I should note, for the record, that for the first time in the history of this State we have a succinct and clear statement on the Statute Book — accepted by this House — that no person shall suffer death for any offence. We spoke about this at greater length on Second Stage. Nonetheless it is a precise statement that takes us that little bit closer to acknowledging those principles of international law in the treatment of offenders we have sought to emulate for so long. It is a whole statement — encompassed in this section — to the effect that this State shall never visit death on any offender in the future.
Criminal Justice (No. 2) Bill, 1990: Committee and Final Stages.
I should like to make a brief statement on this section because I was not present on Second Stage, that is, that the abolition of the death penalty has been long overdue. Its survival has not simply been an anachronism because many people throughout the country support the death penalty, particularly in regard to murder of a member of the Garda Síochána or a prison officer in the course of their duties. Even taking that into consideration I am quite happy with this section.
In response to the points made on this section I am indeed pleased and honoured to be the Minister to have brought forward this reforming Bill to finally remove the death penalty from our Statute Book. Substantially it was removed in 1964 by the legislation passed then so that, while it has remained on the Statute Book, it has not been operated since the mid fifties.
As Deputy McCartan said, this section constitutes the substantive provision of the Bill and abolishes the death penalty for those offences in respect of which it was retained under the Criminal Justice Act, 1964.
Perhaps the Minister might clarify this small technical point. I have noticed that under section 2 a person convicted of treason shall be sentenced to imprisonment for life, whereas under section 4 where a person is convicted of treason the penalty is 40 years. Would the Minister clarify the situation for me?
The penalty for treason is life imprisonment, for a minimum period of 40 years. Life imprisonment has different meanings and the penalty for treason is life imprisonment with a minimum penalty of 40 years as distinct from life imprisonment, which in many cases turns out to be imprisonment for eight to ten years.
To tease out the matter further is the Minister framing the legislation in such a way that a person guilty of what may be called "ordinary" murder will be sentenced to life imprisonment, but the sentence for capital murder or treason will be life imprisonment for a minimum of 40 years?
They will serve a minimum of 40 years.
It is merely a matter of clarification.
We have amendment No. 1 in the name of the Minister and we have an amendment to that amendment. I formally ask the Minister to move his amendment.
Could I make a further point, a Leas-Cheann Comhairle, amendment No. 2 in my name is consequential and I have no objection to it being taken. I suspect that amendments Nos. 3 and 4 are equally consequential and we could, in fact, take them altogether.
I have indicated to the Minister that at this stage he would formally move amendment No. 1. Amendment No. 1 to amendment No. 1 and amendments Nos. 2, and 3a. are related. Therefore, amendment No. 1 to amendment No. 1 and amendments Nos. 2 and 3a. may be taken together for discussion purposes. Is that agreed? Agreed.
I move amendment No. 1.
In page 4, before section 4, to insert the following new section:
"4.—Where a person (other than a child or young person) is convicted of treason or of a murder or attempt to commit a murder to which section 3 applies, the court—
(a) in the case of treason or murder, shall in passing sentence specify as the minimum period of imprisonment to be served by that person a period of not less than forty years,
(b) in the case of an attempt to commit murder, shall pass a sentence of imprisonment of not less than twenty years and specify a period of not less than twenty years as the minimum period of imprisonment to be served by that person.".
Amendment No. 1 is purely a drafting amendment and is to make clear what is intended in relation to the sentence to be passed on a person convicted of an attempt to commit a murder to which section 3 applies.
The court will be required to pass a sentence of imprisonment which may be anything up to life but will have to be at least 20 years. The court will also be required to specify a period of not less than 20 years as the minimum period of imprisonment to be served by the person concerned. Under the section in its present form, it may not be entirely clear that the court must pass a sentence of at least 20 years as well as specifying a minimum period, again of at least 20 years, to be served. The matter does not arise in the case of conviction for treason or actual murder, because in those cases section 2 provides that the offender shall be sentenced to imprisonment for life.
As to Deputy McCartan's proposed amendments to the new section and section 5 of the Bill, I consider the changes he seeks to make unacceptable and, therefore, I oppose his amendments. The effect of the amendments, if accepted, would be to provide that what are now termed capital murders and which are referred to in the Bill as "murders to which section 3 applies" would be treated as to penalty and administration of sentence in the same way as "ordinary" murder. In the case of attempt, the effect would be to provide for a mandatory life sentence. This would mean that a person convicted of murdering a Garda or prison officer would have a sentence of life imprisonment imposed on him without any reference to a minimum term and the sentence could be remitted, or early release could be granted in the ordinary way. I cannot accept this for the following reasons.
As I explained in my Second Stage speech, there are very good reasons why the offences which are set out in section 3 of the Bill should be treated differently from ordinary murder or attempt. Those offences relate not only to murderous attack on an individual, terrible as that is, but also represent an attack on the institutions of the State. A garda, for example, will not be shot by a subversive or a criminal because of who he is but rather for what he is and what he represents. The garda will be at risk of his life not because a criminal has some personal animosity towards him but because he represents the forces of law and order which we, as a society, have established to prevent crime and apprehend criminals. The murder or attempted murder of a garda and the other murders referred to in section 3 are, therefore, to my mind different from "ordinary" murder and need to be marked by a special and heavy penalty.
This I think is basic. I accept that there can be argument about what "special" penalty should be provided for such offences and I know that there may not be unanimous agreement about the one proposed in the Bill. However, I doubt very much that there is any significant support for the proposal inherent in the Deputy's amendments that the murder of a garda, prison officer etc., should be treated no differently from other murders. I certainly would not accept that proposition.
In deciding what penalty to propose in the Bill to replace the death penalty I was guided by a number of concerns. One, by the fact that the offences in question represent, as I said, an attack on the institutions of the State. Two, that we have a largely unarmed Garda Force whose only protection from those with murderous intent is the statutory protection we can afford them by way of a penalty with deterrent effect. Three, the security situation which exists in this country where there are armed subversive groups operating which represent a particular threat to our democratic institutions. Four, very heavy maximum penalties are already prescribed for the types of crimes which might give rise to the circumstances where a garda's life is put in danger. For example, the maximum penalty for armed robbery is life imprisonment. An ordinary sentence of life imprisonment for the murder of a garda is very unlikely, therefore, to have any deterrent effect on an armed robber who is trying to evade capture. Five, what has for many years past been effectively the penalty for capital offences, namely, 40 years imprisonment.
Having weighed up these factors I concluded, and the Government agreed, that the proper course at this time simply would be to formally remove the death penalty from the Statute Book — which is something the vast majority want to see done — but otherwise to make no radical change. All of the concerns which I have enumerated above which led various Governments over the past 20 years to recommend to the President that he should commute a death sentence to one of 40 years' imprisonment remain. This being so, a move to reduce the penalty at this stage could be misinterpreted as a weakening of our resolve to protect the Garda and prison officers. It could have a serious effect on morale in both services, and could lead to a demand for more extensive carrying of arms and, of most concern, it could imperil lives if criminals were to get the idea, as I have said, that we were going "soft" on those who murder Garda or prison officers.
With regard to the second of the Deputy's proposed amendments, it is my belief that once we have determined to prescribe a heavy mandatory penalty as a deterent to the murder of Garda and prison officers, we must, if it is to have the desired deterrent effect, make it abundantly clear that it will not be watered down. This is why the Bill provides for the exclusion of the powers of remission and early release normally exercisable by the Government or by the Minister. Of course, it will still be possible for the President to exercise his constitutional power to remit or commute a sentence on the advice of the Government. It could be in a very rare and exceptional case that this avenue could be followed.
I accept, as I said on Second Stage, that a 40 year prison sentence is a very harsh penalty. I would prefer if I could recommend something less, but I am satisfied for the reasons I have given that it would be wrong for me to do so. I appreciate that from the point of view of rehabilitation of a prisoner a long immutable sentence is far from ideal. My primary concern, however, must be to deter murderous attacks on Garda, prison officers etc., and it is for this reason the sentence proposed must be as it is.
I ask Deputy McCartan formally to move his amendment to amendment No. 1.
Perhaps I could comment on Deputy O'Keeffe's amendment which is also relevant at this stage——
Should I formally move amendment No. 3a?
The procedure is that we are dealing with a new section and I will be asking Deputy McCartan to move his amendment. If and when we reach section 5, Deputy O'Keeffe is at liberty then to have a question put on his amendment which will have been discussed.
Should The Workers' Party amendment be presented at this stage?
We are discussing it now. The only business that will remain after this discussion is whether the Deputy requests that the question be put on his amendment but we will be discussing the amendment without the Deputy having moved it.
I move amendment No. 1 to amendment No. 1:
To delete all words from and including "the court—" in the third line down to the end of the amendment and substitute "the court shall impose a sentence of imprisonment for life.".
The purpose of this amendment to delete the requirement to impose the maximum penalties or minimum periods of time a person must spend in prison for the commission of treason or murder. In the case of treason or murder a person must serve a period of not less than 40 years and in the case of an attempt to commit a murder a person must be imprisoned for a period of not less than 20 years where the victim is a member of the Garda Síochána or a prison officer or otherwise as defined under section 3.
The amendment in my name on behalf of The Workers' Party group is to delete all the words from and including "the court"— down to the end of the section.
The second amendment in my name deals with section 5 which relates to sentencing. It proposes to delete section 5 (1) which provides that the power of commutation or remission of punishment under the Criminal Justice Act, 1951, should not apply until those minimum terms of imprisonment have been served by the offender. As I said on Second Stage, I consider that the range of sentences mandatorily being imposed by this statute to be almost, if not equally, as savage as the death sentence. I do not accept the need for the scale of sentence included in the Bill and I hope, in the few moments available, to explain the reasons.
The Minister said that the crime of capital murder or murder in the circumstances provided for under sections 3 and 4 of the Bill is particular and not ordinary because it represents an attack on the State or on an institution of the State and for that reason, requires a heavy and special penalty. I fully agree with that proposition in general terms. I recognise that the Garda Síochána and the prison officers have a sensitive and important duty to carry out and that they are often in the front line of defence of the institutions of the State, and indeed of the community, in the carrying out of their duties. I equally acknowledge that many have given their lives in the pursuit of those duties in the past.
I accept the need for severe penalty for those who would be convicted properly before a court for such an offence but my question relates to the approach of the Minister. The imposition of a minimum period — for practical purposes, 40 years will often mean the life of the offender — denies the whole purpose of penal administration. The Minister said there was a need for a heavy penalty in the case of an attack on an institution of the State. He then listed a number of guidelines, including the fact that the crime represented an attack on the State, that it might lead to the more regular use of arms by the Garda Síochána, that the severe penalty — in the past, it was the death penalty — would be the only defence available to the Garda Síochána because of the security system that exists in the State, that heavy maximum penalties, such as life imprisonment, already exist for armed robbery and that 40 years is the commuted sentence of capital punishment.
The one matter to which the Minister did not refer — which I feel is a major fault — is the report of the Committee of Inquiry into the Penal System, otherwise known as the Whitaker report. This is a report that is often, and must often be referred to in a debate of this sort, when trying to establish some form of penal policy. The report is probably the only statement ever commissioned by Government on principles of penal policy that would be available to a Minister for Justice. The Minister has indicated that he has particular regard for this report. He went to great lengths here at Question Time in the last few weeks to indicate the areas in which he has sought to borrow from that report. I suggest that in the introduction in this legislation of an unprecedented scale of penalty, the Minister is abandoning and totally departing from some of the basic principles that have been laid down in that report.
The report lays down very clearly the need to be able to review long terms of imprisonment. Indeed, the Minister acknowledges the force of argument that long-term prisoners should have the facility of having their sentences reviewed from time to time and he has adopted this provision by establishing the sentence review committee. Why has he introduced an exception for these offences when Whitaker makes no such case? The report states in page 12, paragraph 2.15:
The Committee is in favour of custodial sentences being reserved for the most serious offences (with the corollary that very short prison sentences should be virtually eliminated) but is opposed to any general lengthening of sentences or to haphazard, as distinct from well-judged, early releases. The Committee prefers a system in which sentences imposed would in fact be served subject to a higher standard remission (? as against the present ¼) for good conduct, to a system of regular judicial review of all sentences of 5 years or more, and to provision for supervised release at any stage if recommended by review committees representative of all the services operating in a prison.
At the time Whitaker reported the practice had already been introduced of commuting capital punishment to terms of 30 and 40 years imprisonment. The phenomenon that is now sought to be introduced by way of legislation was known to the committee but they did not make any case such as is laid down here, that long-term sentences should be judicially reviewed at least at the expiration of five years and regularly thereafter. As a general principle, that should be applicable to all sentences.
On page 15, paragraph 2.25, under the heading Review of long and indeterminate sentences, the report states:
It is important that a regular and formal procedure exist for review of long or indeterminate sentences. A first judicial review should take place after a prisoner has completed five years of sentence, further judicial reviews to follow at intervals to be determined by the review body.
At paragraph 6.9 under the heading Long-sentence reviews, the report states:
Courts frequently suspend the operation of custodial sentences on conditions. The extension of court practice in this area would go some way to meet the Committee's desire to see greater flexibility in sentence disposals and the greater use of alternatives to custody. As indicated in Chapter 7 the Committee considers that there is good reason to justify a review of a long sentence after, say, five years have been served. This could be achieved by establishing a Sentence Review Committee presided over by a Judge of the High Court with power to make recommendations to the Minister for Justice.
I acknowledge the Minister has taken that recommendation on board.
The Committee could include one or two assessors and act on reports, co-ordinated by the Probation and Welfare Service from a variety of sources, as required e.g. prison administrators and representatives from other prison services (medical, psychiatric, psychological, teaching, etc).
I am sorry to quote at length from the report but it is important to point out that a committee, established by Government, who worked at great length reviewing the whole matter and laid down what I believe to be the only statement of principles ever to emerge in the area of penal practice in this country, have recommended, for very good reasons set out in the report, the need to review long-term sentences. They did so at a time when, as I have said, the practice was already established of commuting capital murder to life imprisonment, with minimum periods indicated.
The problem I have with the Minister's proposal is that it is not reflecting what Whitaker argued for. We should depart from Whitaker for extraordinary reasons if at all. The argument put forward by the Minister needs to be looked at. The crime in question represents an attack on the State and for that reason the Minister makes the point that there should be a special and heavy penalty. I have already indicated I agree with that. The way to achieve that special penalty is by providing a sentence of life imprisonmentsimpliciter and for the Minister of the day to decide just how severe that term of imprisonment should be. I have full confidence in the method that currently exists for the determination of the length of life imprisonment, that of review by the Minister of the day in consultation with all the agencies available to him or her in the prison service dealing with the particular offender in question and also in consultation with the Garda Síochána and the judge of trial — as is the practice — and any other person the Minister considers should be consulted before a decision is taken to release any prisoner from the life imprisonment condition of incarceration of custody.
The special complexion of life imprisonment will be reflected in that way by the term the prisoner will spend there. To deny that process and to insist on the scale of imprisonment required here of 40 years denies the possibility of rehabilitation, it denies the possibility of events that might occur down the line that could have a profound impact on the conditions, the circumstances and the reasons that might influence a Minister to consider a power under the Criminal Justice Act, 1951, for early release or otherwise. I could give innumerable considerations of the change of attitude, of the declaration that is relied upon by the Department and the Minister currently in dealing with people incarcerated at Portlaoise prison, of allowing for remarkable changes in attitude of the person incarcerated who at one time might be motivated by all the most heinous ridiculous warped conditions and factors and who after a time in prison, would begin to realise that what had gone before was completely wrong, that might allow for the facts surrounding the unfortunate loss of life in the particular offence that led to the conviction and the sentence being imposed. I appreciate it is a thorny issue to grasp. The Minister is facing a strong lobby and argument from the Garda Síochána at this stage. It might well be argued — although I have not heard the argument — that perhaps we should level matters as they are in the Bill and leave this kind of debate for future amending legislation in the light of experience or in the light of particular developments from the point of view of the Garda Síochána. Will they, for example, have to rely on the use of arms more often, as the Minister contends? I do not accept that argument because the reality in this country has been that since 1954 — even though we passed the amending legislation in 1964 — there has not been,de facto, capital punishment for any offence, including the death of a prison officer or a member of the Garda Síochána acting in the course of their duty in the State. We have not been pushed or forced towards a greater use of firearms in the duties of the gardaí or, more particularly, of prison officers.
The point is that good and sound research and principles are laid down in the report of the Committee of Inquiry into the Penal System. The arguments that counter prevail, that are advanced by the Minister, simply do not convince me that we should depart from those principles. My argument is that you impose life imprisonment and the Minister of the day decides how long that term should be, given all the variable factors that can exist and accepting that because of the particular victim — a member of the Garda Síochána, a prison officer or any other person contemplated under sections 3 and 4 — a very strong argument will be needed to prevail on the Minister of the day to release the person from incarceration. Nonetheless, that is a far better model and formula than that proposed by the blunt instrument of saying to a person, "because you have committed the heinous crime of murder in these circumstances, you will be locked up for 40 years with remission and with no other consideration, hope or eventuality being allowed for. That is too blunt, too severe and is unnecessary in the circumstances.
I accept that the other issues advanced by the Minister help make the case in some respect but they are not sufficiently weighty to take away from the basic propositions as outlined.
Another point that must be made is that a person sentenced to life imprisonment, whether a minimum term is attached, is never free of the supervision of the Minister or of the court. A person once released from incarceration is on licence for the rest of their days. That licence allows the Minister to revoke the freedom of the individual given certain considerations and factors. That is the practice which takes place on a regular basis in the Department. I instance one particular case where the offender is brought back in, for particularly good reasons, because of the tragic circumstances of the offender. That power exists. It is suggested that at present life imprisonment in this State for ordinary crimes — if I could borrow the Minister's words — represents eight to ten years, although there is a computation of seven to nine years; some people say the sentence is now creeping up to 11 years on average. That is not the end of the matter. The person once released is then under continuous supervision of the probation and welfare services, under scrutiny from the Garda Síochána and under the ongoing possibility that the Department following a review and, in full consultation, can revoke the term of release and have the person recommitted to prison to serve whatever period is desirable. That is a further factor that must never be lost sight of in this debate. Whenever an offender in the circumstances of this Bill is released he or she is open to being recommitted should they show any unsatisfactory tendency again.
Paragraph 6.5 headed "Penalty Imbalances" of the report of the Committee of Inquiry into the Penal System, under the chairmanship of Dr. Whitaker, attempts to lay down some basic principles which we should seek to apply in all instances. The paragraph reads as follows:
While a number of serious crimes such as treason, genocide, murder and rape will always, by reason of their innate seriousness, either by statutory mandate or by the due exercise of judicial discretion, require the imposition of the penalty of imprisonment, the aim of the courts in dealing with other offences should be to impose a penalty other than imprisonment when such a penalty is appropriate to the circumstances of the case.
The most relevant passage as far as we are concerned reads:
Where Parliament thinks fit to prescribe maximum and minimum terms of imprisonment for an offence, the range should be sufficiently wide to enable a judge to impose a term of imprisonment which will fit the particular circumstances of the case.
The point I want to make, in laying down a further principle of penological practice, is that the report recognises that statute can and should on occasion lay down maximum and minimum limits and also the need to allow a judge and, by implication, the Minister, discretion. The fact is the Minister's proposals do not allow for this one jot. The Minister, in laying down a term of imprisonment of 40 years — even worked back to 30 years with full remission, which is rare in itself — is not allowing for discretion. Indeed, under section 5 he is removing the possibility of remission even in extraordinary circumstances. That is a bad principle to work from.
The question of remission and the concept of a review of sentence are also examined in the Whitaker report. I understand provision is made for remission once the minimum term of imprisonment of 40 years has been served. This can be worked back to 30 years but in effect this gives us little or no hope that the notion that there should be remission for prisoners will be considered. The report at paragraph 7.36, page 72, has this to say on that matter under the heading "Pre-Release Programmes":
On the basis of its general approach to imprisonment the committee takes the view that there should be a liberal approach to conditional releases before the normal release date allowing for maximum remission. The possibility of conditional release is a powerful incentive to prisoners to do well in prison.
We should not lock people up simply to punish or brutalise them further but rather in the hope that they will do well and reflect on the wrongs they have committed, the heinous nature of their acts and the fact that we expect something better or more of them once released. We invest vast sums of money on behalf of the taxpayer in trying to achieve that end. In practice, the imposition of this term of imprisonment, which is very severe, will shut out all hope for the offender committed, with the result that there will be no possibility of getting co-operation or a life after prison and little will be achieved other than the taking out of circulation, at huge cost to the community, of the offender once sentenced.
For all these reasons I urge the Minister to look again at the amendment I am proposing or in the debate on the Bill in the Seanad or in the light of the workings of the legislation in the coming years to indicate that the door is not as closed as it appears now. I make no apology for seeking to address the issue on the basis of the principles laid down in the one comprehensive document we have on prisons and the use of incarceration as a penalty, the Whitaker report, and as I said before, we should be very slow to depart, if at all, from the good reasoned arguments and principles laid down in that report.
I welcome the abolition of the death penalty but would argue the case in a different way. On very rare occasions very serious crimes are committed by citizens and there is an obligation on the State to its citizens to remove the persons concerned from society, even for the rest of their lives if necessary. If a young person, who has been sentenced in the normal way to life imprisonment for the shooting dead of a bank official during a bank robbery, commits a similar offence on release seven years later but on this occasion shoots a member of the Garda Síochána, is a judge in sentencing that young person entitled to impose a longer sentence than 40 years and specify the number of years to be served?
There is another category of person, to whom I referred during my Second Stage contribution, who should be dealt with very severely by the State and that is the members of illegal organisations who sit in judgment on fellow citizens, pass death sentences on them and has them carried out. What sentence should they be given under the law? The court should be given authority to send, if necessary, a person to prison for the rest of their natural life or until they reach old age when they will no longer be a danger to society. I note that this is a system used, albeit very rarely, in Britain.
I support Deputy McCartan's amendment. However, my support for his amendment should not be taken to imply any lack of support for the Garda Síochána who are the protectors of society. As long as a person poses a real danger to life or limb, it is sometimes necessary to incarcerate this person for the rest of their natural life. Like Deputy McCartan, what I object to is inflexibility. We should not differentiate between this crime and the crime of murder or attempted murder, as this gets away from the possibility of rehabilitation or remorse. It should be borne in mind that even those who murder or attempt to murder a prison officer or a garda are not damned for all eternity; there is still the possibility that they will repent or express remorse. Having regard to the fact that the death penalty has not been invoked for a long time and no prison officer or garda has been murdered for many years, I do not think it is necessary to lay down such very long terms of imprisonment. Accordingly, I support Deputy McCartan's amendment.
I rise to support the Minister's amendment which merely clarifies section 4 of the original Bill. It is very important that we be realistic this afternoon. In agreeing to section 1 we assented in effect to the abolition of the death penalty. On Second Stage there was agreement on all sides of the House on this matter. In abolishing the death penalty for humanitarian reasons we should be prepared to provide society with a replacement which fits the ghastly crime of capital murder.
I listened with great interest to Deputy McCartan quoting at length from the Whitaker report, but at no stage did he make any reference in any of his quotations to the fact that the Whitaker report was commenting specifically on capital murder. In fact, I venture to say that it was not at any stage written down in the context of the most serious crime a person can commit. It is important when dealing with the remedies society imposes for these crimes to look at section 3 and at the crimes we are talking about. We must understand and not for one moment deviate from the fact that we are living in a very violent society with a very high crime rate and an active terrorist organisation in our midst.
Looking at section 3 (1) (a), (b), (c), and (d) we remember incidents in the past ten or 15 years. We have had the murder of members of the Garda Síochána, attempted murder of prison officers in the course of their duty, violent crimes contrary to sections 6, 7, 8 and 9 of the Offences Against the State Act, and not 20 years ago we had a violent murder of a diplomat from a neighbouring state. Foreign heads of state fear to enter our land, and we are talking about having sentences that can be reviewed or less severe than the harshest possible and lengthiest sentences available to our courts. Having considered that, I believe the Minister has opted for the correct course by introducing a mandatory minimum sentence.
It has been argued with great effect that mandatory sentences make bad law. In general I agree with that sentiment, but people acting in the name of the Irish people are prepared to commit violent crimes against other people and it is very important to have a deterrent, such as a lengthy sentence of 40 years, with a valve. The valve is extremely important. It is absolutely essential that a prisoner who is imprisoned for whatever reason be not deprived of hope. Deputy McCartan spoke at length on instances of rehabilitation and the fact that for some reason or other a prisoner may have a change of heart. The Minister may not have allowed for that valve in this Bill, and I commend to the House the Fine Gael amendment to section 5 which could be the valve that would not deprive a prisoner of hope. I think prisoners are more likely to conform and to become rehabilitated if they have an element of hope, if they have something to work towards. If we deprive a prisoner of hope we do little to encourage any element of rehabilitation.
An argument against Deputy McCartan's amendment must surely be that its import is to whittle away the distinction between capital murder as we now know it and ordinary murder. Since we have an unarmed police force in this State, one of the few West European countries that still have an unarmed police force and long may that remain the case, it is important that we provide for the distinct offence to act as a deterrent to protect the people employed to protect society. By adopting the watered down amendment proposed by Deputy McCartan, we are ignoring threat to society by organised criminal gangs who are stalking the countryside daily, and we are ignoring the threat to society from terrorists.
The distinct offence as envisaged in this legislation is blunt and severe, as Deputy McCartan stated, but it is necessary because if we are to stand up to the terrorist threat we must be blunt and severe. The Whitaker review group have no power to review or investigate sentences for capital murder. That said, it is important that we have some valve in the event of a change of heart or that a review is necessary for whatever reason.
This Bill in no way effects or detracts from the power of the President to commute or review sentences should he feel that to be necessary. That is important and should not go unnoticed.
The question of remission is important. A prison sentence, be it 20 or 40 years, following conviction under this legislation still allows for an element of remission. I would like to elicit the Minister's views on changes that may occur from time to time in the remission procedure. At present under statutory regulation remission amounts to a quarter of the sentence. That can change and has done so in the past and is likely to change in the future. An offence under this legislation could attract a sentence of no more than 20 years. The Minister might like to comment on whether at any future date if the rules on procedure governing remission were changed, that would have an effect on the terms and provisions of this legislation.
On balance between the Minister's amendment and Deputy McCartan's amendment the Minister's is of far greater service to society, subject to the qualification of the Fine Gael amendment to section 5. We will support the Minister's amendment in the hope, and with the qualification, that serious consideration will be given by him to our amendment to section 5 as a necessary valve available to the convicted party who may have a change of heart, who may become rehabilitated, so as not to deprive that prisoner of hope.
We should have a distinction in regard to penalty between ordinary murder and the murder of gardaí and prison officers. On that basis, I cannot agree with The Workers' Party amendment which would remove that distinction, at least in statutory terms. Deputy McCartan argues that cases could be treated differently by the Minister for Justice of the day. That is not a sufficient distinction; there should be a distinction in statutory terms. If pressed to a vote, Fine Gael will vote against The Workers' Party amendment.
If we accept that there should be a distinction between ordinary murder and the murder of prison officers and gardaí, we must ask what the penalty should be. There is general agreement that the death penalty should be taken off the Statute Book. It is provided in section 1 that no person shall suffer death for any offence. I accept fully that proposal. I believe in the commandment "Thou shalt not kill". The death penalty was not a deterrent and should be removed from the Statute Book.
If we accept that there is a distinction between what is termed ordinary murder and the murder of a prison officer or garda, then we must define the appropriate penalty. The Minister had a number of options. He could have fixed a mandatory sentence of life imprisonment subject to a minimum term of 40 years; alternatively, he could have selected a mandatory sentence of life imprisonment subject to a term ranging over a number of years, leaving it to the trial judge to decide on the actual term to apply within that range. There was the further possibility of permitting remission for good behaviour.
There are pros and cons in these options. At the moment, an ordinary term of life imprisonment for ordinary murder would usually be about nine or ten years in the case of good behaviour. That would not apply in the case of a particularly vicious offence or in cases involving subversive activity leading to murder. It is very clear that a number of years would have to be mentioned in the statutes that would be substantially in excess of what is effectively being served by those convicted of ordinary murder at the moment.
The basic approach of the Fine Gael Party is that we would be failing to provide adequate deterrents against the murder of gardaí and prison officers if there were not a distinction. We accept that there are pros and cons in the two options I have mentioned. In terms of the standard of sentence in other European countries, 40 years is quite high, but the Minister has included provision for remission for good conduct. We should consider the possible disruptive effect on prison administration of long-term detention of prisoners who have no incentive to comply with prison rules. I will come back to that point, which is the basis of the Fine Gael amendment.
Within the second option, we could fix a range of years within which the trial judge could decide a sentence. Because the Minister has opted for a minimum sentence without any discretion to the trial judge, there cannot be a distinction or differentiation between offences according to the degree of culpability attaching to them. A person could shoot an unarmed Garda officer at point blank range in a premeditated act. Another example could involve a person driving a getaway car. One of those in the car could become involved in an exchange of shots during which a Garda officer is killed. The driver of the getaway car would be guilty of an offence under section 4 because of the doctrine of common design where it could be proved that the common intention of those committing the original offence extended to those helping to carry it out. Under the Minister's proposal, the trial judge does not have the possibility of differentiating between the gross case of the point blank shooting of an unarmed garda and the case of a person who was not as directly involved but yet would be guilty of the offence and would suffer the same penalty.
The choice open to the Minister was quite difficult. He has opted for the fixed minimum penalty of 40 years in the case of murder and 20 years in the case of attempted murder and he has allowed for remission for good conduct. My view is that there is probably a case for a range of years within which the sentence could be decided. This would allow for differentiation depending on the gravity of the offence and the culpability of those convicted. However, I will not quibble with the Minister's decision to opt for the minimum.
The Minister has provided for a restriction on the power of the Minister to commute or remit the punishment or to grant a temporary release. We must look at that power in the context of the problems it might create in disrupting the prison administration. There is still the power of the President, on the advice of the Government, to commute sentences under Article 13.6 of the Constitution.
I am somewhat concerned at the point raised by the Association of Garda Sergeants and Inspectors which, to a degree, relates to the earlier point I made in regard to the possible disruption of the prison administration by a long-term prisoner who may think he has no hope whatsoever. On 3 May 1990 the Association of Garda Sergeants and Inspectors issued a circular to all Deputies and Senators — to be fair to the association, this circular was circulated in the context of their being opposed to this legislation in which they said and I quote:
The suggestion that a 40 year mandatory sentence replace the death penalty is not acceptable because a criminal serving the mandatory sentence is beyond further substantial punishment. In an escape attempt such a person can "afford" to be absolutely ruthless with the lives of prison officers, gardaí or the general public because society cannot impose any further penalty.
We have to take note of the point raised by the Association of Garda Sergeants and Inspectors. They are concerned that somebody who has had a very long sentence imposed on him could be quite ruthless in his dealings with prison officers, gardaí or the general public and society could not impose any further penalty on him. They are afraid that such a person would be absolutely free of the possibility of any further penalty being imposed on him and if there was a shootout or escape attempt there would be absolutely no deterrent whatsoever on him to be restrained by the norms of society or the fear of punishment. To a large degree this is why I put down amendment No. 3a to section 5. Because we are taking these amendments together I want to briefly comment on my amendment to section 5.
We should not close the door on this debate; we should be prepared to commit ourselves to looking at the effects of these changes, monitor them and review them, in particular, from the point of view of the fears and concerns expressed by the Association of Garda Sergeants and Inspectors, which is a very reliable organisation. I fully understand their point and this is why I believe the amendment put down by Fine Gael could and should be taken on board by this House and the Minister.
Essentially what we are proposing is that the Minister should be obligated, under section 5, to make a report to Dáil Éireann on the effects of the restrictions on his powers imposed by section 5. This would provide the vehicle for a debate on the issue and if it was decided further legislation was necessary at that stage it would stimulate the introduction of such legislation. It would also give us an opportunity to put to rest the fears expressed by organisations such as the Association of Garda Sergeants and Inspectors. They would be able to proceed in the sure knowledge that the matter would be looked at again and if the concerns they had expressed came to reality the Dáil would have the opportunity of considering them.
I have proposed in this amendment that the Minister for Justice should report to Dáil Éireann not later than four years but if the principle of my amendment is accepted I would be open to accepting a period of five or eight years——
Or 40 years.
Do not go overboard.
If the principle of my amendment is accepted I would be prepared to consider a different length of time. My colleague, Deputy Flanagan, referred to those people in prison who have no apparent hope and said that there should be at least a safety valve so that the issue would be discussed, based on a report to the Dáil. Deputy McCartan's amendment is not acceptable to us and I urge the Minister and the other parties in the House to accept the Fine Gael amendment.
The great dilemma in this debate, which has been dealt with at some length, is the proposal to remove the death penalty as a deterrent to crime and replace it with a minimum sentence of 40 years. When Mr. Paddy O'Brien, the President of the Association of Garda Sergeants and Inspectors spoke recently in Killarney he said they sought only to retain the final penalty as a deterrent to be used only in the most extreme circumstances but, nevertheless, to remain as a protection for unarmed gardaí and prison officers. I disagree with that view and I think many speakers in this House, including the Minister, disagree with it also. When Deputy Brian O'Shea spoke in this debate on behalf of the Labour Party he said: "If I thought the death penalty would protect the life of a single garda or prison officer or would inhibit dangerous criminals from carrying guns I would have a totally different view of this legislation".
The Labour Party agree with that view but we do not believe the death penalty has acted as a deterrent — 11 gardaí have died since 1970. Because,de facto, no death penalty has been imposed during that period the argument put forward by the Association of Garda Sergeants and Inspectors does not hold water in that respect. However, Irish society owes a considerable debt to the men and women who place their lives at risk on a daily basis both on the streets and in our prisons and if they believe there is an element of a deterrent in the death penalty then we in this House, who do not have to deal on a daily basis with criminals, have to make it our business to see that the sentence we put in its place is very severe. This is why I support the Minister's amendment and oppose The Workers' Party amendment in the name of Deputy Pat McCartan.
Criminals should know well in advance that they will have to face a very long time in prison if they shoot or kill a garda or prison officer. This is one of the weaknesses in Deputy McCartan's argument. I took down one of the Deputy's sentences — I do not know if it was from the Whitaker report or his own remark. If I understood the Deputy correctly, he suggested that a murderer of a garda or prison officer should be recommitted after a certain length of time if he demonstrated any unsavoury or unsatisfactory tendency. Does this mean that if such a person shoots another garda he will have demonstrated an unsatisfactory or unsavoury tendency? That is the point I am worried about. I do not think it is right to let somebody back into society after ten or 12 years if there is a possibility he will commit the same crime. As we know, some people were let out of prison who had not changed. The alternative is to keep these people in prison which will mean a very expensive bill for the taxpayers. The Labour Party have campaigned for many years for the abolition of the death penalty. We have to bear the expense of keeping these murderers in prison for a very long time if they are a threat to gardaí and prison officers whose job it is to look after our society and who spend every day in a certain amount of danger. There are occasions when their occupation is not very dangerous but there is always the possibility of danger when people set out to rob banks or do some other nefarious deed.
We should ensure that gardaí and prison officers do not consider that we are taking away what was a deterrent without putting something in its place and ensure that criminals know they will face very stiff sentences if they contemplate murder in the future. The minimum sentences that are being introduced here are very severe and if, as Fine Gael suggest, a review of this legislation should take place, at least the people concerned will still be alive to have their sentences reviewed. The removal of the death penalty means that the State will not have killed the murderer so that his sentence can be reviewed in the future.
The Minister must be given the backing for what he is doing in his amendment. Deputy McCartan's amendment would result in a murderer not feeling the same level of deterrent as he would if he knew he would have to face a heavy sentence should he commit that crime. There is the dilemma of whether people think about these things when they commit murder. We, however, should err on the right side of our gardaí and prison officers by demonstrating to them that a very heavy sentence will be meted out to anybody who commits this crime.
We have had an interesting debate on this set of amendments for well over an hour. This has been very worthwhile. It has been quite a while since I made my opening remarks but I will just repeat a few of them to again indicate to the House my thinking in deciding on what penalty to propose in the Bill to replace the death penalty. I was guided by a number of concerns which I will reiterate.
The first is that the offence in question represents an attack on the institutions of the State; there is a major difference between an ordinary and a capital offence. The second is that we have a largely unarmed Garda force whose only protection from those with murderous intent is the statutory protection we can afford them by way of a penalty with deterrent effect. The third is the security situation that exists here where there are armed subversive groups operating and who represent a particular threat to our democratic institutions. The fourth is that very heavy maximum penalties are already prescribed for the type of offence which might give rise to circumstances where a garda's life is put in danger. For example, the maximum penalty for armed robbery is life imprisonment. An ordinary sentence of life imprisonment for the murder of a garda is very unlikely, therefore, to have any deterrent effect on an armed robber who is trying to evade capture.
What has for many years been effectively the penalty for capital offences, namely, 40 years imprisonment, was the sentence I came down in favour of after consideration.
I fully accept that there is a strongly held point of view that a 40 year sentence is a very harsh penalty. I would prefer if I could recommend something less but I am satisfied, for the reasons I have given, that it would be wrong for me to do so. I appreciate the points made by a number of Deputies that from the point of view of rehabilitation of a prisoner a long immutable sentence is far from ideal but my primary concern as Minister must be to deter murderous attacks on gardaí and prison officers. It is for this reason that the sentence proposed must stay as it is.
Deputy McCartan referred to the Sentence Review Group and to the Whitaker report. The Whitaker commission looked at just one aspect of prisons. My responsibility, as Minister for Justice, goes much further than just sentencing. It goes to the heart of the concern for the gardaí and the prison officers who serve this country loyally. As far as remission is concerned, in this Bill there is provision for a 25 per cent remission for good behaviour. That is something that was not there before in relation to capital offences and sentences commuted by the President were for 40 years. Now it will be 40 years with remission for good behaviour and that was put in response to discussions I had with the Prison Officers' Association who were concerned, as were a number of Deputies here, about the question of having an incentive for prisoners to obey prison rules. That is very important and it is for that reason and in response to the points made by the prison officers that that incentive is there.
In regard to the right to grant further remissions and the temporary release mechanism which is used on the advice of the Sentence Review Group, I decided to remove that power in relation to capital murders, again to give clear signals to people who would murder or attempt to murder a garda or prison officer that the full rigour of the law would be used to punish them. However, the President has the right to pardon, on the advice of the Government, should there be an extraordinary change of heart, as was mentioned by Deputy McCartan, and it is obvious that there has been a dramatic change. In such circumstances it is the right of the Government to advise the President to pardon such a prisoner, and that right is still there. It is an important right and should not be disregarded.
Reference was made to a liberal release policy. I have tried, so far as I possibly could since becoming Minister for Justice, by setting up the Whitaker Committee and releasing long-term prisoners over the Christmas break and continuing that policy even since the Christmas break, to be as liberal as possible. At the same time I must always be guided by the principle of protecting the institutions of the State and in particular those who protect the institutions of the State, the Garda and the prison officers.
I welcome Deputy Joe Doyle's expression of support for the Bill. Deputy Garland, supporting Deputy McCartan, emphasised that there must be no lack of support for the Garda. I accept the Deputy's sincerity when he said that he was not suggesting any lack of support for the Garda but the difficulty involved in this is that we must try to balance things up. If we are to remove the death penalty we must decide on how to protect the Garda and prison officers and, at the same time, act in a humane manner. I vehemently disagree with his point that there was no need to differentiate between ordinary and capital murders. I answered that point earlier.
Deputy Flanagan raised the point about remission for prisoners and I should like to draw his attention to my earlier reply to that point. He suggested that foreign Heads of State might be fearful of entering this country but there is no proof of that. On the contrary, during our Presidency in the past six months many Heads of State have visited this country. I should like to tell Deputy O'Keeffe that themens rea in regard to capital murder is very precise. It is essential to prove the thought process of the person at the time of the killing. It is very unlikely, but possible, that a person in the circumstances he outlined would be charged with capital murder. It would be difficult to prove them guilty of capital murder.
I consider Deputy O'Keeffe's amendment unnecessary in principle. The terms in which it is drafted would be of little value. As to the principle of a review, I should like to assure the House that I regard it as one of the responsibilities of my office to keep criminal law under constant review. This is particularly so in relation to new legislation. I do not consider there is a need for a provision of the nature proposed by Deputy O'Keeffe.
Deputies O'Keeffe and Flanagan suggested that there should be a review, and a report to the Dáil on the operation of the restrictions imposed in section 5 on remission for early release within four years. That is pointless. Even if there were to be no restrictions it is inconceivable that the question of a remission or early release would arise in the case of a person sentenced for a murder under section 3 within the first four years of that person's imprisonment. I accept, as Deputy O'Keeffe said, that it could be seven or eight years but I do not think the point arises. Experience of the effects of the restriction provided for in section 5 will be something that will only be gained in a much longer time span than four years. It is not clear how the review suggested by the Deputies will operate.
I have no doubt that my successors in this position will keep the provisions of the Bill under review. Even if the Minister of the day does not do so, I have no doubt that organisations concerned such as the AGSI, GRA and the POA will ensure that the Minister keeps the legislation under careful review. Deputy Flanagan raised the question of remission and I should like to tell him the 25 per cent remission that exists at present could be changed at any time. I have no doubt that in years to come it will be changed. I should like to tell the Deputy that remission in Northern Ireland is 50 per cent. I cannot accept the amendments put forward and I strongly commend my amendment.
I should like to put a point of view on the record because I have strong reservations about one section. I am not expressing my reservations on a party political basis. An amendment along the lines suggested by Deputies O'Keeffe and McCartan should be included in the Bill to safeguard against what I consider to be a more draconian and less humane punishment than hanging. I am opposed to hanging but, in certain circumstances, it would be better to hang a person than to put that person in prison for 40 years without the Government, or the Minister for Justice, having the right to review that sentence at some time in the future. I do not think the Minister should divest himself of his power under this heading.
There has been a lot of talk about capital murder but we must bear in mind that we are also dealing with treason, however that can be defined in this day and age. A person can be sentenced to prison for 40 years if found guilty of treason. That person will be confined to an 8 ft by 6 ft cell for 40 years and that term can only be reduced to 30 years. The Minister does not have the power in any special circumstances to order the release of the prisoner or reduce the sentence.
There is little point in abolishing the death penalty for capital murder or treason and replacing it with a minimum mandatory sentence of 40 years. At present the President may, on the recommendation of the Government, commute the sentence of hanging to one of 40 years. Nobody is aware if that is constitutional or not but at least the Minister has a right to review a sentence on humanitarian grounds. It is wrong of the House to pass legislation requiring the courts to send a person to prison for a minimum of 40 years without the Minister for Justice having a right to review it at some stage. I commend the Minister for bringing forward the Bill to abolish the death penalty for capital murder or treason but I presume it has been said that that move makes gardaí and prison officers more vulnerable. Sentencing a person to 40 years in prison may have the effect of endangering the lives of prison officers because the prisoner will have lost all hope for the future. We should make no apology for leaving the power with the Minister for Justice to review sentences in such cases.
If the Minister cannot accept an amendment along those lines on Committee Stage he should bring forward his own amendment on Report Stage. It is the will of the House that he should retain this power or have a power along the lines suggested by Deputies O'Keeffe and Flanagan. It will be too difficult to review any sentence after a capital murder takes place. The Minister should remove the section or amend it.
I accept that a prison term of 40 years is a harsh sentence but I was guided in this as the Minister responsible for the Garda and prison officers. I would prefer if I was able to recommend a shorter sentence but, for the reasons I have given, it would be wrong of me to do so. I should like to emphasise that the power of pardon in very special circumstances, mentioned by Deputy McCartan, lies with the President acting on the recommendation of the Government. This time I have put in a clause concerning the normal remission of 25 per cent in regard to those whose sentences were commuted from death to 40 years. It is now written into the Bill. I fully understand the concern of the Deputies in relation to taking this power but I have to weigh against the decision — finally and thankfully — to remove the death penalty from the Statute Book and not to send the wrong signals to subversives and others who would attack gardaí and prison officers and indeed who have been known to murder them. I must protect the lives of gardaí and prison officers.
I share the Minister's concern about sending out signals and I do not hold any brief for people who receive a sentence of this kind.
I was not suggesting that the Deputy was.
I accept that. I strongly urge that they get this kind of sentence. However, in all circumstances, when it has gone from the jurisdiction of the courts and back into the realm of administration the Minister should retain that power because, otherwise, the legislation is draconian. The safety valve should be there and the Minister should retain the power in some shape or form. He should review the matter along the lines of Deputy O'Keeffe's recommendations. I strongly support the objective of handing out tough sentences but I should like the Minister to reserve the right to review them. That is the feeling of the House.
I do not want to keep repeating myself. I have no doubt that in the future — when circumstances improve in so far as the terrorist element is concerned — some future Minister will change the legislation. We must take one step at a time and it is a major step forward to remove the death penalty from the Statute Book.
I wish to respond to some of the points made to the amendments in my name on behalf of The Workers' Party because some Deputies may have misunderstood what we are seeking to achieve. I am totally in agreement with what Deputy Mitchell said to the House a few moments ago. He has made my case in advance of the amendments. Deputy Doyle said that there should be a provision for locking up a person for life. That provision exists at present and that is what life imprisonment by definition and by term means. The court has the power to put a person into prison for his or her natural life, from the moment of sentence to whenever life expires. However, when the sentence has been imposed factors affecting the demeanour of the offender, the society from which he has been taken, the view of the Minister of the day and people who have responsibility for the person locked up, all come into play. When the person has been imprisoned, better informed opinion in the light of developments comes into play — and the prison administration let offenders out at various times. Some people who have been sentenced to life imprisonment have been let out within two years of the sentence being imposed but others will never get out. A third category may get out for a short period on different occasions but will probably never be out on a full term basis. It is conceivable that many people serving life imprisonment today will be there for the rest of their natural lives. I am simply arguing that that panoply of eventualities is adequate to deal with a person who commits murder as provided for under sections 3 and 4 of the Bill.
I equally support the proposition that, for the purposes of sending out signals, a Minister can make a statement that, because of the nature of the offence, the sentence will be for an exceptionally long period. I do not think any Members have a doubt in this regard. The view is shared by all that someone who commits an offence as grievous as those contemplated under sections 3 and 4 should be incarcerated for an exceptionally long period because of the reasons advanced by the Minister, the threat of terrorism, the attack it represents on an institution of the State, etc. It is being argued here that we should also allow for other factors. I appreciate that the Minister is resolute in believing that he has a balance in the Bill and I acknowledge that his job is somewhat more difficult than mine.
However, if we allow the minimum period of 40 and 20 years respectively, why is there a need to introduce subsection (1) of section 5? This concerns the absolute prohibition of powers under the Criminal Justice Act, 1951, being exercised by a Minister dealing with such a person until or after the term of imprisonment has been served. Why not allow that power, provided for under section 23 of the Criminal Justice Act, 1951, to stand and let it also be understood that the clear message from this House is that it would take an extraordinary set of circumstances for a Minister to release a person or to commute a sentence under that section where the offence was one with which we are dealing here? Is that a possible balance we could seek to achieve in this debate? If so, it would meet my worries and considerations because it would meet the point in the amendment tabled by Deputy O'Keeffe and Deputy Flanagan. If this compromise is possible the clear message would go out under section 4 that the term would be a minimum of 40 years for the offence and a term of 20 years for an attempt but that degree of culpability is not something to be walked away from by suggesting that it is not likely that someone would be charged. Even where the firm charge should be laid there are degrees of culpability; there are degrees of participation, the principle of the law says that an accessory may be charged as principal, in the first degree, and be convicted and dealt with on that basis. There are also factors that can follow thereafter. I do not think we should under-play that issue in terms of clear signalling. We should be clear in signalling that there is no tolerance of terrorism in this country.
There is also another area in respect of which clear signals can be sent out, that is, trying to bring some pressure to bear on the minds of terrorists that their campaign is futile, that there arequid pro quo if they end their campaign of violence. In that context the powers available to a Minister under section 23 of the Criminal Justice Act, 1951, would be all important. That has been recognised in part by the Minister in allowing prisoners home from Portlaoise Prison over the Christmas period and in getting the review committee to undertake their task as a matter of urgency.
The Minister has explained his reason for reintroducing the remission provision, having consulted and listened to arguments advanced by persons involved in prison administration and the important role that plays. The Minister has not explained at any stage why the provisions of section 5 (1) are so important other than making the point that the clear signal must be there — absolutely rigid — 40 years with good behaviour and absolutely nothing else. Perhaps the Minister could elaborate somewhat on the "grave reasons of a humanitarian nature" referred to in section 5 (3). Perhaps he could say what circumstances are envisaged in that context. That is an important explanation which should be available to help us understand the full import of this Bill. I wonder whether that would constitute a compromise that might commend itself to the Minister.
Would the Minister tell the House the definition of "treason" in relation to this Bill?
It is defined in the Treason Act, 1939. We have not got a copy handy but will endeavour to get it for the Deputy. I am told it is also contained in the Constitution.
With regard to the "grave reasons of a humanitarian nature" to which Deputy McCartan referred, the circumstances envisaged would be, say, the death of a wife or a serious illness which would be treated in hospital. Mainly it would be on the death of a close relative.
On the general question, once we have determined to prescribe a heavy mandatory penalty as a deterrent to the murder of a garda, prison officer and so on — if it is to have the desired deterrent effect — we must make it abundantly clear that it will not be watered down. That is why the Bill provides for the exclusion of the powers of remission and early release normally exerciseable by the Minister or the Government. Of course, it will still be possible for the President to exercise his constitutional power to remit or commute a sentence on the advice of the Government. That could be exercised in a very rare, exceptional case, which was the point Deputy McCartan was making. He was not making the point on a general review of these types of capital offences. If I understand him correctly he was saying that, in the rare, exceptional case, we should have power to commute, but only in such cases.
That power is already available to the Government in advising the President in the case of a capital offence rather than the normal day-to-day powers exercised by a Minister in relation to remissions and changes in sentencing, in particular in relation to long-term sentencing, on the advice of the review group — it being a capital offence no Minister should exercise that power alone. If there were rare, exceptional circumstances involved he should go to Government who would then, collectively advise the President. I believe that to be the appropriate way to proceed in this respect.
If I may quote Article 39 of the Constitution it says:
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.
In the Minister's closing comments in relation to the role of the President in the case of remissions or commutations it would appear that he is making a little more play out of this provision than had been the case heretofore. For example, does he envisage a broadened role for the President in this respect in view of the Minister not being afforded the powers of commutation that obtain at present, that he is now passing on this power to the President? Could the Minister inform the House whether there is any precedent in this regard. I understand that in the forties a petition was opened that attracted almost 20,000 signatures but did not have the desired effect, it did not deliver the goods. Is the Minister now saying that the only safety valve available will be the role of the President and that he now envisages that to be a broadened role? If that is not the case, would he reconsider his opposition to the Fine Gael amendment which will be the only real safety valve then available?
The powers of the President to which I referred are exactly the same as those that obtain at present; I am not placing any greater emphasis on them. It would be in very rare, exceptional circumstances only that they would be used, which was the point being made by Deputy McCartan. I am not making any more of a case of them or advocating any further use of those powers on a regular basis; they would be used in very rare, exceptional circumstances only.
Is Deputy McCartan withdrawing his amendment No. 1 to amendment No. 1?
I would like the question put.
We now put the question on amendment No. 1.
We now move to section No. 5 and amendment No. 2 which has already been discussed.
I move amendment No. 2:
In page 4, lines 27 to 33, to delete subsection (1).
Is the amendment withdrawn?
I would like the question put.
I move amendment No. 3:
In page 4, subsection (3), line 43, after "1960", to insert "(including that section as applied by section 4 of the Prisons Act, 1970)".
This is purely a drafting amendment. Section 5 (3) provides that the power conferred by rules made under section 2 of the Criminal Justice Act, 1960 — to release temporarily a person serving a sentence of imprisonment for the murder or attempted murder of a garda and so on — shall not apply during the minimum period specified by the court under section 4 except as to the extent permitted by section 5 (3). By virtue of section 4 of the Prisons Act, 1970, the power to grant temporary release in the case of persons serving sentences of imprisonment in prison applies also to persons serving sentences of imprisonment in places of detention provided under the 1970 Act. The amendment is tabled to make it clear that the restrictions as to temporary release specified in section 5 (3) of the Bill shall apply also to persons serving their sentences in such places of detention.
Amendment No. 3a. has already been discussed. Does the Deputy wish me to put the question?
We are anxious that the question be put.
May I draw the Minister's attention to a provision that might require the attention of his Department. In the Child Care Bill, which is presently being discussed in committee, there is a provision — I appreciate the legislation has not passed yet but perhaps the Minister would take this point up with the Minister for Health.
We are going to do it when this Bill passes.
Amendment No. 4 is in the name of the Minister. May I draw the attention of the Minister and the House to the wording of the amendment. It reads "Extradition (European Convention to the Supervision of Terrorism); that should be the "suppression" of terrorism. Is that agreed? Agreed.
I move amendment No. 4:
In page 10, at the end of the Schedule, to insert the following row:
No. 1 of 1987.
Extradition (European Convention on the Supervision of Terrorism) Act, 1987.
Subsection (4) of section 6.
This is purely a drafting amendment. Section 5 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, provides that, in certain circumstances, a person who commits any of certain terrorist acts anywhere in the world shall be guilty of an offence against the law of the State as if he had done that act in the State. Section 6 (4) of that Act ensures that, in the case of an act that would have amounted to capital murder if committed in the State, the effect of section 5 of the 1987 Act should be that the offender be sentenced to imprisonment for life instead of death. Section 6 (4) of the 1987 Act will become redundant as a result of the Bill and the amendment proposes to repeal it.
Does this mean, a Leas-Cheann Comhairle, that the Chair will not be donning a black cap?
A contemplation not to be entered into.
I thank the Deputies for the welcome they have extended to this legislation and for the manner in which it has been debated last Friday week and again today. It is stated in the Bill that "no person shall suffer death for any offence in this State from now on", and this is to be welcomed. I believe this will bring us in line with civilised countries throughout the world. I am very pleased, honoured and proud to have been the Minister to introduce it in this House. I thank all concerned.
On behalf of the Fine Gael Party, I would like to re-echo what the Minister has just said. We are making history this afternoon by proceeding to join the many civilised states throughout the world which have removed the penalty of lawful killing from the Statute Book. Killing in any form cannot be justified and capital punishment as a form of retribution or deterrent is unworthy of a democratic and Christian society. As one who upholds the ideas of both democracy and Christianity, I am proud to be associated with this legislation and I wish it a speedy passage through the Seanad.
I wish to join with other Deputies in welcoming the historic passing of this legislation. I am absolutely happy and honoured to be in this House when we take this step to rid from our Statute Book what I believe to have been an apparent and unacceptable form of penological practice — that of providing for the taking of life by the State. In the publication of Amnesty International,When the State Kills, which I quoted in opening my contribution, they note that today:
Thirty-five countries have abolished the death penalty for all crimes as documented in this report.
I am happy to say that when they publish their next annual report, this will number 36 and that the page or so given over to the death penalty in Ireland will carry a simple reference to the fact that this country has abolished the death penalty for all offences.
I would like to add to what has already been said. The campaign to abolish the death penalty has been growing for many years and today is the successful culmination of that campaign. Everybody is to be congratulated for that.