I move that the Bill be now read a Second Time.
This comparatively short Bill proposes to abolish the death penalty, except for treason, for certain offences of a military character and for offences which, in the Bill, are called capital murders. Penal servitude for life is being substituted for the death penalty in ordinary murder cases. In addition the Bill provides for the abolition of the doctrine of constructive malice and for some consequential amendments arising out of the abolition of the death penalty.
The text of the Bill has been available since before the summer recess. When published it had what one might call a quiet reception. I think it is reasonable to say that this indicates that the Bill is generally in accord with public feeling, and that its provisions can be considered in an atmosphere free from the emotional tension that the issue of capital punishment has often evoked in other countries.
Before dealing with the provisions of the Bill I think it is desirable to refer to the background of the problem and to indicate briefly what the position is in other European countries.
From ancient times the punishment prescribed by law on conviction for murder has been death. If the jury convict an accused person of murder, the judge must, except where the accused is under 17 years of age, pronounce the sentence of death. He has no discretion to impose any other sentence. The jury may return a verdict of "guilty but insane" where the accused person establishes to their satisfaction that he was insane, within the meaning of the rules governing insanity as a defence in criminal cases, at the time he committed the crime. In certain cases of serious provocation, the jury may return a verdict of manslaughter instead of murder. In infanticide cases, the District Court may alter the charge of murder to one of infanticide when returning the accused for trial; where the District Court does not do so, the jury may return a verdict of infanticide or concealment of birth.
The death penalty is prescribed for the following crimes as well as for murder: treason, certain military offences under the Defence Act, 1954, piracy with violence and the wilful killing of a person protected by the four Geneva Conventions of 1949; in the latter case, there is provision for the alternative sentence of penal servitude for life. No one has ever been charged with any of these offences since the inception of the State.
During the period 1946 to 1962 inclusive, 82 murders were committed. Of the 73 persons arrested, 34 were found insane and unfit to plead; seven were found guilty but insane. Sentences of death were passed on 18 persons, including three women. Three of the men were executed—one in 1947, one in 1948, and the third in 1954. The remaining 15 persons had their sentences commuted to penal servitude for life. The longest term of penal servitude served by any of these 15 persons was 11½ years, the shortest three years. The average term was six years.
Up to the 18th century, capital punishment was carried out all over the world for a wide variety of crimes. Some of the capital offences would nowadays be regarded as comparatively minor. The executions were often accompanied by torture. The movement towards the amelioration of punishments and the ultimate abolition of the death penalty commenced about the beginning of the 18th century. During that century, the number of crimes which attracted the death penalty was considerably reduced.For example, the Offences Against the Person Act, 1861, which applied to this country, reduced the number of capital crimes from over two hundred to murder, treason and piracy with violence. In other countries the death penalty was abolished completely, usually after a period in which sentences were not carried out or in which the law allowed imprisonment as an alternative.
The death penalty has been abolished in Austria, Denmark, the Federal Republic of Germany, Finland, Greenland, Iceland, Italy, Netherlands, Norway, Portugal. San Marino, Sweden and Switzerland. In Belgium and Luxembourg, the law still provides for capital punishment but it is not implemented. Apart from one exceptional case in each of these two countries there has been no execution since 1863 (Belgium) and 1879 (Luxembourg).
There are five member countries of the Council of Europe, apart from Ireland, which retain capital punishment: France, Greece, Spain, Turkey and Britain. In Spain, and in Greece, except in the case of a crime against the integrity of the national territory, the law provides for an alternative penalty of death or imprisonment. In France and Turkey, though death is the only penalty prescribed, the judge can always, indirectly, by invoking extenuating circumstances, have recourse to imprisonment instead.
The Northern Ireland law is the same as here; in Scotland also the death penalty is retained. In England and Wales, the law was amended in 1957 to abolish the death penalty for all murders except five cases of "capital" murders, namely, murder in furtherance of theft, murder by shooting or explosion, murder to evade arrest or to escape from legal custody and murders of police and prison officers. The 1957 Act also provided that a person convicted of non-capital murder should remain liable to the death penalty if he had been previously convicted of murder.
These categories of capital murder were obviously selected from the point of view of protecting society against professional criminals, especially those carrying arms, and were designed to deal with the particular circumstances obtaining in England. However, the discrimination between capital and non-capital murders has been criticised as being illogical and as enabling some persons convicted of the most brutal murders to escape the death penalty. For example, a petty and unpremeditated theft committed at the scene of a murder can mean the difference between murder and capital murder. A husband can be hanged for shooting his wife dead in a fit of temper but not if he kills her by poison administered over a long period.
That, briefly, is the position about the death penalty in European countries. We are among the small minority of countries which retain it for murder.
I should like now to turn to the arguments usually advanced in support of the abolition of capital punishment. It is said that capital punishment tends to degrade society by undermining the value of human life; that it is not a peculiarly efficient or a unique deterrent to murder; that, with its marked emphasis on the retribution element in penal philosophy, it distorts the proper aims of punishment; that it destroys the possibility of reforming the offender; and that it destroys the possibility of rectifying error; innocent men have been hanged.
The case against abolition consists mainly in a rebuttal of these arguments.The question as to whether and to what extent capital punishment is a deterrent to murder is of particular importance and it might be thought to admit of a clear answer having regard to the research which has taken place on this subject on a world-wide basis over a long period. This is not so. Statistics produced of the effect on homicide rates in the various countries of the abolition of capital punishment are apt to be misleading, mainly because it is almost impossible to draw valid comparisons between different countries owing to differences in the legal definitions of crime, the practice of the prosecuting authorities and the courts, et cetera.
The matter is further complicated by the fact that in most countries where capital punishment has been abolished, statutory abolition has come after a period when the death penalty was in abeyance, and this creates the problem of what date should be taken as the dividing line. A British Commission on capital punishment reached the general conclusion that there was no clear evidence, in any of the figures they had examined, that the abolition of capital punishment had led to an increase in the homicide rate, or that its reintroduction had led to a fall.
After a careful review of all the evidence they had been able to obtain as to the deterrent effect of capital punishment, they considered that prima facie the penalty of death was likely to have a stronger effect as a deterrent on normal human beings than any other form of punishment and there was some evidence—though no convincing statistical evidence— that that was in fact so. But this effect, they said, did not operate universally or uniformly, and there were many offenders on whom it was limited and might often be negligible.
They stressed that it was important to view this question in a just perspective and not to base a penal policy in relation to murder on exaggerated estimates of the uniquely deterrent force of the death penalty. A recent Council of Europe survey, referring to a comparison made of crime figures before and after abolition, said that the abolition of capital punishment had not been reflected in any European country by an increase in the number of crimes formerly punishable by death.
On the other hand, the view has been expressed that it would be reasonable to suppose that the deterrent force of capital punishment operated not only by affecting the conscious thoughts of individuals tempted to commit murder, but also by building up in the community a deep feeling of peculiar abhorrence for the crime of murder. However, from the practical point of view the value of capital punishment as a deterrent to potential murderers must be relatively slight so far as this country is concerned in view of the fact that since the end of the war only one in twenty-four of those charged with murder, and only one in six of those sentenced to death for murder, were in fact executed, and that there has been no execution for nine years.
Having regard to these considerations, the Government came to the conclusion that in normal conditions there is no case for retaining capital punishment except as a deterrent, and that there is no reason to suppose that an increase in murder cases in this country would follow abolition, contrary to the experience of other countries which have abolished it. As I have mentioned, most other European countries have abolished or virtually abolished the death penalty. The Government considered, too, that it was undesirable that the solemn formula of the death sentence should continue to be pronounced, when it was followed so frequently by commutation of the sentence. Moreover, the present is an appropriate time to abolish capital punishment inasmuch as no execution has taken place here for over nine years and the matter has not been the subject of public controversy. However, the Government are of opinion that these considerations are not fully valid in regard to certain offences and that in these particular cases the public interest requires that the death penalty be retained. It will be accepted, I think, that persons who murder from political motives will not be deterred by the prospect of imprisonment. Accordingly, the Government decided that treason and any form of "political" murder must continue to be punishable by death. Certain capital war-time offences already provided for in permanent Defence Forces legislation are also being excepted from the abolition of the death penalty.
One of these capital offences— mutiny with violence—could also occur in peace-time but here again imprisonment would offer no deterrent to potential mutineers. As regards murders of members of the Garda, it must be borne in mind that in this country the police are unarmed and have a special claim to whatever additional protection the law can give them by providing the deterrent of the death penalty against the violent criminals they have often to contend with. As regards the murder of prison officers in the course of their duty, the type of criminal likely to be involved would not be deterred by the threat of a prison sentence.
In general, it seems to me that three courses of action were open to the Government when considering this issue. As so often happens, each of the possible solutions was not entirely free from disadvantage. The Government could have decided to take no action but to let the death penalty fall into disuse in much the same way as Belgium and Luxembourg did. Such a decision would have involved trial judges in continuing to pronounce an empty formula when passing sentence in murder cases. Moreover, I think it is important that the Oireachtas should lay down clearly in what circumstances, if any, the death penalty is liable to be carried out.
Secondly, the Government could have abolished the death penalty for all crimes, whether military or political or otherwise. For reasons I have mentioned, the Government are not prepared to go this far at present.
The third course of action open to the Government, and the one decided upon, is based on their view of what is requisite for the maintenance of public order and the security of the State, and I hope it will be acceptable to the general body of public opinion. I know that some people will urge sincerely that the death penalty should be kept for particularly heinous murders such as murders by poison, sexual murders, murders of children and so on.
The difficulty is that there is such a great variety of circumstances in which murders may be committed, ranging from the most blameworthy to those having some extenuating or mitigating aspects, that it is impossible to list satisfactorily in a statute those murders which are so heinous as to merit the death penalty. Many countries have attempted to list these circumstances by law so as to establish precisely what constitutes the kind of killing which should be punished by death. I think it is true to say that in every case all these provisions have given rise to serious anomalies in operation. There is also the aspect that in many cases where the public have been initially shocked by the circumstances of particular murders the mental condition of the perpetrators has been such that they have been found not to be criminally responsible.
The proposals in the Bill represent the Government's opinion of what is necessary at present to maintain law and order and the security of the State. It may be that a situation will develop in the future—and I hope it will— which will enable the Government to reduce the categories for which the death penalty is being retained without any risk to the national interest, or it may be—thought I consider it unlikely in peace-time—that it may be necessary to reintroduce the death penalty for certain offences. It is on this practical basis that the Government presents its proposals for the consideration of the House.
Section 4 of the Bill provides for the abolition of what is known as the doctrine of constructive malice. The doctrine means that in the case of an accidental killing which takes place in the course of committing a felony—at any rate a felony involving violence— or other offences, such as escaping from lawful custody, the fact that there is no malice aforethought is not sufficient to keep the crime outside the definition of murder. This was, at any rate, what the doctrine of constructive malice was taken to mean originally. The scope of the doctrine has been narrowed by judicial decisions over the last hundred years and there is a certain amount of disagreement as to what the precise extent of its present application is. The doctrine was abolished in England and Wales under the Homicide Act, 1957. It never applied in Scottish law. The Government have come to the conclusion that there is no case for retaining it any longer.
Some Deputies may be wondering why the Bill does not touch on another related subject to that of capital punishment which has been somewhat in the news in recent years, that is, the question of insanity as a defence in murder cases. We are not dealing with that problem in the Bill because it is a question affecting criminal proceedings in a wider sense—not merely in murder cases. The question of amending the present rules—which are known as the M'Naghten Rules—in the light of modern medical and legal thought on the question of insanity, and the question of making legal provision for the doctrine of diminished responsibility as was done in England and Wales under the 1957 Act, are at present under examination, together with a number of other aspects of the law relating to mentally-ill prisoners. Any changes in the present law in this regard which may be found to be necessary will be incorporated in a separate Criminal Justice Bill in due course.
I commend the Bill to the House and request that it be given a Second Reading.
