Deputy MacEoin is in possession.
Committee on Finance. - Criminal Justice Bill, 1963—Committee Stage (Resumed).
Debate resumed on the following amendment:
To delete all words after "offence" in page 2, line 10, down to the end of the section.—(Deputy M. J. O'Higgins).
I think Deputy MacEoin made his point. This is Committee Stage. He can talk again if he wishes to.
This amendment reopens the whole question of the total abolition of capital punishment as opposed to its retention for special categories of crimes. These categories are set out in the Bill. I can only repeat to a large extent what I said on this matter on Second Stage. For ordinary murders, the only case for retaining capital punishment is that it provides a deterrent. The Government are of opinion that the deterrent effect of capital punishment is not sufficient to warrant its retention. We feel, however, that this is not valid in respect of certain exceptional crimes which are set out in the first section. In regard to these crimes, the Government consider that the public interest requires that the death penalty be retained.
For instance, imprisonment is no deterrent in the case of treason or political murder, or Offences against the State Act cases. Neither is the type of criminal likely to be involved in the murder of a policeman or a prison officer, acting in the course of his duty, likely to be deterred by imprisonment. There is also the fact, as has been mentioned by some Deputies, that our police force is unarmed. There could be circumstances in which an organisation might embark on a deliberate policy involving the murder of members of the Garda Síochána. As I mentioned on the Second Stage, the Bill involves the retention of the death penalty in a very limited number of cases. For all practical purposes, we are, in fact, abolishing the death penalty and some of the cases in relation to which we propose to retain it are to a large extent theoretical. We have never had in this country the murder of a Garda in the course of his duty, otherwise than in the course of a political crime.
I have a great deal of sympathy with Deputies who argue that logic demands that we abolish the death penalty completely. I sympathise with those who are worried that there may be some anomalies by retaining the death penalty for certain crimes. Such a difficulty appears to have loomed up in a very real way in Great Britain, but I think the category in relation to which we propose to retain the penalty is such a limited one—to some extent, as I have said, an academic one—that there is really no danger whatever that we will get into this difficult situation by having exclusions from the general policy of abolition.
I should like to persuade the House to see this matter from my point of view. This whole question is one in relation to which society's approach has evolved and we are now at the stage at which we can, in that process of evolution, abolish the death penalty for all practical purposes, but I must have regard to the fundamental security of the State and at this stage I think I am justified in asking the House to make this very limited exception.
Deputy Dr. Browne raised the question of the rehabilitation of prisoners; he wondered if we had the right approach with regard to the treatment of prisoners. He must not have adverted to a number of speeches and announcements I made on this matter in the past year or so. I have clearly indicated that crime and punishment in their reciprocal relationship with each other involve a process whereby a person proceeds from a state of innocence to guilt and punishment, and back again to a state of freedom from guilt and responsibility for guilt. The primary purpose of all imprisonment should be rehabilitation. Acting on that directive principle, we have in our prisons, over the past year or so, embarked on a very definite programme of penal reform and adopted a number of measures designed to ensure that prison in the main constitutes a place of rehabilitation. The decision of the Government to retain the death penalty for this strictly limited number of offences was come to reluctantly. The offences are, in our judgment, those for which, unfortunately, in our time and circumstances, and in our situation, it is only prudent to retain the death penalty, bearing in mind our overall responsibility for the security of the State.
Despite what the Minister has just said, I should like to support this amendment. In this section there is posed the dilemma which faces any Minister seeking to abolish the death penalty without bringing to that abolition the full logic of the situation. Capital punishment is something about which one cannot blow hot and cold at the same time; we either decide to abolish the penalty or we decide to retain it. This House has taken a decision on the principle that the death penalty should be abolished in relation to the vast majority of murders.
In this section we are discussing a proposal by the Minister which has no logical argument to support it. In effect, the Minister proposes to create a new offence known as "capital murder" and, in doing so, he appears to be largely following a compromise sought to be made by the British Government when dealing with this same problem. In effect, the House is asked to legislate, contrary to reason, that the killing of a prison officer or of a member of the Garda Síochána in the course of his duty is to be regarded as a more heinous offence than the strangling of a young girl, the killing of a defenceless infant, or the brutal murder of some poor old man or woman. We can legislate in that way, if we wish, but we are not legislating logically. We are not doing it in accordance with our views in this matter.
The killing of anyone is an offence against the law of nature. I do not think it is possible for anyone to argue, if one assumes murder, that the character of the victim makes the actual killing more serious in one case than another. I suppose the Minister, if he were driven to it, would argue for the section as it stands on the ground of expediency. He might say it is expedient in the interests of the State that certain categories of people should be protected in a more definite way than ordinary private citizens. The Minister has not put forward that argument. I do not know whether he would use it, but, even if he did, I should not think it would be sound.
In fact, the killing of a member of the Garda, if it is to be regarded as justifying a penalty which means the taking of the life of the killer, can only be put in a special category if there is something more behind it than merely the killing of the particular unfortunate man. I suppose what could be behind it would be an organised intention or effort to kill and destroy the unarmed Garda force. If that situation should exist or if the possibility of such a situation existing dictates a course of action on the Minister and on the House to provide that the killing of an individual Garda officer should be regarded as capital murder, then it seems to me to be a reductio ad absurdum. If there is a political motive behind the killing of an individual officer, then it does not appear to me that the quality or nature of the punishment will be any deterrent. If in fact there is a concerted effort to kill all the members of the Garda force, that is a political conspiracy, and we in this House and in this country surely know that, where there exists a political conspiracy of that kind, sanctions cease to count. You are not going to preserve the life of any Garda officer by laying down that the law shall be that if anyone kills that man, he will be guilty of capital punishment.
In my view, that is illogical. If there is a particular reason for creating a special offence of capital murder, let it be on the ground of national expediency. It cannot be defended on any other ground. If it is to be on that ground, why should we provide that a member of the Government—indeed the Minister for Justice himself—may be shot down, and that is not capital murder? Indeed, the President of this country may be shot down, and that is not capital murder. Where are we going?
Neither the President nor I go out and tackle these people.
If there is an element of national interest involved in a matter of this kind, in my view, that is the only basis on which a distinction can be logically discussed. We must have regard to the fact that, in relation to the enforcement of law and order and the maintenance of proper principles in the country, a stage may be reached when a group of people may decide that the easiest way of achieving their aims is to shoot down members of the Government. Nevertheless, we provide here that that kind of killing shall not rank as capital punishment.
Do I understand the Deputy correctly? Surely such a matter would come under subparagraph (iii), as an Offences Against the State Act case?
I wonder does it?
It clearly involves the activities of an unlawful organisation.
Leave out of consideration for the moment any question of an organisation. Suppose that is not possible to establish. But you have an individual, a madman or a fanatic, a person with a fixed idea, who decides that the easiest way to achieve his purpose is to shoot down the Minister for Justice instead of bothering about some inoffensive Garda officer. If the Minister for Justice were shot down in the course of his duty, if there is any logic for the creation of this kind of offence, why should that not be regarded as capital punishment? I mention that because it appears to me in relation to a charge of this kind that once you start temporising, trying to say we will go thus far but no further, when we say we are going to abolish capital punishment but we do not mean this and we do not mean that—once you start doing that, you end up in an absurd situation.
I feel that is what is happening in relation to this Bill. It was advertised, if you like, by the Minister initially as being a Bill to abolish capital punishment. I felt, when I learned that this was the Minister's intention, at least it was a clear view on this very difficult subject and someone was proposing to do something about it. But when the mountain went into labour, if you like, we produced this very pale compromise that was already tried out in England —an effort to distinguish between unprotected citizens and the individual forces of the State.
I do not understand it. If Section 1 defined capital murder as being murder carried out in pursuance of an unlawful political conspiracy aimed at the interests of the State, then there would be some logic in it. But that does not happen. If the section is to mean anything, apparently the murder of a member of the Garda by a private citizen is to be capital murder, if that officer is killed in the course of his duty. There may be no political significance or motive in it. It may be just the result of a private grudge by the killer against the Garda force in general actually visited on some individual members of it. That is to be subject to capital punishment. If you do find that kind of killing, in my view, no deterrent would prevent it, because it is the action of some fanatic or some person who is not going to be put off by whatever deterrent may be there.
It is proposed to have in subparagraph (iii) of subsection (1) (b) a provision for a murder done in the course of furthering the activities of an unlawful organisation. I cannot understand why it is necessary to go further than that. If there is any logical defence for this section, surely it must be put on the basis that this State—I do not agree with it; I think we have progressed a great deal—cannot afford to allow an unlawful political conspiracy to exist which manifests itself in the murder of Garda officers or prison officers or Presidents or members of the Government or such persons; and if there is a killing done in pursuance of the activities of an unlawful organisation, that should be capital murder. At least, that would be a logical provision. I can see no logic in providing for that group of killings as being one of a group of murders that are to be capital murders.
I support the amendment tabled here to provide, in effect, that no person shall be liable to suffer death for any offence. We surely should have reached that stage in this country and in our western civilisation. If we did that in our legislation, we would not find the number of killings in any way increased because our modern experience shows that it is very rarely indeed that there is a cold, calculated, premeditated murder. Most killings are the result of passion, greed, avarice or temper suddenly arising and dictating a moment's action and often leading to a lifetime of subsequent regret.
The vast majority of murderers are not affected in the slightest by the law's sanction. I do not think deterrent enters seriously into a murderer's mind. It may in some cases. Certainly, if it does, I can imagine that to many people indeed life imprisonment seriously enforced could be a far greater deterrent than death itself.
But, the object of this amendment being to abolish capital punishment, I support it. It can, at least, reasonably be said that in relation to the abolition of capital punishment, there is a logical view. The logic of it can be countered by those who hold the view that if there is, in fact, a cold, calculated, premeditated killing of any person, the punishment for the killer in every case should be the same. That is an argument in logic that I could see. It would be a reasonable point of view. But I cannot understand any proposal which says that we will abolish capital punishment for all killings except in the case of named categories of victims. When that kind of compromise is suggested, reason disappears from our legislation. I therefore support this amendment.
I should just like to say that I still cannot understand the position the Minister is taking up in regard to this question and I do not understand why it is that he should make these exceptional divisions in regard to the categories coming under what he calls capital murders in the Bill. It seems that he must accept that either hanging is a deterrent or it is not a deterrent and, if it is a deterrent, then a case can be made for retaining it for all forms of murder. I would not agree with it but the case could be made with a certain amount of conviction.
If the Minister retains capital punishment in respect of these exceptional cases here, then it seems to me that, in logic, he must accept the argument put forward by Deputy Dillon that, in fact, we are allowed to look for vengeance in certain circumstances, that if a diplomat or a member of the Garda or a prison officer or a Minister —under the Offences against the State Act—is murdered, then we have a right to kill the person who committed the murder and that the only justification for not doing so could be the old one, that it does not work in that case. The only argument that could be put forward is the argument that you must not kill these particular exceptional categories in our society because, as far as we are concerned, they happen to be particularly precious members of our society. That is so illogical that I cannot understand a clearly intelligent person such as the Minister trying to incorporate it in legislation which must stand to his name in the Statute Book.
Another point is that if the Minister does take this view that you are going to tell people that you will hang them if they carry out crimes against the categories of persons mentioned here, then in reply to his suggestion that the House is reasonably evenly divided on —ideologies is too strong a term—the general approach to progressive legislation and conservative legislation in so far as on one side of the House the Government Party represent the progressive approach and the Opposition represented by Fine Gael represent the reactionary approach to the problem of this kind, I would say that, quite clearly, speeches have been made from the Opposition benches which are in advance of the Minister's own position and consequently it would not be fair to try to divide the House on this issue into the progressive attitude of mind on the Government side and the conservative attitude of mind on the Fine Gael benches.
It seems to me that, if the Minister is logical in his mind, he must accept his position with Deputy Dillon who feels that under certain circumstances you are allowed to kill people and you are allowed to do it for the purpose of revenge, because I do not see that there can be any other logical analysis of the Minister's position. Otherwise, I think he has to say to us: "We think in respect of these special circumstances this acts as a deterrent and we are going to try to protect these people by insisting that hanging shall remain in order to protect these people because we think they are rather special." If he accepts that it is a deterrent in respect of these people, I think he has to explain why it is that in respect of the ordinary man in the street, the ordinary individual, the ordinary woman or child, the case mentioned by Deputy T. F. O'Higgins, brutal murders of old people, he is not going to establish in his legislation a deterrent which will protect their lives because, obviously, they have as much right under the Constitution to the protection of the State as have the categories exceptionally mentioned in this Bill.
So that, as in British law, the Minister is already being faced with the consequences of his own very weak position on this question. It is certainly illogical, unreasonable behaviour. I think he is bound to accept that. He said—as a matter of fact, we all concede this-that the question is academic, whether this question of hanging will arise, whether any cases will be necessary in the years ahead. Of course, anything can happen but in regard to the Garda and prison officers and diplomats, there has been no precedent and consequently there is reason to assume that there will be no such murders in the years ahead.
In offences against the State Act type of cases, I should have thought the Minister would have been the first to say we have reached a wonderful position of peace in Ireland compared with the dreadfully upset time of the 1922s and other years and the early 1940s and that now, as a result of the general maturity of the nation in one way or another, we have got to the stage that we have such peace that, in justice to the North, we can tacitly ignore the present illegal organisation type of danger and that he could equally take that step in relation to this section. He could say that, because we have got to a stage where Parliament is properly accepted and where a fair hearing will be given, such a provision is not necessary. As Deputy John A. Costello said one time, the gun has been taken out of politics.
I do not see that the Minister can seriously justify the retention of this section, even if he thought it a deterrent, because the state of the country is such in regard to this problem that the likelihood of a recurrence of the previous situation is negligible. Furthermore, if these people want to take action of this kind, there are plenty of distinguished precedents for it despite the existence of this alleged deterrent in the Statute Book.
I welcome the Minister's statement that in regard to penal laws, the aim is the rehabilitation of the person who has committed an offence. Again, I would like to remind him that the general principle which he accepts in regard to the rehabilitation of the ordinary criminal who steals, robs, and so on, applies, too, to the person who murders. One must accept that the murderer is not an exceptional person in that way. He is exceptional in the fact that he is unfortunate enough to have a diseased mind but he is not exceptional in relation to the possibility of being reclaimed. If he is reclaimable, it should be the purpose of our social machinery to reclaim him but if he is not reclaimable, then he must remain for the rest of his life in jail. I cannot see any justification at all for killing the person. The ultimate justice, the ultimate moral judgment, is on a much higher level than involves any of us at all.
I welcome very much the support which Deputy MacEoin gave to this Bill and his own unique contribution to it in regard to his own rather dreadful experience and his attitude during that experience, obviously the attitude of a very courageous person with the wonderful mind he had that he could approach the possibility of being killed so philosophically. At the same time, I do not think it is a substantial argument or that he would seriously believe it is a substantial argument in regard to ordinary people going through the agony of waiting to be executed. There is the complete difference where Deputy MacEoin was concerned that he was dying for a great ideal and for a very honourable purpose and was not like the unfortunate wretch who has killed somebody for some sordid objective.
It is quite commonly said that it is more horrible to keep somebody in jail for the rest of his life, but that does not follow. In fact the Minister's figures show it does not follow. At a certain stage the Minister is advised, presumably, by responsible medical authorities and the people looking after the prisoner, that it is perfectly safe to liberate this person, that the element of vengeance is no longer there, that the deterrent purpose was never there anyway and that, therefore, he can be liberated after a relatively short time. This does not mean that murderers must be liberated. It can only be done if it can reasonably be assumed that it is safe to let the person out among the public and that he is unlikely to do any serious harm.
Would the Minister seriously consider on this amendment, in respect of which we are all quite clearly divided but without any Party line division, letting us see the extent to which he is supported in his attitude, the extent to which Fianna Fáil Deputies are behind him? Maybe he is right in saying that the public are not ready for this type of provision yet. I think they are but possibly that is special pleading. If he left it to a free vote, would he get the support of all his members over there or would we get some of that support, just as he might get some support from the opposite benches? Would the Minister take the opportunity of allowing the members of his Party to speak their minds freely and to vote freely on this very important amendment?
I do not want to delay the House but I wish to make the same suggestion to the Minister as Deputy Dr. Browne has just done. The Minister will agree that, particularly having regard to the amendments which have been moved, the issue now is a clear-cut one which it is proper to leave to individual Deputies to decide for themselves, guided by their own convictions, their own consciences. Both the Fine Gael Party and, subsequently, the Labour Party have taken the decision that this is a question which should be left to the free vote of Deputies. Clearly, unless the Minister is going to be big enough to take the same decision, there is no point in doing more than discuss it, because of the fact that the Minister would have a tied Party vote behind him.
I want to make this appeal to the Minister, even though it may be a last minute one: to take off the Whips and let the House decide, as they should decide in this issue, having regard to their own personal and individual convictions.
On that point, I disagree fundamentally with Deputy O'Higgins. It seems to me that this is one aspect of the Bill where I am, more than on any other, completely justified in exercising, as it were, ministerial power to try to persuade the House to adopt a certain line of action. There is some argument for saying that every Deputy should have a free, individual choice on the principle of the Bill, on the principle of whether we should consider abolishing capital punishment altogether but the reason I am in favour of excepting these categories from the general abolition is that the safety, welfare and security of the State are directly involved.
How is that?
Let us take any one of them.
Take a member of the Garda Síochána not murdered for political purposes.
Let us go down through the categories as they are here. First of all, there is treason. We are proposing to retain the penalty of capital punishment for the offence of treason. Treason consists essentially in levying war against the State. People who would do that would be people who would go out and be prepared to kill to achieve their objectives. They would be prepared to kill our policemen, our soldiers or our civilians. Surely where people set out with such a predetermination to kill, we are entitled to say: "Very well, if you embark on this course of action you must accept the situation that the penalty for it will be the greatest possible penalty the State can inflict on you".
I think Deputies must be prepared to make a distinction—that in these cases the existence of the death penalty would act as a deterrent. In most of the cases we are dealing with in this section, there is a very definite element of predetermination, and because people have predetermined to take a certain course of action, then the result of that course of action, if they take it, must be a factor that would weigh with them. In the case of the person who would commit an ordinary murder, I think the deterrent factor is usually negligible, but a person who would set out to commit treason or embark on violence in furtherance of the aims of an illegal organisation, or the professional criminal who would consider the consequences of murdering a policeman——
History is against the Minister.
There is nothing political in murdering a policeman.
I agree. I am talking about the type of person who would murder a member of the Garda in a non-political case — the professional criminal type who would weigh up the consequences of his action, and in his case, because his crime would be premeditated, the fact that the death penalty was there must weigh with him.
Supposing he wanted to burgle a place and it was the night watchman instead of a policeman, where is the reasoning there?
I am trying to limit it. I could have extended it to night watchmen and to people assisting police officers in the course of their duty but I want to keep the categories at the absolute minimum needed for the preservation of public order and the security of the State.
Take the professional criminal whom you hope you will dissuade from murdering a policeman, what defence or logic is it to say he will not touch a policeman but to add: "Look at that old woman over there; have a bash at her"?
The only thing I have to say on that is that the old woman has not the duty of tackling that man whereas the policeman has an obligation to use his best endeavours to tackle the criminal.
Recently we read with interest of a woman who took her handbag and knocked out the criminal.
I should now like to deal with the argument of Deputy T. F. O'Higgins in relation to the murder of a member of the Government under the Offences Against the State Act. If a person has a political motive in murdering a member of the Government, a Minister, he would be guilty of capital murder, but if a person murders me, personally, and I feel sure there are some who would like to——
For the public good.
——they certainly could not be regarded as having committed a capital murder. I want to plead with Deputies for an understanding of my position. My personal inclination is to abolish the death penalty completely because for me it has all the repugnant connotations it has for most of the other Deputies who have spoken. I would hope this is only an intermediate step and that at some other time some other Minister for Justice will come along and maybe, reviewing the situation, will eliminate the death penalty for all or most of these categories, but at this stage I must say I am satisfied and the Government are satisfied that we must live up to our responsibilities with regard to the security and preservation of the State and that, as prudent people, we must insist at the moment on these provisions.
The Minister has painted the picture of the professional criminal who knows what he is doing and says that in his case the death penalty may be a deterrent. Suppose he kills a policeman who is carrying out his duty without knowing he is a police officer—supposing it is a plain-clothes detective—does not the reasoning then fall to the ground completely?
Not necessarily. We are talking only about the deterrent effect, as to whether or not the retention of capital punishment will act as a deterrent, and I must say to the professional criminal it will certainly be a factor that will weigh with him when he sets out on a course of conduct. For that reason, I think in all of the cases mentioned here the retention of the death penalty will, to some extent, act as a deterrent. If that is so we must in all prudence retain it at this stage. I want to point out again to Deputies that we are, in fact, 99.9 per cent abolishing the death penalty. We are arguing here about the retention of the penalty for offences which will not take place, and if there is any deterrent in its retention we are entitled to retain it.
Has the Minister statistics to show there has been a higher proportion of murders of uniformed policemen or members of the police force or of prison officers than of murders of other people, such as defenceless women?
We have never had in this country a murder of a police officer or of a prison officer in the course of duty other than politically. The type of case covered under subsection (1) (b) (i) and (ii) has never, in fact, happened.
Has the Minister any written evidence for his case for the retention of capital punishment as a quasi-deterrent?
There is just the application of my own logic to the situation.
The Minister mentioned that under the 1939 Act there was re-enactment of similar provisions that have always existed, and is it seriously suggested now that the existence of the offence of treason here as a capital offence would ever stop misguided people from waging war against the State? It did not do it in the past in this country; I do not believe it ever would. Once you get into the realm of the political motive, the deterrent ceases to operate and I think Deputy Dr. Browne is correct——
I think it has nothing to do with the fanatic, but the waverer——
No. I think our experience here should make us realise that in fact the penalties the law lays down for treason, for civil war or any other war do not operate——
Will the Deputy report progress?
I should like to dispose of this amendment.
I should be doing an injustice to——
We have finished the discussion. We have all spoken and it is only a question of putting the amendment.
I am putting the question: "That the words, proposed to be deleted down to and including the word "duty" in line 14, stand".
Question declared carried.
Progress reported; Committee to sit again.