Seanad Éireann - Volume 96 - 05 November, 1981
Criminal Justice Bill, 1981: Second Stage (Resumed).
Question again proposed: “That the Bill be now read a Second Time.”
Mr. S. O'Leary Mr. S. O'Leary
Mr. S. O'Leary: I concluded on the last day having spoken about the long period which elapses between the committing of an offence and the completion of the judicial process. With all the appeals that are entailed the time could be as long as two years. The anger of the population, which is quite natural when such an offence is committed, in my experience does not last for that length of time. A very significant proportion of the population, who would have been repelled by the crime, would find themselves in an entirely different frame of mind two years later.
I am impressed by the arguments of those who have put forward the view that the abolition of the death penalty at present  is an act of faith in our own democracy. We are saying to criminal elements and potentially criminal elements, whether politically motivated or not, that we have sufficient faith in the overwhelming persuasion of the ordinary people that they should give allegiance to the institutions of State that the death penalty is unnecessary. This is probably the most forceful argument in favour of the abolition of the death penalty at this time.
We should, of course, also consider the representations that have been made by members of the Garda Síochána. It is significant that countries like ours, such as the United Kingdom, excluding for the moment Northern Ireland, have not the death penalty in respect of the type of offences we are talking about here and they would have a very much more organised criminal class in that country than we have. There is no evidence whatsoever that there has been an attempt to take advantage of the police in that state to the extent that they have been murdered to a greater extent than would have happened if the death penalty were not in existence. Comparisons with other parts of the world are not strictly relevant.
I have doubts about the length of sentence it is proposed to substitute. The problems that will arise in institutions when somebody feels that he must remain there for a minimum of 30 years with no possibility of any further remission are very great indeed. This does not go to the heart of the Bill. What is at the heart of the Bill is whether we, irrespective of whether we are in favour of the abolition of capital punishment in general or whether, like myself, we are in favour of the abolition of capital punishment in this particular case, can unite on this occasion and say that the organisation of our society has reached the stage when there is no need to have on the Statute Book crimes for which the death penalty is either compulsory or even a possibility.
Mr. Leonard Mr. Leonard
Mr. Leonard: There is no conflict about the ideal solution as far as the death  penalty is concerned. We on this side of the House cannot understand why this Bill is being rushed through at present when we have an unprecedented level of violence. Over the last number of years at the Council of Europe this subject came up for discussion. When the abolition of the death penalty was debated there I spoke in favour of the proposal and I still look forward to the day when it will be possible to remove the death penalty from the Statute Book. We stated the position in this country and why that sentence was retained.
In view of the level of violence, especially in the north-eastern section of the country, it would be completely undesirable to pass this legislation. There have been kidnappings and murders and members of the Garda Síochána who are in that area are under very severe pressure at all times. Hanging has been discontinued for the past 27 years under various Governments and sentences have been commuted.
When assessing whether this is the appropriate time to debate the death penalty or to delete it from the Statute Book, it is only reasonable that we should consider the views of those involved in maintaining law and order. In a letter I received from the Association of Garda Sergeants and Inspectors they stated very clearly that it was not a practice of theirs to communicate with Members of the Seanad. Mr. Derek Nally, the general secretary of the association, said they were taking this rather unusual step to show the measure of concern they felt. The letter stated that they were always aware of the risks and were willing to accept them but undertook to do the job on the basis that society recognised their claim to whatever additional protection the law could give them. They claim that the retention of capital punishment had a moderating effect on society. I would be very loath not to take cognisance of the views and beliefs of gardaí at all levels.
We are told in this House that the promotion of this measure is motivated by humanitarian considerations but that does not hold any water when you realise  that there was no person executed during 27 years even though sentences were passed. Also, no Member of the Oireachtas seriously believes that any prisoner will be executed in the future unless the situation gets substantially worse.
Members of the Government seem to be at variance among themselves in bringing forward a measure which had not even been discussed by their parliamentary party and seemingly had not been given very deep discussion even at Cabinet level. There has been much controversy on this measure in their own ranks over the last few weeks.
All in all, we would be doing a good job in voting against this measure. Certainly the time will come, hopefully before long, when this can be reviewed because the level of violence and danger will have abated. We can then be as one on this issue. The present time is not right.
Mr. J. Harte Mr. J. Harte
Mr. J. Harte: It is a pity that there is not a greater opportunity of going into the question of the abolition of the death penalty, but that is well compensated for by the fact that there has been a world view of the abolition of the death penalty. Consequently it has been easy for some of us to draw on that experience.
Already over 50 countries have abolished the death penalty, in most cases altogether. In Belgium the last civil execution was in 1863. In Finland the last execution was in 1826, in Norway 1876, in the Netherlands 1860, in Uruguay 1877 and in Venezuela 1863. There are many other countries to which I could refer but in view of the time factor the examples I have given are sufficient to indicate that the question of the abolition of the death penalty has been thoroughly dealt with from a world point of view.
I would like to take Uruguay as an example in making my contribution. Uruguay was South America's smallest democracy and in the year 1970 they had a population of about three million people sandwiched in between two very large countries of the South American continent, Brazil and Argentina. They were in the midst of a tremendous  upsurge of guerilla warfare and those guerillas were actually very active on the streets of Montevideo and were killers of government members, diplomats, armed forces etc. It was also suspected that they were supported by the president of El Salvador and by Cuba's General Castro because both of them believed that this was an ideal centre in the South American continent to generate revolution. In the midst of all of this in Uruguay there were kidnappings and assassinations and the guerillas took over radio stations, burned and bombed and generally ruined business. They finally saw the futility of it all and they went to the ballot boxes around 1971 and were defeated but in the interim the question of the re-introduction of the death penalty was not discussed. This is the point I am trying to establish. It was dealt with by the Uruguayans by what I would describe as strong thinking rather than strong feeling. If a country like that, similarly placed to ourselves yet having a more intense situation facing them than we have, could deal with their own criminals or would-be murderers without re-introducing the death penalty, then it means, in effect, that if we are really sincere about our arguments to retain it, we are going on the basis of strong feeling rather than on the basis of strong thinking.
The argument carries on throughout other countries. For example, the USA is divided against itself because certain states have the death penalty and others have not, even though the social and economic conditions are the same. So in America they are arguing against themselves, the USA versus itself. The states where it was abolished in America have had anarchy and very serious problems but they have not found it necessary to reintroduce the question of the death penalty because the world view of the death penalty is that it has not been a deterrent.
Everyone is making the case about the deterrent, but the world view is that abolition has not led to an increase in the number of murders. Where the death penalty has been retained it has not changed the situation either.
 If the person committing a breach of the peace has the glamour and the power that surrounds the muzzle of a gun running through his veins there is no way that the existence of a death penalty will deter that individual. Equally if somebody goes out with a gun in his hands to commit an armed robbery it does not follow that he goes out to kill anybody. It is a means of persuading people to hand over money. I am not justifying it by any means but I am merely saying what I believe to be the case. If that person in those circumstances happens to be detected the question of the death sentence will not deter him from blasting his way out, whether it is by wounding or killing or anything else. It distrubs me not to have time to go into it in greater depth.
Because this power and glamour outweighs the risks, there is no way in which those people will be deterred nor will the other criminal who goes out to rob. The big problem for the fellow who goes out to commit an armed robbery is the fact that he may be detected. That is the main deterrent in my view because before going out to do the armed robbery there is a lot of careful planning and thought, all geared towards getting whatever they want and getting out again without being detected. The real deterrent is the risk of detection.
We could talk for hours but there is no way we can guarantee ourselves security, peace, happiness or freedom. They are things for which we must continually fight. They are things we must think about, earn and deserve. We have not earned any more by retaining the death penalty than we would by its abolition. So it is not a case of saying that if we do one thing the murder rate will jump up and if we do the other it will not. All the research done in the other countries which found it necessary to go into the question of abolition has proved that the retention of the death penalty is not in itself a deterrent. The people who make the argument for it have not been able to prove that if the death penalty were abolished there would be a gradual or maybe a sudden upsurge in the number of people  who want to go out to commit murder.
People who did this research had to ask themselves whether all the potential murderers in society would come out of hiding to gain revenge on society by striking people down because a death penalty was no longer in existence. The only answer that they could come up with was that it would not make any difference. If it did make a difference some of the countries I referred to might have had to reintroduce the death penalty. In most cases, they did not do that. If we follow that line of argument we must arrive at the conclusion that those who did the research with regard to the abolition came up with the view that there would not be a sudden increase in the murder rate because of the absence of the death penalty.
I can understand the fears of the Garda and I have the greatest respect for them. I certainly would not like to be in their position. They are also talking about deterrents. I would like to ask the Garda if any of the officers really believe that any person apprehended while he was in the business of committing a breach of the peace would be conscious at that moment that a death penalty existed or that he would care in view of the circumstances he found himself in. That raises other questions. We could ask whether the existence of the death penalty would deter people from taking a pistol out in the first place to commit robbery. The answer to that again must be “No” because the number of armed robberies have not decreased by such substantial numbers that we can say people will not take guns out to commit robberies.
What we must bear in mind if somebody takes a gun to commit a robbery is that it is not always to kill. Sometimes it is to frighten and death often occurs through bungling. According to one argument we can be deterred from killing because the death penalty is in existence. On the other hand we have the glamour of the gun that exists in the minds of some people. We have that to contend with. I do not think that the risk of the death penalty outweighs for such people the  power and glamour that goes with that particular situation.
In the case of somebody who is trapped, he will not be concerned at that moment about the death penalty. His real aim will be to get out of there as quickly as he can and to avoid apprehension at all costs. The death penalty in that circumstance would not be a deterrent because immediate survival would be his motivation.
The question has been answered well by a few of the Royal Commissions that have been set up. It is nearly half a century since the first Royal Commission reported in favour of abolishing public executions. It also favoured the grading of murders into first and second degree. Eventually, arising out of that dialogue total abolition came about. There were people at the time who paid a lot of attention to the proceedings, one being Arthur Coestler.
I would like here to refer to his book Reflections on Hanging (1955). Following the Royal Commission, Coestler and his allies formed—also in 1955 the national campaign for the abolition of capital punishment. Coestler put this question: why do governments, one of whose purposes is to deter people from killing each other, consider it necessary themselves to indulge in legal killing? Coestler's answer to his question was to explain the nature of public ignorance, an ignorance perpetuated by reactionary politicians, judges and officials. As he said, the public were induced to believe that only the hangman could protect them against cold-blooded killers. The fact is that protection had nothing to do with the hangman. Coestler was not speaking about the abolition of capital punishment only or degrees of punishment at that time. Indeed evidence was advanced that it had nothing to do with the question of the hangman. Many of the murders were committed by bungling. In the case of armed crime, in the killing of gardaí here we also have seen some evidence of bungling.
Of course, other deaths were caused  by brawls, drinking bouts, sex problems, domestic quarrels and so on.
Perhaps I may refer now to some of the conclusions reached. Let me say that no amount of state killing can lessen the number of people who will go out into the street and commit murder. That evidence is seen from a global view of capital punishment throughout all stages of research carried out by reference to other countries, dialogue and so on. That is the evidence emanating—it cannot be done, it does not constitute a deterrent.
One of my colleagues here mentioned earlier the various methods of execution, including hanging. Many believe that death is not instantaneous, that in fact prisoners have often to be dragged to the gallows, their arms pinioned, limp, and almost disembowelled. We have had those descriptions of a nightmarish nature. They belong to people running medieval institutions rather than civilised ones. To apply medieval methods is to suggest that one wants to continue running medieval institutions, although one or two of us might argue that some institutions have not been much removed from such medieval situations.
I should like to refer now to the question of the Chessman case in the United States, which took 50 appeals and 15 years before he was finally put to death. Even when the time came to execute him, it is interesting to note that one judge—asked to make a final attempt on that day to save him—gave a stay of execution for one hour. But because of a wrong number somebody could not get through to the jail. Consequently the cyanide pellets had been dropped. Meanwhile the judge had found that there was sufficient evidence in the argument advanced by his lawyer to warrant a further hour's stay to allow him a further chance to examine the appropriate documentation. However, that did not occur. In the long run, under that system of justice, nobody really knew whether or not Chessman was guilty. But after 15 years and 50 appeals they finally executed him.
All the reasons to be advanced for retribution, and reform seem to have  gone by the board and were not put forward by the Opposition; rather the argument advanced was always that of the deterrent.
In this respect it is interesting to refer to the Royal Commission which sat from 1943 to 1953. That Royal Commission, like those in other countries, had to resort for experience to countries where abolition or a lot of dialogue about it had taken place. They came to the conclusion that there was no clear evidence from any of the figures they had examined that the abolition of capital punishment led to an increase in the homicide rate or that its re-introduction led to a fall.
Dr. Wechhofel in The Urge to Punish argues that murder is a social phenomenon and is not controlled simply by imposing severe punishment. He contends that the idea that criminals fear the gallows is a fairy story built up by well-meaning people to deter others. There is the example from history, experience and practice that individuals who would be the types to go out and commit murder or other capital crimes are not the types who can be deterred by threatening to kill them or indeed by killing others in order to scare them. I contend it might well be futile in the sense that it encourages the idea of punishment in people's minds just as somebody beating a child in school, somebody bigger than the child being beaten, could be incubating in the minds of other children that they have a right to punish somebody smaller than themselves. It is not a good analogy but it is an analogy.
In my opinion the death penalty is the last remnant of grotesque, barbaric practice. We are talking about retaining it to deter perhaps one or two per cent of the population from indulging in capital murder. It is not seen in the other part of this island as constituting a deterrent, even though the potential to murder policemen is much greater there than in this part of the island.
If somebody kills somebody it is wrong. But the question of pursuing a second murder opens up a new range of arguments on the question of whether  two wrongs make a right, whether the brutal and cold-hearted ritual carried out after the judicial process is right any more than the one carried out in the heat of the moment to avoid apprehension. From any of the experiences I have read about throughout the world no useful purpose had been served by carrying out this brutal and cold-hearted ritual. It does not serve any purpose. Had we sufficient time to do so it could be argued that the State, through its powers, gives itself the right to the second murder. If we retain the death penalty then we are going on the assumption that it is wrong, even when not premeditated, if you like. The implication is that the taking of life is wrong even when not premeditated. On the other occasions when it may be premeditated, that is to say the State killing, it is argued to be right.
There is there an awful lot of grey area to be clarified. I find it very difficult to keep away from a point I want to develop because of the time factor. I make no secret of the fact that it is somewhat of a struggle for me not to do so. But the Order of Business having been agreed I am refraining, though it is not easy for me. I shall support the Bill. I am deeply opposed to execution by the solemn judicial process. It is a terrible indictment of the authority of the State and of the people. It is as bad as the murder of one person by another. In the case of the State — in order to demonstrate the wickedness of the other murder — we carry out this, if you like, greater wickedness because we pursue it longer, we ensure a slow lingering death. Then having pursued it through this judicial process we put a guard on the person, telling the public: Look, everything is all right; this person will not die until we say so.
The other question raised is that of religion. We have not had an opportunity to go into this aspect in any depth. On the question of religion the judge says: “May the Lord have mercy on your soul”, after he has passed sentence. This to me constitutes some evidence that the judge is concerned about the future of the person about to die. Should we not be concerned in some way about that?
 Does this not raise the whole moral question? If we knew that everything was going to be all right and safe would we have to say: May God have mercy on your soul?
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: Senator, it is hardly relevant.
Mr. Harte Mr. Harte
Mr. Harte: I apologise. Let me put it another way. If one keeps a person alive and does not say: May the Lord have mercy on your soul, is that any less evil, particularly when it is borne in mind that that person while imprisoned has been afforded an opportunity to make amends, of making sure that we do not have to be concerned about his soul?
Mr. Ross Mr. Ross
Mr. Ross: Like Senator Harte, I intend to restrict my remarks to a very brief summary of what I was going to say. In deference to the House and the Minister I promise I will not speak for more than 47 minutes at the very most.
I am appalled by the way this whole issue has been treated as a political football by the political parties. It may be a great advantage and a great privilege for me to be an Independent and to be able to make up my mind on issues like this as they arise. But the attitude of the Opposition here, where they have treated this issue, which is an issue of life and death, as purely and simply a party political football and take a party political stance on it is deplorable. Similarly I was sorry to see last week in this House when this was being debated that the Government were reduced to filibustering their Bill in the House simply because they could not make up their minds on whether they were going to have a free vote. As far as I am concerned issues of this sort should always be taken as a free vote. There is absolutely no question about it. This is too important and fundamental an issue for people to start making party political capital out of. It is a moral issue of absolutely supreme importance. I would like to hear — if we are going to hear any more Fianna Fáil speakers — if they have a moral view on when is the right time to kill people.
 Apparently at present it is the wrong time to end the judicial executions. As far as I am concerned it is always wrong to have a judicial execution. As far as I am concerned it is a moral issue and is not a matter of timing. It cannot be a matter of timing whether it is right to kill people for what they have done or whether it is wrong to kill people for what they have done.
There are a few practical points on this Bill which are very important, some of which have been raised already. The first is that capital punishment, as far as we all know and can see now, would not be used again even if it were left on the Statute Book. It has not been used for 27 years — as has been pointed out — and there is absolutely no point in having a law on the Statute Book which is not going to be exercised. Every single judicial sentence of death has been commuted since that time — quite rightly so — but it breeds a complete contempt for the law if we continue to have laws which include mandatory sentences for murder which are never exercised.
The second practical point, which is possibly one peculiar to this State, is that we have had enough martyrs in this country already. As a people we have a peculiar attitude to death. We have a slightly morbid attitude to death. It is a slightly suspect attitude to death, in that when people are executed in this country — whether for political or so-called political murders, or for other murders — it gives them some sort of a mystique, it bestows on them some sort of heroism. It gives the crimes they have committed some sort of a sanction. It is absolutely vital, particularly in Ireland, that this sanction to their crimes, this heroism which the people and their deeds get after they are executed, is taken away from them and destroyed by the ending of judicial execution. There is no such heroic charisma attached to a man who has been sentenced to 30 years' imprisonment as there is to a man who is going to be executed, with all the sympathy and all the emotion that that provokes.
Finally, I should like to say something  about the deterrent argument. The deterrent argument is a completely fallacious one. The deterrent argument cannot be proved one way or the other. The whole argument must be reduced to a moral one as to whether it is right to have judicial murder or whether it is wrong to have a judicial murder. I intend to vote for the Bill.
Mr. T. Hussey Mr. T. Hussey
Mr. T. Hussey: I have no intention of prolonging the debate any further. Anything useful that can be said has already been said. We have seen quite an amount of hanging done, in various shapes and forms, over the past two weeks. I should like to see the House getting on to something more lighthearted. So surprised was I at the knowledge of some Senators of hanging methods, I am beginning to think there is no need to fear any longer that we will not have applicants for this job if capital punishment should be retained. Perhaps, we may even have applicants from this House.
Mr. S. O'Leary Mr. S. O'Leary
Mr. S. O'Leary: That is an outrageous suggestion. I would ask the Chair to have the Senator withdraw that suggestion. It is an outrageous suggestion.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: The Chair feels that the Senator was just making a passing jest.
Mr. S. O'Leary Mr. S. O'Leary
Mr. S. O'Leary: Well, it is very hard to know when the Senator is joking and when he is serious. As long as it is on the record that he is joking.
Mr. T. Hussey Mr. T. Hussey
Mr. T. Hussey: I do not think the Senator would accept that that would be in any way serious. It is merely a lighhearted remark and I am sure the House will accept it as such. I am sure Senator O'Leary would also. If I know him, I think that would be the case.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: The Chair would like to say that he was following the trend of the Senator's speech and holds the view that it is as the Senator has now explained.
Mr. T. Hussey Mr. T. Hussey
 Mr. T. Hussey: The fact that Fine Gael have agreed to allow a free vote on this Bill is an indication to me that the Government are not really serious in their determination to abolish the death penalty. If there are Deputies and Senators within Fine Gael, who have reservations about the removal of capital punishment at this point in time I hope they will carry those reservations into the lobby and vote against the removal of capital punishment from the Statute Book.
There is really no demand at present for the abolition of capital punishment. I would say that 99 per cent of the population would agree that it should be retained. Even though nobody wants to see a person hang nevertheless I feel it constitutes an effective deterrent to those who would murder members of the Garda Síochána and prison officers. We all know that organised crime and subversive activity are rapidly increasing. As legislators we have the responsibility to ensure that we are prepared, by every means at our disposal, to protect the lives and property of the community. To abolish capital punishment now would indicate a softening of attitudes to those involved in criminal activity. We can be very proud of our Garda Síochána. They are there to protect society against ruthless and organised criminals. Indeed, capital punishment provides the most emphatic denunciation by society of those who would murder gardaí in the course of their duty. Substituting long terms of imprisonment for capital punishment will not be a sufficient deterrent. Who can say that had we not had capital punishment on our Statute Book for the past ten years or so the crime rate would not have been much higher? Indeed, already we have seen members of the force in the execution of their duty being murdered by thugs who are prepared to stop at nothing in the pursuit of their criminal activities.
Senator Magner, in the course of his contribution last week, went into great detail describing the agony of those sentenced to death by hanging. Indeed, it is only right and proper also to think of the agony of those members of the Garda  Síochána who have been murdered in recent times, the agony their murders brought on the whole community but even more so to the members of their families. That is something we never want to see happen again in our lifetime if we can help it. Those of us living quite close to the scene of those crimes, as I was at the time when two gardaí in my neighbouring county were mowed down in cold blood, never want to see that kind of thing happen again.
Nobody need have any fear of the retention of capital punishment except those who are engaged in crime, who themselves are prepared to kill in order to achieve their aims. Fianna Fáil consider there is no case at present for the Oireachtas to appear to lessen its determination to fight crime by removing the death penalty entirely from the Statute Book. For that reason we are opposing this Bill.
Mr. O'Mahony Mr. O'Mahony
Mr. O'Mahony: I am conscious that the debate is due to close in a few minutes. I should like to add my support for the Bill. I do not propose, in the few minutes available, to go over the arguments about why we should do what we are doing. I would rather concentrate on some of the arguments proffered against the Bill. During the debate it was noticeable that nobody, with the possible exception of Senator Honan, argued the case for the implementation of the law on capital punishment. No one, in other words, has said that persons found guilty of a capital crime at present should actually be put to death. Therefore there does not appear to be a hanging lobby, as such, among us in the sense that Members have not urged the implementation of capital punishment for capital crimes.
Those who oppose the Bill before us base their arguments on grounds other than those which suggest that society should, in practice and as a matter of course, exact retribution in the form of capital punishment on persons found guilty of capital crimes. Of course, this is to be welcomed and is in marked contrast with debates in most other countries, notably in Great Britain, when they abolished  capital punishment. It is a sign of developing civilised standards in the country and reflects the practice in recent decades in which the State has seen fit not to implement the 1964 Act even in the cases of persons found guilty of the most heinous capital crimes.
Those who oppose the Bill appear to do so on three alternative grounds. I should like to refer to each one very briefly. The first is summarised in the deterrent argument. There is no evidence, I believe, to suggest that capital punishment is a deterrent to murder. The suggestion that it is has been canvassed extensively in recent weeks but no evidence has been placed before us to back up the contention made. The evidence, as I understand it, points in the opposite direction. Capital punishment is not a deterrent, I would suggest, and is certainly no more of a deterrent than the threat of a lengthy prison sentence.
I should have thought that this is the case particularly in the matter of murder for so-called political ends. The notion that persons who take up arms for what they see as genuine political objectives will see capital punishment as a deterrent does not seem to me to make sense. In any event, given the magnitude of the issue which involves the State's right to take life the onus of proof must rest on those who advocate the deterrent theory. That proof has not been forthcoming because, as I have said, I do not believe it exists.
The second argument we have heard against the Bill was summarised by Senator Hillery when he said that
The principle of capital punishment is repugnant to most people, including myself. ... 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.
At first glance it is difficult to know what to make of this argument. However, later in his contribution Senator Hillery, I think, clarified its meaning. He asked the question:
 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?
The core of the argument, it seems, is not that capital punishment is a deterrent or not that capital punishment is needed now or should be used now, but rather it is that capital punishment may be needed in the future to defend the institutions of the State. It is wrong on two grounds at least. First, we should not have laws which we do not wish to implement now or at present. That is a bad principle for us to adopt, as has been suggested by several speakers. Secondly, our position on a matter of such substance as the State's right to take life cannot be based on the prediction of a malign scenario for the future. In this case I am afraid the future will have to take care of itself.
I believe that behind this argument, for some of those who make it, lies a concern to give the Garda the protection which they seek through the retention of capital punishment as a deterrent. That is a worthy, though I believe misguided concern for the reasons I have stated. For others, however, the argument of concern for the future is no more than a desire to oppose for opposition sake. That, I think, is the real position of the party opposite.
The third substantive argument against the Bill we have heard has been that the abolition of capital punishment may lead to the eventual arming of the Garda and that this, in turn, may lead to summary executions by them in the name of the State. This is a dangerous argument which I hope will not be pursued. I have the greatest sympathy and concern for the Garda in the present difficult circumstances. We must support them with all the means at our disposal. There is no doubt that they need more resources and I would argue the need for better management as well. But the degree to which the Garda may be armed in the future — and here it must be remembered that they are already quite heavily armed —will depend on the degree to which we come to grips with the political crisis  which leads to subversion and with the social circumstances which lead to violent crime. It will not depend on the existence or otherwise of capital punishment.
On the question of summary execution we in this House have no doubt that the Garda will continue to enforce the law within the law.
There is one matter with which I should like to deal on Committee Stage, and that is to do with the 40-year mandatory sentence. A sentence of that length, with its associated mandatory conditions, can be argued to have more to do with the notion of revenge or retribution than with the notions of rehabilitation or the protection of society.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: Like previous speakers I shall be brief because I am aware that time is ticking past and the Minister is waiting to conclude.
I should like to reiterate some of the points made from this side of the House. As we all know, the process commenced on the Bill we are debating today in 1964 when it was mooted that we would retain capital punishment for the murder of a garda or prison officer while in the course of his duty.
As we all know, the process of this Bill was commenced in 1964 when it was decided that we would retain capital punishment for the murder of gardaí or prison officers while in the course of their duty. When we look back to 1964, over a period of 17 years, 1964 is recalled as an oasis of peace. It was thought then that a Bill which would allow for the ultimate clemency to be allowed would be brought in.
Unfortunately, the climate of peace and tranquility did not continue. In the ensuing years we have seen in Ireland an escalation and acceleration of political violence. This of necessity, and sadly, has involved the gardaí in an ever-increasing range of duties which have become more dangerous. Yet, the main bulk of the Garda force have remained unarmed. This was a deliberate decision taken back  in the early twenties by the then Government when the Garda Síochána were set up. It was very imaginative and wise and a bold decision then because Ireland at that time, too, was tension filled. The Government of the day said that by being unarmed the gardaí could carry out their duties in a more proper manner. The Garda themselves, it seems, wish to remain unarmed. They feel they have an insurance policy in that the legislation of the land contains the capital punishment clause for the murder of one of their members on duty.
The Garda do not want this ultimate deterrent removed. It behoves all of us to take cognisance of this. These are the men and women on whom the defence of the community lies.
We may be putting it dramatically, but it is still correct: they are our front line. I would say to the Minister and to the new Cathaoirleach that it would be wise to take the views of the men and women who are in the system and who have expressed their views very strongly. It is appropriate in this debate to pay tribute, as other Members have, to the Garda Síochána. Compared with other European countries, the Garda play a unique role in the community's life in towns and villages. The men on the beat and in patrol cars carry out their duties in a most exemplary manner. Not alone that, but they play a vital role in community life. These are the people whose views we should listen to.
To hang or not to hang is not the precise nature of this debate, though many speakers have fined it down to that. I do not quite see it in that light. The question at stake is whether we keep the ultimate deterrent. I contend that now is not the time for its removal and I would question whether it is political expediency or liberal clemency that has motivated this motion. I think it is the former. Coming from Athlone, I think there is unanimity in that town on this issue. We have indeed a coalition of our own there.
Mr. R. Kiely Mr. R. Kiely
Mr. R. Kiely: I am rather surprised that this Bill to abolish capital punishment is being moved. I wonder is the demand to  abolish capital punishment so great as to warrant its introduction. The position is that there is no demand at all. I know for one thing that the Garda are not in favour of this legislation, and they are the body who should be consulted and their opinions respected and taken very much into consideration when legislation such as this is being introduced because it is their lives that are on the line.
Three gardaí were murdered during 1980 and one of them was a man whom I personally knew very well. He was doing his duty in a correct and dedicated manner. The people whom we are depending on to protect our persons and property are exposed to the ruthlessness of criminals, and at the moment the Garda believe that capital punishment is the only additional protection afforded by the law to the unarmed force. It is the only deterrent to those who would murder members of the Garda. Senator Byrne stated that the case put forward for the abolition of the death penalty made him secure in the knowledge that this Bill would make life for the Garda much easier and more secure. I doubt this very much and the Garda doubt it themselves, especially when you have organised crime and subversive activities rapidly on the increase. It is not the time to remove this protection from the Garda.
Senator Magner made a point that Ireland is the only country in Western Europe where the death penalty survives. He described capital punishment as a barbaric act. He gave many examples of mistakes at various times and mentioned that when the rope broke, the drop being too long, it was half an hour before the convict was executed. You must also remember the pain that some of our gardaí have had to endure when they were being murdered by people who knew they were the gardaí. I know that Detective Garda Séamus Quaid was dying for a full hour.
I am dubious about section 4, about the period of imprisonment, but remission may mean that the person convicted for capital murder could be released  again in time in order to repeat his offence. I wonder if this sentence is strong enough. Because of the recent murders I do not think it is a wise thing to abolish capital punishment.
Mr. Hanafin Mr. Hanafin
Mr. Hanafin: The proposal to abolish the death penalty must be examined in the light of the operation of the legislation over the past two decades under which the death penalty can be imposed for the murder of a member of the Garda or a prison officer in the course of his duty. In order to be found guilty of capital murder it must be proved beyond all reasonable doubt that the accused person consciously and deliberately murdered a garda or a prison officer in the course of his duty. The accused person cannot be sentenced on a presumption of guilt, and all other rights, constitutional and legal, are weighted in the accused person's favour. If the accused is found guilty of capital murder the courts must ask him to pay the penalty, but the decision as to whether the death penalty should be carried out ultimately rests with the Government, who have the right to decide the question of whether the sentence should be commuted to life imprisonment, and so advise the President. The death penalty can omly be carried out after due process of law and with the consent and sense of justice of a democratically elected Government.
This is not the time to remove that discretion from the Government. The past 18 months has seen three gardaí gunned down on lonely country roads. The memory of those brave men and their colleagues who faced mortal danger while protecting life, limb and property from vicious criminal gangs should be sufficient to ensure the retention of the present law. If we are to ask a largely unarmed Garda force to be prepared to make the ultimate sacrifice, we should be prepared to back them up the ultimate deterrent, if circumstances so warrant. The Garda deserve the assistance and support of the Oireachtas in this difficult and dangerous time, and I do not believe we could deny them that support. It is an unhappy fact that the masked gunman is  an all too common sight in Northern Ireland. Those people are all prepared to carry firearms and to use them in pursuance of what I will describe as their evil plans or if their liberty is at stake. Gardaí must be protected against such ruthless men, and the existing law is a necessary support for the gardaí. I sincerely hope that the provisions of the present legislation will be left on the Statute Book. I hope that gardaí will not come under attack or be injured and even killed by ruthless thugs. However, while that possibility exists, I believe the present legislation should not be changed.
Minister for Justice (Mr. J. Mitchell) Jim Mitchell
Minister for Justice (Mr. J. Mitchell): First, I thank the Senators for their contributions to this important debate. I apologise for my inability to be in the House for earlier contributions. I had to make special arrangements to be here today because, as Senators will be aware, a debate has been going on in the other House.
I was interested in the point made by Senator O'Rourke when she queried whether the Government were motivated by political expediency or genuine regard for freedom of conscience when they introduced this Bill. She suspected the former motive, but she contradicted herself in the same breath when she referred to the Athlone coalition. May I ask her what motivated the Opposition when they decided to oppose this Bill? Was it political expediency or concern for civil freedom? Who directed the Fianna Fáil Party to vote against this Bill? Is it that there is no confidence in the Fianna Fáil Party? Is it that there are among their members people willing to take life? Or is it mere political expediency? Do they realise that if there is to be a whipped vote here today it will be the first whipped vote in any house of Parliament in Western Europe—that every country in Western Europe has abolished the death penalty by a free vote of all its members? Is it not a matter of great shame that every Member of this House should not be allowed to vote according to his or her conscience on a matter of life and death? Is there not something terribly wrong  with our political system that we can never rise above party politics? Are there no issues on which people are allowed to exercise their conscience? Not apparently in the Irish Parliament, but yes in every other parliament in Europe. We have this recent precedent in the French Parliament when a Government Bill was introduced. The Government Deputies were allowed a free vote, the Opposition Deputies were allowed a free vote and it was carried by a greater than two-thirds majority. We ought to reflect and come to the conclusion that there are issues which are not properly party political matters. In the very opening sentence of my introductory speech I said that this was an non-party political issue, but that, unfortunately for this country, it has been made so and has been reduced to that level. What motivated the introduction of this Bill is an abhorrence of taking of life by anybody in any circumstances- —that is what motivated the introduction of this Bill and nothing else.
I would now like to deal with the arguments put up by the Opposition who are the only people who have opposed this Bill—not one Independent Senator has been attracted to their cause; nobody from the Government benches have been attracted to their cause. The central theme of their approach is that, while they are against the death penalty, they believe that the Government are wrong to bring the Bill forward at this time. Now is not the opportune time, they have said, because of the level of violence in our society. That point has been made throughout the debate today by several Senators, including Senator Hanafin, who was the last speaker. He cited this terrible experience and he named the gardaí who were killed “on the lonely country roads in Roscommon and Wexford”. I want to take this opportunity to say how grieved I am and, I am sure, every Member of this House is that such a thing could have happened, how grieved I feel about their families, their widows and their children. What I would like to tell Senator Hanafin and the House is this that when we had the death penalty on the Statute Book it did not  deter those sort of criminals and that is one of the very strong arguments in favour of abolishing this barbaric punishment that remains in our legislation. If it was a deterrent those gardaí would never have been killed. On the other hand, so long as we retain on the Statute Book this penalty we do a disservice to the State. We are undermining life, we are justifying taking life and we are making it easier for those criminals to take life.
The proposition that it is wrong to abolish the death penalty now can only rest on the supposition that its retention at this time would serve some useful purpose. Implicit in this is the view that capital punishment has a deterrent effect, otherwise the argument would be meaningless. And may I say, as many Senators have said, that the evidence either way is not conclusive?
I cannot stop people who wish to do so from believing in the deterrent effect of capital punishment — indeed it was once and may still, in general terms, be quite a respectable viewpoint — but I can say to those who do believe in it that there are no longer present in this country today the necessary preconditions for capital punishment to operate as a deterrent. I would submit that for any punishment to be capable of deterring ‘would-be’ wrongdoers there must be certainty that it will be applied once the person has been apprehended. This is not just my own personal view but a view that one finds stated by criminologists in their analyses of the ‘deterrence’ argument. If we look at the position in Ireland today in this regard we find that the death penalty is not applied in practice. It has fallen into disuse. Public opinion is against it and recently the former Government and the present Government refused to implement it. Now it seems abundantly clear to me that only one conclusion can possibly be drawn from what I have said and that is that, whatever deterrent effect capital punishment may have had up to recently, that deterrent effect has now been completely undermined by the virtual certainty that it will not be applied in practice. If the potential murderers know that they will not be executed how can the death penalty act as a deterrent?  Is it not, as Senator Whitaker said, an ‘empty threat’. And how can an ‘empty threat’ be a deterrent?
As to the point made that the level of violence in our society today warrants retention of capital punishment, I am quite prepared to acknowledge that there is a worrying trend in the figures for violent crimes. It appears also to be the case that more attacks are being directed against the Garda. In so far as these offences — deplorable though they are — are ones which would not attract the death penalty, as most of them are, the retention or abolition of the death penalty is, I would submit, irrelevant. And if it is the case, as the figures seem to show, that the number of ‘capital’ offences is on the increase, this seems to me to support the view that the death penalty as a deterrent has failed.
Moreover, while none of us is happy with the present state of affairs in our society in relation to crimes of violence, particularly those directed at the institutions of State, I would venture to suggest that our problems — bad though they are — are not as bad as those that have to be contended with at present in some other Western European countries. The Northern Ireland community has over the past 12 years or so suffered appallingly from the activities of the IRA and other paramilitary groups, yet they have never seen fit to restore capital punishment. In Italy hardly a week passes that some terrible assassination, attempted assassination or bomb outrage does not occur. Yet from what I know the Governments of those countries remain resolutely opposed to capital punishment.
For my part, as I said in my introductory speech, it is essentially a question of principle. I am against the infliction of death by the State as a form of punishment. I am not convinced by the deterrent argument and consequently no amount of violent crime would make me change my mind.
I would like now to deal with some other points that were made during the debate. It was said that abolition of the death penalty will weaken the protection  the law gives to gardaí and prison officers and thereby increase the risk they will have to take in the course of their duty. The Government are fully aware of and understand the feelings of the gardaí and prison officers on this issue. The Opposition have been speaking as if they had a monopoly of concern for the members of the force and the prison service. That is not the case. The Government are fully conscious of their obligation to provide the maximum protection possible to those who have to defend the institutions of State. We believe that the provisions of this Bill will give them that protection.
We believe this, firstly, because, as I have already said, the death penalty is not being applied in practice and therefore it cannot have the deterrent effect claimed for it. Secondly, this Bill substitutes for the death penalty a severe sentence of imprisonment which will apply with certainty in every case and which will be immune from the operation of the existing powers of commutation or remission vested in the Minister for Justice. Our view that the abolition of the death penalty will not lessen the protection of police or prison officers is supported by studies conducted in other countries. Indeed, I believe myself — and there is support for this view in studies that have been made — that a far more important consideration in relation to deterring criminals is the likelihood that they will be apprehended and convicted and, of course, if convicted that they will be severely dealt with. This is especially true of those who act in a calculated and premeditated way. In deciding whether or not to embark on their criminal activities I believe that uppermost in the minds of such people is the risk that they perceive themselves to be taking of being caught and their own assessment of how they think they will fare on that particular aspect.
Fortunately, as far as detection is concerned, the Garda have a very good record against serious criminals, particularly against those who have murdered members of the Garda force. The people responsible for the deaths of four of the five gardaí killed since 1975 are now in  prison serving either life sentences or 40 year terms. Maintaining this record and improving it where possible will be the best possible answer the Garda can give to the criminal. I am sure that they will agree with me on this. It will be my responsibility to ensure that every modern aid and facility will be afforded to them in the future to continue this work.
It has also been said that abolition of the death penalty will lead to a demand for the arming of the Garda. I do not agree that this is likely to be the case at all. Most members of the force are themselves opposed to the carrying of arms and I do not accept that the carrying of arms would afford any additional protection to the ordinary guard on the beat.
The Garda themselves will be aware of the fact that experience in other countries where the police are armed indicates that not only do armed policemen run a greater risk of being killed by criminals but suspects and innocent civilians also run a greater risk of being killed by the police. I might also mention in this regard that in the recent murders of gardaí in this country the gardaí concerned were carrying arms but this did not deter their killers. A number of Senators have expressed misgivings about the mandatory penalty of 40 years' imprisonment proposed in the Bill in substitution for the death penalty on the grounds that prolonged imprisonment is psychologically destructive and can result in the prisoner concerned becoming more dangerous with the passage of time. Senator Brendan Ryan in particular expressed his concern at this provision.
The Government considered this matter very carefully before coming to a decision on the appropriate penalty to be imposed in substitution for the death penalty. They recognised the merit in the argument that long-term imprisonment can have a debilitating effect but they considered that the overriding need to mark the gravity of the offences in question, to demonstrate the community's abhorrence of these crimes and to afford the maximum possible protection to gardaí and prison officers required a sentence  of exceptional severity. I should mention again, perhaps, that under prison rules applicable to prisoners generally, the minimum period of 40 years may be reduced by one-quarter for good conduct. The resulting net minimum period of 30 years, while still an extremely severe sentence, is not out of line with sentencing practice in some other countries. For example, a number of prisoners in Britain have had minimum terms of 30 years, and even 35 years, recommended by the trial judge. Sentences of longer duration are not unusual in the United States.
Senator Whitaker was inclined to doubt the wisdom of the provisions in section 5 which will prevent the Government, and the Minister, from exercising their statutory powers to commute or remit sentences imposed in this category of case. In normal circumstances I would agree with him that such rigid provisions tying the hands of the Minister and Government are to be avoided. However, in this case I feel very strongly that it was essential that it should clearly be seen in advance that every possible step was being taken to ensure that persons convicted of these offences would serve the sentences in full and that there would be no possibility of early release on parole. If that were not done there would be a clear danger that the potential murderers and assassins would feel that, with the passage of time, there would be a softening of attitudes towards them and that they would be released after serving sentences roughly equivalent to what the ordinary prisoner doing “life” serves at present.
Senator Whitaker also wondered whether there was a need to have some political overseeing of the rules relating to the granting of remission for industry and good conduct. In answer to that I would point out that the rules are in fact made by the Minister under the powers conferred on him by the Prisons Acts and that, in practice, the operation of the rules is supervised directly by the Governor and his staff and, indirectly, by the Minister. Remission is automatically given to every prisoner who obeys prison  discipline, but it can, and frequently is, taken away for offences against good order and discipline.
Senator Honan queried the use of the expression “symbolic” in relation to the abolition of the death penalty. In view of the fact that the death penalty is for all intents and purposes gone — and, in this regard, I would remind her that this is also the view expressed by the leader of her own party — its removal from the Statute Book does not in practical terms alter the existing state of affairs. It is a formal symbolic act in that sense, and, moreover, to retain it would also be a symbolic act because it is not applied.
It has been suggested that the imposition of an appropriate penalty for the offences listed in section 3 should be left to the trial judge. The Government considered this approach but, as I have said, we were of the view that, for crimes of this nature, it was necessary to make it absolutely clear beforehand to those who might be contemplating attacks on the institutions of State that a heavy price would have to be paid on conviction.
Senator Murphy asked if the death penalty was being removed for all offences in the purely military sphere — even in times of war — and Senator Honan had, I think, a similar question. The answer is “yes”, but I would point out to Senators that under existing law the death penalty is not mandatory for such purely military offences.
Senator Murphy also asked if the appellate court would have power to acquit and whether it could interfere with the mandatory minimum sentence. The answer is that we are not touching the existing appellate machinery in any way. The appellate court can acquit — this is the general law — and, as section 6 (2) provides, the appellate court can substitute “ordinary” murder or manslaughter. If it upholds the conviction for “section 3” murder, the minimum mandatory term of 40 years will apply.
If I have overlooked any points I apologise. Senators will no doubt raise them  again on Committee Stage. I have tried to deal with the main points raised in the debate, especially the policy issues underlying the Bill. My own concluding remark is this: The law at present empowers the State to take human life — to kill — as a form of punishment for criminal acts. This barbaric and archaic form of punishment is no longer acceptable in this country and there would be a public outcry if its use were ever proposed in the future. I was interested to hear Senator Tom Hussey say that 99 per cent of the people here want the death penalty to be retained. I do not know where he got that sort of information but I will concede that public opinion is divided on the issue. I would also say to the House that if and when we decided to apply the death sentence under existing legislation as the day of execution approached there would be a clamour of public opinion, almost a unanimous clamour, to stop it and any Government that would implement it would be seen, and rightly so, as a reactionary and barbaric Government. That there would be a public outcry, in my view, is an indication of the progress we have made as a nation. It is an indication of the social maturity of our people that they should abhor violence to such an extent.
If we are not going to use the death penalty then it is much better that we should abolish it. For one thing, we now have the unreal situation where the courts go through the solemn ritual of pronouncing the death sentence, a sentence which everybody knows will not be implemented. This brings the law, the courts and the Oireachtas into disrepute. It is far better to remove this anachronism and to substitute a sentence to which full effect will be given and which will be clearly seen as evidence of the determination of the Oireachtas to punish severely those criminals who attack the institutions of the State. Senators, the death penalty is going and we should not bid it stay.
  The Seanad divided: Tá, 35; Níl, 18.
Tellers: Tá, Senators Manning and J. Harte; Níl, Senators Ryan and Cranitch.
Question declared carried.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: When is it proposed to take the next Stage?
Mrs. G. Hussey Mrs. G. Hussey
Mrs. G. Hussey: On Thursday next.
Committee Stage ordered for Thursday, 12 November 1981.
Seanad Éireann 96 Criminal Justice Bill, 1981: Second Stage (Resumed).