several times for “the progressive reduction of the number of offences punishable with the death penalty in view of the desirability of abolishing this penalty in all countries”.
Mention has been made of the many countries in Europe which have abolished the death penalty. I should like to name those countries: Austria, Denmark, Finland, France, the Federal Republic of Germany, Iceland, Italy, Lichtenstein, Luxembourg, Malta, The Netherlands, Norway, Portugal, Spain,  Sweden and Switzerland. As a progressive people we too should be enumerated in this list. I very much hope that we will be, not in any spirit of following the mob, but because what we propose to do by passing this Bill is a logical sequence of the steps taken in 1964.
Opposition to violence and the taking of life must include opposition to the ultimate violence of judicial killing by the State. I am opposed to violence believing with Ghandiji that “non-violence is infinitely superior to violence; forgiveness is more manly than punishment”. Non-violence is the law of our species, as violence is the law of the brute. The spirit lies dormant in the brute. He knows no law but that of physical might. The dignity of man requires obedience to a higher law, to the strength of the spirit.
As a woman and a mother, as one who has conceived life, borne life, nourished life and sustained life, I cannot approve of or condone the taking of life in my name by our State. Capital punishment as a form of retribution is unworthy of a democratic and Christian society. The Bill before us today is a completion of the task engaged upon in 1964 when the Criminal Justice Act was passed. It is a logical follow-through to all the persuasive arguments put forward at that time.
Let us examine the present position. Any individual intent on murder, or involuntarily involved in the murder of a member of the Garda Síochána, or a prison officer, knows full well, when he stands in the dock and hears the sentence passed, that he will face a lengthy prison sentence, but that he will not hang. We have not used the death penalty in this State since 1954. In fact, I have a very clear recollection as a small girl of the day on which that death sentence was carried out. I remember very clearly — I lived in Dublin at the time — that amongst the children with whom I played there was a certain pall of gloom. As the time approached — the hour of execution had been mentioned very carefully in the newspapers — we were very much aware of it. We consulted watches. We thought about it very carefully. We prayed when that moment came. I do not think that in  any way we supported or condoned what had taken place. I remember quite vividly the shock and horror of that moment.
I do not want my children or anybody's children to live through judicial murder carried out in the name of the citizens of this State. It is evident to me that if something has not been carried out since 1954 that it has become obsolete. It is an obsolete measure on our Statute Book and, as such, should be removed. It is therefore no longer a deterrent. The law as it stands could be interpreted as weakening the position of the Garda and prison officers in this regard and in some way rendering them even more vulnerable. At this point I should like to state categorically and unequivocally that I value and hold in the highest regard the role and function of the Garda Síochána as guardians of our peace and the role and function of prison officers. Senator Fallon referred to the fact that the Garda perhaps have an objective view or that their view should be given particular significance. I am not for one moment saying that it should be overlooked but I am saying that perhaps it is not the most objective view of the situation and that decisions in relation to this Bill and any other should be taken objectively, calmly and in a detached way, of course consulting those directly involved. But I would feel it is not in the interests of this State that decisions like this should be taken solely by those directly involved.
I want the present anomalous position resolved and the provisions of the Bill implemented so as to afford the Garda and prison officers the fullest possible protection under the law. As matters stand they have a purely nominal protection of which hardened criminals and subversive elements are aware. They perform the vital task of protecting all of us without the necessary support this Bill offers. In purely practical terms we have a problem of providing an experienced, practised and skilful hangman. The notion that, in the heat of the moment, an inexperienced and inexpert citizen, in order to wreak vengeance, would take over that task and assume the authority of hangman is totally repellent to me.  There are there overtures and tones of mob violence no responsible public representative in this House could even consider.
I have ascertained that we would need to go as far away as South Africa to provide ourselves with a competent practitioner in the art of hanging. Imagine the furore it would create here had we the temerity to embark on that course of action. If a rugby tour could cause such a storm can one imagine the excitement when we went to Dublin Airport to meet the hangman, escort him from the aeroplane, conduct him to the prison where the execution was to take place. I say to fellow Senators that we would be a laughing stock amongst the nations of the world. Lest Senators be in any doubt as to the experience of this mythical hangman from South Africa they might like to know that South Africa accounts for half of the world's known judicial executions. In 1979 a total of 133 people were hanged. By mid-July 1981 69 people had already been executed and it is a gruesome statistic from that country that since 1974 the number of executions has trebled. Arguments about capital punishment being a deterrent are made a nonsense of by those figures. I would remind Senators that in South Africa there is a problem of political and civil unrest which makes our situation here seem somewhat more manageable.
Many voices of leaders of opinion have been raised in support of total abolition. They have been detailed by other speakers who contributed to this debate. I should like to add my voice as a woman, as a mother and as a Senator in full support of the total abolition of capital punishment and in support also of the provisions of this Bill.
Mr. Burke Mr. Burke
Mr. Burke: It is my duty and privilege to add a few words in support of the Bill before us. I congratulate the Minister and the Government on having brought the Bill before us, not as Senator Fallon would have us believe, that we would have to initiate Government Bills as a result of popular demand. If such were the case we would have had Bills thrown over the gate the last couple of evenings.
 Many people have spoken in support of the abolition of capital punishment over the years. Many reputable and credible organisations have lent their support to its abolition. On the other hand there have been people and organisations who have argued in favour of its retention. Most notable of these and the most recently vocal are those of the Garda authorities. Everybody must recognise their right to their view on this matter as they appear to be the people directly in the firing line, as it were, if the House will pardon the pun.
I want to use whatever influence I have to ensure that this Bill succeeds in its objective, that is the abolition of what I see as the State legalising murder. It may be a very raw and crude way of expressing it but that is what it is to me.
It was as a result of the demands made throughout the years that in 1964 the Criminal Justice Bill was brought before both Houses of the Oireachtas. On that occasion the Bill went a long way in satisfying most people's demands. People still voicing opposition to this proposed Bill were then, and here I quote from Senator Eoin Ryan's contribution to the debate on that occasion when he said that he was disappointed that the Bill then introduced did not provide for the complete abolition of the death penalty. I suggest that Senator Eoin Ryan has the opportunity now to bring an end to his protracted disappointment of 17 years, that he is afforded an opportunity now to bring that disappointment to an end and support the Bill before the House. I suppose it would be too much to ask that he do so the next time this goes to a vote in the House because, alas, he said recently that that is not the line he is to take. He said that the time is not yet right.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: Would the Senator please give the relevant reference, the source of the quotation?
Mr. Burke Mr. Burke
Mr. Burke: It is from a recent debate. The original quotation I gave was from his contribution to the Seanad debate in 1964.
An Leas-Chathaoirleach An Leas-Chathaoirleach
 An Leas-Chathaoirleach: Has the Senator the Volume and column No. please?
Mr. Burke Mr. Burke
Mr. Burke: It is in Volume 57. Senator Eoin Ryan has said that the time is not right. Are we once more allowing the buck to be passed for another decade or more and the issue to be evaded in a cowardly fashion, which is what I believe it would be? Past indecision and its consequences are to be noted today. I take up the point made by Senator Fallon in his contribution to the debate when he said we are now in a wartime situation. Such statements give too much importance to the dastardly deeds of the IRA who are now elevated to the position of creating a warlike situation within part of this country.
Many people have strong views on capital punishment. To me and to all who believe in the dignity of life, this Bill is a great source of pride. I believe in equality of justice. I cannot and do not want to see a distinction made between a member of the Garda Síochána and any man or woman on the street. To me each life is sacred and to take any life is murder. The taking of life by the State or by anyone else is wrong and, for that reason, I give my full support to the Bill.
When we look at our history we can see that many of our patriots were done to death by capital punishment. We shrivelled at the very thought and we denounced, and rightly so, the people and the governments who legally authorised those deeds. Are we now to excuse ourselves for that very same deed, saying that the time is not right? For some people calling the murder of a garda or a prison officer a political murder is a way out. It avoids the real issue but I do not accept it as a way out. Many people also label it a crisis of conscience and use that as a way out. Far too often this indecision has left us with legislation such as this on our Statute Book. I hope that the legislation initiated by the Government will remove this indecision.
To suggest that the present violence has to be eliminated before we take any move to remove capital punishment is a sign of weakness. It has been offered as an argument by the other side of the  House in support of the retention of capital punishment. We hope that all crime will be reduced or eliminated from our society but, at the same time, to suggest that we retain this legislation as a method of achieving a utopian situation is wrong. I hope as a follow-up to this legislation that the Garda will be given the necessary equipment — I do not mean guns; we should be very proud of the fact that we have to a large degree an unarmed force and I hope that we retain it — as well as the know-how and training to ensure that much of the crime now rampant in our society will be dealt with and the perpetrators brought to justice.
Members of the Garda Síochána may say they are unprotected now but I fail to see how the retention on the Statute Book of a law that has not been used for more than 17 years can protect them in any way. During the years it has been the duty of the Government to seek a reprieve from the President in any instance where the death penalty was passed. We are bringing our laws into disrepute because it has now become a duty of every Government to commute the death sentence to life imprisonment.
It has been said that the death penalty is a deterrent but I do not think that is the case. Most of the people who commit murder under this law are fanatical criminals and in that they are a law unto themselves. I do not think it has made much difference to them that they have murdered nine gardaí during the years. They are fanatical in what they do and they would have carried out their crime whether the death penalty had been in operation or not.
It is not a natural progression in the event of the abolition of capital punishment that we should arm the gardaí as an alternative. Emotions run high when we read about — and some people witness — the murder of members of the force. That is quite natural in circumstances of great tragedy and loss. However, to carry out the death penalty on the apprehended culprit would be a continuation of the maxim “an eye for an eye and a tooth for a tooth”. I do not subscribe to that maxim.
 The retention of capital punishment is said to be a deterrent but in recent times it has not been a deterrent here or north of the Border. If we leave these things as they are — which seems to be the attitude of the other side of the House — we are bringing the whole judicial system into disrepute. To be forced to continue in this way of seeking a reprieve for those who have been convicted of capital offences will lessen respect for the law and for the courts. I do not believe the death penalty is a deterrent. What we have substituted in its place — a 40-year maximum sentence — in its own way is as much a deterrent as was the death penalty, for those who want to look at it in a different light.
I take issue with Senator B. Ryan on the three categories for which he wants the penalty of 40 years. We cannot glorify the people who have been found guilty and sentenced to death. We have to treat them by rehabilitating them. The present prison system can adequately take care of that issue. As it stands there is no guarantee that the people so convicted may not be released from prison in a very short time, much to the dissatisfaction and abhorrance of the population at large. I support without reservation the fact that we are to change the law about the taking of life and I ask the House to support this Bill.
Miss Kearney Miss Kearney
Miss Kearney: I rise to add my approval to this Bill and welcome in the clearest possible terms the measures it contains. Much has been said already on this matter and, if possible, I do not want to repeat what has been said.
It is of extreme importance that we recognise the fundamental matter raised by this measure. This Bill seeks to deprive the State of its authority to deprive a human being of his or her right to life. The right to life is perhaps the foremost of all human rights and nobody has the right in any circumstances to deliberately deprive another human being of that most sacred of all human rights.
I find it strange that there should be division on this question. If this Bill had sought to affirm our commitment to the  right to life of the human foetus there would have been unanimity on the question. Surely it is totally illogical and inconsistent that our commitment to the right to life before birth is in no doubt but we do not have a similar commitment to the right to life after birth, and we feel it is a matter on which it is appropriate to play party politics.
It has been argued in defence of capital punishment that if somebody has deprived another human being of his right to life that person has forfeited his own right to exist. Leave aside for a moment the possibility of mistaken identity and presume that in any given case it is possible to assume a particular accused did murder an individual, was acting of his own free will and was not suffering from a mental disorder. Let us examine this argument. Depriving the accused of his own life is not going to restore the life of the victim or relieve the sufferings of his family. In my view it is simply an act of vindictiveness and retribution by the State. It is based on the principle of an eye for an eye and a tooth for a tooth, a principle which runs totally contrary to the tenets of Christianity on which our society is based. The use of violence against violence is an admission that in certain circumstances violence is a justifiable means to an end, not an admission, I believe, which can be made by anybody who claims to be a democrat.
Like everybody else in this House I appreciate the very special role played by members of the Garda Síochána and prison officers. I am aware of the dangers they face in their daily lives and recognise their need for special protection. I am also aware that they have opposed this Bill. With the greatest respect for their views and understanding the situation, I believe that in imposing this measure they are not acting in their own best interests. The prison law does not adequately protect the Garda and prison officers. The events of the last ten years and the increase in the number of acts of violence committed against members of the police and security forces have shown that the existence of capital punishment is no protection and is not an effective deterrent.
 The present law provides for an ultimate sanction which it is recognised will never be exercised and other sanctions which are exercised but are inadequate either for the protection of society or as an effective deterrent. This legislation by its provisions of a mandatory minimum sentence strengthens not weakens the position of the Garda and the prison officers.
Even if it could be proved that capital punishment was an effective deterrent that is not an argument for its retention. The right to human life is an absolute and immutable right which cannot be altered by time or circumstance. The suggestion that now is not the time to introduce such a measure is quite untenable.
Mr. S. O'Leary Mr. S. O'Leary
Mr. S. O'Leary: I support this Bill. It is opportune that this Bill should first be brought before this House early in the session where hopefully it will receive mature consideration with a minimum of influence of party politics. That is the spirit in which all Members have approached this measure. It is unfortunate that we find ourselves divided on party lines. It may be that at the end of the day a division will be forced, in which case the device of imposing the Whip, for the purpose of ensuring that legislation which is essential for the day-to-day running of the State is passed, will be abused. If the Whip is used by one side it is very hard for the other side not to use it.
This is a category of legislation we have been notoriously slow in considering, that is, legislation of a social nature which affects the ethos of our society rather than the day-to-day running of the Government. This should be a matter for the individual conscience and judgement of our legislators rather than a matter which should be enforced through party discipline. Such an enlightened approach to parliamentary democracy presupposes that that point of view is shared by virtually all the groups present in the legislature. If they do not share that view, one does not have an enlightened discussion of the legislation and cannot exercise freedom of judgement in social matters. The effect of this is that socially desirable legislation is repressed and a feeling of  bitterness creeps into the relationship between the legislators in the Houses of the Oireachtas. It is a pity that we cannot approach this Bill with that view. It is no boast for any political party to say they never had a free vote. It is something to be ashamed of. We should try our best to overcome the natural prejudices that exist and seek to bring a more enlightened approach to the consideration of topics like this.
I find myself in some disagreement with the Minister in the tone of the introductory speech. I must make it quite clear that I support the Bill and will vote for it. If there were a free vote I would have no hesitation in supporting it. However, I do not find myself in intellectual agreement with him in saying that the State never has the right to take life. The right to life, like any other right, is a limited right. It is dependent on the circumstances. Very few people would say if I were threatening the life of a perfectly innocent person that some third individual would not be justified in intervening and if necessary killing me to prevent me threatening the life of the innocent person. We tend to see rights as being absolute and liberals and conservatives both use this when it suits them. It is so fundamental that of course only in the gravest of circumstances, which I have defined as meaning that the life of the person involved is immediately and gravely threatened, would it be possible to justify the taking of the life of one individual by another in the State.
My support for the Bill arises by reason of the fact that we can only deal with a situation, not in some hypothetical way, but as it exists today. We must ask ourselves whether the lives of the citizens of this country are immediately and gravely threatened by the actions of some particular identifiable individuals who are at present covered by the legislation which allows for the implementation of the death penalty. Measured by that criterion I do not think we can say that. First of all there is a lapse of time between the actual crime and sentence and the carrying out of that sentence. Leaving aside for the  moment the philosophical argument about the death penalty, there is the grave problem that the law naturally moves slowly. If a person is murdered and somebody is arrested for that murder, a book of evidence is prepared, a trial takes place; inevitably if there is a conviction there is an appeal to the Court of Criminal Appeal, and usually in a capital case there will be some grounds for an appeal to the Supreme Court. Now the time taken to execute the due process of law could take between one and two years. At that stage we would be seeking to execute a person for a crime committed one or two years ago. It appears to me that the reaction of the State at that stage is not to a situation that meets the criteria I have set down that justify the taking of life. Having gone through judicial process for two years, and the alternative of 40 years or thirty or twenty years in jail being available, it is ridiculous to say that the person is gravely and immediately threatening the life of citizens. In my opinion it is not proper that a person who has been held in custody for a year or two years should be executed in a cold blooded and deliberate act by the State.
Seanad Éireann 96 Criminal Justice Bill, 1981: Second Stage (Resumed).