Seanad Éireann - Volume 96 - 12 November, 1981

Criminal Justice Bill, 1981: Committee and Final Stages.

Section 1 agreed to.

SECTION 2.

Question proposed: “That section 2 stand part of the Bill.”

Professor Murphy: May I take it that section 1 has the assent of the House including the Fianna Fáil Opposition?

An Cathaoirleach: The section has been agreed.

Mrs. G. Hussey: I am not very clear what exactly “treason” is. It is not a word a great many ordinary people are very conversant with and perhaps are not very clear about what exactly, in the modern Irish context, the crime of treason involves. I do not want to involve the Minister in a long dissertation on this [645] question but I would be glad of a word or two of clarification about what exactly treason is in the modern Irish State.

Minister for Justice (Mr. J. Mitchell): Nobody, since the foundation of the State, has been charged with or found guilty of treason. Treason, as I understand it, would be acts in aid of an enemy of the State. That is the proper definition of treason. It is defined in Article 39 of the Constitution as follows:

Treason shall consist only in levying war against the State, or assisting any State or person or inciting or conspiring with any person to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government established by this Constitution, or taking part or being concerned in or inciting or conspiring with any person to make or to take part or be concerned in any such attempt.

Mrs. Robinson: I would like to ask the Minister to clarify the reference to the fact that a person convicted of murder shall be sentenced to imprisonment for life. This section, as I understand it, is the one which necessitates the repeal of most of the sections of the Criminal Justice Act, 1964, because it will not govern all forms of murder, Is that the position? In particular, I would like the Minister to give the House some information on what precisely happens in relation to the sentence to imprisonment for life in relation to murders. What is the period of sentence normally served in those circumstances and what has been the recent experience in that regard?

Mr. S. O'Leary: I, also, want to raise a similar point to that raised by Senator Robinson, in relation to the words that a person convicted of treason or murder shall be sentenced to imprisonment for life. Later in the Bill there is an exception made in respect of what has been dubbed section 3 murders. For simplicity, I cannot see why that cannot be included in section 2. It will not be a true statement, if this Bill is passed, to say that a person [646] convicted of treason or murder shall be sentenced to imprisonment for life. It will be a true statement to say that a person convicted of treason or murder shall be sentenced to imprisonment for life, save and except for murders which fall within the definition of section 3, because there is a different term of imprisonment for the kinds of murders specified in section 4—a minimum period of 40 years. That could be usefully expanded. There is a contradiction within the legislation here.

Mr. Quinn: Could I suggest that the Minister on Report Stage if in principle he is agreeable to the argument that has been put forward, might consider—I like the brevity with which section 2 is drafted, which very clearly aims to substitute one form of punishment for another—the use of the word “maximum” before “imprisonment”. This would overcome the difficulties that Senators Robinson and O'Leary are referring to.

If the section was simply to read “a person convicted of treason or murder shall be sentenced to maximum imprisonment for life” then the qualifications could possibly be taken in underneath that. I would not like to see that section changed because legislation should be capable of being read by ordinary people in ordinary everyday language. The first two sections are uniquely refreshing because they come from the parliamentary draftsmen with the brevity and a clarity of language that we seldom see. I would not like to see qualifications and sections, clauses and subsections added to it.

Mr. J. Mitchell: I will answer Senator Robinson's question first. Imprisonment for life, as things stand in practice, tends on average to be eight or nine years. Quite frankly, sometimes, depending on the circumstances of a particular case, it may be shorter than that and, of course, in other cases, depending again on the circumstances, it could be longer than that.

A very important consideration, in the view of the probation and welfare service and the treatment of offenders section in [647] my Department, is the advice which is tendered to the Minister. The first consideration is whether the offender concerned is likely to offend again if he is released, if there is a danger that the offender might commit a similar offence or might be a danger to the public. If it is felt that an offender is not a danger to the public in general terms the view of the professional people in this area is that eight to nine years is about the proper time to serve in prison. I have to say that the practice in other countries is very varied. It is quite different in several countries. The actual sentence ranges from five years to 35 years or thereabouts.

One important thing to note about this section is that we talk about life imprisonment, not penal servitude for life. For all intents and purposes there is no differnce any more, except that the surviving difference is that a sentence of penal servitude continues to run while an escaped prisoner remains at large whereas a sentence of imprisonment does not. However, in the provisions of the Criminal Justice Act, 1960 a prisoner on temporary release may have the currency of his sentence, whether of penal servitude or of imprisonment, suspended for the period of his temporary release.

In relation to a point made by Senator Quinn that we might consider inserting the word “maximum” before the word “imprisonment” I will give some consideration to that when the Bill comes before the Dáil. It seems to me that that word would——

Mr. Quinn: Remove the discretion, which is obviously not the intention.

Mr. J. Mitchell: It is not the intention.

Professor Murphy: What is treason? Section 2 raises the question of the somewhat unreal definition of treason. The fact that nobody has been convicted of treason would suggest that in the constititutional review this concept should also be looked at. During the second world war, when the national policy, one could [648] say the life or death policy of this State, was neutrality, there was a prominent public figure who was engaged in what could be described as treasonable activities in that he wanted to terminate that state of neutrality and was in consultation with other powers to that end. I do not know if this fact was known to the Government but I doubt very much if it was known that anything could be done about it. It is arguable if treason is not an archaic concept and without being flippant I would remind Members of the cynical words of the famous Renaissance writer who said “Treason doth never prosper. Why? What is the reason? If it prospers none dare call it treason.”

Mrs. Robinson: I would like to thank the Minister for giving the information on the normal meaning of imprisonment for life which I was seeking: That is the position since the Criminal Justice Act, 1964 was introduced. Is that correct?

Mr. J. Mitchell: Yes.

Mrs. Robinson: Have the Department of Justice reviewed the operation of this procedure, the penalty for murder of imprisonment for life? Have they assessed if difficulties have arisen with this or if it has given rise to any need for review that the normal averaging of sentence is between eight and nine years? Perhaps when he is replying on this point the Minister might for the information of the House spell out precisely how the matter comes to him for a review of sentence so that the person is not serving a sentence of imprisonment for actual life but, effectively, a sentence of from eight to nine years on average.

Mr. Lanigan: Following up on the points made why does imprisonment for life have to come into this legislation? Why do we not have a term of imprisonment imposed? We were told by the Minister last week that the term of 40 years imprisonment for capital crimes would not be 40 years, that there could be a 25 per cent remission of that sentence. [649] Therefore, we are not talking about 40 years but about 30 years or 25 years. Eight or nine years is supposed to be life imprisonment for treason so why do we not have a definition of the length of time that somebody can be put in jail for treason as being ten years and not life imprisonment which can be remitted down to eight or nine years?

Senator Quinn mentioned the fact that people need to know in simple terms what is meant in any Bill. Basically, this Bill and every other Bill that comes before us is drafted by parliamentary draftsmen who do not know the ordinary language that is talked in the streets of this country or talked in any other country. It is not plain English. The sentence for treason should be seven years, eight years, ten years or 50 years or else we will find ourselves in a situation such as exists in some of the Gulf States at present. Last week I read that in one of the Gulf States a sentence of life imprisonment was fixed for a particular crime, the life imprisonment not to exceed 100 years on each of ten charges, which amounted to 400 years altogether. At the end of this term the person was to be sent away from the Gulf States. What can be done to clarify what is life imprisonment?

Mr. J. Mitchell: Senator Robinson asked about the process in the Department of Justice and the prison service. First of all, there is the probation and welfare service and, secondly, there is the treatment of offenders section. Each month at least there is a meeting of people from those sections, together with prison staff, to discuss the welfare of various offenders. This includes consideration of the training, education and prison régime which would be suitable for them. Eventually when they feel satisfied that a particular offender is suitable for transfer to an open prison or for temporary day release for work, weekend release or temporary full-time release, they send a recommendation to me for decision. Very often we get representations from public representatives, clergymen or relatives, or indeed sometimes from [650] offenders themselves, to have their cases reviewed. When this happens a case is assessed and reviewed. That is the normal procedure.

In answer to Senator Lanigan's point, this Bill, as did the 1964 Act, provides for life imprisonment. That means that, at least in theory, a person is sentenced to life imprisonment. It could happen in practice, if a particular person was deemed to be a continuing danger to the public that he could be retained in prison for the rest of his life. There are a number of offenders in the prisons, perhaps less than a handful, who are there for quite a long time but everybody concerned, including the psychologists and psychiatrists, feel that it would be unsafe to the public for those people to be released. There is the prospect that those people will spend the rest of their lives in prison, even though my Department or the prison service would wish that was not the case. Life sentence has very real meaning to those people. People tend to be released when they are considered to be no longer a danger to the public.

Mr. Lanigan: In the case of people in jail for quite some time, the Minister said that there is an assessment made that these people should, as a result of psychiatric tests, be kept in prison. Surely the case is that if they have been tested by psychiatrists or psychologists they should not be kept in prison but placed in an institution where they could be cared for?

Mr. J. Mitchell: Because people are examined by psychologists and psychiatrists that does not necessarily mean that they are insane. This is a normal occurrence. However, the point which Senator Lanigan raises is a good one and is something that worries me. It seems to me that within our ordinary prisons there is a percentage of prisoners who should more appropriately be in mental institutions. I have very little doubt about that. I am not sure of the percentage but it has been suggested to me that it may be as high as 10 per cent. That gives rise to the question [651] of where to put those people. We have the Central Mental Hospital in Dundrum but unfortunately Dundrum is simply not equipped to cope with the most dangerous of these types of prisoners. As a consequence of that, very often prisoners who are insane are kept in prison and I am not at all satisfied with this. It is a matter which I have raised persistently since I became Minister and it is one of the areas which I would like to do something about during my tenure of office.

Mrs. Robinson: It is clear from the Minister's reply on the question of the approach to considering the individual who has been sentenced to life imprisonment that the approach is a very inflexible one. The main criterion the Minister mentioned was whether it was safe from the point of view of the public for that person either to be transferred to an open prison or allowed temporary release under the Criminal Justice Act, 1960. It is clear that to some extent subjective criteria would enter into it, that there would be an assessment of the individual and presumably there would be a concern for the rehabilitation of that individual prisoner.

I asked whether the Department of Justice had an opportunity to assess the operation of this procedure since 1964 in relation to what I assume is a fairly large number of convictions for murder. I say this because I think there have been reports published in other countries — there was a report on the sentence for murder published by the Home Office in Britain — and I would like to know if there has been any form of assessment or if there is any reason to believe that the Department are concerned about the operation of this procedure. Is there any concern about a risk to the public or possible defects in the way the procedure is operating, or do the Department feel that it is the appropriate way to approach the question of dealing with people who have been sentenced for murder?

Mr. J. Mitchell: The arrangements I outlined were introduced subsequent to [652] the 1964 Act. From my examination I would say that the evidence is that as the years progress the régime that has been applied has become increasingly more liberal and more rehabilitative. Because these meetings take place regularly they are constantly getting new insights into the problems of prisons and the whole question of crime and re-integrating offenders into society. It had not occurred to me that it was necessary to look at the way this operates but in the short time I have been in office I have been dealing with so many crises that is not surprising. Now that Senator Robinson has raised the question I will certainly take up this point to see if a whole review is justified and the possible gains of such a review.

Mr. Lanigan: On the question of assessments that were carried out to ascertain whether somebody should be let out after seven years, or whatever, are these assessments carried out by psychiatrists or psychologists who are working within the prison system? Are they working for the Department of Justice or are they brought in on an independent basis? It would seem to me that just as a prisoner can get conditioned or institutionalised within the prison system, if you have a psychiatrist or a psychologist who is working within the prison system all the time his reaction to the assessment will be based on what he has seen within the prison system, whereas if you bring in people from outside their minds will be fresher.

Mr. J. Mitchell: The psychiatrists are employed directly by the health boards and not by the Department of Justice, although the psychiatrists involved have a very wide experience of prison systems. It would not be considered a good thing if their only work was within prisons. It is important that psychiatrists who assess prisoners should not be involved whole-time in prisons but should be involved outside as well. Moreover, it has happened from time to time that the assessments of other psychiatrists have been asked for where a second opinion was [653] deemed necessary. Indeed, I asked recently for a second opinion not only from psychiatrists outside the prison service but from a psychiatrist outside the country who has particular expertise in the area in which the offender was involved.

Mrs. Robinson: I want to raise another point which I intended to raise under subsequent sections but I think it also arises under section 2. Section 2 provides that a person convicted of treason or murder should be sentenced to imprisonment for life. I would like to clarify this because it will have a bearing on some of the matters I want to raise on a later section. Is there any age limit on the word “person” there? Is it intended to mean any person even if it is a person under the age of 21 or 18 years?

Mr. J. Mitchell: If an offender or a suspect is under 17 years it does not apply.

Mr. B. Ryan: Will the Minister consider inquiring whether prisons work at all in general, either as a deterrent or as a control or in a rehabilitation sense? Will he accept that there is a substantial amount of evidence that prison sentences both here and abroad have virtually no deterrent effect on criminals or potential criminals? The only protection prisons offer society is to keep people inside for a short period of time. Will he consider broadening his inquiry into the whole function of the prison service?

Mr. J. Mitchell: I can assure Senator Ryan that if we could close all the prisons tomorrow the Minister for Finance would be very happy. There is a point of view that says that prisons per se should not exist but I do not think that any society in the world could exist without them. There has been a worldwide debate going on for many generations as to whether or not prison sentences are a deterrent. In my very humble layman's opinion I imagine that if we had no prisons and no [654] sentences there would be much more crime. I do not think society could exist without prisons. The onus is on society to see that prisons are as rehabilitative as possible and give every opportunity to offenders to learn from their imprisonment and perhaps improve their native talents which in many cases they had not the opportunity to do before they went to prison. Very often that is one of the reasons why they got into prison in the first place.

Mrs. McGuinness: I have been very interested in the information the Minister has given about what a life sentence means in reality and that the average sentence works out at eight to nine years. I knew that this was roughly the figure but the way in which the Minister has gone into it is extremely helpful. The Minister may recall that on Second Stage I remarked that as far as I was aware prison officers themselves felt that after a sentence of eight years the prisoners became unpredictable and dangerous. Obviously this has been part of the advice which has been given through the process which has meant that many people who were sentenced to prison for life have been allowed out. I am very interested to hear this is the professional view. Also, prison is meant to be rehabilitative. If we must have prisons, that is what they should be aiming at.

This means our views on section 2 are quite contrary to section 4 because if eight or nine years is the optimum sentence of imprisonment for life and if this is the proper time to let them out in a rehabilitative sense, how can we possibly turn around and say we are sentencing a person to 30 years or 40 years and still say that prison is meant to be rehabilitative? I cannot imagine how a sentence of 40 years could ever be called rehabilitative.

Professor Murphy: I support Senator McGuinness on the last point. It seems to me that the Minister's last reflections were positive in respect of the possibilities of rehabilitation. It seems to me to be in conflict with section 4, where we [655] are saying to a person that he is sentenced to a minimum period and even if he changes and undergoes a process of rehabilitation, redemption, transformation, it does not make any difference. That is a total contradiction of the whole idea of rehabilitation.

Mr. Lanigan: On the matter of assessment being made by a psychiatrist, is the assessment made on a progressive basis, on an on-going basis or is it made at a particular time? It would appear to me that if a prisoner knows he is going to be assessed for release, say, after seven years, his mental state going towards that time is not going to be a normal one. He is going to be in a very stressful situation and if that is the case I suggest it is a totally wrong attitude to take. I think that continual assessment by psychiatrists should take place all along the line.

Mr. J. Mitchell: I wish to correct Senator McGuinness. She spoke about the optimum sentence being eight to nine years. It is not the optimum sentence, it is the average sentence. That is the normal prison régime, it is something we can be very proud of and it does not conflict with section 4. I drew attention to the rehabilitative régime which exists in our prisons because, quite frankly, I have been surprised myself how genuinely concerned and liberal is our prison régime. Certainly I was not of that view when I came to the Department but I have not been converted to that view by the Department but by sheer observation. We are substituting in section 4 a very stiff penalty indeed. In this case unfortunately rehabilitation has to come second to the State giving to gardaí and prison officers the maximum possible protection. That is a very significant advance.

Senator Murphy made the same point as Senator McGuinness. Senator Lanigan can be assured that each prisoner, and especially long-term prisoners, are being continually assessed in the hope that their term of imprisonment, whether it be five [656] years or 20 years, will be as unpenal and as helpful to them as possible.

Mr. G. Hussey: I know that we are not supposed to be on section 4, and I am not on section 4, but——

An Cathaoirleach: The Chair wishes to point out that we are on section 2. A number of Senators rambled a little outside the scope of section 2. Senators should discuss section 2.

Mrs. G. Hussey: On section 2, we have been discussing the reality of the number of years a person sentenced to life is in fact serving. On Second Stage Senator Brendan Ryan brought up a point which I found very alarming. This was a mention of some automatic difference in remission given to women and not to men, or shall we say, greater remission given to women than to men. This came as news to me, if indeed it is a fact. If a woman commits a murder, an extremely serious crime, I cannot understand why there should be any difference in remission because she is a woman. If women who commit murders are considered to be less dangerous after a certain number of years, surely we should give men the benefit of the doubt and consider that they are equally less dangerous? In other words, if this difference exists, which I hope it does not and I hope the Minister will put us right on this, if there is an automatic difference of remission between men and women, I would like to suggest that the men's remission should be increased to that of the women. The thing is nonsense otherwise. As I say, Senator Ryan mentioned this on Second Stage and it was news to me. It seems to me to be totally illogical. I hope now that this defence of men will not be necessary, that the Minister will tell me that it is not the case. If it is the case, let us hope that we can discuss it.

Mr. J. Mitchell: Senator Hussey is wrong. There is not a differentiation in the remission for males and females so far as imprisonment is concerned.

[657] Mrs. G. Hussey: I am very glad to hear that.

Mrs. Robinson: For once I was being very good and I was not moving on as Senator McGuinness and Senator Murphy had done. I was preparing the way. I shall be making very similar points when the opportunity arises. I would like to come back to the other issue I raised, that is, what we mean by a person under section 2. The Minister said that excluded from that is a person under 17 years. That is under the Children's Act where a child cannot suffer a term of imprisonment. I think that is a very low cut-off point in comparison with other countries. In the United Kingdom, for example, under the Children's and Young Persons' Act, the age is 18 years. I am fairly sure I am correct in that. I wonder whether the Minister has looked into this, particularly in view of the fact that under the abolition of death penalty legislation in England specific reference was made to the fact that the term of imprisonment for life would not apply to anybody under 18 years. I just ask if the Minister has comparative information on this and, if not, is he prepared to look into the possibility of raising that age?

Mr. J. Mitchell: The Act the Senator has referred to is the Children's Act and the relevent section is section 103. It is mentioned in the Bill later on. In relation to the Senator's point regarding the age of 17 and this whole question of juveniles offending, this is being looked at in my Department. We are looking at the whole question of the age of criminal responsibility and related matters and I am hopeful that we will be able to come before both Houses of the Oireachtas, certainly during the course of the next 12 months and perhaps sooner than that, with proposals in relation to the age of criminal responsibility and associated matters.

Mr. A. FitzGerald: When the Minister spoke earlier he mentioned the Central Mental Hospital at Dundrum. I have [658] been a member of the Visiting Committee of that hospital for years and I would be very interested to know his plans in regard to the transfer of prisoners who are at present being held in the prison service and the fact that Dundrum, as he put it himself, is not equipped to handle many of the prisoners who traditionally over the past number of years have been transferred in small numbers to the central criminal asylum. In my experience, and this view is widely held by the Eastern Health Board who run the asylum and indeed by the staffs generally at the hospital, Dundrum is a hospital setting and does not suit by any means the kind of prisoners I presume the Minister is speaking of, the terrorist-type person who finds himself within the prison system at the moment. That person transferred to a hospital setting like Dundrum has the effect of disturbing the hospital setting and giving the staff in Dundrum undue problems in handling. I would like to know if the Minister is considering any developments in regard to the matter. That is the first point.

The second one is in relation to the whole business of rehabilitation. I was glad to hear the Minister mention it and give plenty of attention to this important area in handling our prisoners. I would like to ask him how he views the rehabilitation process and its effect on prisoners who may end up there for 30 years or longer. The minimum period we are now suggesting in the Bill is a 30-year sentence. People who rightly have been convicted of capital murder of members of the Garda Síochána or prison staff have, in the Minister's own words, been given the most grave sentence by the State in its response to people who have taken on the State in the fashion of these people. Is the Minister envisaging, in dealing with these people who are pretty much the same people we were talking about earlier in regard to their transfer to Dundrum and the unequipped nature of Dundrum to handle these patients, a development in the prison system which would cater for these prisoners undergoing sentences for as long a period as 30 years? With the practice in other coun- [659] tries, the experience of long-term sentences like that, even for the average seven or eight years that are spent in our existing institutions at the moment, have the effect of causing very great damage to prisoners or patients who are undergoing sentences like that. What I am really trying to get to is this: is it possible for the Minister to consider some different atmosphere within the prison, something like the Barlinnie experiment which is being tried at present in the Glasgow prison, which has the prisoners in a homelike atmosphere, given the chance of personal development and a very clear prison régime in which rehabilitation is essential so that they do not end up being harmed irreparably even though their sentence is as long, and necessarily as long as it has to be? I would like a general comment on this area of rehabilitation, and particularly to stress the unsuitability of the Dundrum asylum which the Minister well knows is really only handling the domestic murderer and is not dealing with the kind of people which presumably this Bill gears itself to handle, the terrorist and people whose offence is against the very institution of the State.

Mr. B. Ryan: I stand corrected on the question of remission. I accept the Minister's assurances that there is no difference in remission between women and men. Since the Minister mentioned prisons and rehabilitation may I say as one who spent a long part of his life dealing with ex-prisoners that I have no evidence that prison works to rehabilitate people? I have no evidence that our prison system is liberal in a way that is successful. It is liberal in a humane way in that people are well fed and clothed and are treated well. It has achieved nothing in liberal terms to rehabilitate people. The rate of second offences is extremely high. The Minister suggested that our prison system, at least implicitly, was doing good. It may do some good in protecting us from people who would injure us otherwise. It is not doing much good to our prisoners.

Mr. Lanigan: I should like to take up [660] the point made by Senator Alexis FitzGerald. I hope that at no stage would people who are sick be held within the prison system and not be allowed to be transferred to a hospital situation. It may be that the organisation of the hospital he is talking about might not be suitable but if a person is sick he should undoubtedly be transferred to hospital and not be held within the prison system.

Mr. J. Mitchell: The debate is becoming very wide-ranging and away from the scope of the section. I will answer Senator FitzGerald's point as shared by Senator Lanigan. The only hospital in existence for containing offenders who have psychiatric problems is Dundrum. It is not run by the Department. It is run by the Department of Health through the Eastern Health Board. It is an unfortunate fact that the hospital for various reasons feels unable to accept some of our more violent prisoners. As they are violent we could not contemplate releasing them on society or to ordinary psychiatric hospitals.

Since I became Minister for Justice it is something that has greatly worried me and is getting my attention as to how it can be coped with. There are people in prison who should not be there but in a very secure hospital. I am looking at ways and means of tackling the problem. However, it is not something that will be solved overnight. It is one of the needs that I see in our prison system.

Senator Ryan's point about the value of prisons in general is a very wide one. It is outside the scope of this Bill. I do not-think many people in this House would share his view that there should be no prisons.

Mr. B. Ryan: I am not suggesting there should be no prisons.

Mr. E. Ryan: The attitude of Fianna Fáil in relation to section 1, and consequentially in relation to section 2, has been called in question by Senator Murphy. I would have thought that the attitude of Fianna Fáil in relation to the [661] abolition of capital punishment was made quite clear on Second Stage. Consequently I did not think it necessary to formally oppose section 1. In case there is any doubt about the matter I will be opposing section 2 as that by implication could be interpreted as meaning that we now favour the abolition of capital punishment.

Question put and agreed to.

SECTION 3.

Question proposed: “That section 3 stand part of the Bill.”

Mrs. Robinson: I have a few questions to ask the Minister on section 3. The first relates to subsection (1) (b), “murder of a prison officer acting in the course of his duty”. I raise this because it would be helpful for us to understand the scope of prison officers there. I realise that this is carried over from the categories under the Criminal Justice Act, 1964 but I would like to have clarified whether, for example, it extends to a prison officer in Loughan House. This is relevant in view of the fact that it is only persons under 17 who are excluded from the provision. If a 17 year old were to be charged it would have to be a charge under section 3 with the inevitable horrific consequences if we pass this Bill of a mandatory 40 year sentence. It is important to clarify that point.

Professor Murphy: Would the Minister inform us of the meaning of paragraph (c)?

Mr. Magner: Section 3 applies to the murder of a garda acting in the course of his duty or of a prison officer. We have a situation, regretfully but true, where members of the Army are involved in protecting prisons like Portlaoise and many situations where gardaí have been murdered. I wonder why members of the Army who are engaged in exactly the same work are excluded.

[662] Mr. B. Ryan: I do not understand this section. I do not understand the reason for it. I do not understand what distinction is being made. I do not understand the reference to prison officers. I am not aware that prison officers have expressed the view that they need this sort of protection. If they have done so, they have done so privately. They may have done so. I regret that it seems to suggest the security obsession that many people concerned with civil liberties worry about in periods of Coalition Government. I do not understand why this distinction is being made. Murder is always wrong and the penalty for murder should be life imprisonment. One human being is as sacred as another. The innocent old lady murdered in the midlands is as valuable to our society as a member of the Garda Síochána. A child who is murdered is as valuable as prison officers or prison staff. I do not understand why diplomatic officers here require protection which is not given to diplomatic officers in any other country. I do not think that we are that uncivilised a society that diplomats coming here need this kind of protection that they do not need in other more dangerous and more voilent countries. I am fundamentally opposed to the suggestion that there are two kinds of murder. It devalues the lives of ordinary people in the interests of what is nothing more than an attempt to persuade the Garda that we are not really doing much harm to them. I am sure that the Minister is aware that the Garda are not persuaded that this represents any extra protection for them. I am not at all sure of why we have it or why it is necessary.

Mr. J. Mitchell: To answer Senator Robinson's point, the last paragraph of section 3 explains that a prison officer includes any member of the staff of a prison and any person having the custody of, or having duties in relation to the custody of, a person detained in a prison. It exempts anybody under the age of 17. Anyone under the age of 17 is not included and that would cover the entire population of Loughan House.

Mrs. Robinson: The Minister did not [663] answer my question. Is somebody who is a member of the prison service operating in Loughan House with responsibility for inmates a prison officer for the purposes of definition section 3 (1) (b). Is a prison officer with responsibility for juvenile offenders in St. Patrick's Institution an officer within the meaning of this section?

Mr. J. Mitchell: Yes.

Mrs. Robinson: To both?

Mr. J. Mitchell: Yes, any prison officer having custody of prisoners. It only applies to offenders who are 17 years of age or over. Loughan House does not arise because its entire population is below that age. Some of the population of St. Patrick's Institution are over the age of 17 and I said earlier the whole question in relation to the age of criminal responsibility is being reviewed.

Senator Magner raised the question of the Army. The Army have certain reserve functions at two of our prisons. They are not involved directly with prisoners at any stage so it is not felt that the same protection needs to be applied to them. Senator Ryan asked the question: why do prison officers need protection? No prison officer has been killed in the history of the State. However, when the 1964 Act was being enacted it was felt that because of their constant contacts with serious offenders they should be given the same protection as gardaí. It is only right that gardaí and prison officers should have protection. It should be understood by offenders or would-be offenders that if they attack gardaí or prison officers the penalty for such an attack would be very grave indeed. We have to protect these officers who are front line agents of the State. It is a fair distinction to make.

Professor Murphy: I am very impressed by Senator Ryan's point that to distinguish between respective penalties for taking different sorts of lives devalues life in general. I am inclined to accept section 3 on balance. I am not convinced by the Minister's reply to Senator [664] Magner. I raised the question of what is meant by paragraph (c)—I suppose this relates to offences committed by a subversive organisation.

Mr. J. Mitchell: I meant to answer that. The offences under sections 6, 7, 8 or 9 of the Offences Against the State Act, 1939, referred to in the subsection are usurpation of the functions of the government, obstruction of government, obstruction of the President and interference with military or other employees of the State.

Professor Murphy: Thank you. If one says that prison officers have to be protected equally with gardaí and that the same penalty should apply the logic of that is that the same penalty should apply to military personnel who may be at the same risk. While the last three lines of subsection (3) may cover the case of military personnel who are in effect prison custodians, as they can be in the Curragh, the Bill does not provide for the case where a soldier may be at risk for precisely the same reason that a garda may be at risk in protecting the transfer of money to a bank, doing Border duty or whatever. Surely the moral guilt of a situation where a soldier may be fatally wounded is exactly the same as that of a garda.

Mr. J. Mitchell: Protection of the military is covered by section 9 of the Offences Against the State Act which reads:

9.—(1) Every person who shall with intent to undermine public order or the authority of the State commit any act of voilence against or of interference with a member of a lawfully established military or police force (whether such member is or is not on duty) or shall take away, injure, or otherwise interfere with the arms or equipment, or any part of the arms or equipment, of any such member shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding two years.

[665] (2) Every person who shall incite or encourage any person employed in any capacity by the State to refuse, neglect, or omit (in a manner or to an extent calculated to dislocate the public service or branch thereof) to perform his duty or shall incite or encourage any person so employed to be negligent or insubordinate (in such manner or to such extent as aforesaid) in the performance of his duty shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding two years.

(3) Every person who attempts to do any thing the doing of which is a misdemeanour under either of the foregoing sub-sections of this section or who aids or abets or conspires with another person to do or attempt to do any such thing or advocates or encourages the doing of any such thing shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for a term not exceeding twelve months.

Mrs. Honan: The Minister will remember when I was speaking I made reference to the Army. The Army officially opposed doing away with capital punishment as did the Garda. The Government saw fit not to listen to the personnel at the top of the Army and, I suppose, the men down the line. I was waiting for a later section to speak on something else but the Minister should give consideration to this. If there is a shoot-out surely the chances of a soldier being shot are the same as they are for a garda. I referred to the Army when I was speaking on Second Stage but I do not recall that the Minister made any reference to it in his reply.

Mr. J. Mitchell: Murder under section 9 of the Offences Against the State Act is currently capital murder which is subject to the death penalty. That is being amended under this Bill to be a minimum mandatory sentence of 40 years, subject to remission for good conduct. I may have misled Senator Magner earlier. The [666] Army are protected but I would have to say to Senator Honan that because the Army tendered advice that does not mean that the Government have to take it. It is the Government's job to govern.

Mr. E. Ryan: Subsection (2) states:

...a person shall not be convicted of that offence unless mens rea is proved in relation to all the ingredients of the offence as specified in the relevant paragraph of subsection (1).

Am I correct in thinking that in relation to the murder of a prison officer acting in the course of his duty, if the prison officer is going off duty at 6 o'clock and is murdered at one minute to six then it would be an offence under this section, but if it is one minute after six then it is not an offence under this section? That is relatively easy to identify if a prison officer goes off duty at a particular time. However, in the case of a garda it may be much more difficult to determine whether it is an offence under this section or not because in country areas the exact time a garda goes off duty is difficult to determine. If he is off duty and going home but still in uniform, sees something suspicious, takes appropriate action and is murdered, is he acting in the course of his duty or would his murder be a murder to which this section will not apply?

How is it to be determined in certain circumstances whether or not a garda or a prison officer is acting in the course of his duty? As I understand it, the person must have mens rea in relation to all the ingredients, that is, he must know that it is a garda or a prison officer and he must know that that person is acting in the course of his duty when the offence takes place.

Professor Murphy: I should like to take that point a little further. If the garda is off duty and is murdered as a garda, so to speak, by individuals representing organisations involved in section 3 of the Offences Against the State Act, surely there is no moral difference and no difference in the guilt of murdering a garda [667] off duty when he is about his recreation and so on and actually killing him on the job. I certainly cannot see the difference. In Belfast, in another jurisdiction, the heinousness of the murder of prison officers off duty by the Provisional IRA is not mitigated by the fact that they are off duty at the time. They are murdered because they are prison officers. Therefore I not only support Senator Ryan's point of view but it should be taken further.

Mr. S. O'Leary: I should like to make a few general comments with regard to the section and the way in which our consideration of it has extended. As I understand the position with regard to the military aspect and the protection afforded the military, from listening to what the Minister has said, there is an additional element in that there must be an element of conspiracy — I use the word “conspiracy” in a loose sense — to upset the organs of the State. In other words, it is not just a question of murdering somebody who is guarding money outside a bank. As I understood it, that would not necessarily be covered by this section because it may be held that that would not have the essential element which the Minister quoted to us of wanting to do something to hinder the State or to upset the organs of the State in some fundamental way. The protection afforded the military would be slightly less than that afforded to members of the Garda Síochána or to prison officers. That is something that I welcome — not that I think anything less of the military than I do of prison officers or members of the Garda Síochána or indeed the general body of the public who might from time to time be unfortunate enough to be victims of murderous attacks. If we make that definition in the interests of doing one thing at a time, the one thing being the question of the abolition of the death penalty, it is right and proper that no further change should be made unless it is consequential on that such as regard to the number of years to be served.

I am not in favour of including the [668] military with gardaí and prison officers and somehow giving a stamp of approval to the idea that the military are to be taken as an alternative to the Garda Síochána. I do not accept that the military in carrying out duties in support of the civil power are in the same position. They are in a fundamentally different position and I would not like to see the same circumstances apply to them. I want to maintain the position that it is the exception to have an armed soldier on the streets whether he is guarding property, banks or anything else. That is the exception and we should not build into our civil law the idea that a military person carrying out the duty of guarding a bank is somehow equal to a garda and a civil prison officer carrying out his duty. I do not think he is and we should maintain that difference.

There are two things covered under subsection (1) (c). One is the offences covered under sections 6, 7, 8 and 9 of the Offences Against the State Act, to which the Minister has already referred, and which when they are misdemeanours give rise to short terms of imprisonment. When they are murders they will give rise to what were earlier capital murders. However, the second portion of that paragraph: “or in the course of furtherance of the activities of an unlawful organisation within the meaning of section 18” strikes me as being inoperable. It does not seem to operate at all.

Take the case of the murder of a person in Tramore, which was a particularly horrific murder. I do not know whether consideration was given on that occasion, or whether consideration is generally given, to including into the most serious category of murders those murders of civilians which are done in pursuance of the activities of an unlawful organisation. They are a category of murders which are pernicious and the perpetrators do not appear to be charged with what was until now capital murder and what will later be a section 3 murder.

Mr. Lanigan: If a garda is shot by a person robbing a bank that comes under this section. If a member of the Army is [669] shot by somebody robbing a bank it would not appear that he is covered under the Offences Against the State Act because he is purely there protecting money. If the person goes to court and claims that he is a member of an illegal organisation it would appear that a member of the Army is covered. If the person gets up in court and says that he was just going to rob the bank it would not appear to me that the member of the Army is covered under the Offences Against the State Act. Will the Minister please confirm that?

Mr. R. Bruton: The question of motivation is brought in in the case of a diplomat. I was just wondering why is that there and not, for instance, “a diplomat in the course of his duty”? How will a political motive be established? In dealing with subsections of the Offences Against the State Act, the Minister mentioned obstruction of Government. Would that include an offence such as the murder of a judge in the course of his duty? Finally how is it to be defined under the Act whether a person is in the course of furtherence of activities of an unlawful organisation? There was controversy about testimony of superintendents in connection with the Offences Against the State Act. Will that apply here?

Mr. B. Ryan: Am I to understand that if there is another riot in St. Patrick's — there are riots fairly regularly in St. Patrick's Institution — and a 17½-year-old has the misfortune, as it would be, to kill a prison officer, he would be sentenced to 40 years in prison? In other words he would leave prison at the earliest when he is around 50. Perhaps the Minister can make that crystal clear for me as I find it quite disturbing. If it is true could he possibly exclude St. Patrick's Institution from the provisions of this, if he cannot do any more than that? I am also intrigued by the definition of a prison officer which, as stated in subsection (3):

includes any member of the staff of a prison and any person having the custody [670] of, or having duties in relation to the custody of, a person contained in a prison.

Does that include the entire staff of the Department of Justice? I am not a lawyer and I do not understand where that clause ends. Does it include the visiting committee? Does it include the prison chaplain? Does it include the prison doctors? I am not clear as to who is included. There are two questions there.

Mr. J. Mitchell: I will take Senator B. Ryan's point first. This section is a repeat of the section in the 1964 Act. In relation to the point raised by Senator Ryan, it covers prison officers and other personnel who are concerned with the custody of offenders, for instance, probation and welfare officers working within the prison. It does not extend to all the personnel of the Department of Justice. Senator E. Ryan raised the point about prison officers on duty at one minute to six and a prison officer going off duty at one minute past six. The law is not being changed in the section, except that murder in such circumstances would not attract the death penalty, presuming he was on duty, but would attract the minimum mandatory sentence. Many of the points that Senator E. Ryan raised are points of fact that would have to be established in court and decided by the court. They could not possibly be decided in legislation.

A garda off duty who sees an offence being committed and goes to apprehend that criminal or to act, immediately is on duty and would be included and the same is true in any event of prison officers.

Regarding Senator Honan's point about the military authorities and their advice, the military authorities were consulted about this Bill in so far as it affects military personnel, and their advice was to abolish the death penalty.

Mrs. Robinson: I am not necessarily in support of the arguments raised on this point, but it is important to clarify the position of a member of the Army who [671] is doing duty outside a bank or has the custody of a person in Portlaoise prison. That appears to be covered by the person acting. Must he be on the staff of the prison for the purposes of the definition of a prison officer? He appears to be the “person having custody of”, and therefore is covered by the definition, but what about a member of the Army who is on duty outside a bank or other place and who might be exposed to the same kind of threat as a member of the Garda?

Mr. J. Mitchell: I understand that a number of military personnel are involved in prisons. Firstly, those military personnel working in the Curragh would be covered by the provisions of this Bill, and secondly, in subsection (1) (c) of section 3 the murder of military personnel would be covered.

Mrs. Robinson: Not necessarily.

Mrs. McGuinness: Senator Ryan asked a question about the definition of prison officers and the Minister said that it is confined to certain categories of persons. On what did the Minister base his answer? He said in reply to Senator E. Ryan's question that this would have to be decided by the courts. Is there litigation to decide who is included as having duties “in relation to the custody of”? It is arguable that it could be extended to include a very large category of persons, and the inclusion of the word “directly” or something like that might make it clearer. It is not an excuse or valid reason to say, “Well, we just lifted this section out of another Act and put it into this Act”. This kind of parliamentary draftsmanship happens all too often. We just lift the loose definitions of a previous Act and put them into a new one. This is rather a loose definition and could be extended to cover all sorts of persons.

Mr. Lanigan: Do I understand the Minister to say that a member of the Army is protected at all times by this Act? If he was standing outside a bank and was shot by an ordinary bank robber, [672] is he covered by the Offences Against the State Act or is he covered under this Act.

Professor Murphy: The more I think about it the more unsatisfactory is the concept of “in the course of his duty”. If we are concerned about guarding prison officers and regard them as being a specially risky category, then let us take the case of a member of a subversive organisation or a non-political criminal who lies in wait for a guard off duty, at a dance, or out for a walk perhaps. Surely that garda, who may be killed by the person concerned, is as entitled to the whole protection of this Bill as he would be if he were on duty. It seems to be a fatal distinction to draw between off duty and on duty.

Mr. S. O'Leary: I have two points to make. One is the question of the murder of members of the Garda Síochána on or off duty. Secondly, I have no particular knowledge in this matter, being very ignorant in criminal matters and intending to remain so, but it is my interpretation on the basis of what the Minister has already read out that a member of the military who is guarding a civilian bank and is murdered during the course of that action by a person who is not a member of an unlawful organisation, is not doing it to further the ends of an unlawful organisation, and is not doing it in an attempt to subvert the State, on the basis of the information available to us is not covered by section 3 of this Bill. I agree that he should not be covered by section 3 of this Bill, because I want to draw a distinction between gardai and prison officers acting in the course of their duty, and military, who are fundamentally different.

Mrs. Honan: Why?

Mr. S. O'Leary: Because they have different jobs.

Mrs. Honan: What is the difference?

Mr. S. O'Leary: Both the others are civilian jobs and his is a military job.

[673] Mrs. Honan: They are guarding the place and they have different coloured uniforms.

Mr. Lanigan: Money is a commodity.

Mrs. Honan: It is the Army man's life I am concerned about, not the money.

Mr. S. O'Leary: Senator Honan might like to go back to the fundamental argument. She is in favour of the death penalty anyway. If she is in favour of the death penalty for murders in general, then it is ridiculous to make a distinction. If you are not in favour of the death penalty then you are talking about aiding the civil power, and distinguishing between the civil power and the military power and whether it is worth drawing that distinction. In my belief that distinction is worth drawing and is correctly drawn.

The point made by Senator Murphy gets to the heart of the problem and it should also sort out Senator Honan's problem. It is not the members of the Garda Síochána who are at present the subject of the capital murder provision. They are not covered at present. It is not the murder of a garda, but it is the murder of a garda acting in the course of his duty so that it is the action of performing one's duties as a member of the Garda Síochána that requires the extra protection of the State. Similarly it is the action of a prison officer carrying out his duties that requires the extra protection. It is equally horrendous to kill a member of the Garda Síochána who is off duty but he is not at present covered. The distinction is quite valid. You are saying that the type of civil duty carried out by a member of the Garda Síochána and a prison officer during the time when it is being carried out is of special significance. That is right and proper. The military duties are quite different. It is important that we should recognise that we are a State in which the military have a very limited role to play in the protection of the population and can only be called to the aid of the civil power. The [674] civil power are, therefore, the ones who need our greatest protection. That is why we should reserve this protection for them.

Mr. J. Mitchell: Senator McGuinness raised the point that there is too much borrowing from previous legislation and importing it into new legislation. The Government, having considered the matter carefully decided not to widen the scope of this Bill beyond what was provided in the 1964 Act. The people who were protected by the 1964 Act death penalty will now be protected in precisely the manner by the minimum mandatory sentence of 40 years. That includes military personnel in certain circumstances. It includes the military personnel with custodial duties at a civil prison where they are called in.

Section 9 of the Offences Against the State Act says:

(1) Every person who shall with intent to undermine public order or the authority of the State commit any act of violence against or interference with a member of a lawfully established military or police force (whether such member is or is not on duty)...

The minimum mandatory sentence of 40 years applies equally to the murder of Army personnel and Garda personnel under that section. Incidentally, statements have been made here that military personnel are guarding money. They are not guarding money. Where the military personnel are called out they are called out in aid of the civil power and they have to be there to protect the lives of Garda officers, bank personnel etc. That is why they are called out.

Senator Murphy raised the question of whether there should be a distinction between on and off duty. It is a good point. If we were to extend the protection to prison officers and policemen off duty we certainly would be widening the scope of the Bill. I will consider the point raised by Senator Murphy before the Bill goes to the Dáil to see if any amendment in relation to that matter should be included. I make the same commitment [675] in relation to the point raised by Senator McGuinness about a more precise definition of who is covered in the category of people having custodial duty. Maybe it is not precise enough and I undertake to consider that before I bring the Bill to the Dáil and may introduce an amendment to deal with it.

Mr. B. Ryan: To quote Senator Murphy, it is becoming more and more clear that this section serves no purpose. If you extend it now to cover the categories of on or off duty then this sort of ruthless criminal mind that is supposed to be at the back of these sorts of murders will presumably start murdering other people's wives and children to score off those other people. There is no limit to this sort of thing. It is an artificial distinction in what is just one crime. Killing is a crime. There is no fundamental distinction between one kind of murder and another. They are all murder, they are all appalling and they all deserve to be treated in exactly the same way. We go on forever finding new categories that are limited and we will be making an artificial distinction wherever we make it. The proper procedure would be to scrap the whole section.

Mrs. Robinson: I take the Minister's point that it is not intended to expand the categories which brought down the death penalty under the 1964 Act. It appears that the Minister is open to the possibility of finding a way of narrowing the scope of the part carried forward from the Criminal Justice Act, 1964. I welcome his attitude and approach on this. I ask him to consider the question of excluding prison officers who are on duty in places like St. Patrick's Institution or Loughan House because of the risk to a person who is 17 or 18 and required in law to be charged under the section. In view of the Minister's declared intention to have a very early and urgent review of the age of criminal responsibility and the whole question of juvenile justice I ask him to consider this matter and perhaps bring in an amendment on Report Stage as well as an amendment to the point of confining [676] the scope of the meaning of having duties in relation to the custody of a person detained in prison.

Mrs. McGuinness: I appreciate very much the Minister's commitment to look into this definition and it probably will be helpful but I support Senator Brendan Ryan to a large extent on what he has said about the difficulties raised by trying to make these distinctions. Here we get into this morass of is it gardaí off duty, gardaí on duty, is it prison officers in one kind of place of detention or prison officers in another place of detention? Perhaps we did not think out these categories well enough under the 1964 Act, because we never used the death penalty provided by that Act and therefore it did not become so crucial, whereas now we have to use these very long prison sentences and therefore it is important to tease them out. If you are going to divide murder into categories, a murder of a garda, for instance, could be in the course of what is called a political crime for political motives, it could be carried out by the deliberate organised criminal who is doing it in the course of robbery and so on, and the victim could be either on or off duty.

In many jurisdictions which do not have the sort of political atmosphere which we have here the largest number of murders are carried out by private persons against members of their own families or close relatives. A garda not on duty may be murdered by his wife for reasons which seem very good to her. In such a case the murder has nothing to do with his being a garda but with his character as a husband. He could be killed by one of his relatives in a quarrel about property. This is the kind of mess you get into when you start trying to divide up categories of murder. I suggest, with Senator Brendan Ryan, that murder is murder is murder and that we do not try to categorise it.

Professor Murphy: Could I, through you, Sir, ask the Minister a political question? He may not be prepared to answer it. Is it not a fact that the gardaí themselves have no interest in this section? Through their representative bodies they [677] want to have the capital murder provision retained, but our information is that they have no particular interest in a special kind of life imprisonment. Is not the purpose of section 3, to put it colloquially, to keep the gardaí happy for a period until there comes a time when we can more happily repeal section 3 and abolish the distinction between capital murder and ordinary murder?

Mr. J. Mitchell: Senator Murphy can be assured that the intention of section 3 is to give every protection we can to gardaí having regard to the dangerous nature of their duties, and similarly to prison officers. It has no other motivation whatever. As the Senator pointed out, clearly it augments the official stance of the Garda Association. There is no question of political courage or political decisions with regard to their objections. I understand the objections of the Garda Association. Since 1964 several gardaí have been murdered. In fact more gardaí were murdered since 1964 than in the previous 20 or 25 years. However, I must underline my belief that we have to give gardaí, prison officers and the other categories mentioned whatever extra protection we can give. That is the sole motivation of the section. Therefore, I suggest to Senator Ryan and Senator McGuinness that we accept this section. I do not detect from the Senators a concern for the dangerous jobs gardaí and prison officers have to do. I detect concern for offenders.

Mr. B. Ryan: Surely that is unworthy of the Minister.

Mr. J. Mitchell: Let me make the point. It may be unworthy, but I have to say that I do not detect the same concern for gardaí and prison officers as I do for offenders. As Minister for Justice I have great concern for the offenders and I believe I have a personal duty to ensure that offenders are treated in the best way possible, but it is also my duty and a particular duty of Parliament to protect these officers who are in the front line [678] institutions of the State, and that is the reason for the section.

Professor Murphy: I want to make it clear that in asking the Minister that question I was not attributing to him or the Government any motive of political expediency in any disparaging sense, but I want to have established whether the guards themselves want the section, are pleased with the section or are interested in the section.

Mr. B. Ryan: I appreciate that the Minister has a job to do and therefore he is tempted sometimes to suggest things. As I explained when I spoke on Second Stage of this Bill, I have intimate personal knowledge of what it is like to be subjected to violence, as possibly have other Members of the House. I am not claiming to be unique in this, but I have direct personal experience of being threatened with various kinds of weapons and various kinds of violence. I could have nothing but sympathy for the gardaí who have to do this the whole time. I have tried to suggest all through that this section does nothing to protect them or anybody and simply causes confusion where none need arise. It has nothing to do with concern for the lives of gardaí. Of course we are concerned for the lives of gardaí, and it is unworthy of the Minister to suggest otherwise.

Mr. Lanigan: It would appear from the way this debate is going that nothing is happening in this Bill except an upgrading of the 1964 Act and substituting 40 years imprisonment, which is now going to be imposed for a death sentence which was not going to be imposed, and the more we become involved in the debate that is becoming clearer and clearer. There are no changes, according to the Minister, in the 1964 Act as updated by this Bill except that we are substituting a situation which will not arise. We are substituting jail sentences which will not be enforced for hanging which was not being enforced.

Mr. S. O'Leary: They will be enforced.

[679] Mrs. Robinson: On this point I want to make an observation that Senator McGuinness has also made tentatively, that this is a very important measure. It is a courageous measure in the present circumstances and it warrants the kind of attention that it is getting today on Committee Stage in this House. It is proposing to abolish a death penalty which has not been implemented in recent years, but there is a danger that at the end of the day what we will have is a severe and more regressive system than operates at the moment. I intend to argue this under section 4. At the moment there is a possible death penalty which is not being imposed and the alternative of imprisonment for life. We have had — and I hope the Minister will give us full information on this on the record — recommendations of mandatory sentences, but here we have a statutory compulsory mandatory sentence of 40 years being proposed which is more real because it will have to be imposed if section 4 goes through as it stands. Sections 4 and 5 have to be taken together in this context. It is a matter about which we have to be very deeply concerned. I accept that it is appropriate in the circumstances abolishing the death penalty to retain the categories which have been regarded as particularly serious because of the risk to the personnel involved and because we want to express a legislative concern for the safety of, for example, a member of the Garda in the course of his duty or a prison officer in the course of his duty. However, I want to try to ensure that we do not in this Bill make the situation harsher than it is under the present law while purporting to be taking what will be regarded as a courageous and liberal step. That is my concern, which I will be expressing in more detail later.

Mr. J. Mitchell: The last point really is appropriate to section 4. Senator Lanigan says there is no change. If there is no charge why are Fianna Fáil opposing the Bill?

Mr. Lanigan: What I said is that all we are doing is bringing up the 1964 Act and abolishing the death penalty, but we [680] are bringing in a mandatory sentence of 40 years, as Senator Robinson said. The Minister in his statement of last week said that 40 years will not be served by anybody. He said that the normal remissions will be allowed. Therefore, no prisoner will serve 40 years.

Mr. J. O'Leary: 30 years.

Mr. J. Mitchell: It really comes up under section 4. Senator Lanigan's point is correct. There will be remission for industry and good conduct as there is for other prisoners. I will deal with this in greater detail when we come to section 4, and will be answering some of the points already raised by Senator Robinson. I recommend section 3 to the House.

Mrs. Robinson: I have a question on section 3 that will be of interest to practitioners. What will be the form of charge under this section? Will it be a charge of murder under section 3 and will then a murder which does not come within the section be a charge of murder under section 2 of the Criminal Justice Act? Is that what is envisaged?

Mr. J. Mitchell: These murders will be referred to as murder under section 3 or a section 3 murder and the other categories will be simply murder.

Question put and agreed to.

SECTION 4.

Question proposed: “That section 4 stand part of the Bill.”

Mrs. Robinson: Would it be possible, if the Minister and the House agree, to take sections 4 and 5 together for the purpose of discussion because we may have different views on them and it would be easier to discuss them together.

An Leas-Chathaoirleach: Is the House agreeable? Sections 4 and 5 will be discussed together, but will be put separately.

[681] Mr. S. O'Leary: Senator Robinson is correct. To discuss these sections together would be very helpful, they are interdependent and one must look at them in toto if one is to get an idea of what is envisaged.

On the Second Stage, the Minister laid out clearly what the position was. Basically the minimum period of 40 years would apply, and the normal remission for good conduct amounting to a maximum of 25 per cent would also apply, giving the total number of years to be served at 30. The Minister laid great stress on the necessity for retaining an incentive for those who were sentenced for murders under section 3—an incentive for good behaviour—and this possible remission of ten years from the 40 is an incentive to good behaviour. It is important that there should be an incentive, and 25 per cent is a very substantial incentive.

A person who enters on a 40 years term of imprisonment and who would be entitled to a remission — maximum of 25 per cent — particularly in the early years of that sentence, might not consider the ten years off the latter end was worth behaving for. In the case of a person who was sentenced to a term of imprisonment in 1981 and who was due for release in 2021, and who could possibly be released in 2011 — when most of the Members of this House would be well dead — I do not think there would be any incentive to behave at least during the remaining years of this decade. The 25 per cent is a substantial incentive when coupled with the fact that the Government are under section 5 (3) doing away with their powers to temporarily release from prison a person who has served a substantial portion of his sentence.

Prisons occupied by one or two people who have been sentenced to a minimum of 40 years, and who must serve 30 years, will be very unsafe places for the first ten years of their sentence. There is no incentive for persons serving that 40/30 year sentence to behave themselves. The worse that can be done is that they are [682] told that instead of spending 30 years in prison they are going to spend 40 years there. For most people that is a lifetime.

Those circumstances give rise to two conclusions. First, in the interest of good order in the prisons I believe a sentence of 40 years too long. I am in favour of hefty prison sentences and I believe the deterrent effect of prison sentences should not be underestimated, but 40 years is impractical because it will give rise to a situation where people will not behave themselves in prison. Second, the Government are incorrect in writing away their powers to temporarily release a person under section 2 of the Criminal Justice Act, 1960. A combination of those two things means there is a certainty the person will stay in prison for 30 years, unless the Government choose to exercise the power they have under the Constitution. There is no mechanism by which this has ever been done.

For those reasons, it is a very slim hope for anyone in prison to be depending on those residual powers which the Government may have under the Constitution, and which cannot be changed by anything we include in the Bill.

The Minister should give very serious consideration and look again at that sentence of 40 years. It is a savage sentence; even with full remission of ten years, it remains at 30 years a savage sentence. I would not worry too much about that if I felt that subsection 5 (3) did not exist, which will mean that 30 years will be served. The prisoners to whom this will apply will be a very desperate prison population.

My prime concern is the good order of the prison. A sentence of 30 years in anyone's life is too long, because a person is fundamentally different after that length of time. Any of us who are alive in 30 years time will be fundamentally different people than we are now. This is a price I am willing to pay to have the Bill passed by both Houses but it is an impractical provision. When the first person serves 20 years, whichever Government are in power will seek to take the powers to remit sentences under section [683] 2 of the Criminal Justice Act, 1960. I would like the Minister and the Government to reconsider that a 40 year sentence is too long.

Mrs. Honan: Already I note from Government speeches that we are not alone doing away with capital punishment but we are also doing away with the 40 years sentence. A 25 per cent remission is ten years. Is it right to give the same kind of remission to a person who is guilty of a capital offence as to a person who is sentenced for begging? The purpose of this Bill is to try to rehabilitate some of the people in prisons. Is it possible to rehabilitate some of the people who commit these crimes? Should the remission period be increased to three-quarters from a quarter? Then a person convicted of a capital offence would be serving ten years. I note from Government speeches that some of these people might serve only eight to ten years.

Mr. S. O'Leary: As at present.

Mrs. Honan: Until we get back.

Section 5 (3) deals with temporary relief and provides for remission on humanitarian grounds. How can this be defined? Is it not a very subjective matter? Should the person who has committed a capital offence against the State be allowed the privileges accorded in this clause? Should he be aware beforehand that if he took certain action he would be serving 40 years, 30 years, 25 years or ten years? I propose that there will not be any remission for these people. Would this be a deterrent? It seems to be the only deterrent left. I am sure some Members do not consider me too normal at times. None of us in this House may be in that category, but I understand the health of a person faced with 30 or 40 years in prison most certainly must have continued attention. The Minister has already told the House that he will see to this. This is very important. The Minister is aware that it is a problem.

There is no doubt that the Garda were right when they said nobody would serve [684] 40 years, and all they were asking was that capital punishment would be left on the Statute Book. I do not intend to put myself into the category of a hangman or a hangwoman — as has been said by some Members of this House since I spoke here last. “Hangman” would be more appropriate, because I insist being called “chairman” and not “chairperson”. I was asking that we leave capital punishment on the Statute Book. I did not ask that we would immediately appoint a Pierpoint.

Mrs. Robinson: As has been clear from my previous contributions, it is section 4, as understood in the context of the provisions of section 5, that I have very serious difficulty with for some of the reasons outlined by Senator O'Leary. It is a provision which lacks any of the possibility of a commitment to rehabilitation. It lacks any concept of identifying and dealing with individual prisoners. It is a sweeping, mandatory, sentence of 40 years which, taken together with section 5, will mean 30 years in present circumstances. As such, I feel it has the potential to come within the scope of inhuman and degrading treatment of Article 3 of the European Convention of Human Rights because it bears no relation, and cannot appear as at present structured, to the position and development of the individual.

I hope that when the Minister is contributing on this section he will clarify the precise scope of the provision relating to the possibility of a release for grave reasons of a humanitarian nature in subsection (3). As I read that, because it is followed by the provision that any release so granted shall be only of such limited duration as is justified by those reasons and could only operate for such reasons as the illness of a relative or a funeral, or some other reasons of a humanitarian nature, it might be interesting to hear whether it has a potential for greater scope.

I also welcome the fullest information from the Minister on the practice of remission. At present the practice of [685] remission is 25 per cent. It is envisaged that this practice could be varied in relation to offences under this section or is it a standard practice of remission in relation to all offences? Rather than speak at further length at this stage, I would prefer to ensure, following the Minister's contribution, that we fully understand the scope of the section. My understanding is the same as that of Senator O'Leary — a mandatory sentence of 40 years means that a person would serve 30 years, given the present practice of remission. This does not interfere with the constitutional provision in Article 13 section 6 where the possibility of a right of pardon under power to commute or remit is still resting with the President.

It would be understandable if there were to be a flow of representations made to the President, who would then have to consult and act on the advice of the Government, of a similar nature to the kind of representations which the Minister explained occur in relation to the consideration of a person serving a life sentence and who would get the remission for a murder, not under section 3, and who would then come under what I believe is a very appropriate, very concerned and very humane procedure to determine whether it was safe to the public in all the circumstances, given the expertise and experience of the prison and welfare services, and also any expert medical evidence that could be obtained.

In this context it is important also to think of alternative ways of signifying that a murder under section 3 is particularly abhorrent. It only makes sense in the context of this legislation to signify that. I am prepared to accept that a distinction may be made between the sentences of imprisonment for life for murder under section 2, ordinary murder, and murder under section 3, in that we are identifying certain categories of murder which, for particular purposes, are viewed to be especially abhorrent or where special protection may be regarded as being necessary. Part of me agrees with the argument put forward by Senator B. Ryan and others that these [686] categories are a little hard to sustain, but I am prepared to sustain them if, at the end of the day, we ensure that the legislation we are passing is not more repressive than the objective which I support of abolishing the death penalty.

I would like to ask the Minister if he would consider an approach which allowed the court, or required the court as this section does, to specify a minimum period, not to insert the mandatory minimum of 40 years which is the least the court can signify, but instead to adopt a procedure which has been in existence in the UK under the Homicide Act, 1957, where a judge may recommend to the Home Secretary the minimum period which should elapse before a prisoner is released on licence under section 22 of their Prison Act, 1952. That, I think, is a system which allowed the judge who has heard the evidence and is aware of the surrounding circumstances pertaining both to the particular offence and to the particular offender, then to specify a minimum sentence. We are asking a judge to do this in the context of a mandatory minimum of 40 years. He cannot certify less than that. That is taking away an important judicial discretion. By putting in a minimum mandatory period of 40 years are we saying the judges would be immature, vexatious or likely to exercise that discretion in a way that we as legislators would not approve of? Having a section which not only says the penalty will be imprisonment for life, but which enables the trial judge to specify a minimum period which the defendant should serve, indicates that this is an area where the sentence would be regarded as being more serious and, it would follow, would have a higher average of the term of years actually served by the defendant — higher than the eight to nine average for murder which is not covered by the categories in section 3.

The importance of approaching it in this way would be that even if the judge recommended that a minimum sentence of, say, 25 or 30 years were to be served by the individual, the fact that it is not a legislative mandatory provision could allow for a certain judicious discretion by [687] the prison and welfare services, and by the Department of Justice, in the matter. Again, under the system in the Homicide Act, 1957, there is provision that whether or not a recommendation has been made for a minimum sentence by a judge of the English court, if the Home Secretary wishes to provide for a remission of sentence for somebody charged under what was formerly capital murder under that Act, he must consult with the Lord Chief Justice and, if possible, with the trial judge before releasing on leave any such person convicted.

This also has a difference in relation to the trial of a person. Where a person is charged with murder under section 3 and convicted, if section 4 stands and the judge is considering the mandatory minimum of 40 years, and then addressing himself to what sentence he is going to recommend, it is not worthwhile counsel getting up and making any kind of plea in mitigation, for the reasons given by Senator O'Leary. I do not think any counsel could stand there and say “Do not give him 45 years,” or “give him the minimum of 40 years”. I do not think any member of the Bar would like to be in a position of making a plea in mitigation and pleading that his client gets a mandatory sentence of 40 years as being the minimum open to the judge. As we think it through, this section has very serious difficulties involved in it.

In order not to prolong the debate, I would mention another matter on which I would like clarification from the Minister, that is the question of temporary release under section 2 of the Criminal Justice Act, 1960. That temporary release applies to a person either in prison or under detention in St. Patrick's Institution. I would like first to have clarified whether the effect of section 5 (3) extends to a person detained in St. Patrick's Institution as it stands at the moment as well as a person held in any other prison, in other words, not only will there not be a release of an adult prisoner but there will not be any possibility of temporary release for somebody held in St. Patrick's Institution. This [688] refers back to some of the earlier points I was making.

The major point I am making is that the Minister should reflect on the points made during this debate and hopefully, on Report Stage, change the method by which we signify that offences under section 3 are particularly abhorrent to our community and, where there is a need, to provide special protection, but abolish the requirement which — I echo Senator O'Leary — is a savage sentence because of its mandatory objective and compulsory nature which takes away any concept of concern for an individual and of rehabilitation. I hope I will not be misunderstood as being “soft” on people who commit either this type of murder or any other type of murder. I do not think we need to be defensive in addressing ourselves seriously to the important issues that come under this section. I believe the legislative purpose of the section can be achieved within the framework of this legislation by a method which allows discretion to the trial judge to recommend what would be the minimum sentence to be served, and this would achieve the objective.

Mr. B. Ryan: Senator Robinson said a great deal of what I wanted to say. I do not think the Minister answered my question precisely. If a young boy in St. Patrick's Institution—most likely from a deprived area, or a deprived home or both, or even more—got involved in one of the not infrequent riots in St. Patrick's and killed a prison officer, under this section would he be locked up for a minimum of 30 years, assuming he got full remission? If he committed that crime at 17½ years of age he would be locked up until he was 48. I do not understand what can motivate us, as a society, to do that to a youngster. We did enough harm to him when he was a child because we could not provide properly for him. Now when he reacts against our society's neglect, we propose to lock him up. I grant you, it is an effective remedy for kids who misbehave and do things wrong.

I believe—and I make no apologies for this—that in this area of crime and punishment, [689] compassion should be as important as any other consideration. I believe in concern for the welfare of prisoners, and I would direct the attention of Members of this House who would probably be much better Catholics than I am, in particular to what the Pope had to say to the Catholic Hierarchy about the special obligation on Catholics to show concern for prisoners. Before people start trotting out all sorts of reasons for extending the sentence making it less likely that people will get remission etc., I would remind them again that concern for prisoners is a long and noble part of the Christian tradition, which cannot be displaced because the offence is particularly offensive. The obligation still remains. I cannot reconcile a minimum sentence of 40 years with that concern, although other people probably can.

I do not accept that the length of sentence is a deterent. I probably am boring the House to tears at this stage, but I would like to clarify my position. I do not believe the sentencing policy is a deterrent. I believe the major deterrent society has to crime is the possibility that somebody will be caught. That is my experience. People are frightened off from committing crime by the chance that they will be caught.

I have a few suggestions to the Minister, if the Cathaoirleach will indulge me slightly, as to the grounds on which he could improve the chances of being caught. He could particularly ensure that the special detective unit concentrate on those who are liable to commit serious violent crimes instead of having them, as they are doing in my native city, harassing organisations like Friends of the Earth, the Campaign for Nuclear Disarmament and the Prisoners' Rights Organisation. The chairman of the Campaign for Nuclear Disarmament in Cork had his house searched by the Special Branch.

An Cathaoirleach: The Chair would like to point out that it is hardly relevant [690] on the two particular sections we are discussing.

Mr. B. Ryan: I was suggesting to the Minister that the resources at his disposal to counter violent crime could be a lot better allocated than they are currently being allocated. I was simply trying to produce an example for that. I accept your ruling. I will confine myself to the matter under discussion.

On the issue of imprisonment, the question arises about where these people will be kept. May I make the point again that in spite of the fact that the visiting committee to the Curragh, which is one obvious place of detention for serious violent criminals, are hand picked by the Department of Justice, they have never yet picked a visiting committee who did not recommend the immediate closure of the prison. That ought to be considered.

I do not know where these people will be locked up. I do not know what we will do with them. I do not know what we will do if they misbehave in prison, because 30 years or 40 years to a young person of 20 will not make any difference. If those who are proposing this believe in its value as a deterrent—I do not—they are being inconsistent by not leaving a further deterrent for people who will possibly misbehave in prison. Quite clearly the penalty of life imprisonment can be interpreted by governments to depend on the circumstances. If this Government and succeeding governments feel the particular crimes are particularly heinous there is no reason why they must give remission, there is no reason why they must allow people out after a period of seven, eight or ten years.

I do not understand what this 40 years stands for. It suggests to me something close to vengence. It suggests to me something close to saying they have done something terrible to us, we must do something terrible back to them. I am sure that is not the sentiment behind this clause of the Bill but it would be very easy to interpret it like that. I can see no other purpose for it. I obviously, as is clear, am opposed to this section. Even [691] if this section were to be passed it is even more appalling to me that, notwithstanding a minimum sentence of 40 years, there is a further attempt to hedge in the options even further by reducing the rights to parole, the rights to special leave and, since it is written in here, the grave reasons of a humanitarian nature which must be cited, in order to allow even temporary release.

It is unworthy of our legislature and it is unworthy of us to feel that to deal with a barbaric threat to our society — that is what it is — we have to resort to something which is almost as barbaric as those who would attack our society. The strength of our society is in our tolerance. The strength of democracy is in the belief that democracy is stronger than all those who would conspire against it. Evidence has shown that democracy is stronger than those who would conspire against it. This Bill is an admission that our democratic system is not fundamentally sound. I believe it is sound because the people support it. It is spurious, unhelpful and a poor reflection on our faith and our own democracy to suggest that we have to have minimum mandatory sentences of this scandalous length coupled with appalling restrictions on the freedom of the prison service to deal with prisoners as they see fit as time passes by. I appeal to the Minister to withdraw both of these sections. They do not protect anybody. They will not serve any purpose. I do believe they reflect very badly on us all.

Dr. Whitaker: Although I voted for the abolition of the death penalty I do not think many people would consider me softer than Senator Brendan Ryan or Senator Robinson. I said on the Second Reading, however, that while I accepted that the penalty substituted for the death penalty had to be a markedly severe one, I was concerned at the provision in section 5 (1) which rigidly debars the Minister or the Government from exercising clemency or compassion even when a situation so warrants

As I understand these two sections, the 40 years minimum can be reduced to 30 years minimum by the present prison [692] rules which allow remission for industry and good conduct. The 30 years minimum remains, and section 5 (1) says that the power which exists under another Act, 1951, to remit a punishment shall not in section 3 cases be exercisable before the expiration of the minimum period, less any reduction for good conduct. In other words it cannot be exercised during the first 30 years of a minimum sentence of 40.

Taking these things together — I have the personal view that the 40 years is excessive anyway — when it is boosted by the provision debarring the exercise of any clemency until 30 years have passed, then I think that we are not being reasonable, and I agree with the view that this tends towards retribution rather than justice. The minimum period of imprisonment specified expresses despair about any prospect of rehabilitation, and whether that is right or wrong I do not see why the Government should debar themselves from the exercise of clemency in particular cases.

What I would like to see instead of sections 4 and 5 is at least the substitution of no more than 30 for 40 years in section. 4, and instead of saying that remission cannot be exercised before the expiration of the minimum period less the good conduct remission, why not specify some period like 20 years, which would be twice the average period actually served by people who are sentenced to imprisonment for life?

Mr. E. Ryan: The sentence of 40 years has been described by a number of people as being savage. There is no doubt whatever that that is a proper description of it. The only mitigation of that, as the Minister has said, is that nobody will serve 40 years. The impression from the discussion here is that in fact nobody will serve more than 30 years.

It would be wrong to make that assumption, because the belief of most psychiatrists and social workers and so on is that anybody who serves perhaps [693] more than 10 or 15 years will be so affected by it in a psychiatric way that he or she will no longer be normal. This condition is almost certain, or is very likely to manifest itself, by way of violence, by way of disobedience, by way of kicking against the whole system. So you are putting prisoners in a position during 30 years when the effect on them after such a long sentence is almost certain to result in some kind of psychiatric disorder which will manifest itself in a way that will prevent them from getting the remission which they theoretically are entitled to. So far from the position being that nobody will serve this 40 years, the probability is that a great many people will in fact serve the 40 years because of the way in which they are going to develop during that long period of imprisonment.

It is a savage sentence not only because 40 years is such a long period but, in particular, because the possibility of it being reduced to 30 years is not going to be achieved in many cases. In these circumstances I would agree with Senator Whitaker that there should be some loophole, some way in which in certain circumstances the Government or Minister can step in in cases where clearly something should be done to remit a sentence because a person has reached a stage when he is no longer in control of his own will and actions. That, of course, is in addition to the case which Senator S. O'Leary made where many people looking forward to 40 years will say that it is not worth their while to conform to the rules because it is such a long period ahead, that from the word go they feel it is not worth striving for a remission that is only going to take place in 30 years' time. Whatever one may feel about whether this is a savage sentence or otherwise, it should not be shrugged off. Nobody is shrugging it off in that sense. One should not be led to believe that we are only talking about 30 years because nobody, in fact, will serve 30 years. That would be a very dangerous assumption.

Mr. J. Mitchell: I am anxious to intervene in the debate at this stage. I appreciate [694] very much the motivation that has informed this debate. I very much share those instincts. Why is 40 years provided in this Bill? The real explanation for the choice of 40 years was that the previous Government, in recommending the President to commute the death sentence in the cases of three prisoners, did so on the basis that 40 years would be served without remission. That is where the 40 years came in.

The first job I had to do when I became Minister was to put a similar recommendation to the Government to recommend to the President that another prisoner who had been sentenced to death should have that sentence commuted. It is precisely because 40 years was provided then that it is provided now but with the more liberalising effect of remission for industry and good conduct. I want to answer the understandable point made by Senator Robinson whether this is more repressive, or more liberal and compassionate than was the situation before. It is more companssionate. The reprieves that have been granted up to now have been granted on the basis that 40 years would be served without remission.

The reason remission has been put in is to give prisoners in this category some incentive to behave themselves in prison and to earn this remission by industry and good conduct. The length of term served depends on the general remission applicable to prisoners. At the moment it is a quarter. It may not always be a quarter but I do not think it will ever be less. In the fullness of time it may well be — and this is something I have to take into account in fixing the number of years — that the tendency in the future will be to allow even more remission than is the case at present. In the North there is 50 per cent remission. I am not saying there shall be a 50 per cent remission but any movement there is in the direction of increased remission, not less. That was another reason why the 40 years suggested itself as the appropriate number of years. Quite frankly if my own personal instincts were expressed it would not be 40 years; it would be less, but I have to take into account what Parliament [695] will accept. I do not think it would be reasonable to assume that we would abolish the death penalty and also have a less severe sentence.

The other question raised has been, why not give to the Judiciary the discretion in these cases? I mentioned in my Second Stage speech the reason for that. At the moment, people armed to the hilt have murdered gardaí in the clear knowledge that they would not be hanged, that under no circumstances would the death penalty be applied. They did it also in the hope that they would get away eventually with the serving of a short number of years. Quite frankly, anybody objectively assesting the situation would say that given the current state of the law there is such a hope. There is some sort of impression around that maybe some day there will be a general amnesty. The intention of these two sections is to make it clear that in respect of the murder of gardaí or prison officers there will be no amnesty. It is a clear warning in advance, and it has to be in advance, that people understand that the law is the law and no Minister for Justice or no Government can change it without the assent of Parliament. The law is the law and that is it. In advance they know, if this Bill is enacted, that they will serve a very long minimum mandatory sentence. This needs to be known in advance and that is why it cannot be left to judicial discretion.

Senator S. O'Leary and a number of other Senators made similar points. Senator O'Leary said that the Government were wrong to give away their powers to commute. That is not what is happening in this Bill. What is happening is that the Minister for Justice is giving away his powers to commute. At the moment the Minister for Justice has Carte blanche to release any prisoner almost in any circumstances. In this case it would be a matter for the formal decision of the Government to advise the President, and the President has to act on the advice of the Government. We are not removing the power to commute a sentence or to exercise clemency, but it will need a Government [696] decision as distinct from a decision of the Minister for Justice. Senator Honan advocated that there should be no temporary release. That would be too harsh and lacking in compassion. She asked me to define grave humanitarian reasons. I suppose there are several items that could be cited as grave humanitarian reasons but one obvious example is if an offender was very seriously ill.

Senator Robinson made the point that the sections lack rehabilitative dimension. They do not. They are a step in that direction by allowing remission and are an improvement. Senator Robinson also mentioned that these provisions might come under the scope of the term “inhuman and degrading treatment”. It is hardly likely that these would if the death penalty did not. She also raised the point of whether it applied to prisoners in St. Patrick's Institution. As of now, in the case of prisoners of 17 years or over, yes, but under 17, years, no. However, that may be affected by my review of the law on the age of criminal responsibility and related matters. Senator Brendan Ryan also raised the question of St. Patrick's Institution, and that will be the subject of the same consideration. In passing, Senator Ryan mentioned the frequency of riots in St. Patrick's Institution. There have not been any since I became Minister, and I hope it will remain that way for a long time to come.

I am not sure if I interpreted Senator Brendan Ryan's point clearly, but the implicit argument was that there should be a life sentence and it should be left to the discretion of the Government of the day whether prisoners continued to serve that sentence. The fault in that is that it is not making it clear in advance to people who will murder gardaí and prison officers that they will have to serve a life sentence. There will be no deterrent effect whatever if it is not clear that they will have to serve a very long sentence.

Senator Ryan referred to rights to parole. There is no such thing as a right to parole. There are privileges of parole. Parole is earned by industry and good conduct and by efforts on the part of prisoners to rehabilitate and help themselves. [697] It does not come automatically and is not a right. He also made the point that this Bill could be construed as an indication that our democracy is not strong. I do not think that is correct. Any State has to take reasonable measures to defend itself and its servants, and that is what we are seeking to do here.

Senator Whitaker said that he accepts that the penalty should be a severe one and suggested that it should be 30 years instead of 40. My own instincts would not vary greatly from that. I take issue with Senator Whitaker when he says that there is a tendency towards retribution in this measure rather than justice. The only intention of this measure is to try to prevent the taking of the lives of gardaí and prison officers. Senator Eoin Ryan quoted correctly that psychiatrists and psychologists say that anyone who has served ten to 15 years in prison is becoming unrehabilitatable and may tend to suffer psychiatric disorder. There is some validity in that. He implied that there would be a high probability of violence and, therefore, these people would lose remission. This is very much a matter of opinion. Long sentences are not unique to this country. In the United Kingdom there have been minimum sentences of 35 years handed down without remission. In the United States it is 99 years and so on. There is no evidence to suggest that these long-term prisoners become any more violent than others. Senator Eoin Ryan made the point that the Government should have the power to remit sentences. They still have that power.

Mr. O'Connell: As I understand the Minister and the intention of the Government, one of the things the Bill aims to do is to deal with the situation which exists at present when in practice there is no very clear distinction between what happens to somebody who comes under the category of what we hope will be called section 3 murders and somebody who commits a murder of another kind. As I understand it, the intention is to introduce a substantial difference.

In my experience of talking to people, [698] there is very serious public disquiet about a situation in which people create a situation in which the chances of their committing a murder in the furtherance of crime of various kinds is very considerable and, if convicted, are able to serve relatively short sentences and then walk out scot free. I bring this forward not in any sense of trying to seek vengeance, but in this category about which will speaking, we have a situation which will remain basically the same under the existing law if and when this measure is passed. I should like from the Minister some form of guarantee or commitment that he will consider the possibility of reviewing the present situation with regard to these very short sentences. I stress again that it is not in any evidictive sense that I am bringing this forward, but many people feel that they are in no way protected against professional criminals who embark upon crime armed, as the Minister says, to the teeth and willing, if necessary in the furtherance of crime, to inflict malicious bodily injury and possibly the loss of life. I should like a guarantee from the Minister that he intends to look into this situation.

Mrs. McGuinness: I appreciate very much the Minister's contribution and I feel that his whole speech in reply to the debate on this section so far is really a tribute to his own heart and good feeling in the whole matter. I do sympathise with his position. However, I feel that he is a little bit illogical when he says that we should protect the Garda. I am all in favour of protecting the Garda in any way that works, although I do not accept necessarily that this is the way that works. Is he saying that we should protect them by the full rigour of these sentences of 40 years with reduction to 30 years as it stands at present or is he saying that we are putting in this mandatory sentence but over a period of time it will obviously be watered down because we will give more remission as they do in Northern Ireland, or it will be watered down by the fact that the Government as opposed to the Minister for Justice can recommend to the President to commute sentences in these situations and that we can also use [699] the clause regarding grave reasons of a humanitarian nature?

It is important to put in clauses like “grave reasons of a humanitarian nature” but it is somewhat illogical to say we are putting in this very long sentence — I agree with Senator O'Leary that it is a savage sentence — and then turn round and say, “but we are doing all these other things”. I would feel with Senator Murphy that possibly the Garda might wonder what the point is of putting this in if we are going to water it down later. It seems as though we are putting it in now to save our face and reducing it gradually. As far as retribution and prevention are concerned, to say it is preventive is another way of saying it would be a deterrent. I am not going to bore the Minister and the House by repeating what I said on Second Stage about deterrents but I do not believe that this is necessarily a deterrent. As I said on section 2, I cannot envisage a sentence of 40 or 30 years being in any case rehabilitative, and therefore I am reduced to feeling that there is a very big element of retribution in this. I do not think the Minister feels that way about it, but that thought is behind it whether the Minister himself or somebody else is thinking it.

Dr. Whitaker: I would like to make a brief comment on the Minister's reply to the debate on these two sections. I am very glad to find that he personally would subscribe to the reduction of 40 to 30 or thereabouts. His answer to the criticism of section 5(1) causes me some worry, because he pointed out that section 5(1) merely binds his own hands as Minister for Justice. It has nothing to say to the exercise of a prerogative of mercy, in effect, by the Government. I am not sure how well founded this prerogative is. Particularly I am not clear to what degree it is exercisable regardless of the specific provisions of statute law. If this prerogative can be exercised freely in all cases one is entitled to ask what is the point of all our concern here with legislative precision, or what we put into section 4 or section 5.

[700] Surely if the Minister ties his own hands for 30 years, as it may be, is this not really making the extra-statutory path to the Government more likely to be worn by people who cannot get any clemency from the Minister himself? Surely the better answer is not to rely on some vague constitutional or extra-statutory prerogative of mercy, exercisable by the Government, but to put into statute whatever power we want to leave with the Minister. If he does not want full power, then we need not give him full power. If we want to restrict it then let us restrict it less rigidly and unreasonably than is done in this measure.

Mrs. Robinson: I would like to follow on much the same lines as Senator Whitaker in relation to section 5(1). When the Minister commenced his intervention at that point he referred to the fact that a mandatory sentence of 40 years had been recommended by the previous Government and then subsequently by this Government in individual cases, but that mandatory sentence was recommended in a situation where the provisions of section 23 of the Criminal Justice Act, 1951 apply; therefore there is a possibility of a more flexible and more judicious approach and in particular, of the kind of considerations that we heard described in relation to other sentences of life imprisonment applying, bearing in mind the recommendation of the mandatory sentence. I agree with the view expressed by Senator Whitaker on this point. It is difficult to see why the Minister is foregoing this legislative power in the Criminal Justice Act, 1951 which gives him both a responsibility and an accountability in relation to commuting or remitting punishment where you have a more vague and less satisfactory residual power under the Constitution where the President has the right of pardon and the power to commute or remit punishment. That cannot be taken away except by a Constitutional amendment necessitating a referendum, and the President in exercising that power, as in exercising other powers under Article 13 of the Constitution, [701] must do so governed by Article 13.11 which states:

“No power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government.”

It seems to me that that constitutional power which leaves the possibility of the Government recommending to the President is a much less attuned procedure than the Minister's power under existing legislation under the Criminal Justice Act, 1951. It is open to a sort of political influence by other members of the Government putting forward a Government decision and saying, “Let us approach the President on this.” It does not seem to be based on the kind of framework that we heard described earlier where, because of the legislative power under the Criminal Justice Act, 1951, it is going to be from inside the Department of Justice, inside the prison service, the consideration will obtain initially and the possible recommendation to the Minister may come. That seems to be the appropriate place to leave the legislative discretion, because that is where the knowledge, expertise and awareness of the position of the individual are. That is where the concern for rehabilitation of the individual would come from. I would even query that the right and power under Article 13 are conferred on the President. If the President seeks to exercise that right he must seek the advice of the Government, but it is an open question as to whether the initiative is coming from the Government.

The President might have some say as to whether, not having exercised his own right, he would be obliged to follow the advice of the Government in the matter. It is a rather academic question, but the procedure is a much more cumbersome one, a much less satisfactory way of approaching the serious issue of seeking to have some degree of flexibility in this otherwise mandatory compulsory prison sentence of formally a minimum of 40 years and, in practice, a minimum of 30 years. I take the point made by a number of Senators, including Senator Eoin [702] Ryan, that we may be pitching it in such a way that individual prisoners will not see any merit in availing of remission for good behaviour because the period is so long and the outlook so bleak for them that it is not, as Senator O'Leary said, any incentive to comply with the prison rules and obligations and to be of good behaviour.

I agree with Senator Whitaker that there is not any logical reason to deprive the Minister of the power he has under section 23 of the Criminal Justice Act, 1951, and that the Minister might consider removing that subsection as well as, I hope, considering the other points that were made. The Minister said quite clearly that he would like to see a less severe, or less savage, sentence but he did not think that the market would bear it. We are the market — he did not think that the Oireachtas would bear it. I have not had that impression from the contributions I have heard, and perhaps the Minister might reflect on the contributions and consider the question.

The question is a very distinct one from the decision to abolish capital punishment. There can be a strong difference of view on the principle of doing it now, and the same considerations do not necessary apply to the replacement, to the level of sentence and the way that would affect an individual and to the possibility that we might be replacing the present law by a law which is more severe in practice. This is something which concerns me greatly.

Mr. Howard: I listened to the contributions made in the last 45 minutes. I recognise that there are points being raised which cause a person to think seriously on the issue. There is a question of balance here. To clear my mind on this I have to come back to something basic. The sentence of 40 years has been referred to by a number of Senators as being savage. During the Second Stage contributions, the arguments advanced for not abolishing the death penalty at this time were that it served as a protection or as a deterrent to people who might [703] be tempted, or who would murder, members of the Garda Síochána of prison officers. That argument was strongly advanced. Having decided that capital punishment would go — which as far as I am concerned was a savage and a brutal penalty — a question arises. Members of the Garda and the prison officers have indicated that the death penalty provided them with certain protection. As far as I am concerned it comes back simply to this question; what value do we put on the life of a member of the Garda or the prison officers? If we expect the gardaí to carry out their duty, to uphold the law, to protect society and to risk their lives, our commitment will be measured by the value that we put on their lives. That is one aspect of this situation that I want to address my attention to.

I am strongly influenced by what the Minister said about showing in advance the likely penalty a person who would murder a member of the Garda or a prison officer would have to face. When doing that it is important that the penalty will cause a would-be killer to consider very deeply the consequences of any action he may be contemplating. If we talk of a sentence of 40 years being a savage sentence, let us also recognise that if it is being imposed, it is because of the carrying out of an equally savage act. If we were to depart from that situation and treat all murders on an equal basis, are we saying if the average number of years served at the moment for a murder is seven or eight, that that is the value we are prepared to put on the life of a Garda or a prison officer. I am not going to be part of that.

What we are talking about is an act that strikes at the foundation of this State, at the foundation of law and order. While I sympathise fully with the concern for the welfare of prisoners, do not confuse the situation. As I said, we are dealing with an act that strikes the very foundation of law and order, the existence of the society and the State. Therefore, it is necessary the we register fully our determination to see that mentality that inspires such actions will not succeed. I believe a sentences of 30 years— [704] the likely sentence to be served with remission — has to be the measure we put on the life of the members of the Garda and the prison officers. It is a further indication of our determination that the people who take the lives of the gardaí or prison officers will have to face a savage penalty. I feel this is our obligation.

An Cathaoirleach: Before I call Senator Murphy may I point out that repetition is not in order. I am not speaking to anyone in particular.

Professor Murphy: I take the point. I found this a very instructive debate because I find our predicament a very serious one. Those of us who decided to support the Government's courageous decision to abolish capital punishment felt we were obliged to support them as far along the line as we could, and that is why, after much hesitation and with respect to my colleague Senator B. Ryan, I supported section 3. Having supported that section, logically I am bound to support sections 4 and 5. I would prefer the kind of compromise, for that is what it is, suggested by Senator Whitaker and in another way by Senator Robinson, but I doubt if, at the end of the day, people are going to serve 30 years. How many such cases do we envisage in the first place?

How many capital murder cases have we had in a period of considerable political disturbance and of a deterioration of respect for law and order generally? Each case will be a particular case and there is a strong likelihood that each such case will come within Article 13.6 of the Constitution in any case. Therefore, at the end of long discussion. I find myself as wise as I was at the beginning.

I will make one point, and I hope it is not a reactionary one. Many people might claim that Senator Howard's contribution came under the category of harshness, and I think he was reflecting the attitude of the public in general rather than that expressed in this Chamber.

Mr. S. O'Leary: The Minister might inform me if I am right in reading section [705] 5(2) to mean that in the event of a person being sentenced to a period of longer than 40 years the term of remission would only apply to the 40 years portion. The subsection states:

The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence passed on him on conviction of treason or of murder to which section 3 applies as if he had been sentenced to a term of imprisonment equal to the minimum period specified by the court under section 4, and that period shall be reduced by the amount of any remission which he has so earned.

If somebody was unfortunate enough to be sentenced to 60 years would he get a remission on the basis of 40 years only? Would he serve 20 of those 60 years without any remission? That is my reading of the section.

Mr. J. Mitchell: The Senator is wrong. The general remission operating would apply to all of the sentence. May I say that I found the points made in the last few contributions very interesting. One was that the sentence proposed is too long, and the second that perhaps the Minister should not surrender his power of remission. Senator Robinson asked whether the market would bear it. Unfortunately, there are two markets. I will consider the two points carefully when the Bill goes before the Dáil.

[706] Question put.

An Cathaoirleach: On the question, “That section 4 stand part of the Bill” a division has been challenged. Will the Senators who called for the division rise in their places, please?

Senators McGuinness, Ross and B. Ryan rose.

An Cathaoirleach: Since fewer than five Senators have risen I declare the question carried.

Section 5 agreed to.

Sitting suspended at 5.55 p.m. and resumed at 6.55 p.m.

Sections 6 to 10, inclusive, agreed to.

First and Second Schedules agreed to.

Title agreed to.

Bill reported without amendment.

Agreed to take remaining Stages today.

Bill received for final consideration and passed.

The Seanad adjourned at 7 p.m. until 2.30 p.m. on Wednesday, 18 November 1981.