This comparatively short Bill proposes a fundamental change in the criminal law by abolishing the death penalty in virtually every case. It provides that in future the death penalty will be imposed only for specified crimes of a political character and for murders of members of the Gardaí or of prison officers in the course of their duty, whether the motive for murder is political or otherwise. The Bill also provides a statutory definition of malice aforethought; in other words, what it is that distinguishes murder from manslaughter, and in so doing abolishes what is known as the doctrine of constructive malice.
As regards the main object of the Bill, I should like to commence by indicating the principal considerations which led the Government to decide to abolish the death penalty for what I might call ordinary murders, which are the only capital offences likely to be encountered in ordinary circumstances. There has been no execution in the State since 1954. The previous execution took place six years earlier. For a considerable period, therefore, every person sentenced to death for murder has had the death sentence commuted. The establishment of so many precedents in this matter has made it increasingly difficult for any Government not to recommend a reprieve, unless the particular circumstances are entirely exceptional.
The situation which has thus developed is, in my opinion, quite undesirable. In effect, the Executive have been deciding which murderers should be hanged rather than which of them should be reprieved. I consider that the law should indicate what the penalty for murder should be and that that penalty, when imposed by the trial judge in accordance with the law, should be carried out unless there are extenuating circumstances which would justify the Government taking action to commute the sentence in a particular case. This is quite different from the position obtaining here for ten years under which every person convicted of murder and sentenced solemnly to death has had the sentence commuted. To continue to have all, or even virtually all, death sentences commuted would undoubtedly tend to lessen respect for the law and the courts.
It would, moreover, involve a transfer to the Executive of a responsibility for the infliction of the death penalty which would far exceed their true function. This is to exercise clemency in individual cases where there are extenuating circumstances. The penalty to be prescribed for a crime is the responsibility of the Oireachtas and the determination of guilt and the imposition of the prescribed penalty is the concern of the courts. With the enactment of this measure, the whole matter will be put on a proper footing.
A second consideration which the Government took into account in the course of their examination of the problem was the practice of other countries, particularly Western European countries, in this respect. We are among six member countries of the Council of Europe which retain the death penalty. The other five are Britain, France, Greece, Turkey and Spain. In these countries, apart from Britain, the imposition of the death penalty is not generally mandatory and the accused may be sentenced to imprisonment instead.
In Northern Ireland and in Scotland, the death penalty is retained. In England and Wales, the law was amended in 1957 to confine the death penalty to five cases of ‘Capital' murder, namely, murder in furtherance of theft, murder by shooting or explosion, murder to evade arrest or to escape from legal custody and murder of police and prison officers. The death penalty was also retained for repeated murders. We are, therefore, among the small minority of Western European countries to keep the death penalty. However, it was necessary for the Government to approach a matter of such vital importance solely from this country's own point of view. They were concerned only with the question whether it was essential for us here, in our particular circumstances, to keep the death penalty for the purpose of maintaining law and order and the security of the State. After careful consideration, the Government were satisfied that, with some exceptions, the retention of the death penalty was no longer necessary for this purpose and that the substitution for the death penalty of an indeteminate prison sentence would be adequate punishment for murder.
I have referred to exceptions. The first of these relates to crimes having a political motive. It will be generally agreed that for the kind of person who kills from political motives imprisonment is not a deterrent. I am not sure that even the death penalty is a deterrent in cases of this kind, certainly for the more fanatical of the persons concerned, but there is undoubtedly a deterrent effect on any waverers or on the less heavily committed.
As regards the retention of the death penalty for killings of police or prison officers in the course of their duty, even in non-political cases, these men have a special responsibility in relation to the apprehension and custody of criminals, some of whom may be armed or violent, and this responsibility distinguishes them from the ordinary citizen to an extent which, in my opinion, justifies the making of special provision for them.
While the Bill has been favourably received generally, there has been some criticism of it on the ground that it is not entirely logical in the sense that it should either abolish the death penalty altogether or leave things as they are. Either of these courses was open to the Government and would have been equally easy to take. Both of them were, however, open to serious objection. I have already referred to the objections there are to retaining the status quo. If the Government had decided to make no change in the law, they would have acquiesced in the continuance of a situation which was tending to bring the law and the administration of justice into disrepute. In my opinion, the Oireachtas should lay down clearly by law what are the crimes for which persons should be executed, though in the cases for which the death penalty is retained the Government would, of course, continue to advise the President to exercise his constitutional function of commuting sentences in appropriate cases.
The alternative suggested was the outright abolition of the death penalty. The Government took the view, which I fully share, that it would not have been a prudent exercise of their responsibility to go this far at present. I hope, however, that the time is not too far distant when it will be possible to eliminate the death penalty for all or most of the categories for which it is being retained in the Bill.
I should like to conclude by saying a word about section 4, which provides a statutory definition of malice aforethought. This phrase is highly technical and its exact meaning is not entirely clear. It is a comprehensive name for a number of different mental attitudes which have been variously defined at different stages in the development of the law as rendering an unlawful killing murder.
The proposed definition involves certain amendments in the existing law. First of all, the doctrine of "constructive malice" has been abolished. Under this doctrine even an accidental killing committed in the course or furtherance of a felony involving violence or in resisting arrest or escaping from custody was murder. As well as abolishing constructive malice, the statutory definition will transfer certain other acts from the category of murder to that of manslaughter. At present it is murder, not manslaughter, if the accused has knowledge that the act resulting in death will probably cause death or grievous bodily harm although he is indifferent whether death or grievous bodily harm is caused or not, and may even wish that it may not be caused.
For example, at present a woman may be guilty of murder if she exposes a helpless infant in circumstances where there is not a reasonable expectation that it will be found by someone else. Under the proposed definition, such a woman would be guilty of manslaughter unless the jury were satisfied that she intended to kill the child or cause it serious injury.
I think this view of what should constitute murder—an intention to kill or cause serious injury—has a sound moral basis. In any event, the maximum punishment for manslaughter— penal servitude for life—will ensure that persons found guilty in these cases will be adequately punished.
Another difference between the common law definition and the statutory definition now proposed is the substitution of an intention to cause "serious injury" for an intention to cause "grievous bodily harm". The reason for this is that the expression "grievous bodily harm" has been interpreted in the past as meaning any serious interference with the victim's health or comfort. This interpretation would generally be regarded, I think, as being too much of a departure from the natural meaning of the phrase, that is to say, serious injury.
In conclusion, I should like to say that I am presenting the Bill for the consideration of the Seanad as a measure of law reform which appears to the Government to be essential to make the law more in accordance with current practice and current public opinion. I trust that it will be acceptable to Senators on this basis.