We, I think, have rightly decided in this Party that the question of capital punishment is a matter going so deeply into the conscience of each individual Deputy that he should be left free to act in accordance with his own conscience in respect of this matter without any feeling that that reflects on his cohesion with a political Party. Accordingly, members of this Party will vote as each individual deems it his duty to vote on the problems presented to the House by the introduction of this Bill.
I am opposed to this Bill. I could understand a Bill which proposed the total abolition of the death penalty, but I am opposed to a Bill which does not seem to have any relation to principle at all. The Government have been persuaded to adopt, in part at least, the approach of the British Government to this problem. I think the solution chosen by the British Parliament was a bad solution for a very difficult problem which confronts every legislature in the world. In my judgment, as so often happens, I believe we have worked out for ourselves in Ireland a satisfactory means of dealing with this most difficult problem in that we have preserved a system where, if a man or a woman be convicted by a jury of the awful crime of murder, the courts declare with full solemnity the supreme penalty for that awful crime but the Executive retains its right to exercise the prerogative of mercy and, in practice, habitually does so. I think it is a good thing that society should have portrayed before it, by a court of law, with the fullest possible solemnity, the immense gravity and iniquity of the crime of murder and I do not believe it is any unreasonable hardship to impose upon a person, who has been found guilty by a jury of the crime of murder, that he should endure the ordeal of coming under the threat of execution by the society to which he belongs and which, by his act, he has betrayed.
I believe that the loose talk of people who speak of judicial murder, and so forth, is founded on erroneous pleas. I believe that in every Christian dispensation it is conceded that society has the right, under defined law, to execute the individual, if the safety of society should require it. The first question is: does the safety of society require it? Here we come up against the vital flaw which I discern in this Bill. The Government say the safety of society does require the retention of capital punishment if it is to be effectively protected from certain crimes. We are immediately confronted with the dilemma that the person who murdered an unarmed nightwatchman is not liable to the supreme penalty, whereas if he mistakes the uniform of an unarmed garda for that of an unarmed nightwatchman, he is liable to the supreme penalty.
We are dealing with very grave matters.It does seem to me an astonishing proposition that the murderer could produce in his own defence the proposition that he murdered this man by mistake, that had he known he was a garda, he would not have murdered him. He murdered him only because he was a nightwatchman who was not protected by the supreme penalty of execution. One begins to wonder if such a defence were made to the court, would the court have regard to it, because if the man was accused of the crime of murder—or whatever other crime he was accused of—if it were a nightwatchman, not a garda, he was free to murder with relative immunity so long as he was no more than a nightwatchman.
We also have the strange provision that if you murder a diplomat in this country, you are liable to execution under this Bill. Why it should be a graver matter to murder the third Secretary in an Embassy accredited to this country than to murder your own mother-in-law or your mother is something I find it extremely difficult to understand. In matters of such fundamental importance as this, we must be clear in our minds that we are following some recognisable plan in legislating.
Deputies are much moved, and rightly moved, in the consideration of so grave a matter as this by the statistical material made available to them by the opponents of capital punishment.One of the most striking statistics always advanced in a discussion of this subject is that in countries where capital punishment has been abolished, there has been observed no increase in murder. If we are to examine the true deterrent effect of the supreme penalty of execution for murder, we have to ask ourselves: can we attain to any real valid statistic in this matter, because the deterrent effect of this ultimate sanction is to prevent murders that might otherwise have taken place?
None of us can tell in this society or any other society what murders would have taken place if capital punishment were not in operation. It is these murders which have not taken place which show the deterrent effect of the retention of capital punishment as the extreme sanction of the law. I find it hard to persuade myself that there are not a great many people amongst those who give themselves over to violence who are not deterred from this supreme crime by the knowledge that the sanction of capital punishment is still available to the State if they are found guilty of the crime of murder.
It appears contrary to reason to suggest that the abolition of capital punishment is not likely to produce in the minds of persons given to violence the vital difference between the violence necessary to promote a felony followed by the sudden belief, however illusory, that the only prospect of conviction is the recognition and identification by the victim of the violence and the determination, if there is no ultimate sanction of capital punishment, to "polish off" this victim, and on the established record, probably not adding a day to the average period of the subsequent detention in prison.
We are informed here today that persons sentenced to imprisonment for life on the remission of the penalty of death have served an average of six years and some as few as three years. I find it hard to believe that the person who grows accustomed to that knowledge and has committed some brutal crime of physical violence will not be tempted to take the further step of murder if he believes that this opens up for him the prospect of a possible escape from conviction of any crime at all; whereas the additional risk of his further crime is merely that instead of serving seven years' penal servitude, he may be sentenced to imprisonment for life, which on the record, gives him a good prospect of in fact being called to serve no more than he would have been called to serve if he were identified and convicted of the original assault.
Deputy Dunne advances the thesis that really a murderer cannot help himself. I want expressly to demur from that proposition, which I believe is pregnant with great danger to society in the whole world. There is a kind of neo-Pelagian belief spreading throughout the world which maintains the thesis that human nature is perfectible divorced from grace. I believe that is a complete illusion. I believe human nature is predisposed to sin and without grace cannot control that predisposition. It is a complete illusion to say that people who yield to temptation do so only because they cannot help themselves. It is common knowledge to us all that most of us know that from time to time we do not resist temptation, but we know in retrospect that if we had really tried we could have done so. Fortunately, it comes to few of us to be tempted to the crime of murder.
But if we lay down the proposition that we are not to be answerable for our own actions—which I believe is the logical end of the proposition propounded by Deputy Dunne—we are travelling on the road which ultimately leads to Auschwitz and Belsen. I suppose most people would have said 30 years ago that one of the most civilised people in Europe could not conceivably arrive at the stage which, in the name of their Government, horrors such as were perpetrated in these establishments of Auschwitz and Belsen could take place, but they did. I should imagine that few people would ever have thought that things could be done in Russia that have been done, that millions could have been slaughtered and outrages perpetrated, but they have taken place. I suppose those familiar with the exquisite civilisation of China back over 3,000 years or more would have confidently prophesied that the horrors perpetrated in that country in the past ten years were unthinkable—the slaughter and murder of millions of people—but it can happen. If we once accept the proposition that those who commit dreadful crimes do it because they cannot help it, we are opening the road to the realisation of such horrors all over the world.
People can control their temptations. If we are to live in society at all, people must control them. It seems manifest to me that those who claim the right to immunity from that obligation must be controlled by the society to which they belong, if society itself is to survive. So we are back to the original question: has this a deterrent effect? There is such a thing in the Divine plan as retributive justice and I am not prepared to accept the proposition that in considering the whole duty of the State relative to those who commit crimes against society deterrents must be the State's sole preoccupation. Whether in the nursery or in the school or in the day-to-day life of society, there remains the just and proper association between duty and retribution. In invoking the appropriate retribution for crime, every Christian society will wish to see justice tempered by charity, but, in the last analysis, if we are to protect society from what might otherwise disrupt it, I feel that the retention of the power in the State by law to execute the murderer is necessary.
I feel that the Government are in a position which is neither logical nor defensible because the dilemma I have already proposed to them arising from the partial abolition of capital punishment seems to leave us without any proper principle at all. I could understand it if the Government came along to us and said that they were going to abolish capital punishment entirely for a period of five years and said that they were going to review the whole question at the end of that time in the light of experience. I believe the better alternative would be to say: "We have worked out a system pragmatically which suits our circumstances and which provides that where a citizen is found guilty of murder by the criminal courts of this country society will witness, and he will suffer, the ordeal of the court declaring with full solemnity that he is condemned to the supreme penalty for the awful crime of murder and that he should be brought face to face with the fact that his life is forfeit and that he will know the anguish, which is part of the retribution for his crime, of depending for survival on the exercise of the prerogative of mercy by the Executive for the time being."
Under our system, we have removed that awful responsibility from the shoulders of any individual Minister. It is shared now by the entire Government of the day. It is a proper dispensation and it works. I think the unprincipled and confused purpose enshrined in the Minister's Bill has nothing to recommend it and I will suggest to the Minister then, rather than pursue this case which is so manifestly divorced from any principle, he should take back this legislation to the Government and suggest that before bringing it again before the House, the House should have some fundamental principle to which it could adhere and that there can be only two alternatives: first, to abolish capital punishment altogether and, secondly, to retain it and to review, if necessary, the category of crimes for which it should be retained.
When that is done, I do not think you can possibly put the crime of murder in any minor category to be decided by the House. How does the Minister seriously suggest that you can retain capital punishment for offences against the State, for the crime of treason against the country or for the murder of a diplomat and not have it for the supreme crime of murder of one's neighbour?
I understand, although it is not provided for in this Bill, that the M'Naghten Rules dealing with mental incapacity are to be reviewed. I think that is an important decision but I want to sound this note of warning— we must remember that whatever legislation the Government submit to the Oireachtas, its ultimate interpretation is a matter for the courts. I doubt if, under our existing law, anybody who is what we ordinarily recognise as insane, is ever sentenced to death for murder. Here again a working basis has emerged over the years and we must be extremely careful, if we seek to work out some other formula, to be sure that the new formula does not contain far greater hazards than the existing one.
We have got to bear this in mind, that while there have been great advances in psychiatric medicine in our time, there can be the greatest difference between experts of comparable authority as to what the psychiatric impulses of a person may be. The present position is—and it is important for Deputies to bear it in mind—that the person charged with murder before the courts of this country is not required to prove himself innocent. The position is that the State must prove beyond all reasonable doubt that he and only he has committed the crime charged against him. We all know of the existence of cases at the present time where we have every reason to believe that the police authorities are well aware of the identity of a criminal, even of a murderer, but also know that they have not the material or the evidence on which they could reasonably hope to convince a jury beyond all reasonable doubt of the guilt of the defendant.
I think that some people regard us as too scrupulous in that regard but it is good that that heavy burden should rest on society in so grave a matter and that the criminal at the bar should have that protection that it remains the duty of the State to prove his guilt and that in no case shall the burden of proof of innocence be shifted on to him. But let us walk warily when we proceed to change the existing rules, imperfect as they undoubtedly are, defining what mental responsibility is in accordance with the crime because if we widen this by this statute excessively, we may create a situation in which the effective administration of the criminal law becomes virtually impossible.
The statutory definition of mental incapacity sufficient to discharge a person from responsibility for the actual act of which he has been found guilty is an extremely difficult thing to define and no matter how precisely or carefully we do it, we shall not know until in practice it transpires how the letter of our law is interpreted in the administration of the courts. I mention that matter in the light of what the Minister has stated to the House in regard to the Government's intention to review the M'Naghten Rules.
If this Bill goes to a division, I will vote against it because I believe it is rooted in no principle and because I believe that our pragmatic resolution of this whole problem which we have worked out for ourselves and which at present operates is the best solution of a difficult question under Irish conditions and in an Irish background.
